Why their voice must be heard
Aboriginal and Torres Strait Islander Australians gathered at Uluru in May 2017 called for “the establishment of a First Nations voice enshrined in the Constitution”. This call from Indigenous Australia remains the contemporary response to the initial offer made by John Howard 10 years earlier to recognise Aborigines and Torres Strait Islanders in the Australian Constitution.
In the week before the calling of the 2007 election, Howard had announced that if re-elected he would “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”.
Howard lost that election. His declaration remains the high-water mark of what has been promised by any Liberal prime minister on the issue of Indigenous constitutional recognition. He confined himself to the prospect of a preamble being inserted into the Constitution, what nowadays is labelled as minimal symbolic change. He never envisaged more substantive change to the Constitution.
In 2012, Patrick Dodson co-chaired the expert panel set up by Julia Gillard to look at the question of constitutional recognition. He and his co-chair Mark Leibler said: “An essential precondition to gaining the support needed for a successful referendum is cross-party parliamentary support.” The expert panel was agreed that “the referendum should only proceed when it is likely to be supported by all major political parties, and a majority of state governments”.
They were surely right when they adopted four principles to guide their assessment of proposals for constitutional recognition of Aboriginal and Torres Strait Islander peoples. They insisted that any proposal must:
● Contribute to a more unified and reconciled nation.
● Be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples.
● Be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums.
● Be technically and legally sound.
The Gillard government together with the Abbott opposition attempted to build on the work of the expert panel. The parliament unanimously passed the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 providing:
● The parliament, on behalf of the people of Australia, recognises that the continent and the islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples.
● The parliament, on behalf of the people of Australia, acknowledges the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.
● The parliament, on behalf of the people of Australia, acknowledges and respects the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.
Gillard told parliament: “The government has advanced this bill for an act of recognition, to assure Indigenous people that our purpose of amendment remains unbroken and to prepare the wider community for the responsibility that lies ahead.”
In response, Tony Abbott said: “It will not necessarily be straightforward to acknowledge the First Australians without creating new categories of discrimination, which we must avoid because no Australians should feel like strangers in their own country.”
Shadow attorney-general George Brandis had the carriage of the bill for the opposition in the Senate. He insisted “it is just as important that people with conservative views be persuaded as people who consider themselves to be progressives. If that is to happen the proposal must be modest and the tone of the debate must be respectful.”
Gillard was replaced by Kevin Rudd. Rudd then lost to Abbott. And Abbott was replaced by Malcolm Turnbull. The Turnbull government set up the Referendum Council, which abandoned the call for words of recognition being placed in the Constitution. Following the lead from Uluru, they confined their focus to the voice, recommending: “That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a voice to the commonwealth parliament. One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51(26) (the ‘race’ power) and section 122 (the ‘territories’ power). The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.”
Eighteen months later, three of the key leaders from Uluru, Pat Anderson, Megan Davis and Noel Pearson proposed to a parliamentary committee that there be a First Nations voice to present its views to government as well as to the parliament. This was a significant change.
They suggested that the voice be able to present views not just on proposed laws made under sections 51(26) and 122 but on all “matters relating to Aboriginal and Torres Strait Islander peoples”. Their suggested amendment to the Constitution was proposed well after the cut-off date for receipt of submissions. This meant there was little opportunity for other citizens to scrutinise their suggestion and put forward changes. It’s their proposed amendment that Prime Minister Anthony Albanese adopted at Garma, with a couple of changes.
Eight months after these Indigenous leaders put their submission to parliament, Murray Gleeson, who had been chief justice of Australia and a member of the Referendum Council, said: “It is difficult to see any objection in principle to the creation of a body to advise parliament about proposed laws relating to Indigenous affairs, and specifically about special laws enacted under the race power which, in its practical operation, is now a power to make laws about Indigenous people.” He was speaking about a body with a far more confined purpose than that now being proposed by Albanese and the key advocates from Uluru. Gleeson sounded a salutary warning note: “I think it very likely that Australians, and parliament itself, would want to see what the body looks like, and hear what the voice sounds like, before they vote on it.”
On March 17, 2021, Pearson delivered a significant address at the National Museum, appealing to the better instincts of the Liberal Party and invoking their senior statesman, Howard. He put this question to his national audience: “What is it that we are engaged in, and have been ever since prime minister John Howard made the commitment at the beginning of the 2007 federal election campaign?” Pearson conceded that Howard had never signed up to an Indigenous voice recognised in the Constitution. Howard was merely proposing what the advocates would now describe as symbolic recognition through the insertion of a preamble in the Constitution.
Pearson put his faith in Howard. On April 21, 2021, Pearson told the ABC that Abbott, Turnbull and Scott Morrison had dropped the ball. Harking back to earlier times, Pearson said, “It’s 13 years since John Howard launched constitutional recognition as an agenda. He said on the eve of the election that his party if re-elected would act within 18 months of the election. So had Howard won in 2007, this would all be history.”
