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.”

Final Report of the Referendum Council, 30 June 2017:

Recommendations

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:

2. 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.

Current Referendum Council members:

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.

Notes

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 51

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

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 122

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.

Mouth of the Clarence River in Yaegl Country

“Always” by Frances Belle Parker

https://www.sydneyoperahouse.com/visit-us/BaduGili.html

Quotes of the Week

“Abdel-Magied's savaging has been so grotesque in its meanness, ugly in its intolerance and alarming in its violence, that it's obvious something else is going on, too – something has been legitimised and unleashed. And it seems to be hostility to Islam, as well as women.” [Julia Baird writing in The Sydney Morning Herald, 14 July 2017]

“A few years ago I talked to [Prime Minister Malcolm Turnbull] for two hours about climate change, and he had a great grasp of it. Then he turns around and does nothing. To me, that is truly criminal.” [Marine scientist J.E.N. “Charlie” Vernon quoted in The Sydney Morning Herald, 14 July 2017]

“It has put Australia in a position it's only been in three times before: Minor parties securing more than a quarter of all votes. Every time we have been in this situation, one of the major parties has been reshaped or disappeared.” [Economist Andrew Charlton quoted in The Sydney Morning Herald, 15 July 2017]

Look who's trolling Trump

A reminder to rural and regional businesses that there always needs to be a valid reason based on fact for dismissing staff

FAIR WORK COMMISSION

DECISION U2017/1880 Excerpts, 14 July 20017

[42] In dealing with unfair dismissal claims over the past 20 years a handful of cases remain memorable because of their particular circumstances. In some instances, the case was remarkable because of the manifest absence of valid reason for dismissal, usually accompanied by deplorable procedural deficiencies. In other cases, the audacity of the employee to make complaint about their dismissal was consistent with a history of misconduct that provided unassailable valid reason for which the individual should have been dismissed much earlier. Unfortunately, this case will join the ranks of those elite few which forever remain ignominiously memorable…..

[52] Employees are human beings and not human resources. A machine or item of office equipment might be quickly discarded if it is broken or malfunctioning. However, an employee is entitled to be treated with basic human dignity, and advice of the termination of employment by telephone or other electronic means should be strenuously avoided so as to ensure that the dismissal of an employee is not conducted with the perfunctory dispassion of tossing out a dirty rag……

[59] In summary, this case has involved a very regrettable absence of valid reason for the applicant’s dismissal. Further, it has been highly lamentable to observe the seriously flawed manner in which the employer first determined, and then conveyed the decision to dismiss the applicant. The circumstances of this case provide strong foundation for argument against any lessening of legislative protections for unfair dismissal, a proposition which seems to regularly resurface, and gain a level of publicity that is disconnected with reality.

[60] Regrettably, the dismissal of the applicant was harsh, unjust and unreasonable. Thankfully, the applicant is a person protected from unfair dismissal, and she is entitled to have the Commission provide an appropriate remedy.

A plea on behalf of NSW Liverpool Plains communities

LOCK THE GATE:

It's been a difficult week on the Liverpool Plains. Yesterday the New South Wales Government paid coal company Shenhua $262 million dollars in a deal that removes part of their larger exploration licence but still lets the company go ahead with it's full coal mining project on the irreplaceable Liverpool Plains. There is a lot of public relations spin from the NSW Government, but the cold hard truth is that they haven't stopped the Shenhua Watermark coal mine and the company now says it plans to proceed to start the project. The consequences for local farmers adjoining the mine, and the productivity of this vital national foodbowl, will be severe. Local farmers have been fighting this proposal for ten years, and need your support now to phone the NSW Premier to tell her that she hasn't delivered what is needed and she must stop the entire Shenhua coal mine and cancel all licences. Can you phone the Premier now?  The Government is trying to throw the coal dust over our eyes by telling us this is a great win for the Liverpool Plains. But in fact, all they have done is pay an exorbitant price for some areas that Shenhua never had any intention of mining, whilst allowing the full 4,000 hectare mine with 3 massive open-cut coal pits to go ahead full bore on the Plains. The NSW Government has the legal power to cancel the entire Shenhua exploration licence and put an end to this dangerous mine proposal once and for all. Please phone the Premier now and let her know that is what she needs to do.  We've got some simple talking points here to help you with your call. This is an incredibly crucial moment. We need a crescendo of voices demanding full protection of this magnificent country and an end to the Shenhua mine project. Thanks for your help, George Woods Lock the Gate Alliance http://www.lockthegate.org.au/ Lock the Gate Alliance · PO Box 6285, Sth Lismore, NSW 2480, Australia . You can also keep up with Lock the Gate Alliance on Twitter or Facebook.

