BY SHIREEN MORRIS AND JULIAN R MURPHY

With public attention firmly focused on the pandemic response, there was little fanfare when Victoria recently passed what appears to be Australia’s first trilingual statute – the Great Ocean Road and Environs Protection Act 2020 (Vic) (‘the Great Ocean Road Act’). For the optimist, the passage of Australia’s first trilingual statute might be indicative of our legal system’s increasing receptivity to Indigenous culture and heritage. However, there is much more that can and should be done to recognise and revitalise Indigenous languages as a fundamental part of our nation’s history, culture, identity and future. This process of language recognition would best proceed in addition to the necessary inclusion of a First Nations voice in the Constitution.

Legislating in Language

The Great Ocean Road Act provides a detailed policy and decision-making framework with respect to the land and water in the Great Ocean Road region of Victoria. The Act is significant not only for the governance and decision-making structures it establishes, especially its reference to ‘Aboriginal inclusion principles’, but also its distinctive use of two Indigenous languages in its preamble. The Act’s preambular text includes the following:

Eastern Maar

Maara-wanoong, laka. Wanga-kee-ngeeye

Meereeng-ngeeye, pareeyt, nganpeeyan, weeyn, wooroot, poondeeya-teeyt
Meerreeng-ngeeye, nhakateeyt, woorroong, leehnan, mooroop, keerray
Meerreeng-ngeeye, thookay-ngeeye, pareeyt pareeyt ba waran waran-ngeeye,
wangeeyarr ba wangeet – ngeeye, maar ba thanampool-ngeeye, Ngalam Meen-ngeeye, mooroop-ngeeye

Meerreeng-ngeeye Maar, Maar meerreeng

We are the Maar speaking Peoples. Hear us.

Our Country is water, air, fire, trees, life.
Our Country is thought, language, heart, soul, blood.
Our Country is our Children, our youth, our Elders, our men and women, our Ancestors, our spirit.

Our Country is Maar, Maar is Country.

It would be easy to diminish the symbolic significance of the Indigenous language content of the Act on the basis that it appears in the preamble. That would be a mistake. The drafters obviously considered the Indigenous language content to be important, evident in the fact that the Indigenous texts are given priority, appearing before the English translation. This stands in contrast to an earlier Victorian statute, the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic) (discussed further below), where the English text precedes the Indigenous language text.

The Great Ocean Road Act’s use of Indigenous languages was also emphasised in its passage through Parliament. As the Victorian Minister for Aboriginal Affairs explained in the second reading speech:

The Bill is a landmark because … [i]t recognises that the sovereignty of our First Nations was never ceded. And it includes statements of the significance of the area by the Eastern Maar and Wadawurrung people, and these are in their language. This will be one of just a few Bills in Australia that includes text in its body in a First Nation language.

The fact that the Indigenous language content appears in the preamble does not minimise its importance. As Kent Roach explained in the Canadian context, statutory preambles can serve as statements of public values and ‘establish legitimacy by providing a narrative of the origins and purposes of the legislation’. In Australia, preambles also serve an important contextual function in statutory interpretation. While Australian courts have yet to consider Indigenous language content in preambles or other parts of legislation, the incorporation of such languages into Australian law is significant – it is a way of incorporating Indigenous knowledge and worldviews into Australian governance.

Yet the Great Ocean Road Act is not the first Australian statute to incorporate Indigenous languages. Indigenous proper nouns, such as the names of groups and places, have appeared in Australian legislation for decades. So too have individual Indigenous words and phrases, such as the Torres Strait term ‘Ailan Kastom’ (roughly, ‘island custom’). More visibly, at least two Australian statutes have incorporated Indigenous languages (other than nouns) in their titles – the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA) and the earlier mentioned Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic). Both of those statutes also include passages of Indigenous text in a schedule and preamble respectively. In Love v Commonwealth of Australia, the Attorney-General for Victoria supplied the High Court with the preamble to the Victorian Yarra River Protection (Wilip-gin Birrarung murron) Act as evidence of the growing legislative recognition of the unique connection of Indigenous people to the land and waters of Australia.

The Great Ocean Road Act, however, appears to be the first statute that has incorporated multiple Indigenous languages alongside English. It provides an opportunity to reflect on the wider project of Indigenous language recognition within Australia’s legal system and how this relates to other avenues for Indigenous empowerment.

Languages Recognition and Indigenous Constitutional Recognition

Indigenous language recognition is best understood as part of a broader project of decolonising Australia’s legal order, and reforming legal and political relationships between Indigenous peoples and the settler state to ensure they are fairer than in the past. So understood, language recognition is related to, and shares its ultimate objectives with, the broader project of Indigenous constitutional recognition. Advocates for Indigenous constitutional recognition have long argued that Indigenous constitutional recognition should be a package of reforms involving both constitutional and legislative changes. The Uluru Statement in 2017 proposed such a package of reforms, calling for a constitutionally guaranteed First Nations voice and a legislated Makarrata Commission to oversee agreement-making and truth-telling. The Referendum Council also added the proposal of an extra-constitutional Declaration to recognise the three parts of Australia’s history: the Indigenous, the British and the multicultural. While the first-priority reform requiring a guarantee of permanency (a First Nations voice) must be in the Constitution, the other recommended initiatives can be pursued in legislation.

