Sally McNicol and James Haughton, Social
The issues of Aboriginal and Torres Strait Islander people’s inclusion in law, policy-making and the Australian Constitution have a long history. Where do matters currently stand and what are the current issues to be considered at the federal level?
The Albanese Labor Government has made a commitment to implementing the Uluru Statement from the Heart in full, but the detail of what this would look like in practice is not yet known.
Constitutional recognition- recent history
Australia has seen almost
a century of debate over how to best recognise prior occupation of
Australia by Aboriginal and Torres Strait Islander people. The last decade has
seen proposals for constitutional recognition made by the:
As stated in the final report of the 2018 Joint Select
Committee on Constitutional Recognition relating to Aboriginal and Torres
Strait Islander Peoples, the Uluru Statement from the Heart (Uluru Statement) largely
defines the parameters of the current debate (pp. vii–viii). Anthony Albanese began his election victory speech by committing
to the Uluru Statement from the Heart ‘in
full’ and acknowledging
Linda Burney as ‘Australia’s next Indigenous Affairs Minister’.
Uluru Statement from the
In May 2017, the First
Nations National Constitutional Convention (convened by the bipartisan‑appointed Referendum Council) met to develop an approach to constitutional reform to recognise
Aboriginal and Torres Strait Islander peoples, drawing on a series of preceding First Nations Regional Dialogues. The majority resolved, in the Uluru Statement, to call for ‘constitutional
reforms to empower our people and take a rightful place in our own
country’. A minority, including now-Australian Greens Senator for Victoria,
Lidia Thorpe, walked
out of the convention as they believed recognition of Aboriginal
Sovereignty and a treaty (or treaties) were preferable to inclusion in the Constitution.
The Uluru Statement called
for a ‘Voice’ enshrined in the Constitution that will empower Aboriginal
and Torres Strait Islander peoples to shape the policy and legislation
governing their affairs. It suggested that the establishment of a Voice to
advise the Australian Parliament will address structural disempowerment. It did
not define the form such a body should take.
The Uluru Statement also proposed
that a Makarrata Commission be established to supervise a process of agreement-making
and ‘truth-telling’. Makarrata is a Yolngu word meaning ‘a coming together after a struggle’. According to the Uluru Statement from the Heart FAQs webpage,
‘The Makarrata Commission would allow these processes to be struck at a
national level and regionally with First Nations, by providing support and
momentum and helping the parties reach agreement'.
Truth-telling draws on the
view expressed in dialogues leading to the Uluru Statement
that recognition requires an
understanding that ‘the true
history of colonisation must be told: the genocides, the massacres, the wars
and the ongoing injustices and discrimination’ (p. 32). The 2018 Joint Select Committee saw truth-telling as ‘an
opportunity for Aboriginal and Torres Strait Islander peoples to record
evidence about past actions and share their culture, heritage and history with
the broader community’ (cl. 6.5).
The Yarrabah Affirmation
The Yarrabah Affirmation, declared on 10 April 2022 by prominent Indigenous leaders, restates
a commitment to the Uluru Statement and calls for a referendum during
the term of the 47th Parliament to enshrine a First Nations Voice in
Australia’s Constitution. The Yarrabah Affirmation proposes 2 possible dates
for a referendum: 27 May 2023 (the anniversary of the 1967 referendum) and 27 January 2024 (‘the day after Invasion Day/Australia Day’).
Responses to the Uluru
The Referendum Council Final Report
In June 2017 the Referendum Council recommended (p. 2)
that a referendum be held to provide in the Australian Constitution for
a representative body to give Aboriginal and Torres Strait Islander peoples a
Voice to the Commonwealth Parliament, with its form to be decided by Parliament.
They proposed that a specific function of such a body, to be set out in
separate legislation, should be to monitor the use of the heads of power in
section 51(xxvi) (the ‘race power’) and section 122 (the ‘territories power’) of
The Council also recommended 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.
In October 2017, the Turnbull
Government responded to the report, expressing the view that establishing
an additional representative body to Parliament was not desirable or capable of
winning acceptance in a referendum.
2018 Joint Select Committee
In 2018, the Joint Select Committee on
Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples
was asked to consider the work of the 2012 Expert Panel, the previous Joint
Select Committee, the Uluru Statement and the Referendum Council.
The committee acknowledged the broad stakeholder support for a Voice enshrined in the Constitution (p. 116)
and recommended a co-design process to achieve a model that would best suit the
needs and aspirations of Aboriginal and Torres Strait Islander peoples (pp. 78–79).
It recommended the co-design process should report, and the Voice be legislated,
within the term of the 46th Parliament (p. 78). The committee also supported
the process of truth-telling (p. 185). Finally, the committee recommended
the establishment of a National Resting Place for Aboriginal and Torres Strait
Islander remains, which could be a place of commemoration, healing and
reflection (p. 185; this recommendation was subsequently acted on with the
Morrison Government’s announcement
of Ngurra, a national Aboriginal and Torres Strait Islander cultural
precinct and resting place). The committee stated that it did not have time to deeply
consider the proposal for a Makarrata Commission and agreement-making
(p. 137) but did note that agreement-making was already occurring at local
and regional levels (p. 144).
