To have the heart for constitutional reform

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Uluru in Australia's Northern Territory (Anangu land)

Almost 30 years ago, then Prime Minister Paul Keating addressed audiences in Redfern Park in New South Wales for the launch of Australia’s celebration of the 1993 International Year of the World’s Indigenous People. In his address, Prime Minister Keating remarked:

[It] was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases. The alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion.

It was our ignorance and our prejudice…. We failed to ask - how would I feel if this were done to me? As a consequence, we failed to see that what we were doing degraded all of us.”

The so-called ‘Redfern Speech’ came just six months after the landmark Mabo decision in which the High Court held the common law of Australia recognised a concept of native title to the traditional lands and waters of Aboriginal and Torres Strait Islander people. In other words, Australia was not terra nullius - belonging to no-one - at the time of colonisation but Aboriginal and Torres Strait Islander people have legally recognised rights to Australian land and waters through their traditional laws and customs.

Three decades on, newly elected Australian Prime Minister Anthony Albanese opened his victory speech with an Acknowledgment of Country - and a commitment to the Uluru Statement from the Heart.

So what is the Uluru Statement from the Heart?

“In short, the Uluru Statement follows the largest consensus of First Nations peoples on a proposal for substantive reform in Australian history.”

An invitation

The Uluru Statement is an invitation to walk with Aboriginal and Torres Strait Islander people in a movement of the Australian people for a better future.

To understand the significance of this it is perhaps helpful to understand what led to the making of the invitation, by whom it is made and to whom it is made.

There is a detailed description of the robust process that led to the formulation of the invitation Uluru Statement in Megan Davis and George Williams’ “Everything you need to know about the Uluru Statement from the Heart (what can we say about the title other than that they’re lawyers, not marketing people). There has been extensive consultation over many years with increasing intensity and focus since 2010.

In 2015, then Prime Minister Malcolm Turnbull announced the establishment of the Referendum Council which would oversee a deliberative process designed and led by First Nations People. This led to a series of Regional Dialogues on the options and approach to achieving real change.

In short, the Uluru Statement follows the largest consensus of First Nations peoples on a proposal for substantive reform in Australian history. However, that’s not to say all First Nations people agree about the Uluru Statement – but more about that later.

The invitation follows years of government reports. Reports on how to close the gap between Aboriginal and Torres Strait Islander standards of health, education, resilience and safety, and numerous legislative changes. The difference here is this is an invitation emanating from a process designed and led by First Nations people - and the invitation is extended to the Australian people. It is not a request to a government but an invitation by about 3 per cent of the Australian population to the other 97 per cent to walk with them for a better future.

The proposed reforms

To achieve that future, the Uluru Statement calls for two key reforms. First, the establishment of a First Nations’ Voice enshrined in the Constitution. That is, a representative body for Aboriginal and Torres Strait Islander people that is empowered to advise Parliament in the creation of laws, policies and projects affecting Aboriginal and Torres Strait Islander people.

This is not a new concept – in establishing a Voice, Australia would join a number of other nations that have formally provided a voice to their indigenous minorities such as New Zealand, Canada, USA, Norway, Sweden, Finland and Colombia.

Second, a Makarrata Commission to supervise a process of agreement-making and truth-telling about Australian history. Makarrata is the ancient Yolngu word for the idea of two parties coming together after a struggle to heal historical divisions, acknowledge wrongdoing and seek to make things right.

In the context of the Uluru Statement, Makarrata refers to the establishment of a commission and federal framework for Aboriginal and Torres Strait Islanders to come together with the federal government and reach agreements as equal parties capable of full, free and informed consent. This is something various state and territory governments in Australia are already doing. However, to date, there is no similar federal process.

In relation to truth-telling, Makarrata involves acknowledging the historical and ongoing disempowerment of Aboriginal and Torres Strait Islander people, including in their interactions with the legal system. This truth-telling is intended to assist in educating all Australians of the injustices faced by Aboriginal and Torres Strait Islanders since the time of European colonisation and ideally to lead the nation towards genuine reconciliation.

