- The Legislation
- This chapter provides a brief outline of the Constitution Alteration and the intended effect on the Constitution. It sets out stakeholders’ general views of the legislation and the key points of contention, which will be expanded in Chapter 3. It also examines how the legislation aims to meet the request made in the Uluru Statement of the Heart (Uluru Statement) by recognising Aboriginal and Torres Strait Islanders in the Constitution and establishing an Aboriginal and Torres Strait Islander Voice to Parliament and the Executive Government (the Voice).
Outline of the Constitution Alteration
2.2This is a Bill for an Act to alter the Constitution to recognise the First Peoples of Australia by establishing a First Nations Voice.
2.3As explained in the Explanatory Memorandum, the Constitution Alteration has four key elements:
- To recognise Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia;
- To provide for the establishment of a new constitutional entity called the Aboriginal and Torres Strait Islander Voice;
- To set out the core representation-making function of the Voice; and
- To confer upon the Parliament legislative power to make laws with respect to matters relating to the Voice, including its composition, functions, powers and procedures.[1]
General public sentiment in support of the Constitution Alteration
2.4As outlined in Chapter 1, the Committee’s resolution of appointment which guided the inquiry’s terms of reference do not include consideration of issues relating more broadly to the proposed referendum or the Voice’s constitution and operation after its enactment. These are matters that will be considered in other forums, and also to be considered and decided by the Parliament after a successful referendum.
2.5Most of the material received by the Committee during the course of the inquiry expressed support for constitutional recognition for Aboriginal and Torres Strait Islander peoples in the form proposed by the Bill. The Committee received large amounts of evidence supporting this view, including many submissions received, material from form letter campaigns, correspondence to the Committee, and oral evidence at hearings.
2.6Submitters supported the Constitution Alteration in a range of ways. An inexhaustive list of reasons provided by submitters in favour of the Bill is provided below:
- The Constitution’s current lack of inclusion or recognition of Australia’s First Nations peoples
- The development of the Constitution Alteration’s wording over numerous reviews and consultations, directly by Indigenous Australians and constitutional experts
- The ‘simple and direct’ wording which was said to be constitutionally appropriate and legally effective
- The Voice being introduced as an enduring body protected by the Constitution as opposed to previous representative iterations which have been abolished and not replaced by previous governments
- The provision’s balance between providing the Voice with appropriate powers to make representations to the Executive Government on matters directly relating to Aboriginal and Torres Strait Islander peoples, and ensuring that it does not result in ‘problematic and unintended consequences’.
- Aboriginal and Torres Strait Islander stakeholders in particular expressed their hope that the Voice would fundamentally alter and improve the lives of current and future generations. Many witnesses told the Committee that they were concerned that the lives of their children, grandchildren and great-grandchildren would not improve without change, and that they would ‘like to be able to see that when they're adults, or when my great-grandchildren are going through school, they're not sitting here having the same conversations’.
- Alternative perspectives were raised from stakeholders who did not support either the entire Bill or particular aspects of its wording. The key criticisms of the Constitution Alteration included:
- Constitutional recognition of First Nations peoples or representative bodies not being required, due to other legislation in force or similar organisations in existence
- The Voice’s proposed capacity to ‘make representations to … the Executive Government of the Commonwealth’, which was argued to lack clarity
- Despite there being no reference to race in the Voice amendment, and the Constitution already containing a ‘race power’, some submitters argued that the amendment would introduce the concept of ‘race’ into the Constitution.
- It is important to note here that not all stakeholders who voiced criticisms of the Constitution Alteration shared the same concerns, and some of those who expressed concern made it clear that they would nonetheless vote – or even campaign – for the current version of the Constitution Alteration at referendum. Very few stakeholders disputed that Aboriginal and Torres Strait Islander peoples should be recognised in some form. The main point of contention was the inclusion of an Aboriginal and Torres Strait Islander Voice in the Constitution at all, which will be discussed further in Chapter 3.
Alignment with the Uluru Statement from the Heart
2.10The Explanatory Memorandum explains that the proposed legislation is intended to meet the request set out by the 2017 Uluru Statement from the Heart (the Uluru Statement).
2.11A range of Uluru Dialogue participants and facilitators put their view that the Bill as drafted meets the request set out in the Uluru Statement. Aunty Pat Anderson, Co-Chair of the Uluru Dialogue outlined the scale of this undertaking:
This process is unprecedented in our nation's history. It is the first time the constitutional convention has been convened with and for first peoples. The dialogues engaged 1,200 Aboriginal and Torres Strait Islander delegates, an average of 100 delegates from each dialogue, out of a population of approximately 600,000 people nationally. This is the most proportionately significant consultation process that has ever been undertaken with first peoples.
