Conservatives eat their own words on the Indigenous voice

Noel Pearson signs the Uluru Statement from the Heart.

Exhibit one underscoring the importance of the constitutional voice to the parliament and the executive government is the destruction of the more than 43,000-year-old heritage of Juukan Gorge by Rio Tinto on May 24, 2020. Not even conservative parliamentarians George Christensen and Dean Smith could contain their outrage at this offence against Australian heritage when they wrote their report on the subsequent parliamentary inquiry.

Barely scrutinised was the question: why wasn’t the emergency declaration provision of the federal Aboriginal and Torres Strait Islander Heritage Protection Act used to protect Juukan Gorge from impending destruction? Australia had the necessary law since the Hawke government enactment in 1984.

The federal government had the legal power to intervene, vested in the environment minister at the time, Sussan Ley. Representatives of the traditional owners were urgently trying to get on to Ley and her department. The parliamentary committee heard about phone calls not being returned, even as the weeks, days and hours ticked towards detonation. Australia had the mechanism of protection. The power lay within the executive power of the government minister. It was never exercised. In fact, the evidence from the parliamentary inquiry has all the hallmarks of a minister and department dodging her responsibilities, not wanting to get involved in a potential controversy. It was a dereliction of ministerial responsibility by Ley.

The Juukan tragedy was years in the making. Evidence of its enormous heritage value had been accumulating with every new study. Had the executive government been properly accountable for carrying out its responsibilities under the law, then the Juukan vandalism could have been avoided years before.

This is why a voice to the executive is as imperative as a voice to parliament.

A middle ground would mean the representations made by the voice to the minister on behalf of the group fearing the destruction of their heritage would need to be taken seriously by the minister. The representations would not take away the minister’s power, but the minister would need to hear them in exercising ministerial responsibilities.

Taking the representations of the voice of Aboriginal and Torres Strait Islander peoples into account in executive government matters would produce better policy and administration in Indigenous affairs – and avoid a repeat of the Juukan destruction.

The current discussion being conducted in these pages is based on falsehoods. The same so-called constitutional conservatives now attacking the idea of Indigenous advice to the executive government in fact collaborated with Indigenous leaders to devise the concept in 2014.

Fickleness seems a common characteristic among those with political power to change Indigenous lives.

Read the original proposed amendment that we drafted together with the vice-chancellor of the Australian Catholic University at the time, Greg Craven; the then head of the Samuel Griffith Society, Julian Leeser; University of Sydney professor of constitutional law Anne Twomey; and ACU faculty member Damien Freeman. Clause (1) proposed that the body “shall have the function of providing advice to the parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples”.

Our collaboration devised an alternative solution to the previously recommended racial non-discrimination guarantee, the preferred provision of past reports. This alternative was a constitutionally guaranteed advisory body. Instead of amending the Constitution to empower the High Court to decide what was a good or bad law or policy for Indigenous people, perhaps the Constitution could be amended to guarantee that Indigenous communities themselves would have a fairer say in laws and policies made about them – a principle of partnership right at the start, when those laws and policies were being formulated.

Not a veto, just an advisory voice. We negotiated every word, comma and semicolon of the proposed amendment until each in the group was satisfied that it would empower Indigenous peoples with an advisory say in their affairs while respecting parliamentary supremacy, eliminating legal uncertainty and upholding the Constitution. This history is recounted in Shireen Morris’s book, Radical Heart.

The group, together with professor Marcia Langton, then wrote a joint letter to prime minister Tony Abbott in September 2014. We subsequently met him and his chief of staff, Peta Credlin, to share the constitutional drafting. We will never forget the day Abbott looked us in the eyes and told us he supported a constitutional advisory body.

Fickleness seems a common characteristic among those with political power to change Indigenous lives.

Jesuit priest and law professor Frank Brennan now proposes a constitutional provision that recognises a voice, but back in 2015 he was opposed. In response to his criticisms, Twomey published the drafting agreed with constitutional conservatives in The Conversation. It read:

(1) There shall be an Aboriginal and Torres Strait Islander body, to be called the (insert appropriate name, perhaps drawn from an Aboriginal or Torres Strait Islander language), which shall have the function of providing advice to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.

(2) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, roles, powers and procedures of the (body).

(3) The Prime Minister (or the Speaker/President of the Senate) shall cause a copy of the (body’s) advice to be tabled in each House of Parliament as soon as practicable after receiving it.

