A RIGHTFUL BUT NOT SEPARATE PLACE
It is 54 years since W.E.H. Stanner’s 1968 Boyer Lectures, After the Dreaming. In these lectures I could not avoid the lumination of Stanner’s original – in my view still the greatest of the Boyers and as vital today as when first delivered. In the course of these lectures I will reflect on his salient insights into the condition and standing of Aboriginal and Torres Strait Islanders within the Commonwealth of Australia, a half century on.
Stanner said in his second lecture:
… on the evidence the Aborigines have always been looking for two things: a decent union of their lives with ours but on terms that let them preserve their own identity, not their inclusion willy-nilly in our scheme of things and a fake identity, but development within a new way of life that has the imprint of their own ideas. (Stanner 1968, p191)
He was right then and his formulation still right today: Aboriginal peoples seek a decent union of their lives with other Australians but on terms that let them preserve their own identity. Dismissing assimilation or compliant capitulation to whatever schemes the larger and more powerful inheritors of the colonial history may have in mind, Stanner’s words, that the Aborigines seek “development within a new way of life that has the imprint of their own ideas” could not be better expressed today.
Stanner’s words capture the essence of our challenge. It is about the right balance between commonality and difference, unity and diversity, citizenship and peoplehood, development and heritage. How to give effect to this goes to the heart of how Aboriginal identity is to be recognised within the scheme of the Australian federation. The road upon which we are embarked for a referendum on the Constitutional Recognition of Indigenous Australians has its genesis in this lacuna, the proper resolution of which remained forlorn – until now.
The pathway to this current prospect was opened by the 25th prime minister of Australia. On the eve of the 2007 federal election, the self-proclaimed “most conservative leader the Liberal party has ever had” opened his election campaign with a speech to The Sydney Institute that remains to this day the core rationale for constitutional recognition. It is fascinating to re-read fifteen years later. There are few better justifications for this agenda than this speech. Its importance lies in its conservatism. This was no sudden turn to the left. It is the case for recognition, admitting of shortcomings, but un-resiling from the speaker’s long-standing and well-known conservative convictions.
John Howard said:
For my generation – Australians who came of age in the 1950s and 1960s – it has been ever present; a subject of deep sorrow and of great hope. The challenge an unfinished business of our time. It is the place of Indigenous people in the profound, compelling and unfolding story of Australia.
He admitted:
There have been low points when dialogue between me as Prime Minister and many Indigenous leaders dwindled almost to the point of non- existence. I fully accept my share of the blame for that.
The challenge I have faced around Indigenous identity politics is in part an artefact of who I am and the time in which I grew up.
I have always acknowledged the past mistreatment of Aboriginal people and have frequently said that the treatment of Indigenous Australians represents the most blemished chapter in the history of this country.
At the same time, I recognise that the parlous position of Indigenous Australians does have its roots in history and that past injustices have a real legacy in the present.
Then he crossed the Rubicon:
I believe we must find room in our national life to formally recognise the special status of Aboriginal and Torres Strait Islanders as the first peoples of our nation.
We must recognise the distinctiveness of Indigenous identity and culture and the right of Indigenous people to preserve that heritage. The crisis of indigenous social and cultural disintegration requires a stronger affirmation of Indigenous identity and culture as a source of dignity, self-esteem and pride.
He made this commitment:
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.
Now, for the first time in a long time, we can see the outline of a new settlement for Indigenous policy in Australia.
It stands at a point of intersection between rights and responsibilities; between the symbolic and the practical.
Howard’s formulation here of recognising the “special (though not separate) place” of Indigenous Australians is the key. It is a settlement that will speak to the point Stanner made in 1968: enabling Aboriginal people to define a “decent union” with their fellow Australians “on terms that let them preserve their own identity”.
The cause of recognition is not a separatist cause. Far from it. It is a cause for peace and unity. It represents the desire for reconciliation and what the country’s twenty first prime minister Gough Whitlam called our people’s “rightful place in this nation”. Let me combine Whitlam and Howard’s words and suggest that recognition is about the rightful but not separate place of Indigenous Australians in the Commonwealth of Australia. Indigenous Australians want in to the Australian Constitution. That is the point. Despite the history of discrimination and exclusion, despite everything, we want in. We want to be part of Australia, formally and permanently.
Howard’s 2007 speech was not the first word on constitutional recognition. Its’ provenance is the Aboriginal rights struggle going back to the earliest days of the federation. But it was this commitment that precipitated these past fifteen years of slow yet inexorable progress towards a referendum.
