Constitutional recognition: two decades on
This is the first of five posts in a special series that AUSPUBLAW is featuring on the First Nations Voice to Parliament. This series is co-hosted with the newly launched Indigenous Constitutional Law Blog, and will also feature posts by Geoffrey Lindell, Sana Nakata, Gabrielle Appleby and Eddie Synot, and Harry Hobbs. If you are interested in this, and other constitutional issues facing Indigenous peoples, we encourage you to visit that blog and consider subscribing for future posts.
Megan Davis
01.03.21
I am excited to write the first post for the Indigenous Law Centre’s Indigenous Constitutional Law Blog. I have been wanting to establish this initiative for many years: to set up a platform for foundational information and analysis on the Constitution and Indigenous peoples for Australia’s lawyers and broader civil society as we enter the second decade of constitutional reform and recognition. The blog is intended to arm Australian lawyers and the community with information that helps the nation move towards a moment of transformative and emancipatory constitutional change. Constitutional change that accords with the aspirations of First Nations peoples. Constitutional change that offers a structural solution to the socio-economic disadvantage endured by generations of First Nations people. Constitutional change that offers all Australians an opportunity for a fairer, a more truthful, a more just, future.
More than two decades of processes and reports
2021 will be a defining year for Indigenous constitutional recognition in Australia. It marks the second decade of formal government processes created to bring the nation to vote at a referendum. Some claim the 1999 Republic Referendum as the genesis of the modern constitutional recognition project. This is because it involved a single line of Indigenous recognition in the proposed preamble that was drafted by Prime Minister John Howard and put to the Australian people. Although most Aboriginal and Torres Strait Islander leaders rejected the one line of recognition, including the major Aboriginal land councils across Australia and the Aboriginal and Torres Strait Islander Commission, Howard proceeded to referendum with the wording. The preamble failed to win the support of the Australian people. In any event, some view this referendum as the beginning of the modern recognition movement because, following this, political parties began to commit to constitutional recognition in their party platforms. Prime Minister Howard also suggested recognition in a preamble during the 2007 Federal election campaign.
22 years, 14 years or 11 years. The question of constitutional recognition has occupied the nation for over two decades.
During this time, we have seen no fewer than six processes and nine reports attempting to move this seemingly intractable debate forward. The first of these processes was established in late 2010 after the hung Parliament. Prime Minister Julia Gillard had to negotiate with the Greens and the two independents Rob Oakeshott and Tony Windsor to receive enough votes to hold the balance of power in the lower house. They asked her to move toward constitutional recognition given there was multi-party support at the time. A chronology of the next decade of recognition processes can be traced:
2011 Government establishes the Expert Panel on the Recognition of Aboriginal and Torres Strait Islander Peoples in the Constitution
2013 Parliament passes Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) (the ‘Act of Recognition’)
Parliament establishes the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples
Final Report of the Aboriginal and Torres Strait Islander Act of Recognition Review Panel (Anderson Review)
Prime Minister and Opposition establish the Referendum Council
2017 Uluru Statement from the Heart
Final Report of the Referendum Council
2018 Parliament establishes the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples
2019 The government establishes a Senior Advisory Group, followed by a National Co-design Group and a Local & Regional Co-design Group to develop the design of an Indigenous Voice
2021 Government releases the Interim Report of the Indigenous Voice Co-design Process
This has been the timetable of work for the past decade for those working towards meaningful constitutional recognition of First Nations people.
Uluru Statement from the Heart clarifies “recognition”
Of course it was not until the 2017 First Nations National Constitutional Convention at Uluru that the nation finally understood what recognition would look like for First Nations people. In 2017, after 13 regional grassroots dialogues and a national convention, under the auspices of the Referendum Council, a compelling law reform agenda emerged, aimed at addressing the structural powerlessness that all First Nations peoples experience in their interaction with the state. Today the reform is popularly referred to as “Voice, Treaty, Truth” but the first step in the sequence of reforms is a constitutional voice to Parliament.
The Uluru Statement from the Heart was issued to the Australian people as an invitation. This is the first time this has been done in Aboriginal political history and law reform – normally legal reform proposals are petitions to the government of the day. The Uluru Statement is modelled on the spirit of the 1967 referendum, the highest “Yes” vote in Australian history. The Uluru invitation asks Australians to walk alongside First Nations peoples in a dialogue about co-existence and our shared future. The Uluru Statement presents a logic for the reforms prioritised by First Nations peoples commencing with a protected political voice as a form of constitutional recognition. Resolutely, the dialogues declared: no more symbolism.