(4) The House of Representatives and the Senate shall give consideration to the tabled advice of the (body) in debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples.

It was constitutional conservatives who in 2014 emphasised the importance of Indigenous people giving early advice on policy, so that this constitutional change would make a genuine practical difference to Indigenous communities.

Leeser suggested that advice given only on proposed laws would come too late in the political process to have real impact. By the time bills are proposed, policy positions are already locked in and difficult to change.

The constitutional commitment to Indigenous advice on policymaking and lawmaking was necessary to enable true partnership at every stage of policy development.

The idea of a constitutionally guaranteed Indigenous body came from collaboration with these constitutional conservatives. The importance of constitutionally mandated advice on executive government policies, as well as parliament’s laws, came out of engagement with Craven, Leeser and Freeman. And these constitutional conservatives were satisfied that this was a sensible and pragmatic constitutional amendment that we should all champion.

The group’s commitment to the drafting seemed genuine. Leeser wrote in The Forgotten People in 2016 that this was “the kind of clause that Griffith, Barton and their colleagues might have drafted, had they turned their minds to it”. Craven in this paper called it “modest yet profound”. Freeman in his conclusion to Statements from the Soul, co-edited with Morris and released just this week, expressed his support for the concept he co-created. He explains:

“The Uluru Statement from the Heart calls for a written obligation in the Australian Constitution – an obligation imposed on the parliament and the government to hear Indigenous people’s voices when political decisions are made about them.”

An obligation imposed on parliament and the government.

This history provides the context for the untruths and confusion now being sown.

Writing in this paper in November last year, Craven claimed “the current broad proposal for the voice to consider past and proposed legislative and executive action … goes way beyond the original idea of a voice vetting new laws”. This is untrue. Craven knows the original drafting, which he helped formulate, included advice to the executive.

Barrister Louise Clegg is among those trashing the government’s draft amendment as “radical” and too broad, in part because the voice can provide advice to the executive.

Clegg proposed a right to be consulted incorporated in the relevant head of power instead. But this would enable laws to be invalidated by the High Court – the outcome constitutional conservatives wanted to avoid.

Brennan also has proposed this previously (though he now proposes a different provision), notwithstanding that this would involve transfer of power to the judiciary, enabling the High Court to strike down laws. His proposals for constitutional recognition have changed many times across the past decade.

Much of the criticism being directed at the idea of constitutionally mandated advice to the executive government centres on the misconception that this is a new addition to the voice concept – an idea repeated by Paul Kelly this week.

Brennan and others seem to think the Referendum Council’s recommendation for a constitutional voice suggested only a voice to parliament that would be mainly focused on proposed laws made under the race power.

This is incorrect. Though the Referendum Council final report used the term “voice to parliament”, it makes clear through multiple references throughout that the proposed voice would give advice on laws and policies relating to Indigenous affairs.

Former chief justice Murray Gleeson, in his 2019 speech, also affirms: “It was Professor Twomey who drafted what I understand to be the original proposed form of amendment. Her proposal demonstrated that a constitutionally entrenched voice can be achieved without legal derogation from parliamentary supremacy.”

That provision, as noted, mandated advice to parliament and the executive. Indigenous communities need a constitutionally guaranteed voice to parliament and government. So why are some conservatives trashing their own proposal?

Perhaps it is cowardice or tribalism: they have turned hostile because the voice referendum is being put by a Labor government. The Coalition missed the opportunity to lead on this issue. And some don’t like the way the Albanese government is running this referendum. So they are punishing the government or trying to force it to change course, and in the process attacking the concept they devised – even if it is Indigenous people who ultimately pay.

Some seem to have decided that the only way to win Liberal Party support for a constitutional voice is to attack key elements of their own drafting, in the hopes of forcing Indigenous people to accept something weaker.

The belief may be that watering down the amendment will deliver bipartisanship. But which Liberal politicians, let alone Peter Dutton, are committing to support the voice referendum if the reference to executive government were removed?

Craven is attacking the proposal he co-created. He has been less than candid about his co-authorship of the original 2014 draft. Indigenous communities, and the whole country, may pay a dear price.

Shireen Morris is director of the Radical Centre Policy Lab at Macquarie University. Noel Pearson is a director of Australians for Indigenous Constitutional Recognition.