A First Nations Voice in the Australian Constitution

Shireen Morris

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509928934
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book makes the legal and political case for Indigenous constitutional recognition through a constitutionally guaranteed First Nations voice, as advocated by the historic Uluru Statement from the Heart. It argues that a constitutional amendment to empower Indigenous peoples with a fairer say in laws and policies made about them and their rights, is both constitutionally congruent and politically achievable. A First Nations voice is deeply in keeping with the culture, design and philosophy of Australia's federal Constitution, as well as the long history of Indigenous advocacy for greater empowerment and self-determination in their affairs.
Morris explores the historical, political, theoretical and international contexts underpinning the contemporary debate, before delving into the constitutional detail to craft a compelling case for change.

1

Introduction

All the black man wants is representation in federal parliament … One hundred and fifty years ago, the Aboriginals owned Australia, and today he demands more than the white man’s charity. He wants the right to live.

King Burraga (Joe Anderson), chief of the Thurawal tribe near Sydney, in 1933.¹

[T]he procedures of the excision of this land and the fate of the people on it were never explained to them beforehand, and were kept secret from them.

… when Welfare Officers and Government officials came to inform them of decisions taken without them and against them, they did not undertake to convey to the Government in Canberra the views and feelings of the Yirrkala aboriginal people.

… the people of this area fear that their needs and interests will be completely ignored as they have been ignored in the past, and they fear that the fate which has overtaken the Larrakeah tribe will overtake them.

And they humbly pray that the Honourable the House of Representatives will appoint a Committee, accompanied by competent interpreters, to hear the views of the people of Yirrkala before permitting the excision of this land.

The Yirrkala Bark Petitions in 1963.²

Our Yolgnu law is more like your Balanda Constitution than Balanda legislation or statutory law. It doesn’t change at the whim of short-term political expediency. It protects the principles which go to make up the very essence of who we are and how we should manage the most precious things about our culture and our society. Changing it is a very serious business … If our Indigenous rights were recognised in the Constitution, it would not be so easy for Governments to change the laws all the time, and wipe out our rights.

Yolngu elder, Galarrwuy Yunupingu in 1998.³

These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.

We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.

We call for the establishment of a First Nations Voice enshrined in the Constitution …

In 1967 we were counted, in 2017 we seek to be heard.

Uluru Statement from the Heart in 2017.

I.BACKGROUND

Indigenous constitutional recognition is an area of Australian scholarship that simmers sporadically with political opportunity. Political leadership on the issue waxes and wanes. Both sides of politics maintain support for the idea of recognising Indigenous peoples in the Australian Constitution. But what does this mean? The debate challenges constitutional experts and reform advocates to ask and answer some of the nation’s toughest yet most fundamental legal and political questions – questions that go to the heart of who we are as a country and who we want to be. What is the purpose of Indigenous constitutional recognition? What problem does it seek to fix? How might Australia reform and reset its constitutional relationship between Indigenous peoples and the Australian state, to ensure it is fairer than in the past? What is the best and most legally sound way to recognise and protect Indigenous rights and interests in Australia’s Constitution? And how do the various solutions measure up against considerations of political viability? Constitutional reform cannot be separated from constitutional politics: the two are inextricably entwined. It is the people and the Parliament who hold the keys to changing the Constitution, with Parliament often acting as gatekeeper to structural progress that the Australian people may otherwise find attractive. Will the nation ever find a way through this maze, to take the steps to meaningfully recognise Indigenous peoples within the nation’s constitutional arrangements – steps that other comparable democracies seem to have taken with greater ease?

The politics are complex and can make the Australian Constitution seem frozen in its intransigence: only 8 out of 44 attempted referenda have succeeded and the last successful constitutional reform was in 1977.⁴ Former Prime Minister John Howard attempted to symbolically recognise Indigenous peoples in 1999 with a new preamble to the Constitution, alongside the Republic referendum. Many Indigenous leaders opposed the change⁵ and the Australian people voted ‘no’ to both reforms – only 39.34 per cent voted ‘yes’ to the new preamble.⁶ Troublingly, some politicians seem to want to re-run the 1999 failure. Australian governments thus far have not implemented Indigenous calls for substantive constitutional reform, instead tending to prefer a merely symbolic constitutional mention that entails no structural or operational reform.⁷ But the government preference for pure symbolism is contrary to the long history of Indigenous advocacy for substantive constitutional reform and Indigenous aspirations as expressed in the historic Uluru Statement from the Heart. It is also strategically unwise. As this book will argue, the minimalist route will lead to a repeated referendum defeat.⁸ Cracking the difficult formula for winning a constitutional referendum requires innovative thinking and hard work. There are no lazy ways through.

The Uluru Statement calls for one constitutional reform: a constitutionally guaranteed First Nations voice in their affairs.⁹ I argue this is the right approach to Indigenous constitutional recognition. A constitutional voice is a balanced reform solution that is at once constitutionally innovative and constitutionally conservative: it is substantive and empowering, yet in keeping with Australian constitutional history, culture and design. This is a ‘modest yet profound’,¹⁰ ‘radical centre’¹¹ reform which, with leadership, perseverance and determination, can navigate the political blockages to meaningful constitutional reform in Australia. The Uluru Statement offers a breakthrough way forward that, in my view, provides the only way to win a recognition referendum.