Following the deliberative dialogue process, and the Uluru Statement from the Heart, the Referendum Council made the following recommendation:
That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament. One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.
This recommendation provided much needed clarity to a process that had floundered because of too many suggestions for recognition but no precision as to what form of recognition First Nations agreed upon and what form of recognition politicians would agree upon. The Referendum Council was the first process that bothered to actually ask a sample of First Nations peoples what meaningful recognition might mean to them. An Indigenous constitutional recognition process is unusual in that it requires the agreement of the “recognisor” and the “to be recognised”. The group recognising, the recognisor, the Australian people and the “to be recognised” need to align on a reform: otherwise it is not “recognition”.
Although the Turnbull Government suggested the outcome of Uluru was “radical” or “overreach” in mid-2017, it wasn’t. In mid-2015, two years prior to the Uluru Statement from the Heart, First Nations leaders issued the Kirribilli Statement which ruled out certain forms of recognition. The leaders who met at Kirribilli were drawn from representative entities nationally and the National Congress of Australia’s First Peoples. They rejected “constitutional housekeeping”. The minimalist form they rejected consists of:
the deletion of section 25 in the Constitution;
moderation of the race power (section 51(xxvi)) or deletion of the race power and replacement with a new head of power; and
a statement of recognition.
This, they stated, “does not go far enough and would not be acceptable to Aboriginal and Torres Strait Islander peoples”. Rather:
[A]ny reform must involve substantive changes to the Australian Constitution. It must lay the foundation for the fair treatment of Aboriginal and Torres Strait Islander peoples into the future.
These First Nations leaders also recommended that there be an ongoing dialogue between Aboriginal and Torres Strait Islander peoples and the Government to negotiate the proposal to be put to referendum, as well as engagement about the acceptability of the proposed question. These recommendations were a key motivation for the creation of the Referendum Council.
A Two-Step Approach
Malcolm Turnbull as Prime Minister rejected the idea of the Voice to Parliament in October 2017. Even so, there was agreement between the government and the opposition late in 2017 that there would be another process, another parliamentary committee to consider the work of the Referendum Council and the concept of an enshrined Voice. This committee commenced their work in March 2018. The two co-chairs Julian Leeser and Patrick Dodson presented their interim report on 30 July 2018 and their final report in November 2018. They found that while they lamented the rejection of symbolism at Uluru given the support it has among the political elite, the only viable option was the enshrined Voice.
However, unlike the Referendum Council who adopted a ‘decision to defer’ approach to constitutional amendment (they recommended a referendum immediately with the detail of the Voice to be determined by the Parliament at a later date), the Leeser and Dodson Joint Select Committee adopted an alternative: design of the mechanism first before a referendum. Both approaches have risks. The first risks a ‘No’ vote because not enough detail is known, and the second risks a ‘No’ vote because too much detail is known.
In order to put meat on the bones of the First Nations Voice, the Joint Select Committee final report recommended that the government ‘initiate a process of co-design [of the Voice] with Aboriginal and Torres Strait Islander peoples’. The Joint Select Committee also said that the co-design process should, ‘outline and discuss possible options for the local, regional, and national elements of The Voice’ and recommended that after this, the government ‘consider, in a deliberate and timely manner, legislative, executive and constitutional options to establish The Voice’.
This approach is being referred to as the “two-step approach”: design the Voice first and then decide the constitutional option for the Voice once there is a model.
The government appears committed to the two-step approach. In its April 2019 budget, the Coalition committed $7.3 million for a co-design process for the Voice to ‘improve local and regional decision making” and allocated $160 million for a future referendum once the Voice model has been determined. The $160 million to run a referendum resides in the Contingency fund.
The Coalition’s election platform clearly explained that it was adopting the two-stage approach: that there needed to be more work done to develop a model before a referendum could be held. It stated:
[T]here needs to be more work done on what model we take to a referendum and what a voice to parliament would be - which is why we are funding a consultation process with Aboriginal and Torres Strait Islander Australians. To deliver on this recommendation, the Morrison Government is providing $7.3 million for the comprehensive co-design of models to improve local and regional decision making and options for constitutional recognition.
The Coalition party policy then noted that:
A referendum will be held once a model has been settled … and we have allocated $160 million in the Budget to run a referendum, with funding remaining in the Contingency Reserve until a referendum model has been determined.
