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Law and Bills Digest Section
A constitutional convention bringing together over 250
Aboriginal and Torres Strait Islander leaders met last month at the foot of
Uluru in Central Australia on the lands of the Aṉangu people.
The majority resolved, in the ‘Uluru
Statement from the Heart’, to call for the establishment of a ‘First
Nations Voice’ in the Australian Constitution and a ‘Makarrata
Commission’ to supervise a process of ‘agreement-making’ and ‘truth-telling’
between governments and Aboriginal and Torres Strait Islander peoples.
First Nations National
Convened by the bipartisan-appointed Referendum Council, the First
Nations National Constitutional Convention met over four days from 23 to 26 May
2017 to discuss and agree on an approach to constitutional reform to recognise
Aboriginal and Torres Strait Islander peoples. Delegates were selected from
participants in regional Dialogues held around the country.
Discussions at the Convention built upon a discussion
paper produced by the Council (and published in more than ten traditional
languages) and reflected the diversity of views raised by Aboriginal and Torres
Strait Islander communities in consultative Dialogues with the Referendum Council
over the last six months. As participation in the Dialogues and Convention was
by invitation, there has been some criticism about the representativeness of
the Dialogues, and, by implication, the Uluru Meeting. Amnesty International wrote
to the Referendum Council stating:
We understand that participants at the regional dialogue
meetings were invited in what was perceived as an exclusive process. We also
understand that some people who attended those meetings then have an
opportunity to attend the Uluru meeting, whereas those not included do not.
Acknowledging that participation in the Dialogues was by
invitation, the Referendum Council stated on its website:
This ensured each Dialogue was deliberative and reached
consensus on the relevant issues. Meetings were capped at 100 participants: 60%
of places were reserved for First Nations/traditional owner groups, 20% for
community organisations and 20% for key individuals. The Council worked in
partnership with a host organisation at each location, to ensure the local
community was appropriately represented in the process.
The Convention also drew upon work done over the past few
years by the Expert
Panel on Constitutional Recognition of Indigenous Australians and the Joint
Select Committee on Constitutional Recognition of Aboriginal and Torres Strait
Islander Peoples. There has been some distancing from the Recognise
campaign, an earlier government-funded initiative to broaden the appeal for
inserting a statement of recognition in the Constitution.
While the majority of delegates at the Convention backed
the Uluru Statement, a
small number walked out in opposition before the final consensus resolution
The Uluru Statement states two broad objectives for reform
as agreed to by Aboriginal and Torres Strait Islander leaders at the
Convention—the establishment of a First Nations Voice and a Makarrata
Commission. These objectives reflect the nature of reform desired rather than
specifying the fine detail of any proposed changes to the Australian
The positions in the Uluru Statement do, however, reflect
some of the ideas and proposals advanced by Indigenous and political leaders,
and constitutional experts over many years. In articulating two positions which
have broad support, it is hoped that they can become the foundations of a renewed
conversation with the whole Australian community about constitutional reform
and recognition of Aboriginal and Torres Strait Islander peoples and the
precise form that will take.
In addition to these two proposals, the Uluru Statement
affirms the sovereignty, and long and continuing connection of Aboriginal and
Torres Strait Islander peoples with the land. It also comments on the social
difficulties faced by Aboriginal and Torres Strait Islander peoples and the
structural impediments to the real empowerment of First Nations Peoples.
The Uluru Statement sets up a position that strongly
contrasts with that taken in the campaign for symbolic constitutional
recognition advanced by the Recognise
campaign. This echoes a 2015 online survey
conducted by IndigenousX which found that 58 per cent of Indigenous
respondents did not support Recognise. The same survey found that 62 per cent
did not believe Indigenous Australians would be better off recognised in the Constitution,
but 54 per cent supported the construction of an Indigenous parliamentary body.
That the Convention at Uluru was to come to a more robust conclusion was hardly
a surprise given that most of the regional Dialogues had rejected a minimalist
or symbolic model of Indigenous constitutional recognition in favour of more
First Nations Voice
The Uluru Statement calls for the ‘establishment of a
First Nations Voice enshrined in the Constitution’. This has been interpreted
in light of past suggestions put forward for the establishment of some form of
representative body for Aboriginal and Torres Strait Islander peoples. There is
no definitive statement about the form such a body would take, but proponents
of the idea (such as Noel Pearson, who sits on the Referendum Council) have
previously propounded that such a body would sit alongside Parliament to
provide non-binding advice on legal and policy matters affecting Aboriginal and
Torres Strait Islander peoples.