Indigenous Voice co-design process 2019–2021 and Final
In October 2019, the Minister for Indigenous
Australians, Ken Wyatt, announced a 2-stage Voice co-design process, with 2
co-design groups tasked with developing options at the local
and regional and national levels. The process was overseen by a Senior Advisory
Group chaired by eminent Aboriginal leaders Tom Calma and Marcia Langton
. The terms
of reference (pp. 239–245) made explicit that constitutional reform
was out of scope. The National Co-design Group was tasked
with developing ‘models to enhance local and regional decision-making and
options to provide a voice for Indigenous Australians to government’.
Voice co-design process: final report was provided to the Australian
Government in July 2021 and publicly
released in December 2021. The Final report:
… presents the proposals and recommendations
for an Indigenous Voice—a cohesive and integrated system comprised of Local
& Regional Voices and a National Voice—with connections to existing
Aboriginal and Torres Strait Islander bodies. This Final Report also presents
considerations for implementing an Indigenous Voice and details the
consultation and engagement process. (p. 9)
Chapter 2 of the Final report discusses a
National Voice, including:
- membership considerations for a National Voice (sections 2.3–2.6)
- links with Local and Regional Voices (section 2.7)
- proposed functions of a National Voice, examining in some detail the
reasons for a National Voice to be a Voice to both Parliament and Government (section
2.8, pp. 151–153). This section also considered how a National Voice might
interact with other Aboriginal and Torres Strait Islander stakeholders, using
Agreement on Closing the Gap as a potential case study (p. 158)
- the Australian Parliament and Government (section 2.9, discussed in text
- how to ensure a National Voice is appropriately supported (sections
A National Voice
The Australian Parliament and Government
Section 2.9 of the Final report (pp. 159–172) examines how the advice function of a National Voice to the Australian Parliament and Government might work. The National Co-design Group proposed a formal interface with Parliament and Government with:
- consultation standards- when and how to consult with the National Voice, including an obligation to consult on proposed laws which are ‘overwhelmingly relevant’ to Aboriginal and Torres Strait Islander people or which are designated ‘special measures’ under the Racial Discrimination Act 1975
- a set of transparency mechanisms modelled on existing parliamentary practices, including a statement on all Bills (explaining whether the National Voice should be consulted and, if so, whether this occurred) to be included in the Explanatory Memorandum (similar to the current statement of compatibility with human rights), the ability to table advice in Parliament, and establishing a new parliamentary joint standing committee related to the Voice.
The Final report emphasised that the Voice would not have a veto and would be non-justiciable, ‘meaning that there could not be a court challenge and no law could be invalidated based on whether there was alignment with the consultation standards or transparency mechanisms’ (p. 18; see also pp. 166–167).
When releasing the Final report, the Minister
for Indigenous Australians, Ken Wyatt, stated that work would begin on forming 35 Local and Regional Voice mechanisms, ‘as
per the process set out in the Report’. The 2022–23
Budget provided $31.8 million under the Indigenous Voice – Local
and Regional Voice Implementation measure to ‘commence establishment of 35
Local and Regional Voice bodies’ (p. 161). The Morrison
Government did not comment on the options set out in the Final report for
a National Voice.
While the Final report did not discuss
constitutional reform, it did include a recommendation that the Australian
… note the support for the enshrinement of the
Indigenous Voice in the Constitution that was expressed particularly through
the submissions received as part of the consultation process (Recommendation 6,
On 26 May 2022, the incoming Minister for Indigenous Australians, Linda
Burney stated that the work done during the Voice co-design process would
not be discarded by the incoming Labor Government:
It would be disrespectful and, quite frankly,
stupid not to take into very deep consideration the work that’s been done by
the expert advisory group … They have delivered their final report, and I am
sure that parts of that report are very relevant for new discussion and new
It should be noted that, according to the Referendum Council’s report accompanying the
Uluru Statement from the Heart, only the existence of a Voice, not any particular
form, would be entrenched in the Constitution (pp. 2; 36). The form
of the Voice would be a matter for legislation.
2022 election platforms
During the 2022 election campaign the Australian
Labor Party committed to fully implementing the Uluru Statement from the Heart, stating that it was the
only political party committed to doing so. This was reaffirmed upon election. The Australian Labor Party has an existing First
Nations Caucus Committee (established in 2016) that reviews legislation
impacting First Nations people and is a platform for raising matters of concern
for First Nations people to party members and leadership. In 2021, Senator
Malarndirri McCarthy observed that ‘If we are talking about a First Nations
Voice to the Parliament, we need to make sure we have a First Nations Voice
within the practice of a party'.
The leader of the Greens, Adam Bandt, has stated that ‘The
Australian Greens were the first party to support the Uluru Statement from the Heart in
full, and we still do’ and they would not block legislation for a Voice. The Greens campaigned for a national
Truth and Justice Commission (p. 2), stating that this would lay the
foundations for developing a Treaty or Treaties. At his address to the National
Press Club during the election campaign, Mr Bandt, reaffirmed the Greens’ position that a Truth and Justice Commission should precede the
creation of a Voice.