Back in 2007-08, it’s unlikely that the parliament would have agreed to much more than the Gillard Recognition Act of 2013. Like his three successors, Howard as prime minister never endorsed the idea of the voice to parliament being inserted into the Constitution. If he were to do so now, that would be a real game changer. The key now could be to invite Pearson and Howard to work on a joint proposal! This would require Howard to affirm the need for a voice and for Pearson to concede the constitutional limits on the voice.
There are many issues that need to be resolved as we seek a way forward realising the promise of the Uluru statement. All voters need to know what the body will look like and what the voice will sound like. Will the body have distinctive constitutional functions and will it be possible to invest the body with additional functions by way of legislation? Should the new representative body which will be the voice be primarily a voice to parliament or a voice both to parliament and to government? Should this body be primarily concerned with the scrutiny of proposed laws specific to Aborigines and Torres Strait Islanders – laws on topics such as land rights and cultural heritage? Or should it be charged with the monitoring of all laws and policies that affect Aborigines and Torres Strait Islanders – laws and policies on matters such as education, health, taxation and welfare reform? Would that not include most if not all laws and policies made by parliament and government? Remember, for example, that the government is already committed to “a First Nations foreign policy”.
These are all legitimate questions in light of the various suggestions that have been put by a variety of Indigenous leaders over the past 10 years. One thing is certain. There will be no point in the Labor government proceeding with a referendum unless and until all major political parties in our parliament are agreed on the shape and scope of the voice. If in any doubt about that, just remind yourself that the Labor Party has made 25 attempts to amend the Constitution since Federation, and they have failed on 24 of those occasions. Anyone who voted in the one successful Labor referendum is now over 97 years of age.
Northern Territory senator Jacinta Price in her maiden speech said: “This government has yet to demonstrate how this proposed voice will deliver practical outcomes and unite rather than drive a wedge further between Indigenous and non-Indigenous Australia … It would be far more dignifying if we were recognised and respected as individuals in our own right who are not simply defined by our racial heritage but by the content of our character.”
The challenge is to convince conservatives that a constitutional advisory body is desirable, and perhaps even necessary, because it will not drive a wedge further between Indigenous and non-Indigenous Australia and will not entrench separatism. Conservative critics of the voice seem to be suggesting that there is no longer a need to make special laws for Aborigines and Torres Strait Islanders and thus there is no need to make special provision for the way they are to be consulted. Nothing could be further from the truth. Constitutional conservatives should agree that section 51(26) of the Constitution, which allows the parliament to make laws “with respect to the people of any race for whom it is deemed necessary to make special laws”, is a fairly outdated provision. Aborigines and Torres Strait Islanders are the only Australians subject to such special laws in the 21st century. Usually these are laws in relation to specifically Aboriginal issues such as land rights, native title, cultural heritage, and Indigenous languages.
If parliament is to make such special laws, surely those Australians who are the custodians of this heritage and the holders of these distinctive rights should be consulted. Sometimes these “special laws” are enacted on other issues that are not uniquely Indigenous, such as laws restricting access to alcohol. But then these laws are made applicable only to Aborigines and Torres Strait Islanders, being classed as special measures under the Racial Discrimination Act.
For example the recently lapsed Northern Territory National Emergency Response Act 2007 that established grog bans on remote communities in the NT provided: “The provisions of this act, and any acts done under or for the purposes of those provisions, are, for the purposes of the Racial Discrimination Act 1975, special measures.” Such special measures do not get extended to any other racial groups in contemporary Australia. If such measures are to be enacted in the 21st century, there ought be some constitutional mechanism for ensuring consultation with the affected racial group.
The primary constitutional function of the voice should be to provide a means by which Aboriginal and Torres Strait Islander peoples are consulted prior to the enactment of laws that apply especially to them. Why not simply add this provision to the Constitution: “There shall be an Aboriginal and Torres Strait Islander voice with such structure and functions as the parliament deems necessary to facilitate consultation prior to the making of special laws with respect to Aborigines and Torres Strait Islanders.”
This would be a way of completing the Constitution, not changing it, and consistent with the Uluru statement. This is not the stuff of wedges; it’s the glue to consolidate the unity of the Australian polity. This is the absolute minimum of what a constitutional voice to parliament should include. The question will be whether it is sufficient to satisfy the advocates from Uluru. In the end, there will be little point in proceeding with a referendum unless the words for insertion in the Constitution win the support of both Pearson and Howard.
The parliament now needs to provide a process for all persons of goodwill to submit their suggested wording so the parliament might land on a proposal that enhances the prospects of winning the support of the majority of voters in the majority of states.
This is an edited extract from Father Frank Brennan’s Newman Lecture on Wednesday at Mannix College, Monash University.
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