2.12Mr Noel Pearson and DrShireen Morris emphasised that the wording had been negotiated and carefully considered by a range of participants to ensure that the legislation met the needs of the Uluru Statement:
We negotiated every word, comma and semicolon of a proposed Voice amendment until each in the group was satisfied it would empower Indigenous peoples with an advisory say in their affairs while respecting parliamentary supremacy, minimising legal uncertainty and upholding the Constitution.[9]
2.13Similarly, the Indigenous Law Centre further stated that the proposed amendment ‘gives appropriate effect to the call for constitutional recognition in the Uluru Statement from the Heart, and should be passed by the Parliament, for consideration by the people at a referendum’.
Recognition of Aboriginal and Torres Strait Islander Peoples in the Constitution
2.14The Constitution Alteration seeks to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution. The Constitution currently does not contain any reference to Aboriginal and Torres Strait Islander peoples; however, powers to make laws specifically relating to Indigenous peoples have been derived from section51(xxvi) since 1967, which enables the Parliament to make laws for any race. Despite this section referring to power to make laws on ‘race’, it has only ever been used to make laws in relation to Aboriginal and Torres Strait Islander people.
2.15Many Aboriginal and Torres Strait Islander stakeholders passionately expressed the importance of being recognised as the First Australians in the Constitution. MrGerald Power, Deputy Mayor of the Orange City Council, explained to the Committee why constitutional recognition was so important to him:
At the age of 61, I never thought that we would even come to this. I thought I'd be dead. I thought my son would have to pick it up. My mother died and my ancestors died without having a voice in the Constitution, and that lack of a voice is simply because we were never identified as humans. Why is it so important to have it in the Constitution? It is because it needs to be in there. It needs to at least acknowledge that there were humans here and that these are the oldest humans on the face of the planet—continuous, ongoing.
2.16It was widely recognised in the inquiry’s evidence that the Constitution’s lack of reference to Aboriginal and Torres Strait Islander people as the First Peoples of Australia is an unresolved omission in the Constitution. The Law Council of Australia outlined the three key reasons why constitutional recognition is needed:
- it will address the ‘longstanding and unfinished business for the nation’ by ensuring that Australia’s supreme law substantially recognises Aboriginal and Torres Strait Islander peoples as the original custodians of the land;
- all Australians ‘own’ the Constitution and the proposed alteration will reflect the history of this land, and at last include all its peoples, when it recognises Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia; and
- a successful referendum will have significant value as a symbol of recognition and unity between Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians.
- Stakeholders in support of the legislation strongly put that the Bill recognises Aboriginal and Torres Strait Islanders in a twofold manner: by symbolically acknowledging them as Australia’s First Nations peoples, and by creating the Voice in recognition of this fact. The Indigenous Law Centre submitted that the opening words of the proposed constitutional amendment ‘appropriately make clear that amending the Constitution to enshrine the Voice is an exercise in recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of the country that is now called Australia’. This section, according to the Law Council of Australia, also recognises the ‘unique status and rights of Aboriginal and Torres Strait Islander peoples as Australia’s Indigenous Peoples’.
- Professor Anne Twomey AO noted that, while the Voice itself provides substantive recognition of Aboriginal and Torres Strait Islander people, that the opening words of proposed section129 more directly provide symbolic recognition.
- Professor Megan Davis explained that the concept of recognition ‘sits on a spectrum’, with varying degrees between models of power and the capacity to speak to the state. She observed that a statement in the Constitution acknowledging Aboriginal and Torres Strait Islanders was referred to during the Uluru Dialogues as a ‘plaque’, and that such a model was considered a weak form of reform as it would not make a substantive difference to reforming disadvantage. Professor Davis further stated:
A voice to parliament, for example, is at the strong end of the recognition spectrum, because it's empowering. It does something. It provides a Logan voice to Canberra. It provides a Cairns voice to Canberra. It provides an Alice Springs voice to Canberra. It provides a Yarrabah voice to Canberra.
2.20She also noted that the constitutionally-enshrined Voice option had been determined by the dialogue delegates as the preferred option of recognition. This was supported by Aunty Pat Anderson AO, who explained that the term ‘Canberra Voice’ did not adequately recognise the wishes of Aboriginal and Torres Strait Islander peoples to have direct input into decisions affecting them:
What they asked for was a voice to Canberra, not a Canberra voice. What we heard in the dialogues was that—and this is why reserved seats and designated parliamentary seats weren't prominent—people don't want to be politicians. In the dialogues they said they did not want to be politicians. They don't belong to political parties. They don't want to be going to Canberra to be politicians. They want to serve their community. They want to live in their communities and serve their mobs and their families. They're extraordinary men and women. They've lived their whole lives in their communities helping their own mobs. They don't want to be in Canberra as a Canberra voice. They have no intention of leaving their communities. That's at the heart of the Uluru Statement from the Heart and the Voice to Parliament. It is about getting grassroots voices amplified and feeding into Canberra, representing the views and voices of their communities. The really important message from the dialogues was that there are no voices that exist right now that represent who we are and what we want. That's a really critical message. The Canberra voice is just a term that's deployed to imply that our people want to be politicians in Canberra, when nothing could be further from the truth. They studied the legal and political system. They worked out an option that fits better with the Australian legal and political temperament than the non-discrimination clause that was rejected by an expert panel. They want a voice to the parliament and to Canberra.