A proposal for an Indigenous body in the Constitution
was mooted in 2014 as part of a submission
by the Cape York Institute to the Joint
Select Committee on Constitutional Recognition of Aboriginal and Torres Strait
Islander Peoples inquiry. An elaboration of this idea in terms of
constitutional text was subsequently drafted by constitutional law expert Professor
Anne Twomey. This was later supported
by Noel Pearson and the Cape York Institute.
It is envisaged that such a body will provide a
constitutionally entrenched institution which enables Aboriginal and Torres
Strait Islander peoples to be formally consulted on legislation and policy
affecting their communities.
The Uluru Statement seeks ‘a Makarrata Commission to
supervise a process of agreement-making between governments and First Nations
and truth-telling about our history’.
Makarrata is a word from the language of the Yolngu
people in Arnhem Land. As Noel Pearson has explained:
The Yolngu concept of Makarrata captures the idea of two
parties coming together after a struggle, healing the divisions of the past. It
is about acknowledging that something has been done wrong, and it seeks to make
The word ‘Makarrata’ has often been used instead of
‘treaty’, and gained wider currency in the 1980s when the National Aboriginal
Conference (NAC) adopted the word. In a letter from the National
Aboriginal Conference Secretariat ‘to all Aboriginal Organizations’ Jim Hagan
(the then chairman of the NAC) wrote ‘using the word Makarrata makes it clear
this is intended to be an agreement within Australia, between Australians’.
The call for a treaty has existed for some time. The Barunga
Statement, presented in 1988 to Prime Minister Bob Hawke, called for a
treaty with the Commonwealth of Australia. In response, Bob
Hawke promised to negotiate a treaty ‘between the Aboriginal people and the
Government on behalf of all the people of Australia’ before the end of the
current session of Parliament. Though it did not eventuate, calls for a treaty
A Makarrata Commission would likely be tasked with seeking
Makarrata agreements between Aboriginal and Torres Strait Islanders and the
Are there any constitutional
First Nations Voice
The Constitution can only be changed by the
Australian people. Any move to enshrine a ‘voice’ for Aboriginal and Torres
Strait Islander peoples in the Constitution would need to be passed at a
referendum. Details of the changes would have to be agreed by Parliament before
being presented to the people for a vote.
A change would only come into effect if the proposal
receives the support of a majority of voters in a majority of states. There
have been 44
referendums since 1901, of which only eight have succeeded. The most
successful attempt to change the Constitution was the 1967
referendum in which over 90 per cent of the population voted to allow the
counting of Aboriginal and Torres Strait Islander peoples in the Census, and
the federal government to make laws for Aboriginal and Torres Strait Islander
A Makarrata Commission and any agreements or statements
endorsed by such a body would likely not require any constitutional change.
However, creating such a commission would most likely require legislation
passed by Parliament. A commission could also be established by letters patent
granted with the prerogative powers of the Governor-General on the advice of
the Prime Minister, though this is not likely.
It is unclear what constitutional or legal consequences
would flow from any Makarrata agreement or treaty reached between governments
and Aboriginal and Torres Strait Islander peoples. An analysis of the potential
effects would be subject to the detail of any final proposals.
What are people saying?
There has been a range of views in response to the Uluru
Statement by commentators, constitutional observers, politicians and Indigenous
leaders. These views reflect contrasting positions about constitutional change,
and on the best approach to Indigenous recognition.
Professor George Williams, Dean of Law at the
University of New South Wales, has responded,
writing that the Uluru Statement:
... is an important and long overdue expression of what
Aboriginal people want from constitutional reform. It is a welcome, but very
different perspective to earlier processes. The formidable challenge now is to
work from this statement to reach a set of changes to the constitution that can
win support from the community at large and across the political divide.
Professor Anne Twomey has criticised what she sees as
unhelpful speculation, and states that the important
message of the Uluru Statement was:
When it comes to constitutional reform, the priority of
Aboriginal and Torres Strait Islanders is to have their views heard in relation
to the making of laws and policies that affect their lives. This ranks above
the insertion of formal words of recognition in a preamble and the removal of
discriminatory clauses from the Constitution. It is not historic recognition by
written words that is sought, but active and ongoing recognition of indigenous
voices, allowing them to be heard in the corridors of power.
