BY GABRIELLE APPLEBY

Two significant developments emerged this week on the road towards meaningful constitutional recognition for Aboriginal and Torres Strait Islander peoples.

The first was an announcement on Tuesday by Opposition Leader Bill Shorten together with Labor’s three Aboriginal Members of Parliament, Senator Patrick Dodson, Linda Burney MP and Senator Malarndirri McCarthy. This was a strong statement that, should Labor be elected, it ‘will establish a Voice for First Nations people, and seek the support of the Australian people for that Voice to be enshrined in the Constitution’. They went on to say that it was their ‘first priority for Constitutional change’. Before a republic. Before section 44. Before four-year parliamentary terms.

The second was the delivery of the Final Report of the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples. The Committee, co-chaired by Labor’s Senator Dodson and the Liberals’ Julian Leeser MP, also strongly endorsed, by reference to the overwhelming number of submissions it had received, the need for a First Nations Voice.

However, the majority Committee report (there were additional comments issued from Senator Amanda Stoker and a dissenting report from the Greens) did not recommend that the Voice necessarily be pursued as a matter of constitutional priority. Rather, the Report recommended that a process of co-design be pursued between Aboriginal and Torres Strait Islander peoples and the government as a matter of priority. This would then be followed by further consideration by the government as to whether to implement the Voice as designed through constitutional enshrinement, legislation, or even created by the government alone.

Towards meaningful reform

While there were many reports that preceded it, the Committee accepted that the intervention in the Uluru Statement from the Heart, issued in May to the Australian people, represented a ‘major turning point in the debate’ about constitutional recognition in Australia. As many anticipated, the historic consensus forged by more than 250 First Nations delegates at the Uluru First Nations Convention in May 2017 has changed the nature of the debate around constitutional recognition in Australia.

We appear to have moved beyond protracted arguments around symbolic, or minimalistic recognition, and even beyond arguments about the need to introduce legal protections for Aboriginal people. The Committee acknowledges that these types of changes ‘do not have widespread support in the absence of other, more substantive changes’.

Constitutional recognition in Australia is now a debate about how best to recognise the sovereignty of Aboriginal and Torres Strait Islander peoples through meaningful structural reform that gives them a pro-active voice in their own affairs.

The Report is also a move forward from the debate, started by Malcolm Turnbull back in October 2017, that the Voice is a ‘Third Chamber’ of the Parliament, and thus an affront to the traditional powers of the Parliament. The Committee notes that among the submissions, there was a common feature in that

the intention of The Voice is not to exercise a veto or limit the legislative power of the Parliament; rather it is to provide input where such power is exercised in relation to Aboriginal and Torres Strait Islander peoples.

These steps are no doubt a significant and important step in our national debate about resetting the relationship between Indigenous and non-Indigenous Australia. They are also important steps in moving towards the aspirations of self-determination in the United Nations Declaration on the Rights of Indigenous Peoples.

Constitutional enshrinement

Despite these positive steps, the Report has been cautiously received in the Aboriginal and Torres Strait Islander community on the basis that, as Eddie Synot has explained, it declined to express a view about whether constitutional enshrinement should happen, leaving open alternative options of executive or legislative action. In this respect, the Labor Party’s announcement on Tuesday demonstrates that even before the final report was released, they have moved closer to the call in the Uluru Statement.

The Co-Chair’s forward to the Report refers to the divisions that they perceived on what they refer to as the “political tactics” that should be used to achieve constitutional recognition, including whether the referendum should be pushed as a priority, or whether it should be legislated first.

Designing the Voice: Indigenous-led

The Co-Chairs say that the Committee’s view is that “The Voice should become a reality”, that it must be “co-designed” between Aboriginal and Torres Strait Islander peoples and the government. After this co-design, the Committee provides no further views on the desirable form of the Voice. Rather, it says after the co-design:

the Australian Government consider, in a deliberate and timely manner, legislative, executive and constitutional options to establish the Voice.

It is perhaps unsurprising that, as the Committee points out, there was currently a lack of consensus as to how to give detailed and practical effect to the design of the Voice. It was always the view of the Regional Dialogues that led to the Uluru Statement from the Heart that the design of the Voice would not be determined by the Parliament alone, or even a parliamentary committee, but by a further process of consultation led by and with Aboriginal and Torres Strait Islander communities. As the synthesis of the Regional Dialogues, contained in the Referendum Council’s final report, states:

Aboriginal and Torres Strait Islander peoples need to be involved in the design of any model for the Voice.

It is good to see the Final Report of the Committee acknowledge the need not only for consultation but that:

Aboriginal and Torres Strait Islander peoples should determine the model of a First Nations Voice that best suits their needs and aspirations – they should determine how the voices of their local and regional communities are to be represented. It is important this must be a community-driven process.

There is also an acknowledged need for non-Indigenous involvement, and the Committee recommends this occur through the Parliament.