A new Australian Federal Government super ministry capable of deploying armed soldiers on our streets

“The first question to ask yourself is this: does handing Dutton that power sound like a good idea?” [journalist Katherine Murphy, The Guardian, 18 July 2017]

A new Australian Federal Government super agency capable of deploying armed soldiers on our streets? With a former Queensland police officer of no particular merit as its head?

What could possibly go wrong with a rigid, far-right, professed ‘Christian’ property millionaire having oversight of a super portfolio which would reportedly bring together the Australian Security Intelligence Organisation (ASIO), the Australian Federal Police (AFP) Australian Border Force, Australian Criminal Intelligence Commission and AUSTRAC along with a database on ordinary citizens, ‘intellectuals’ and perfectly legal organisations, going back literally generations?

How long will it take before any industrial action or protest event would be quickly labelled as terrafret and armed soldiers sent to disperse people exercising their democratic right?

Australia’s been down that painful path before during the last 229 years and been the worse for it.

Turnbull at Holsworthy Barracks, Forbes Advocate,17 July 2017

“The measures I am announcing today will ensure that the ADF is more readily available to respond to terrorism incidents, providing state and territory police with the extra support to call on when they need it.”  

[Prime Minster Malcolm Turnbull, media release, Holsworthy NSW,17 July 2017]

The Sydney Morning Herald, 18 July 2017:

Malcolm Turnbull has confirmed a dramatic shake-up of Australia's security, police and intelligence agencies that will put Immigration Minister, Peter Dutton, in charge of a sprawling new Home Affairs security portfolio.

The department of Home Affairs will bring together domestic spy agency ASIO, the Australian Federal Police, the Australian Border Force, the Australian Criminal Intelligence Commission, AUSTRAC and the office of transport security and will be put together over the next year.

And Mr Turnbull has also announced the government would, in response to the 

L'Estrange review of Australia's intelligence agencies, establish an Office of National Intelligence and that the Australian Signals Directorate will also be established as an independent statutory authority. 

The new Office of National Intelligence will co-ordinate intelligence policy and is in line with agencies in Australia's "Five Eyes" intelligence partners in the US, Britain, Canada and New Zealand…..

The changes are to be finalised by June 30, 2018 - subject to approval of the National Security Committee of Cabinet -  with Mr Dutton to work with Senator Brandis in bedding down the changes.

Senator Brandis will lose responsibility for ASIO under the changes but, crucially, retain sign-off power on warrants for intelligence agency. 

Mr Turnbull said the Attorney-General's oversight of Australia's domestic security and law enforcement agencies would be strengthened, with the Inspector-General of Intelligence and Security and the independent national security legislation monitor moving into his portfolio. 

The Prime Minister said Australia needed these reforms "not because the system is broken, but because our security environment is evolving quickly…..

The Sydney Morning Herald, 17 July 2017:

However that L'Estrange review – part of a routine reassessment of national security arrangements – is understood not to specifically recommend such a super-portfolio.

Mr Turnbull has been dropping strong hints lately that he is inclined to make a significant change, rejecting what he's branded a "set and forget" policy on national security and warning that Australia must keep up with an evolving set of threats from terrorism to foreign political influence.