No Australian prime minister, Labor or Liberal, has gone to an election this past decade and a half without a commitment to constitutional recognition: Rudd, Gillard, Abbott, Turnbull and Morrison, all carried constitutional recognition in their election platforms in the six elections held since the Howard government’s last term.
In these fifteen years there were two public inquiries undertaken by committees established by governments of the day in consultation with opposition and minor parties: the Expert Panel of 2011-2012 and Referendum Council of 2016-2017. The Aboriginal and Torres Strait Islander Peoples Recognition Act was enacted by the Gillard government in 2013 with bi-partisan support. Two parliamentary committees were convened during this period, first the 2014 Joint Select Parliamentary Committee chaired by Wyatt and second the Leeser-Dodson committee of 2018. Consultations included public meetings around the country including twelve regional dialogues with Aboriginal and Torres Strait Islander communities that culminated in the Uluru Statement from the Heart in May 2017. There is no need for me to rehearse Rachel Perkins’ compelling account of the history of the Uluru Statement in her 2019 Boyer lectures.
Following the Leeser-Dodson report, the Morrison government established a process led by minister Ken Wyatt which undertook public consultations around the country reporting in 2021.
This is irrefutable: no public policy question in Australia has been subject to as much inquiry, research, public consultation and report writing as the constitutional recognition of Indigenous Australians. The full arsenal of public policy and democratic procedure of parliament and executive government have been engaged in developing the case for recognition and the evolution of constitutional reform options for more than a decade.
This long process shaped the arguments for and against the case and subjected reform propositions to public and professional scrutiny so that the final proposal – for a Voice enshrined in the constitution – is the product of assiduous hammering on the anvils of the country’s democracy.
It has been such a long road.
Once the case for recognition received bi-partisan support, the next question was where recognition is to be effected.
Howard and Rudd answered in precisely the same way: it was to be effected in Australia’s most supreme legal instrument, its constitution.
It is not merely recognition in some extra-legal declaration or proclamation, or by legislative enactment of the national parliament. It is the constitutional recognition effected by amendment to the nation’s Constitution.
What form that amendment takes is a secondary question about how recognition is to be effected. Proponents of recognition may differ on the form of constitutional amendment, but left and right agreed the place for recognition was within the Constitution of the Commonwealth. To be sure the form of constitutional recognition is as important as its location.
In 2007 Howard proposed recognition in a preamble to the Constitution, saying:
“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.”
I engaged with Howard since the 2004 election. I became convinced the fourth term was the best opportunity to seek common ground with him. He was at the height of his powers. I believed he could be the Nixon who could go to China. But we all failed to capitalise on the opening.
I wrote to the prime minister on 17 September 2007 that he was “uniquely positioned to secure the following inspirational agenda for the country” and met with him to make the argument that I first put in a letter to him:
To move Australia fundamentally but prudently:
1. From “symbolic and practical reconciliation” to “recognition of Indigenous people within a reconciled, indivisible nation”
2. From a “repudiational republic” (which is Australia’s current default direction) to an “affirmational republic”
3. From a “welfare state” to an “opportunity state”
It cannot be said that, though long, I didn’t give this my best shot. The prime minister returned with the better liberal formulation of “opportunity society” but was ultimately only convinced to move on Indigenous recognition. He concurred that repudiation of Australia’s British heritage by the republicans had cruelled the republican cause, and affirmation of that heritage was crucially correct - but the Queen was still in rude and bustling health, so nothing would change as long as she reigned.
I never supported preambular recognition. It was and is insufficient. The preamble that accompanied the 1999 referendum on the republic was rejected by the Australian people. I believed it would be rejected again not least because Indigenous people reject it and because constitutional conservatives warn it would empower the High Court to re-interpret the entire constitution. It is not a legally safe nor politically viable option.
Hours before his speech the prime minister’s office sent me the embargoed speech where he committed to the preamble. I called his advisor and said I could not support it. This led to a phone call with the Prime Minister where I made clear my objections to preambular recognition. I said the recognition would need to be more substantial. The Prime Minister committed that options for constitutional recognition would be discussed with Indigenous leaders in the event his government was returned for a fifth term. I placed my store in his commitment. But no such term eventuated.
However, Howard’s 2007 proposal for constitutional reform was subjected to the democratic processes of the national government and parliament which I have recapitulated here. Aboriginal and Torres Strait Islander communities and their leaders submitted to these processes and sought to advocate and influence the evolving proposals for recognition. This process included engagement with the succession of Liberal and Labor prime ministers who followed.
