Additional comments - Senator Amanda Stoker

I join in the recommendations of the report, with thanks to my parliamentary colleagues for the collegiality with which they have attempted to solve a difficult problem. I note that all involved have worked cooperatively, listening and negotiating in good faith in a commendable reflection of their loyalty to this country and all people who constitute it.
The hearings revealed a deep frustration among the Aboriginal and Torres Strait Islander people consulted. That frustration is justified: for too long this proud and history-rich people has struggled with problems associated with shorter lifespans, over-representation in the criminal justice system, poor school attendance, low levels of higher education attainment and poorer socio-economic outcomes. Social problems associated with drug and alcohol abuse, while a problem in many places, are intensified in several remote communities. Child sexual abuse and rates of sexually transmitted diseases in several remote communities are unacceptable. Submitters often said they were over-consulted yet felt under-heard, with countless reviews, inquiries and reports without meaningful action to follow.
I share their sentiment: our Indigenous people deserve better.
Several individuals and organisations expressed their belief that it was Constitutional recognition that was necessary to overcome these difficulties. To my minds, to acknowledge the unacceptability of the status quo does not necessitate the conclusion that Constitutional recognition is the remedy, especially as a stand alone measure.
Indeed, I am deeply concerned that, for those who expect Constitutional recognition to be a panacea for this diverse bag of practical problems, they are bound for disappointment.
Practical problems require practical solutions. It is for this reason that I see potential in local representative organisations that can advise governments on the adaptation or tailoring of government programs to local needs. In remote communities, or where the dominant culture differs greatly from that contemplated by the design of programs in Canberra or other cities, this can add substantial value. I hope that the co-design process recommended by the JSCCR reveals constructive ways of engaging Indigenous expertise and local knowledge so that government engagement and resources can have their most positive possible impact. A ‘Voice’ (to use the words of the Statement from the Heart) to government of that nature has the potential to improve the efficiency of service delivery and be more effective in helping to ‘close the gap’, particularly in regional and remote communities.
It is for the same reason – practicality – that I maintain a scepticism of some of the proposals for Constitutional recognition.
The course of submissions revealed that there was an absence of consensus among Indigenous communities about what the various proposals for Constitutional recognition could achieve and indeed what their objectives were. Some believed it would be an important symbol, others saw it as a vehicle for countering discrimination against indigenous people. Some saw it as a part of the healing process for past wrongs, others saw it as a vehicle for treaty. Some saw it as a way to entrench a role for Indigenous people in government decision-making. There were, no doubt, even more objectives than those I have summarised.
No one considered, in their submission, this question: what is the purpose of our Constitution? If the purpose of our Constitution is to make us feel a peace with history, a model to insert a preamble might make sense (though we note their legal effect is substantially more complex than mere symbolism). If the purpose is to say something about our national identity, and the people, events and causes that make it up, then several of the amendment proposals might have value. But if the purpose of our Constitution is to mechanically allocate the powers and functions of a federal government and to define its relationship with the States – and that is its purpose – then all bar one of the proposals for amendment is misconceived.
I do not deny that there is a deep emotional attachment to the idea of Constitutional recognition in the hearts of the vast majority of the people who provided evidence to the committee. The difficulty is that the Constitution is not an emotional document; indeed, to insert emotion in a document with a legal purpose and operation is one that invites judicial activism.
One matter that remains of concern, as is often the case with parliamentary inquiries, is that a limited audience is engaged in the process and providing views. In this case, and as would be expected, many individual Indigenous Australians and representative groups of Indigenous Australians have been heavily involved in sharing their views and desires with regard to the myriad of possible outcomes. And yet, Constitutional change is a matter for every Australian, and a large swathe of the Australian people have not had input in the process to date. This is a deficiency that any future process should address.
I support the proposal to amend the Constitution in what will be regarded by some as a minimalist way. The abolition of s25 is appropriate, given that it is not used and, more importantly, that it contemplates the different treatment of Australians by the States on the basis of race for the purposes of voting. What gives this amendment moral force, in my view, is that it drives towards an Australia in which all citizens are treated equally. Indeed, that was the beauty of the 1967 referendum’s amendments: it brought Indigenous people toward their rightful place as equal Australians.
I support in principle the amendment of s51(xxvi) so that it provides to the federal government a head of power sufficient to provide support for existing native title legislation, but no more. The idea that we have a “race power” is, to our mind, inconsistent with the notion of the equality of Indigenous people.
It is in this sense that I am in support of Constitutional recognition of Indigenous people. I accept that it is a more limited kind of recognition that some people in our community seek to achieve. While some of the Indigenous people consulted by the JSCCR supported these changes, there were others who regarded this form of recognition as insufficient.
In my view, an approach that puts at its centre the equal treatment of Indigenous people with other Australians will have the best possible prospect of obtaining bipartisan support, and the best possible prospect of being accepted by the Australian people as a whole at a referendum.
I have a range of concerns with many of the other proposals that are well canvassed in the JSCCR final report. Suffice to say that I am guided most prominently by the belief that Indigenous people deserve to be treated in all ways as equal to every other Australian, and by the belief that the Constitution is a legal and mechanical, rather than a poetic or cultural, document.
It would be a mistake, in my view, to entrench any form of identity politics into our Constitution, in the way that many of the proposals for change suggest. Not because the role of Indigenous people in this country isn’t important – it is. The error would lie in the precedent it would set. It is far better for us to focus on the deep equality of Indigenous people, rather than seeking to elevate or separate them from other Australians.
As the role of Constitutional amendments in the context of the rest of the Constitution are tested by individual cases, and the words of the Constitution are considered against a background of changing economic or cultural circumstances, judicial interpretation often leads to consequences unintended at the time of drafting. It means we should be very cautious about each and every word that is inserted, changed or deleted. It provides a good reason to maintain a narrow and legal purpose for the Constitution, and avoid adapting it to symbolic, emotional or cultural purposes.
In my view, we should be open-minded about whether a Voice is best delivered legislatively or Constitutionally. While many submitters seemed to prefer Constitutional entrenchment based on a general perception that it would be more permanent, the flexibility to adapt and improve upon the structure for a Voice as we acquire experience of its operation is a valuable feature of a legislative approach. The co-design process recommended by the JSCCR will allow for a thorough exploration of the practical advantages and disadvantages of each of the models and structures proposed. The Indigenous people who have called in general terms for a Voice must now take the next step, of working with one another and the community more broadly to articulate their objectives for the Voice and formulate a design that will achieve the shared goals of their community.
Finally, our nation should invest in the collection of the history of Indigenous communities, and provide opportunities for written and oral histories to be gathered and shared. I have a reservation about the usage of the term “truth-telling” to describe this process, carrying as it does the suggestion that our history to this point is somehow dishonest. That suggestion is unfair, and unproven. At worst, Australia’s history could be regarded incomplete. Nevertheless, it is important that all with a story to share about Indigenous culture and its positive and negative interactions with non-Indigenous Australians, have an opportunity to do so. I believe that implementation of the JSCCR’s recommendation to commit to local history-gathering, and to provide opportunities to mourn and celebrate what emerges from it, is worthwhile. I expect it will go a long way towards achieving the cultural appreciation that so many Indigenous people regard as fundamental to reconciliation.

Senator Amanda Stoker

26 November 2018

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