Security and intelligence agencies themselves are also believed to have concerns about such a change, while some former intelligence heads have publicly said they do not see any need for change.

However, a well-placed source in the intelligence community said a Home Affairs office - as opposed to a US-style Department of Homeland Security - was the preferred options for police and intelligence agencies.

That was because a Home Affairs department would potentially be broader, including agencies such as the Computer Emergency Response Team, the Australian Cyber Security Centre, Crimtrac, the Australian Criminal Intelligence Commission and the new Critical Infrastructure Centre, rather than just police and intelligence agencies.

The Guardian, 18 July 2017:

Peter Jennings, the executive director of the Australian Strategic Policy Institute, put it well on Tuesday when he said any “grit” in the Dutton/Brandis relationship could be problematic for intelligence operations, which is obviously problematic for all of us, given we rely on the efficiency of the counter-terrorism framework to keep us safe.

So we’d better hope for the best, to put it mildly.

We’d also better hope it’s a good use of the time of our intelligence services and public servants to nut out how the Big Idea is going to work in practice, which will be a reasonably complex task, at a time when these folks already have a serious day job.

Recapping that specific day job again: trying to disrupt national security threats, in a complex environment. Pretty busy and important day job, that one.

It’s cartoonish to say this is all about the prime minister rewarding old mate Dutton, on the basis you keep your friends close, and your (potential) enemies closer.

Nothing is ever that simple outside a House of Cards storyboard– although it remains an irrefutable fact that Dutton wanted this to happen, and if Dutton really wanted it to happen, it would have been difficult for Turnbull, in his current position, to say no.

The Australian, 19 July 2017:         

The pressure points lie in the risk calculations that link intelligence to response. In a liberal democracy, we rightly demand high certainty of the intention to carry out an act of violence before we are comfortable with our security services pre-emptively taking someone off the streets. Usually when an attack happens, here or in the US or Europe, it’s because the calibration of risk hasn’t worked. It’s not because security services weren’t concerned about an individual’s beliefs and actions or couldn’t find him.

For those of us without access to national security data, the evidence suggests that Australia does these important risk calculations relatively well. Our list of foiled terrorist attacks is quite a bit longer than the list of attacks. The reason for this is the national security structures we have evolved: the combination of separate national security agencies, each with highly developed specialist capabilities and slightly different cultures and perspectives, working in close, 24/7 collaboration.

When calculating risk, separation and diversity are a strength because they build contestation, careful deliberation and stress testing into the system. Britain, the US, France and Belgium have chosen more centralised structures, and the evidence is that their systems do not work as well as ours. Bringing our highly effective agencies into a super-department cannot help but disrupt their inner structures and cultures. Such enterprises inevitably lose sight of the goal — keeping Australians safe — as they become driven by the desire for efficiencies and cultural homogenisation, and the urge for bureaucratic tidiness. Look no further than the creation of the Department of Immigration and Border Protection, a process that has consumed enormous amounts of resources in reconciling two incompatible cultures, with no apparent benefits and a list of embarrassing blunders.

Creating one security super-department places a major imperative on the government to get everything right, first time. Separate but closely collaborating security agencies create a powerful check against underperformance: a struggling agency or a leader who’s not up to it are spotted and called out quickly. But underperformance in a federation-style conglomerate is not so easy to see and to call out. And in the meantime, it’s the safety of Australians that will be the price for underperformance.

If the Turnbull government were serious about national security, it would not engage in evidence-free experimentation with our national security. It should instead be building on what’s working well and making it even stronger. We need better co-ordination and cross agency connectivity, not big-bang organisational redesign.

We should be getting these sorts of issues right in a system that is working, rather than indulging in the risk-riddled gesture politics of a grand restructure.

Michael Wesley is professor of international affairs and dean of the College of Asia and the Pacific at the Australian National University.