In his speech to The Sydney Institute on election eve 2007, John Howard was candid about the breakdown in dialogue between himself as prime minister and indigenous leaders. He accepted his share of the blame for it. It was clearly something he felt keenly had been a problem with his government. It is this dialogue that the Voice is directed at: the establishment of a formal body to speak with the prime minister and the Executive Government of the day and to the Parliament.
It could not be the case that the personal preference of an individual – whether a past leader or citizen – could so peremptorily discard the outcome of fifteen years of democratic process. That some leaders have changed their minds from support to opposition, while others have changed from opposition to support, is not really the point. The point is the Voice proposal was the outcome of the Referendum Council, the bi-partisan establishment of which took place during Tony Abbott’s government and finalised by Malcolm Turnbull.
Aboriginal people are entitled to expect that Australia’s Westminster system obliges members of parliament to respect the outcome of serious democratic deliberation undertaken with hope and sincerity by the least powerful community in that system.
There have been two compromises made in the model for recognition in the decade since the Expert Panel reported to the parliament in January 2012. The Expert Panel put forward five amendment proposals – the repeal of section 25, the repeal of section 51(26) and its replacement with a new power with a preambular recognition of Aboriginal and Torres Strait Islander peoples, a new clause recognising Indigenous languages and a new non-discrimination clause – the most substantive of which was the constitutional guarantee against discrimination. It was this proposal that drew immediate hostility from constitutional conservatives. The possibility that such a provision would empower the High Court to overrule laws made by the parliament led the Vice Chancellor of the Australian Catholic University Greg Craven to describe it as a “one line Bill of Rights”. This is the objection of justiciability: the opposition of constitutional conservatives and the political right to diminishing parliamentary supremacy. Moreover, it was constitutional conservatives who were resistant to preambular words that may be used by the High Court to interpret the constitution proper. It became clear in the aftermath of the Expert Panel report that its recommendations would meet with strong ideological opposition.
A pivot was necessary and it came from engagement with these very constitutional conservatives. Rather than providing a judicial guarantee of non-discrimination they proposed Indigenous peoples be able to make recommendations to parliament in respect of laws and policies affecting Aboriginal and Torres Strait Islander peoples. A draft provision was prepared by professor Anne Twomey of Sydney University. A joint letter putting this amendment forward to prime minister Tony Abbott was signed by Craven, Twomey and myself together with Julian Lesser and Marcia Langton on 11 September 2014. The draft was provided to Abbott at a subsequent meeting which included provision for the tabling of advice from the Indigenous body in both houses of parliament. The provision was meticulously drafted so as to preclude justiciability before the Hight Court, it was to be a body providing non-binding advice to parliament not in parliament.
This draft was added to the proposals that were discussed in the following years. Megan Davis and Pat Anderson convened the dialogues that led to the Uluru Statement from the Heart in 2016-2017 and the proposed body became the Voice.
It was in the wake of the Referendum Council’s report that a second potentially fatal objection was raised, initially by National Party leader Barnaby Joyce and followed by prime minister Malcolm Turnbull that the Voice would be a “third chamber of parliament”.
This misrepresentation, subsequently admitted by Joyce and Turnbull, was highly damaging and led to a second pivot.
It was clear that the draft produced in collaboration with constitutional conservatives, though constitutionally safe, was susceptible to a scare campaign. Davis, Anderson and myself submitted a more streamlined draft that omitted the tabling procedure of the earlier draft to the Lesser-Dodson Joint Select Committee in 2018. This provision drafted by Davis became the basis for the words now proposed by prime minister Albanese.
We have now entered a phase that represents our best chance to achieve recognition sought by our old people. Australians living today can bequeath to our children a Commonwealth that accords a rightful place to its original peoples.
The Uluru Statement from the Heart is Australia’s greatest act of faith, hope and love.
Faith in the possibilities, faith in the Australian people, faith against so much history undeserving of faith. How can a people against whom so many faithless acts were committed over two centuries revive a faith in their own country?
It's also a statement of hope. Hope for the future. Notwithstanding the mountains of bitter evidence to the contrary.
And love. Love for the country for we could never walk away from Australia. Do I need to say, this is our country too? It is the only home we have. We should never let despair alienate us from the truth that Australia is our home.
It is my sincere hope that opposition leader Peter Dutton will join our 31st Prime minister Anthony Albanese in proposing to the Australian people at a referendum next year an amendment that will secure the rightful but not separate place of indigenous Australians in the constitution of the commonwealth. The following words were proposed by the prime minister at Garma in Arnhem land in August this year and I include the words the prime minister used in his preface to the three operative sentences:
In recognition of Australia’s Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
(1) There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
(2) The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander Peoples.
(3) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.
Australians have been waiting for leadership on recognition. It is now at hand.
Thankyou.