Recognition of our First Peoples is now closer than ever: Mark Leibler

It was in the final days of John Howard’s time as prime minister that the current discussion around constitutional recognition of Aboriginal and Torres Strait Islander people was ignited.

Speaking at the Sydney Institute, Mr Howard made the surprise announcement that, if re-elected, he would ensure that a referendum was held within 18 months to formally recognise Indigenous Australians through a preamble to the constitution.

Julia Gillard took up the idea in 2011 when she established the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, which I co-chaired with now Senator Patrick Dodson.

There was never a formal response to the expert panel’s report and, following the change of government in 2013, a joint committee of Parliament was appointed to advise on steps that might be taken towards a successful referendum.

The joint committee handed down its report in June 2015 recommending, among other things, that a series of conventions made up of Aboriginal and Torres Strait Islander delegates be held to “build support and focus the debate”.

A month later, then Prime Minister Tony Abbott and Opposition Leader Bill Shorten met with 40 Aboriginal and Torres Strait Islander representatives at Kirribilli House to chart a way forward.

Following the meeting, a specific request was made by four of the delegates – Megan Davis, Kirstie Parker, Noel Pearson and Patrick Dodson. They asked the government to support a separate and distinct consultation process with Aboriginal and Torres Strait Islander people on the acceptability of the various options for recognition.

The request remained a sticking point for some weeks before Prime Minister Abbott agreed, paving the way for the “regional dialogues” conducted under the auspices of the Referendum Council.

So, while the council took respectful account of the work undertaken by earlier bodies, none of those bodies consulted, as we have, to ascertain the wishes of Aboriginal and Torres Strait Islander Australians themselves – the people we seek to recognise.

The process started with a series of three Indigenous leadership meetings, followed by 12 regional dialogues and culminating in the National Constitutional Convention at Uluru.

Twelve hundred delegates took part in the dialogues, from a total population of around 600,000 Aboriginal and Torres Strait Islander peoples nationally.

The structured format of each dialogue involved a detailed explanation of each of the options for constitutional change.

The first option was for a statement acknowledging Aboriginal and Torres Strait Islander peoples as the First Australians to be inserted into the constitution, or stand outside of it.

The second was to repeal or amend of the Commonwealth’s power to make laws by reference to “race”.

The third option was to insert a new provision into the constitution prohibiting discrimination on the basis of race.

And the fourth was to delete section 25, now a dead letter, which contemplates the possibility of a state government excluding a group of Australians from voting on the basis of race.

The council also included a fifth option that emerged from a submission to the joint committee, prepared by the Cape York Institute. That option provided for the establishment of an advisory body to give Aboriginal and Torres Strait Islander people a voice to the federal Parliament, and the right to be consulted on legislation that affected them.

Each of the 12 dialogues concluded with the election of 10 delegates to take part in the First Peoples National Convention, which took place at Uluru at the end of May.

The task of the convention was to consider the outcomes from the dialogues, and reach a consensus position to put to the Referendum Council, and the nation. It did so in the form of the Uluru Statement from the Heart, released on the eve of the 50th anniversary of the 1967 referendum.

The statement demands to be read in full. But, in summary, it calls for: a First Nations Voice, enshrined in the constitution; and a Makarrata Commission to supervise the process of agreement-making between governments and First Nations, and facilitate truth-telling of First Nations’ histories.

I’m in no way breaching confidentiality around the Referendum Council’s final report by saying that the outcomes of the regional dialogues and the Uluru Statement became our primary source material.

A majority of the submissions support all five reform options, with the Indigenous Voice to Parliament attracting the strongest support of 93 per cent.

But the clearest message we took from our broader program of consultations was that the wider community will not endorse a referendum proposal that isn’t acceptable to Aboriginal and Torres Strait Islander people.

Mark Leibler, senior partner at Arnold Bloch Leibler, co-chaired the Referendum Council on Constitutional Recognition of Aboriginal and Torres Strait Islander Australians. This is an edited extract of a speech delivered this morning to Melbourne Law School.

READ: Sydney Morning Herald


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