June Oscar, the Aboriginal and Torres Strait
Islander Social Justice Commissioner, has stated:
The Uluru Statement recognises the need for an entrenched
constitutional voice on the one hand whilst maintaining the long term
aspirations of our peoples for a treaty on the other. One change can be
achieved with constitutional change, and the other outside of the constitution
through new legislation and the creation of Makarrata or Treaty Commission.
Both have the potential to be meaningful and both represent the collective
vision of our people’s ... The Uluru Statement carves out a path for change and
we need that to be embraced by our fellow Australians and our political
The leaders of the two major parties have been careful in
their public comments pending the release of the final report by the Referendum
Council on an agreed process. The Prime Minister Malcolm Turnbull has
adopted a tone of caution, noting:
The constitution cannot be changed by Parliament. Only the
Australian people can do that. No political deal, no cross-party compromise, no
leader's handshake, can deliver constitutional change ... To do that, a
constitutionally conservative nation must be persuaded that the proposed
amendments respect the fundamental values of the constitution, and will deliver
precise changes, clearly understood, that benefit all Australians.
Opposition Leader Bill Shorten has made clear his openness
to the ideas expressed in the Uluru Statement saying:
‘We owe the [Uluru delegates] an open mind on the big questions. On the form
recognition takes, on treaties, on changes required in the constitution’.
Individual Labor members have stated similar
positions. Senator Pat Dodson has commented:
It's fine there's come this report out of Uluru, talking
about an entrenched voice into the constitution, that will have to be weighed
and considered. But I don't think we should just dismiss out of hand the work
that was done by the expert panel [on constitutional recognition in 2012].
Federal Labor MP Linda Burney has
warned that Indigenous leaders may have to compromise in order to reach a
broader consensus position that will succeed. Former National President of the
Australian Labor Party and Indigenous leader Warren Mundine has
been more critical of the idea of having an Indigenous body enshrined in
the Constitution, and makes the case that a series of treaties is
preferable. He writes:
The Uluru Statement made two proposals. One is a
"top-down" lawyers' proposal that will certainly fail. The other is a
grassroots proposal with overwhelming Indigenous support that could be
implemented without the need for any referendum. I'm calling time on 10 years
of discussion on constitutional recognition. We don't need it.
Members of the Coalition have expressed a
range of views. Liberal MP and Minister for Indigenous Health Ken Wyatt
in an interview that the significance of the Uluru Statement was the
momentum behind ‘finding a way forward of entrenching a position of Aboriginal
Torres Strait Islander people within the constitution; whatever form that takes’
... we shouldn’t block our minds at the moment, we should wait
for that [the Referendum Council] report to be tabled, consider what the
options are in the voracity of argument around each of those options. But we’ve
got to consider them to see if they’re constitutionally sound, because that is
the test. It has to meet the rigour of the constitutional requirements. It then
has to meet the rigour of whether the majority of Australians and the majority
of states will support it.
Liberal MP and constitutional lawyer Julian Leeser, who
co-founded Uphold & Recognise,
has been optimistic about the Statement, as has Indigenous Affairs Minister Nigel
Scullion. In contrast, Deputy Prime Minister and Leader of the National
Party Barnaby Joyce conveyed his initial doubts about whether the idea
of a constitutionally enshrined Indigenous body would find wider support, commenting:
If you overreach in politics and ask for something that will
not be supported by the Australian people, such as another chamber in politics
or something that sort of sits above or beside the Senate, that idea just won't
Liberal senator James Paterson has also expressed
his concerns about the unintended consequences of substantial constitutional
Any proposal that could impinge on parliamentary supremacy is
highly unlikely to win support because it is a core foundation of our liberal
democracy. A first nations’ voice, enshrined in the Constitution, runs the
great risk of doing so. There are many different ways it could be formed. But
even the most modest proposal, requiring parliament to consult an elected
representative body, makes conflict with the democratically elected parliament
for all Australians virtually certain.