The Labor Party also made it an election policy to hold a referendum on the Voice. They committed to put this to a referendum within the first term of a Labor government. But of course, it was the Coalition returned to government in the 2019 election.
Another process obfuscates and undermines recognition
Following the election, Minister for Aboriginal Australians, Ken Wyatt, appeared to unilaterally announce he would entertain a referendum enshrining symbolic recognition. This was a position that was rejected by Uluru and the dialogues in 2016-2017 and by the Expert Panel in 2012.
In October 2019 Wyatt announced a ‘co-design’ process for an ‘Indigenous voice to government’. He shifted the emphasis, and in doing so, fundamentally changed the proposal. From a Voice to Parliament to a Voice to Government. From a constitutionally enshrined Voice to a legislated body. His actions disavowed entirely the decade of work that has come before.
Wyatt also simultaneously announced that he wanted to put a referendum to the Australian public on constitutional recognition within the current term of Parliament. He said that the Morrison Coalition government is ‘committed to recognising Indigenous Australians in the constitution and working to achieve this through a process of true co-design’. It was not made clear what form this referendum would take, and whether this will be a minimalist and symbolic constitutional recognition and how it would work with a legislated voice – that is, a voice that is not placed within the Constitution as the Uluru Statement calls for.
The ‘co-design’ process involves a Senior Advisory Group tasked with advising the Minister ‘on the co-design process to develop options and models for an Indigenous voice to government’. There is also a National Co-Design Group (which will examine a national Voice, including the structure, operations, functions and membership of such a Voice) and a Local and Regional Co-Design Group (which will develop options for ‘local and regional voices’). These groups work alongside public servants and government officials. There is also a ‘Senior Officials Group’, which consists of representatives from state, territory and federal government and the Australian Local Government Association.
There are significant differences between the Wyatt process and the Coalition’s policy. Prime Minister Scott Morrison, in his Closing the Gap speech on 12 February 2020 said the following:
In 2018 the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples delivered a bipartisan report. Our government adopted the four bipartisan recommendations in the report—in particular, recommendation 1: In order to design a voice that best meets the needs and aspirations of Aboriginal and Torres Strait Islander peoples, the Committee recommends a process of co-design between Aboriginal and Torres Strait Islander peoples and government be initiated in communities across Australia to design a voice that can help deliver practical outcomes for that community. This is our government's policy. It is clear from the committee's report that more work needs to be done on a voice proposal.
The government has always supported giving Indigenous people more of a say at the local level. We support the process of codesign of the voice because, if we are going to change the lives of Aboriginal and Torres Strait Islander peoples on the ground, we need their buy-in on the matters and policies that affect them. The committee did not make recommendations as to the legal form of the voice—constitutional or legislation. It recommended considering this matter after the process of co-design is completed, and that is what we are doing.
We support finalising codesign first.
The Wyatt ‘co-design process’ is also occurring in a very different way from that envisaged by the Regional Dialogues and National Constitutional Convention. It was not anticipated that the design of the Voice would be led by a small number of handpicked Aboriginal and Torres Strait Islander people, alongside government agencies and public servants. The 2011-2012 Expert Panel involved input from both sides of politics as well as a public submission process for names to the panel. In 2015-2017 the Referendum Council similarly was designed with the input of both sides of politics to maintain bipartisan support. The co-design process commenced in 2019 was handpicked by the Minister.
The current process places Aboriginal and Torres Strait Islander peoples (and the rest of the Australian population) as the last set of people to be consulted, rather than being active participants in the whole process of design. The individuals involved in the co-design process have been selected by the Minister, and Aboriginal and Torres Strait Islander people broadly will only be consulted after the proposed model has been endorsed by Cabinet. Given the success of the Regional Dialogues process that led to the Uluru Statement, and the deep and deliberative decision-making shown there, another possibility for design could have been a similar process which centred Aboriginal and Torres Strait Islander peoples as authors of the Voice design.
As I said from the outset, we have now entered the second decade of working to achieve constitutional recognition. The interim report released by the Voice design committee is the next iteration in this process. It is the 9th report in eleven years. It is this interim report that is the subject of the many excellent pieces you will read over the coming week.
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Professor Megan Davis is Pro Vice-Chancellor Indigenous UNSW, and Balnaves Chair for Constitutional Law, UNSW Law & Justice.
Suggested citation: Megan Davis, ‘Constitutional recognition: two decades on’ on AUSPUBLAW (1 March 2021)