Along with a constitutionally guaranteed First Nations voice, Australia should make recognition of Indigenous languages a key part of the package of accompanying legislative reforms. Indigenous languages are the original Australian languages – a fundamental part of our shared national heritage and identity. Before colonisation, there were around 250 distinct Indigenous languages. As the recent third National Indigenous Languages Report identifies, most are now highly endangered: there remain only 12 relatively strong original languages and two strong new ‘Kriol’ languages. Australia is at risk of losing the most ancient and unique part of our national identity. Urgent action and investment is required to reverse the disappearance of our national heritage.

International Inspiration

Other countries provide inspiration for how Indigenous language recognition can be pursued in tandem with Indigenous constitutional recognition. Key lessons can be taken from New Zealand, where recognition of the Māori language was woven into New Zealand’s constitutional fabric from the nation’s founding. The 1840 Treaty of Waitangi – a centrepiece of New Zealand’s written and unwritten Constitution – was drafted in English and Māori.

For example, a future Makarrata Commission in Australia could draw lessons from New Zealand’s Waitangi Tribunal. Established in 1975, the Waitangi Tribunal hears and recommends resolutions for addressing breaches of the Treaty of Waitangi, to inform direct negotiations. Through these processes, grievances can be aired, stories told and histories documented. These proceedings often receive evidence in Māori. Settlements can involve financial and cultural redress and recognition, as well as official Crown apologies for past Treaty breaches – with the apology delivered in both English and Māori. These settlements are then encapsulated in legislation. For example, Queen Elizabeth II signed the Waikato Raupatu Claims Settlement Act 1995 (NZ), and personally delivered the apology acknowledging past injustices and Treaty breaches. The statute incorporates both a Māori and English language text of the apology.

The cultural component of the Treaty settlements has helped propel recognition of Māori culture and heritage in a tangible way. Māori language has been recognised as a taonga (roughly, ‘treasure’) under the Treaty of Waitangi. Māori is accordingly recognised as an official national language in legislation and a Māori Language Commission is charged with Māori language revitalisation. The New Zealand National Geographic Board undertakes dual-language place naming, with Māori place names sometimes flowing from Treaty settlements, then included in the relevant settlement legislation. New Zealand itself now carries its Māori name – Aotearoa – although not in all contexts and not in a legally comprehensive way. Nonetheless, Māori culture is increasingly seen as New Zealand’s culture. Witness the way in which variations of the Māori haka are performed by New Zealand sports teams, including the All Blacks, as an expression not only of Māori culture and heritage, but also of New Zealand culture and heritage. By contrast, a few seconds of an Aboriginal war dance, performed by Adam Goodes in 2015, prompted widespread contention in Australia. By some it was taken not as a celebration, but as an affront, demonstrating that Australia has not yet come to terms with the Indigenous parts of its national heritage and history.  

The connection between Indigenous political empowerment, through mechanisms enabling an Indigenous voice in their affairs, and cultural and language recognition is evident in international experience, and can provide inspiration for current Australian debates about a First Nations constitutional voice. For example, once a voice is provided for in the Constitution, the detailed statutory description of its functions could include provisions for language recognition. A First Nations Voice Act could not only set up the First Nations body – it could recognise Indigenous Australian languages as the original languages and even establish a Languages Commission to revitalise and transmit these Australian languages. Such a statute would then be similar to the Acts setting up Sami Parliaments (Sami advisory bodies to government) in Scandinavia. Indeed, advising on language policy could sensibly be a focus of the First Nations voice, along with other matters relevant to Indigenous affairs. Alternatively, languages recognition could be pursued in separate legislation, as occurs in New Zealand under the Māori Language Act 1987.

As experts discuss the potential words of the constitutional amendment establishing a First Nations voice, it may also be worth imagining whether the institution might carry an Indigenous language name – and whether this Indigenous name could be reflected in the constitutional amendment. That would be a constitutional reform of both practical utility and continuing symbolic significance – enduring constitutional empowerment of Indigenous voices, but also constitutional recognition of this continent’s ancient linguistic and cultural heritage.

Conclusion

Languages recognition should be an important part of the Indigenous constitutional recognition conversation. In thinking about the functions of a First Nations constitutional voice, we should be aware of the important role the institution could serve in advancing Indigenous language recognition. Recognition of Indigenous languages could be incorporated into the legislation setting up the First Nations voice, the legislative reforms the body pursues, and even through the constitutional amendment incorporating an Indigenous language name – if this is desired by Indigenous people.

As the recent Victorian example makes clear, there is public and political will to protect and celebrate Indigenous languages and heritage. Australian Parliaments should harness this energy to genuinely implement the Uluru Statement and establish a constitutionally guaranteed First Nations voice, while also finding ways to recognise the original Australian languages in the nation’s broader legal and constitutional order.

Shireen Morris is a senior lecturer at Macquarie University law school. Julian R Murphy is a Reader at the Victorian Bar and a PhD candidate at Melbourne Law School.

Suggested citation: Shireen Morris and Julian R Murphy, ‘Australia’s first trilingual statute’ on AUSPUBLAW (21 October 2020) <https://auspublaw.org/2020/10/australias-first-trilingual-statute>