Among the minor parties, the Australian Greens
their strong support, while Senator Cory Bernardi of the Australian
Conservatives has reiterated his disapproval of constitutional change and
warned on his website:
‘... no one should endorse constitutional change without knowing exactly what
they are agreeing to’. The views of other parties, or individual members, have
yet to be more publicly articulated.
Where to from here?
Under its Terms of Reference, the Referendum Council is
required to provide its final report to the Prime Minister and to the Leader of
the Opposition by 30 June 2017.
A working group (comprising members nominated by
delegations to the convention and other interested parties) has been formed to maintain
momentum and work on the implementation of the goals in the Uluru Statement.
This group will be especially important in working with stakeholders after the
release of the Referendum Council report.
The Uluru Statement may prove to be a catalyst in a long-running
movement for Indigenous constitutional recognition. While at this stage there
is no clear proposal that could be put forward at a referendum, the Uluru
Statement articulates two reform objectives which can then be put forward for
further public consultation.
Looking ahead, the success or failure of any future
referendum on inserting an Indigenous voice into the Constitution, and
the initiative of a Makarrata Commission, will hinge upon there being enough
political and community goodwill to reach a position that can be supported by
the majority of Australians, both Indigenous and non-Indigenous.
- S Fitzpatrick, ‘Treaty
“nothing to be afraid of”’, The
Australian, 7 June 2017, p. 10.
- K Rubinstein, ‘Not
merely citizens, but active citizens’, The Canberra Times, 6 June 2017,
- C Mitchell, ‘Aborigines deserve their
say in nation’s future’,
The Australian, 6 June 2017, p. 25.
- K Middleton, ‘The making of the Uluru Statement’, The Saturday
Paper, 3 June 2017, p.1.
- A Frogley, ‘Uluru Statement—from the
heart: what now for Recognise?’, Green Left Weekly, 3 June 2017.
- J Paterson, ‘Our Constitution already
gives first nations a say’, The Australian, 2 June 2017, p. 14.
- S Breheny, ‘A nation of equals’, Daily Telegraph,
2 June 2017, p. 30.
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the meaning of Uluru’,
The Australian, 2 June 2017, p. 26.
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Telegraph, 1 June 2017.
- NW Mundine, ‘We don’t need an
Indigenous treaty. We need many’, Australian Financial Review, 31 May 2017,
- F Brennan, ‘Let’s take time to get
Indigenous recognition right’,
The Australian, 31 May 2017, p. 14.
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compromise deserves effective response’, The Australian, 31 May 2017,
- L Tingle, ‘Uluru has spoken but
where to now?’, Australian
Financial Review, 31 May 2017, p. 36.
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focus on a treaty ahead of constitutional recognition’, The Conversation, 31 May 2017.
F Hunter, ‘Explainer:
all the questions you were too afraid to ask about Indigenous constitutional
recognition’, The Sydney Morning Herald, (online edition), 31 May
- S Fitzpatrick and S Martin, ‘Coalition split on Uluru
Australian, 30 May 2017, p. 1.
- B Keane, ‘Terra nullius lie
recycled by Uluru Statement opponents’, Crikey, 30 May 2017.
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journey to unity at Uluru. Let’s not waste this opportunity’, The Guardian,
30 May 2017.
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clear message from those who must be heard’, The Sydney Morning Herald, 29 May
2017, p. 16.
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heart of our nation’,
The Australian, 29 May 2017, p. 12.
S Kelly, ‘The Uluru Statement from
the Heart’, The
Monthly, 29 May 2017.
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constitutional First Nations voice presents new challenge for Referendum
Conversation, 28 May 2017.
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voice deserves to be heard’, The Weekend Australian, 27 May 2017, p.
H Hobbs, ‘Listening
to the heart: what now for Indigenous recognition after the Uluru summit?’,
The Conversation, 26 May 2017.
- D Freeman and S Morris, eds, The forgotten people: liberal and
conservative approaches to recognising Indigenous peoples, Melbourne
University Press, Melbourne, 2016. (In the Parliamentary Library).
- F Brennan, ‘The case for modest
The Conversation, 21 May 2015.
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of Indigenous constitutional recognition’, The Conversation, 20 May2015.
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Australian Declaration of Recognition: capturing the nation’s aspirations by recognising
Indigenous Australians, 2014.
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the referendum in Australia, UNSW Press, Sydney, 2010. (In the
Parliamentary Library. Also available as an e-book).
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