Indigenous voice ideal option for constitutional change

, - July 22, 2017

The Referendum Council’s two simple recommendations this week break the impasse presented by previous reports on recognition of indigenous Australians. The report identifies a single proposition that can be guided through the narrow window of constitutional opportunity.

The report rejects uncertain symbolism in the Constitution. It rejects a racial non-discrimination clause that previously blocked bipartisanship. It rejects minimalist tinkering with the race provisions. It presents one simple constitutional reform: an indigenous voice in the Constitution. It also proposes a symbolic declaration outside the Constitution.

Malcolm Turnbull was circumspect in his response, describing the voice as a “big new idea”.

The proposal is big in the sense that it is the substantive reform that indigenous Australians are calling for. It is also constitutionally modest: there is no “one-clause bill of rights”. The Referendum Council proposes a noble compromise: a constitutional body to give Aboriginal and Torres Strait Islanders a voice in their affairs. Not a veto: a voice.

The proposition is modest yet profound, but it is not “new”. On this the Prime Minister, like senator Patrick Dodson, who described it as “a bolt in the dark”, must be respectfully corrected. The call for a voice is a decades-old idea going back to the earliest Aboriginal and Torres Strait Islander leaders. It is about self-­determination. Indigenous repre­sentation, participation and con­sultation in political decisions made about indigenous rights is also a requirement under the UN Declaration on the Rights of Indigenous Peoples, which Australia endorsed in 2009.

The idea of a constitutionally mandated voice is at least three years old. Noel Pearson proposed it in his 2014 Quarterly Essay. The Cape York Institute made three submissions to the joint select committee chaired by Liberal MP Ken Wyatt in 2015. A collection of conservative essays, The Forgotten People, was published last year. There have been countless speeches and articles, and a constitutional body was one of the proposals Turnbull asked the Refer­endum Council to consult on. This is no “bolt in the dark”. It is the result of years of work.

Turnbull’s other concern was the proposal is short on detail. While there is much work yet to be done, there is extensive thinking that can be drawn on.

Constitutional law professor Anne Twomey released a draft constitutional amendment establishing an indigenous body in 2015, along with an article explaining her drafting. A number of academics have published articles interrogating the proposal.

The proposal has been scrutinised from three different political perspectives. The dialogues and the Uluru Statement from the Heart provided the First Nations perspective. Representatives said the voice must be constitutionally guaranteed.

The constitutional conservative perspective has been provided by people such as MP Julian Leeser, who have sought a solution that guarantees a permanent constitutional voice without creating legal uncertainty. This reform upholds the Constitution and respects parliamentary supremacy. Leeser describes Twomey’s amendment as “the kind of clause Griffith and Barton might have drafted, had they turned their minds to it”.

The liberal perspective is that local voices are more crucial than a top-down national voice: this should be about keeping power, legitimacy and accountability with local people and communities, so they can take charge of their affairs. This is the way to improve outcomes.

Drawing on these perspectives, Cape York Institute developed a design issues report to further the proposal, commissioned by the Referendum Council. The report was read by the Prime Minister before his meeting with the Referendum Council on Monday, and was released on his department’s website this week.

The report discusses international examples of similar representative bodies. The Saami Council of Norway is an elected advisory body. The Finnish body is tasked with looking after Saami language and culture and “matters relating to their status as an indigenous people”. The Assembly of First Nations in Canada is made up of more than 600 First Nations. The Maori Council in New Zealand allows Maori or non-Maori to stand for election, either in the area in which they reside or the area in which they have cultural affiliations.

Our report is an issues paper. It does not purport to represent the views of indigenous Australians, nor the Referendum Council. It presents ideas, not definitive conclusions.

Under a constitutional amendment, parliament would have the power to enact legislation to set up the body, its structures, functions and procedures. These details cannot be articulated in the Constitution. Ultimately, therefore, the design and details of the body are matters for parliament to decide in partnership with Australia’s indigenous peoples.

The aim of such a body should be to represent and give voice to the First Nations of Australia in their contemporary form. It should represent, as Galarrwuy Yunupingu has appropriately described, “Aboriginal people in a modern world”.

The structure should not be top down but bottom up. It should empower local tribes with a voice in their local affairs. This is where we agree with Warren Mundine. It must empower the cultural equivalent of Edmund Burke’s “small platoons” to take responsibility in their affairs. Representatives must not be handpicked by government.

Bill Shorten was more upbeat in his response to the Referendum Council report. The Opposition Leader said on Monday: “These are legitimate aspirations. These are big changes, as the Prime Minister has said. I do not think they are beyond us …

“Our task is to take the collective wisdom of the council (and) turn it into awareness and support for change across the country.”

However, in the days that followed, Labor MP Linda Burney went to the media with a contrary position. She described the recommendations as “limiting”, as providing “no clear line of sight” to a referendum, and urged “dealing with” the race powers instead. This was a strange turn of events.

Despite Burney’s concerns, the Referendum Council was right to abandon the race clauses discussion. The report does not recommend amendment to the race provisions because indigenous people did not adopt such reforms at Uluru and because they are unviable.

If by “dealing with” the race provisions Burney means some variation of a racial non-discrimination clause as pushed by the expert panel and the joint select committee, she is misguided. That clause was opposed by politicians, especially on the right, and reached a dead end after the joint select committee recommended three versions in its final report, only for its chairman, Wyatt, to subsequently describe the clause as unviable due to opposition in his party. He was right.

If Burney means we should simply delete section 25 — a dead-letter provision on voting — and change the word race to Aboriginal and Torres Strait Islander peoples in the race power, without any substantive limitation on parliament’s power, she is also misguided. Removing the word race would be a purely symbolic change with no operational effect. It would not prevent discriminatory laws. The Uluru consensus ­decisively rejected minimalist tinkering with the race clauses. It opted for a voice instead.

If Burney means simple removal of the race clauses without replacing the race power, she is completely misguided. This would throw into uncertainty indigenous-specific legislation such as the Native Title Act.

Uluru and the Referendum Council moved on from the race provisions. Burney should too.

Constitutional lawyers have already wasted decades fretting about how to appropriately limit the commonwealth’s power to racially discriminate without sacrificing parliament’s capacity to enact necessary laws with respect to indigenous affairs. The legal reality is there is no substantive solution that does not empower the High Court to strike down parliamentary legislation, and this creates a political roadblock.

A better and simpler solution is presented in the Referendum Council’s report. The solution is to empower indigenous people with a voice in laws made about them, rather than empowering the High Court to strike down discriminatory laws. The Australian’s editorial observed this week, “There is a compelling logic to the argument that if parliament is to have power over indigenous affairs, it should take advice from indigenous citizens.”

This would indeed constitutionalism the Prime Minister’s promise to “do things with indigenous people, rather than to them”. He rightly abjures heroic failure. But the opposite of heroic failure is heroic success.

Samuel Griffith and Edmund Barton could have done it. If Turnbull, Shorten, Tony Abbott and other members of parliament turn their minds to this today, they could do it too.