The Report bucks consensus for enshrinement

What is surprising is the Report’s lack of recommendation in relation to the constitutional enshrinement of the Voice, and its failure to provide a clear recommendation as to the legal form of the Voice. This is despite the fact that the Committee says it acknowledges the ‘broad stakeholder support for a First Nations Voice enshrined in the Australian Constitution’.

The Report acknowledges the many and important submissions that were made to explain the importance of enshrinement. These included respect for the historic consensus in the Uluru Statement, the recognition of First Nations and their historical and contemporary place that enshrinement will achieve, the stability and certainty over Aboriginal and Torres Strait Islander affairs that it would create, the permanence of a constitutionally enshrined Voice, and the fact that it would give the necessary strength to the Voice it needed to succeed in pursuing its mandate.

But, rather than embrace the need to work towards constitutional enshrinement, the Report seems focused on the reasons against constitutional reform, at least at this time. It says ‘the Committee is unable to recommend either approach (referendum or legislation) at this time’.

In doing so, however, it has chosen a tactical path of designing the Voice before taking it to a referendum. Against this very position was a submission, co-authored by the members of the Indigenous Steering Committee of the Referendum Council and the technical legal advisers to the Regional Dialogue and Constitutional Convention (including myself), and which drew heavily on the records of meeting taken at the Regional Dialogues. This submission explained that not only would dissemination of a detailed process to be followed to determine the design of the Voice would be sufficient to inform the public before a referendum, it claimed that a detailed proposal of the Voice might do damage to a future referendum. It might mislead the public:

The referendum pertains only to the constitutional words and not the legislative detail. That legislative detail will likely change and evolve. The referendum debate should be informed by what is being constitutionally entrenched: the broad parameters of the body and empowering Parliament to determine the detail of the composition, functions, powers and procedure of it.

Too many versions?

The major issue the Committee identified against moving towards a referendum was the uncertainty around constitutional drafting. The Co-Chairs point out in their foreword:

[I]t is difficult to proceed to referendum today on The Voice when this Committee has received no fewer than 18 different versions of constitutional amendments which might be put at a referendum.

The bland description of 18 different versions somewhat misleads what was submitted. While there were 18 versions set out in the Report, one of those versions was proposed by two members of the Committee during the oral hearings; one was made to a 2015 parliamentary committee inquiry; two were from one individual; three were from another individual; three were from yet another individual; and two were from the one organisation. What is clear therefore is that the versions that were produced were attempts by technical experts to assist the Committee in seeing different possible forms of drafting.

As Eddie Synot rightly points out, differences in language and drafting is a natural part of a robust law reform process, it aids in making decisions, and should not hinder them. Further, and as the Committee itself acknowledges, there is a remarkable degree of consistency across the versions proposed.

The Committee’s response, however, is to seek more expert views, in an effort to reach a consensus on options for constitutional provisions.

Referendum success

The other major argument that the Committee engages with against a move towards constitutional enshrinement, at least as a matter of priority, is that it would unlikely to be successful.

Here, it refers to submissions that claimed a referendum to enshrine a Voice would be unlikely to be successful without the full detail of that Voice being designed. In response to these concerns, the Committee noted that a number of submissions had been received arguing that the Voice should be implemented first by legislation. This would, in the views of some, allow the Australian public to be better educated about, and understand the Voice, before voting on constitutional enshrinement.

However, there were also views against this position. Some were concerned that momentum will likely dissipate once the legislation is enacted and legislating first would undermine the likelihood of eventual enshrinement. There was also concern that constitutional enshrinement was what would lead to the success of the Voice, and without the status, authority and legitimacy that would flow from a public referendum, a legislated Voice would be less likely to succeed.

For others, this position is further demonstrative of discrimination exercised against Aboriginal people. As Gemma McKinnon, a Barkindji woman and a technical adviser to the dialogues and the constitutional convention, has written:

In other words Indigenous people have to audition before we get reform protected by the constitution. We have to prove that we can be civilized and not interfere with the status quo.

A significant week

It is extraordinary the progress that has been made towards consensus around meaningful recognition for First Nations in the Australian Constitution. Since the delivery of the Uluru Statement from the Heart in May 2017, the public and political debate has shifted significantly. There is now an acceptance of the need for such reform in the form of a First Nations Voice. Just this week, we have seen that shift in the debate cemented through the Joint Select Committee’s Report, and taken even further forward in the announcement by the Labor Party of its prioritisation of the constitutional enshrinement of the Voice. Despite its dismissal by two Prime Ministers, the momentum only seems to be growing towards what will be a historic constitutional reform.

DR GABRIELLE APPLEBY is an Associate Professor at UNSW and the Co-Director of The Judiciary Project, Gilbert + Tobin Centre of Public Law. 

Suggested Citation: Gabrielle Appleby, ‘Another Stop on the Road to Meaningful Constitutional Recognition’ on AUSPUBLAW (30 November 2018) <https://auspublaw.org/2018/11/another-stop-on-the-road-to-meaningful-constitutional-recognition/>.