The call for a First Nations constitutional voice builds on decades of Indigenous advocacy for greater representation, participation and self-determination in their affairs; however, the convergence of such calls for First Nations political empowerment with the push for Indigenous constitutional recognition represents a decisive shift in the recent debate. For the first part of the last decade, the debate on Indigenous constitutional recognition tended to focus on judicially adjudicated constitutional avenues for Indigenous rights protection. Particularly, it focused on the possibility of a new racial non-discrimination clause in the Constitution, as proposed by the Expert Panel in 2012.¹² The Uluru Statement changed the conversation. It offered a new way of thinking about the challenge of Indigenous constitutional recognition.

This shift in thinking presents fresh possibilities for consensus. Where proposals for additional constitutional rights guarantees have tended to create an intellectual and political impasse beyond which consensus has struggled to progress, discussion of political, procedural and participatory mechanisms for Indigenous recognition can illuminate more viable, alternative pathways forward in the national debate. A First Nations voice fits neatly with the philosophy, history and culture of Australia’s Constitution. The Constitution is a power-sharing compact that is all about voices. It recognises and constitutionally guarantees representation of even the smallest historic political communities – the former colonies – ensuring their concerns will always be heard by more populous powers. It is but a small step to also recognise and guarantee that the voices of the First Nations – the historic political community wrongfully omitted from the constitutional compact of 1901 – are also heard in their affairs.

Australian constitutional culture, design and history support the argument that Indigenous constitutional recognition can best occur through political participation, representation and dialogue, rather than through a judicially adjudicated limitation on parliamentary power. This is the crux of the proposal for a First Nations constitutional voice: it presents a mechanism for Indigenous empowerment through political processes, not through the courts. The proposal thus upholds Australia’s Constitution and respects parliamentary supremacy. It is a constitutionally congruent reform, revolutionary in its modesty. Properly conceived and drafted, the concept can address the relevant aspirations and concerns of divergent stakeholders in this debate: the aspirations of Indigenous peoples who have repeatedly made clear they want substantive, empowering constitutional reform – not mere symbolism; the concerns of constitutional conservatives, who want to uphold the Constitution and minimise legal uncertainty; and the concerns of Australian politicians, many of whom may not want to give up power to the High Court. Appropriately formulated, this is a workable ‘noble compromise’ solution.¹³

Addressing all rational concerns in this debate is important. As a matter of political strategy, a successful referendum can only be achieved by developing wide political consensus. Indigenous constitutional recognition must therefore forge three layers of consensus, each building upon the other. The first requirement is Indigenous consensus. A majority of Indigenous Australians should agree that the model of constitutional recognition is acceptable to them. This is a morally necessary precondition: it would be unconscionable to go ahead with a form of recognition that Indigenous people do not want. Indigenous national consensus has now been achieved through the Uluru Statement.

Indigenous consensus alone is not enough, however. The second requirement is winning widespread support from representatives in the Commonwealth Parliament – for Parliament will need to initiate any proposed referendum to make the constitutional reform a reality. Here, bipartisan support is usually considered important. Parliamentarians across the political spectrum will need to explain and advocate the proposed reform to the wider public. It is therefore not enough if reform-eager progressives support the change; success will likely require reform-cautious conservatives to champion the reform as well.¹⁴ With political leadership across left and right, Australians across the political spectrum will be more inclined to vote ‘yes’.

The Australian people will pose the final test through a referendum to change the Constitution. Section 128 of the Constitution requires a ‘double majority’ referendum: a majority of voters in a majority of States, as well as a majority nationally, must vote ‘yes’ to approve any constitutional change. Australians so far seem amenable to the proposal for a First Nations voice in the Constitution. A 2017 Omnipoll showed 61 per cent would vote ‘yes’ to the proposal,¹⁵ and a February 2018 Newspoll demonstrated 57 per cent support.¹⁶ In July 2019, research showed support at 66 per cent¹⁷ – even in the face of sustained government opposition. But a majority national vote is insufficient: at least four out of six States must achieve majority ‘yes’ votes as well. This is a high threshold for success.

This book argues that a First Nations constitutional voice is capable of winning support across voters of the left and right, and across a majority of States and nationally. Through the Uluru Statement, the idea of an Indigenous constitutional voice has won Indigenous consensus. I argue it can and should also win widespread political consensus and the popular support necessary for success.

II.STRUCTURE OF THIS BOOK

Chapter two contextualises the constitutional recognition question. It explores the historical, political and theoretical context underpinning the argument for a First Nations constitutional voice, weaving in observations from the international context (which will be explored in greater depth in Chapter four).

Chapter three grappl...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• Table of Cases
• Tables of Legislation
• 1. Introduction
• 2. The Historical, Political and Theoretical Context
• 3. Understanding Objections to a Racial Non-Discrimination Guarantee
• 4. International Inspiration
• 5. The Legislative Possibility of Reserved Indigenous Seats in Parliament
• 6. The Case for a First Nations Voice in the Constitution
• 7. Conclusion
• Index
• Copyright Page