The Liberal Party’s Plan
for Northern Australia restated its commitment to implementing of Local
and Regional Voices (p. 9). During the campaign, when Prime Minister Morrison
was asked whether a Coalition Government would hold a referendum on a
constitutionally enshrined Voice, he replied ‘It’s not our policy to have a referendum on the Voice, so why would I be doing
that?’. Since the election the new
Opposition Leader Peter Dutton has stated that he is ‘open to discussion’
and ‘wants to see the detail’ of the proposal. Julian Leeser, the new Shadow
Minister for Indigenous Australians, was the co-chair of the Joint Select
Committee on Constitutional Recognition Relating to Aboriginal and Torres
Strait Islander Peoples and is a
prominent supporter of a constitutionally enshrined Voice.
Potential next steps
A Voice could be established
by legislation with or without a constitutional amendment. However, a
legislated Voice would be vulnerable to defunding or abolition by the
government of the day, as were the National Aboriginal Consultative Committee
(1973–77), the National Aboriginal Conference (1977–85), the Aboriginal and
Torres Strait Islander Commission (1989–2005), the National Indigenous Council
(2005–07), the National Congress of Australia’s First Peoples (2009–19) and
the Prime Minister’s Indigenous Advisory Council (2013–c. 2019).
Establishing a constitutionally enshrined Voice
will require a referendum to amend the Constitution. A referendum requires
a Bill to be passed by Parliament, which establishes the wording of the
proposed amendment and the question to be put to voters. A number of options
for an amendment are discussed in Chapter
3 of the Joint Select Committee on Constitutional Recognition relating to
Aboriginal and Torres Strait Islander Peoples’ final report (pp. 79–119). This chapter also discusses the arguments over whether the
form of a Voice should be determined before, or after, a referendum.
To successfully amend the Constitution, a
majority of voters overall (including in territories) and a majority of voters
in a majority of the states (at least 4 out of 6 states) must approve the
proposed amendment. Referendums are overseen by the Australian Electoral
Commission (see its detailed guide). Studies
of opinion polls since the Voice was first proposed indicate that this
level of support exists, but there are many ‘undecided’
voters, and levels of support in smaller states are difficult to determine.
Whether an amendment
has bipartisan support is likely to influence the chance of success. The Australian
Reconciliation Barometer poll has indicated (in 2018 and 2020) that
approximately 90% of Aboriginal and Torres Strait Islander people support a
constitutionally protected Indigenous representative body.
Constitutional and representative structures for Indigenous
peoples in comparable countries
New Zealand has legislated reserved Maori seats in Parliament and the Treaty of Waitangi. The treaty has an
uncertain legal status, but is commonly referred to as the ‘founding document’ of New Zealand, which does not have a single, codified constitution.
The US Constitution is held to recognise (via Supreme Court
interpretation of Article I, Section 8) the status of ‘Indian
Tribes’ as distinct, sovereign, but subordinate governments, to be governed at
a federal rather than state level. There are approximately
374 (pre-20th century) ratified US treaties with Native American peoples, but
Congress may unilaterally abrogate them. In fulfilment of a previously unexercised treaty right,
the Cherokee Nation is seeking to seat a non-voting representative
delegate in Congress.
In Canada, section 35(1) of the Constitution Act 1982 states that ‘The
existing aboriginal and treaty rights of the aboriginal peoples of Canada are
hereby recognised and affirmed.’ This section gives historic and modern treaties, as well as native
title (‘aboriginal rights’), the protection of constitutional law. Section 25
of the Constitution Act 1982 requires that other
constitutional rights and freedoms are not interpreted in ways which abrogate or
derogate from aboriginal rights and freedoms. The Canadian Government is also held by the courts to have a fiduciary duty to
protect Aboriginal rights, which has not been established in Australia (see The honour of the crowns: state-indigenous fiduciary relationships
and Australian exceptionalism). Canada does not have
codified, indigenous-specific representation in or to its Parliament, but section 35.1
of the Constitution Act 1982 requires that ‘representatives
of the aboriginal peoples of Canada’ must be consulted before any alteration to
sections 25 or 35. The majority Inuit territory of Nunavut has a representative in the House of
While in the US and New Zealand all treaties date to the
era of colonisation and frontier expansion, in some provinces of Canada ‘modern’
treaty negotiation is an ongoing process, particularly in British Columbia. This may offer some insights
into the kinds of agreements that might be overseen by a Makarrata Commission,
if one were to be established.
Yarrabah Affirmation, (Yarrabah: 2021).
Daniel McKay, Uluru Statement: a Quick Guide, Research paper series, 2016-17, (Canberra: Parliamentary Library, 2017).
Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, Final Report, (Canberra: the committee, 2018).
James Haughton and Apolline Kohen, Aboriginal and Torres Strait Islander Treaties, Constitutional and Legal Recognition and Representation in Australia: a Chronology, Research paper series, 2021-22, (Canberra: Parliamentary Library, 2022).
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