Sunday, 23 July 2017

Aboriginal Australia seeks more than the symbolic recognition of first peoples status on offer from the Liberal-Nationals Federal Government

“The Australian story began long before the arrival of the First Fleet on 26 January 1788. We Australians all know this. We have always known this.”


The Council recommends:
  1. 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.
It will be for the Parliament to consider what further definition is required before the proposal is in a form appropriate to be put to a referendum. In that respect, the Council draws attention to the Guiding Principles that emerged from the National Constitutional Convention at Uluru on 23–26 May 2017 and advises that the support of Aboriginal and Torres Strait Islander peoples, in terms of both process and outcome, will be necessary for the success of a referendum.

In consequence of the First Nations Regional Dialogues, the Council is of the view that the only option for a referendum proposal that accords with the wishes of Aboriginal and Torres Strait Islander peoples is that which has been described as providing, in the Constitution, for a Voice to Parliament.

In principle, the establishment by the Constitution of a body to be a Voice for First Peoples, with the structure and functions of the body to be defined by Parliament, may be seen as an appropriate form of recognition, of both substantive and symbolic value, of the unique place of Aboriginal and Torres Strait Islander peoples in Australian history and in contemporary Australian society.

The Council recommends this option, understanding that finalizing a proposal will involve further consultation, including steps of the kind envisaged in the Guiding Principles adopted at the Uluru Convention.

The Council further recommends:
  1. That an extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian Parliaments, ideally on the same day, to articulate a symbolic statement of recognition to unify Australians.
A Declaration of Recognition should be developed, containing inspiring and unifying words articulating Australia’s shared history, heritage and aspirations. The Declaration should bring together the three parts of our Australian story: our ancient First Peoples’ heritage and culture, our British institutions, and our multicultural unity. It should be legislated by all Australian Parliaments, on the same day, either in the lead up to or on the same day as the referendum establishing the First Peoples’ Voice to Parliament, as an expression of national unity and reconciliation.

In addition, the Council reports that there are two matters of great importance to Aboriginal and Torres Strait Islander peoples, as articulated in the Uluru Statement from the Heart, that can be addressed outside the Constitution. The Uluru Statement called for the establishment of a Makarrata Commission with the function of supervising agreement-making and facilitating a process of local and regional truth telling. The Council recognises that this is a legislative initiative for Aboriginal and Torres Strait Islander peoples to pursue with government. The Council is not in a position to make a specific recommendation on this because it does not fall within our terms of reference. However, we draw attention to this proposal and note that various state governments are engaged in agreement-making.

Pat Anderson AO
Mark Leibler AC
Megan Davis
Andrew Demetriou
Natasha Stott Despoja AM
Murray Gleeson AC
Tanya Hosch
Kristina Keneally
Jane McAloon
Noel Pearson
Michael Rose AM
Amanda Vanstone
Dalassa Yorkston
Galarrwuy Yunupingu AM

The Australian, 18 July 2017:

Two indigenous Labor MPs have expressed doubts about the Referendum Council’s proposal for indigenous constitutional recognition, saying the councils’ final report, delivered yesterday, does not provide a clear line of sight to constitutional change.

Malcolm Turnbull yesterday cautiously backed what he called “a very big new idea” put forward by the Referendum Council he and Bill Shorten appointed 18 months ago, namely their sole recommendation of a special indigenous advisory body to the parliament.

But WA Labor Senator Pat Dodson said the recommendation had surprised some people, while NSW Labor MP Linda Burney said the sole recommendation was “limiting”, and most Australians would be “shocked” to learn that it has ruled out addressing race powers in the constitution.

Prime Minister Turnbull yesterday promised to consider the Referendum Council’s proposal, but indicated he was cautious about putting it to a national vote.

“We do not want to embark in some sort of exercise of heroic failure. I have some experience in trying to change the constitution and know better than most how hard it is.”

Senator Dodson said he wasn’t sure that progress is being made on the recognition of indigenous Australians.

“Unfortunately I think we’re going in circles a bit at the moment,” he told 7.30.

“I don’t think we’ve got a clear line of sight as to where any constitutional change whether it’s going to take place or not. Certainly on our side of politics we’re open to that. I’m not sure whether the government side is quite open as we are to the proposition.”

UNSW Dean of Law George Williams said a strong process would be needed to convince the Australian electorate that the Referendum Council’s proposal is worth voting for.

The Guardian, 18 July 2017:

These powers, s.51xxvi, were inserted into the constitution as part of the 1967 referendum and give the commonwealth power to make laws for “the people of any race for whom it is deemed necessary to make special laws”.

That allowed for the construction of laws such as native title and Aboriginal heritage laws but it also allowed the federal government to make discriminatory laws.
Burney said while the idea of an Indigenous voice to parliament was huge and important, it was limiting to consider it as the only option.

“I think that is very limiting,” Burney told the ABC. “I think that is more of a minimal approach when ... they don’t want us to address the issues of the race powers and recognition of first peoples in the constitution.

“I think the Australian community would be shocked to think that we are not going to deal with the archaic race powers in the constitution but that is what the Referendum Council is instructing the parliament.”

Burney underlined that it was unclear what the Indigenous voice would do, its structure or how people would be elected. 

She said the Coalition and Labor needed to consider the report. Labor’s Indigenous caucus meets on Wednesday. She warned that any idea needed to be passed in the parliament and the idea of enshrining a national body would be a “challenge for some people”.

Sky News, 20 July 2017:

Indigenous Liberal MP Ken Wyatt has expressed disappointment at the decision to abandon the push for constitutional recognition, saying the timeline for a referendum has now been pushed back to beyond this term of government.


(xxvi)  the people of any race , other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;

Government of territories
                   The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

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