Constitutional change, not legislative reform

Why Constitutional change? And what’s the difference between Constitutional change and legislative reform? The Australian Constitution is the agreement by which the former colonies came together as states in a federation. It establishes the form of the federal government (the Commonwealth) and sets out the basis for relations between the Commonwealth and the states and territories. It is also a ‘supreme law’ meaning it overrides other laws and can only be changed with the approval of the Australian people. This distinguishes it from ordinary legislation which can - and very often is - changed with a change of government. The benefit of constitutional reform is that it would ensure the Voice is distinguished from the usual voices to government, independent from the government of the day and not readily able to be abolished.

But constitutional reform is not easy to achieve. In fact, the odds are against it with only eight of 44 previous referenda being passed. Any constitutional change must be approved by Parliament and then by Australian voters in a referendum. A referendum is only passed if it is approved by a ‘double majority’ – that is, a majority of voters in a majority of states and by a majority of voters across the nation.

Still, the most successful attempt to change the Constitution was in fact the 1967 referendum in which Australians voted overwhelmingly to amend the Constitution to allow the Commonwealth to make laws for Aboriginal people and include them in the census. Prior to this time, the Constitution contained a provision that expressly excluded “aboriginal natives” from being counted in the numbers of people of the Commonwealth or a state. In the 1967 referendum, over 90 per cent of the population voted for the removal of this provision, allowing the inclusion of all indigenous Australians in population counts.

While we’re talking about voting, it is worth noting Aboriginal and Torres Strait Islander people were only legally enabled to vote in federal elections in 1962 but unlike for others it was not compulsory. Full voting rights were not granted federally until Aboriginal and Torres Strait Islander people were required to register on the electoral roll in 1984. For perspective, this was the same year Prince released the album Purple Rain and Kevin Bacon starred in Footloose – which some people may well remember as if it was yesterday.

Of itself, the Uluru Statement does not prescribe the form of a Voice or Makarrata Commission or the model by which they would operate. Its purpose in articulating two positions capable of attracting broad support is they can become the foundations of a renewed conversation with the whole Australian community about constitutional reform and recognition of Aboriginal and Torres Strait Islander people.

As Dean Parkin, Director of From the Heart - a campaign for an Aboriginal and Torres Strait Islander Voice to Parliament enshrined in the Constitution - pointed out: “In the ten years of the Closing the Gap strategy, we have seen six prime ministers and 27 premiers and chief ministers come and go. It is hard to take a generational view on issues like children and out of home care with that sort of disruption.”

A constitutional referendum is also intended to give the Voice the public legitimacy and authority needed to ensure the government and Parliament take its advice seriously.

Not everyone agrees, including some First Nations People

You may already have heard (and if not you will likely hear in coming months) disagreement exists around the Uluru Statement, including from some Aboriginal and Torres Strait Islander people. Those views are not unreasonable and are important to be heard as you form your own view about the Uluru Statement. For example, Aboriginal and Torres Strait Islander members of the Greens party currently have and have previously had mixed views.

Without wishing to speak on their behalf, a key concern is the order in which the Uluru Statement addresses issues. Some feel a Voice should follow truth-telling and treaties. In other words, they do not oppose the Uluru Statement but they would re-prioritise the order in which key issues are tackled.

Others raise concerns that full details are not spelled out by the Uluru Statement and also raise concerns (and sometimes mischief) about the dark future that might lie behind the unarticulated detail.

This is not a place to engage in political debate and it is important to be respectful of other views. In the end, one should not lose sight of the achievement that after extensive consultation, widespread but not perfect consensus (does any important issue ever achieve that?) and years of planning, we are being asked to walk with the Aboriginal and Torres Strait Islander community for a better Australia.

A referendum presents a rare opportunity for Australians to actively participate in fair, practical and unifying reform, and to shape the laws of the country.

To finish as we started, with the words of Paul Keating:

“The message should be that there is nothing to fear or to lose in the recognition of historical truth, or the extension of social justice, or the deepening of Australian social democracy to include indigenous Australians. There is everything to gain.”

Ken Adams is Group General Counsel & Reconciliation Network Executive Sponsor and Yael Boneh is a Lawyer at ANZ

ANZ has accepted the invitation of the Uluru Statement from the Heart and supports a First Nations Voice to Parliament enshrined in the Australian Constitution.

The views and opinions expressed in this communication are those of the author and may not necessarily state or reflect those of ANZ.

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