2.21Further, Professor Davis explained that the options for constitutional amendment developed at the Uluru Dialogues had been signed off on by the Prime Minister and Leader of the Opposition of the day.
Recognition through a Voice to Parliament
2.22The Uluru Statement called for the establishment of an Aboriginal and Torres Strait Islander Voice to Parliament enshrined in the Constitution. As explained by submitters and witnesses, the Voice is intended to be both a formal recognition of First Nations peoples but also an enduring mechanism protected by the Constitution to enable representations to be made to the Parliament and the Executive Government on matters that directly impact them.
2.23This point was addressed in the Explanatory Memorandum, which provided that:
By addressing the need for such an institution, this proposed constitutional amendment provides a form of recognition that is practical and substantive. It both ensures that the Constitution reflects the historical truth of Aboriginal and Torres Strait Islander peoples’ long-standing and continuing place in Australia, and provides for an institution to improve their lives.
2.24Addressing the disempowerment of Aboriginal and Torres Strait Islander peoples was a key factor in the Uluru Statement, as expressed in the below excerpt:
Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.
These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.
2.25The Indigenous Law Centre detailed how the concept of the Voice came about. It explained that the Uluru Dialogues process evolved during the period of consultations in 2016 and 2017, moving from a position focusing on constitutional recognition towards providing a vehicle for Aboriginal and Torres Strait Islander peoples to have greater involvement in policy and decision-making. They explained that, while other options for constitutional recognition were canvassed, the Voice was considered as the preferable method of doing so because it addressed disempowerment and issues that were of urgent and daily relevance:
The intention was that it address the urgent need for First Nations people to have a greater say in decisions affecting their daily lives, while focusing on Australia’s existing processes of parliamentary government rather than the courts.
…
The delegates at the Uluru Convention, and the Dialogue participants who sent them there, were determined to do something about ‘the structural nature’ of their problem, ‘the torment of our powerlessness’. They advocated ‘substantive constitutional change’ that would alter the status quo. They called for empowerment through a Voice that could speak to both Parliament and Government, and could evolve as needs change over the decades to come.
2.26The Indigenous Law Centre further stated that the Voice was, for the reasons outlined above, a ‘meaningful form of constitutional recognition’ for Aboriginal and Torres Strait Islander peoples. Professor Anne Twomey AO similarly noted that the concept of the Voice was born from changing the approach towards giving Indigenous peoples ‘agency and ongoing recognition by hearing their voices (not those of lawyers and judges) before laws and policies are made, so they can influence them for the better’.
2.27The introduction of the Voice via constitutional amendment was argued by a range of submitters to be critical to its success. A number of Aboriginal and Torres Strait Islander witnesses to the inquiry strongly rejected constitutional recognition without the accompaniment of the Voice, calling such a proposal ‘absolutely unacceptable’. Mr Roy Ah-See, Member of the Wellington Town Common Aboriginal Elders, explained that this proposal had been rejected by participants in the Uluru Dialogues:
They didn't want symbolism or tokenism. They wanted substantial reform, and that was a voice enshrined in the Constitution. One of my elders taught me—he said, 'Listen, Roy; it's better to understand then to be understood.' It took me a long time to understand what he was saying. It's better to listen to others than to listen to yourself, pretty much. The people have spoken.
2.28This was a widely held position; others similarly noted that a statement of recognition in the Constitution would not address the structural and systemic reform required, and that a Voice ‘can do that, but not recognition within a few lines. We need a framework within the Constitution that is accountable, that is transparent and that can’t be removed’.
2.29This point was expanded on by Mr Jamie Newman, Chief Executive Officer of the Orange Aboriginal Medical Service, who noted that the Voice as currently designed would not be party-aligned or party-bound but comprised by those who ‘understand community’.
2.30The Law Council of Australia outlined why it should not be introduced by lesser legislation:
- it was the means chosen by Aboriginal and Torres Strait Islander people, through the Uluru Statement, and after careful and longstanding deliberation on the options available, to recognise and empower them and is thus an expression of self-determination;
- constitutional enshrinement of the Voice would provide it with an enduring mandate and distinguish it from previous advisory bodies, such as the Aboriginal and Torres Strait Islander Commission, which were able to be established and dissolved and were consequently subject to the changing political landscape; and
- the exercise of popular sovereignty at the referendum and then the constitutional status of the Voice will also be part of its success.
- Conversely, some submitters argued that an Aboriginal and Torres Strait Islander Peoples Voice to Parliament and to the Executive Government was not necessary as there are current mechanisms designed to achieve the same outcome. These include representative organisations and agencies, including Indigenous members of the Federal Parliament. This argument will be discussed further in Chapter 3.
- Further, it was put that a Voice may not be sufficiently representative of different perspectives and viewpoints.