Recognition of Indigenous Australians and the Constitution

Consensus is vital to reassure an undecided electorate.

Aboriginal dancers perform a traditional dance at the Gulf Country Frontier Music Festival in Gregory Downs in Queensland. Picture: Lyndon Mechielsen

On the eve of the federal election, prime minister John Howard kicked off his campaign at the Wentworth Sofitel Hotel on October 17, 2007 with a speech titled “The Right Time: Constitutional Recognition for Indigenous Australians”. He told an audience of The Sydney Institute: “Tonight my focus is another topic of utmost national importance; one that transcends the past, the present and the future of Australia and that goes to the heart of our national identity and shared destiny.”

The eight-page speech is extraordinary reading almost a decade and a half later. It is yet another reminder that his cultural and political opponents rarely heard what he said. This speech, along with his 2004 address at Old Parliament House, set out the conservative prime minister’s worldview on recognition and reconciliation. There is little that any well-meaning Australian from the other side of the cultural and political aisle could disagree with.

He said: “The Australian people want to move. They want to move towards a new settlement of this issue. I share that desire, which is why I am here tonight. I announce that, if re-elected, I will put to the Australian people within 18 months a referendum to formally recognise Indigenous Australians in our Constitution — their history as the first inhabitants of our country, their unique heritage of culture and languages, and their special (though not separate) place within a reconciled, indivisible nation.”

It is not only leftists who are ignorant of these important speeches, most of the cultural and political right, not the least the readers of this newspaper, are if not ignorant, then obscurant about them. That the current campaign for constitutional recognition of Indigenous Australians began with John Howard in 2007.

At that time Scott Morrison was a first-time candidate for the federal seat of Cook.

In my remarks to the National Museum on Wednesday I first wanted to get clear what this whole business is about: the recognition of Indigenous Australians. Howard was the first prime minister to use the word recognition.

Secondly, I wanted to say why recognition was needed: because it was never done in the past and is still undone today. Howard and Kevin Rudd made their 2007 commitments for this reason.

Thirdly, I wanted to say this recognition was to be made in the Australian Constitution. From Howard onwards there has been bipartisan commitment to enact recognition in the Constitution.

Fourthly, the question of how that constitutional recognition is to be effected — the form which it should take — is a matter for legal policy debate and we have had 10 years of it by now. Two official bodies appointed by prime ministers of the day consulting with their respective opposition leaders that undertook research and public consultations, a committee led by former deputy prime minister John Anderson, and two parliamentary committees that held extensive hearings across the country.

The first parliamentary committee report chaired by now minister Ken Wyatt made recommendations that could not be supported by constitutional conservatives in his own party. This was because the proposals would be justiciable before the High Court.

The second parliamentary committee co-chaired by Liberal MP Julian Leeser and Labor senator Patrick Dodson reported in November 2018. Their only model for constitutional recognition was the voice to parliament.

The Leeser-Dodson committee urged a two-phase process; the first to co-design the legislation, the second to develop legislative, executive and constitutional options to establish the voice.

Howard was clear in his preference that constitutional recognition take the form of a preamble. In his Sydney Institute speech he said: “My goal is to see a new Statement of Reconciliation incorporated into the Preamble of the Australian Constitution. If elected, I would commit immediately to working in consultation with Indigenous leaders and others on this task.”

Howard sent me his speech before he delivered it. Its substance was the subject of various meetings and communications commencing in 2004 and in the lead-up to his Sydney Institute speech. We particularly spoke about the above extract in the hours before he delivered it.

I told him a preambular statement would not be sufficient. He told me essentially that the form of recognition could be worked out in the future. I took his word for it.

I have no doubt that Howard’s approach was the subject of careful and rigorous thought on his part and arrived at in good faith according to his own conservative philosophy and convictions. I also have no doubt that his approach is unchanged today.

My point is this: That it is one thing for he and I and any other Australian to have our own philosophical and intellectual convictions about the optimum model for constitutional recognition, but surely our own convictions could not be the last word? We live in a democracy that has time-honoured procedures for public policy debate and development, not the least committees of the parliament, and it behoves us to pay appropriate respect to these and their outcomes.

We have had more than a decade of official democratic process sanctioned by governments of the day and their oppositions.

Preambular recognition was not an outcome of this long process. Indeed, one of the strongest arguments against it comes from constitutional conservatives like Leeser who rightly point to preambular words as giving rise to potentially unintended interpretative consequences.

There is common ground, at least between advocates of recognition like me and constitutional conservative supporters that any form of recognition should be constitutionally safe. That we should aim to uphold the Constitution while recognising Indigenous peoples.

Going into the 2019 federal election the Liberal Party’s election platform took up the Leeser-Dodson committee’s approach. It reads: “We are committed to recognising Aboriginal and Torres Strait Islander Australians in the Constitution at the same time as delivering practical outcomes to improve the lives of Aboriginal and Torres Strait Islander communities. But there needs to be more work done on what model we take to a referendum and what a voice to parliament would be — which is why we are funding a consultation process with Aboriginal and Torres Strait Islander Australians. This process will develop up a question for a referendum and what a referendum will deliver — because no one can answer what a voice to parliament actually is at the moment.”

When opening parliament in July 2019, Governor-General David Hurley said: “My government will also continue to work to find consensus on a way forward for constitutional recognition of Indigenous Australians and develop ground-up governance models for enhanced, inclusive and local decision-making on issues impacting the lives of Indigenous Australians.”

The Morrison government set aside $7.3m in the 2019 budget for the co-design of the voice and $160m in the forward estimates for the conduct of a referendum.

In his address to the parliament on Closing the Gap in 2020, Scott Morrison said: “The (Leeser-Dodson) committee did not make recommendations as to the legal form of the voice, constitutional or legislation. It recommended considering this matter after the process of co-design is complete and that’s what we are doing. We support finalising co-design first.”

On Thursday this newspaper finally got a wicket after two years of assiduous spin bowling trying to get the Morrison government to flat out reject constitutional recognition. While there has been much fodder for many stories writing off constitutional amendment, Morrison never contradicted the election commitment his party took to the 2019 election.

This Thursday the Prime Minister said: “It is not the government’s policy … It has never been the government’s policy. There is no change to the government’s policy. What we are proceeding with is the co-design process that we set up that is seeking the best possible way to have that voice to government and I’ve had numerous meetings myself on this matter and the Minister for Indigenous Australians is progressing that. On the other issue of constitutional recognition, more broadly, then there is still no clear consensus proposal at this stage, which would suggest mainstream support in the Indigenous community or elsewhere. So we are focused on pursuing the co-design process, on the voice to government.”

I would appeal this LBW.

This is consistent with everything Morrison has said all along. There is a two-stage process. The current process is co-designing the voice. Constitutional recognition is the second stage. That there is “no consensus yet” on the latter is a fair enough call. Mainstream and Indigenous support for constitutional recognition must be made clear.

Every candidate for prime minister and their respective parties at every election since 2007 committed to constitutional recognition. Polling by Crosby Textor tells us that 57 per cent of Australians would support constitutional recognition, 17 per cent would oppose with just over a quarter undecided at this point. An appropriate question needs to be settled by consensus and put to the quiet Australians to decide at a referendum.

Noel Pearson is a director of Cape York Partnership and co-chairs Good to Great Schools Australia.