Comments on the proposed constitutional referendum to recognise the first peoples of Australia

Bruce Donald AM

9 April 2023

My comments on the Referendum are in response to some of the opposing commentary, often strenuous, on the Uluru Statement from the Heart and on the establishment of the Voice in the Constitution as recognition of the first peoples. As that opposition includes a view that constitutional change, rather than legislative change, will cause irremediable harm to Australian society, it is important to address the Voice proposal and the background to it in some detail.

My comments obviously reflect my close engagement with indigenous issues as a lawyer since 1984 and my interest in constitutional law over more than 50 years of legal practice.

I have also read two important opinions in strong support of the Referendum from eminent lawyers, both former Chief Justices of the High Court of Australia. Robert French has had a deep engagement with land rights and native title law of course. (https://www.auspublaw.org/first-nations-voice/the-voice-a-step-forward-for-australian-nationhood). Murray Gleeson was a member of the Referendum Council with a long involvement in the consultation processes over the Voice so he also comes with an engagement. https://www.acu.edu.au/about-acu/institutes-academies-and-centres/pm-glynn-institute/projects-and-programs/recognition-in-keeping-with-the-constitution-a-worthwhile-project

Constitutional recognition internationally

For me, the background to where Australia finds itself now in terms of constitutional recognition of its indigenous peoples is found in the sweep of at least 500 years of dispossession of peoples all over the world and the seizure of their lands. The unwinding of that seizure remains complex and incomplete everywhere it happened, with more or less constitutional authority restored to the dispossessed.

The wars of conquest of the North American indigenous nations (US and Canada) at least acknowledged the nationhood of the conquered peoples and resulted in hundreds of treaties, many honoured in the breach. Some treaties left a residual constitutional legacy, including a law making power, in relation to the much reduced tribal lands. Even so, the US Congress in 1871 prohibited any further treaties. The US Constitution of 1789 had made only one reference to native Americans, empowering Congress to make laws regulating ‘commerce…with the Indian Tribes’, not constitutional recognition. In Canada it was not until 1982 that the Canadian Constitution Act added Section 35:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Significantly ‘aboriginal rights’ were not defined which has led to Supreme Court of Canada decisions that they include a range of cultural, social, political, and economic rights including the right to land.

Following the Spanish and Portuguese conquest and colonisation of Latin America, ‘For many years, legal systems … ignored, excluded, assimilated, and repressed indigenous peoples…. In the last few decades the constitutions of various Latin American countries have been changed, including progressively providing for the constitutional recognition of indigenous peoples and their rights.’

The Constitutional Recognition of Indigenous Peoples in Latin America, (https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1017&context=pilronline)

Around the world the end of colonialism meant for many colonised countries the restoration of the full constitutional authority of the dispossessed, often within unsatisfactory ethnic and cultural boundaries as throughout Africa and with India/Pakistan the bloodiest case. In the Pacific it is of course a constitutional patchwork of restored nationhood, continuing colonies (Nouvelle Caledonie, Guam, American Samoa), full incorporation as in Hawaii and nations under treaty as in Aotearoa (New Zealand).

In some countries, constitutional recognition extends to the establishment of indigenous legislatures as for the Sami in Norway, Sweden and Finland. In others there are allocated seats in legislatures as with the 7 Maori seats in NZ and the indigenous and Afro-Colombian Senate seats in Colombia. In Canada there is a proposal for indigenous seats in Parliament.

In September 2007, 114 nations in the United Nations General Assembly voted to adopt the Declaration on the Rights of Indigenous Peoples (UNDRIP), a monumental recognition of indigenous people in the post-colonial world containing some 40 substantive rights with obligations of signatory states to protect and implement those rights. Notably under Articles 3 and 4 indigenous peoples have the right to self-determination including the right to autonomy or self-government in matters relating to their internal and local affairs. However the Declaration does not specify the manner of recognition, whether constitutional or legislative

The position in Australia

In Australia there is no constitutional status for the dispossessed after nearly 250 years. Here the seizure by the British, usually brutal, of the lands of the hundreds of language groups of established peoples living within well-defined geographic boundaries, became a complete taking over of their nationhood with no recognition and certainly no constitutional acknowledgment of the dispossession. In 1889 the UK Privy Council, then the highest court on Australian law, in Cooper v Stuart wiped out any scope for indigenous common law.

The legal brutality was enshrined in the Commonwealth of Australia Constitution Act 1900 of the UK Parliament establishing the Federation which treated indigenous people as effectively non-existent for the national body politic. Section 51(xxvi) conferred on the Commonwealth the power to make laws with respect to “the people of any race other than the Aboriginal race in any State; for whom it is deemed necessary to make special laws.” And by s 127, “In reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.”

This legal vacuum led to the horrendous treatment of indigenous people by the States during the first 60 years of the 20th Century, continuing massacres, forced removal into internment reserves, stolen children, stolen wages, total control of lives, destruction of cultural heritage, the chilling detail of which is well beyond this discussion of recognition.

Two brief personal stories of that treatment of two leaders of the Voice process are however important for me here.

In 1985 I worked with Marcia Langton assisting the Anmatyerre on the land claim for their own country in the very geographic centre of Australia. The men giving evidence told of their fathers in chains following the rounding up after the 1928 Coniston massacre. Marcia would tell me ‘I was born in 1951 in Queensland and grew up under the law we called the ‘Dog Act’.’

In 2004 I was working with Patrick Dodson on the inclusion of the Miriuwung Gajerrong in the Ord River Project Stage 2 expansion on their country in East Kimberley. These people had watched in the 1970s as their sacred places and objects were flooded by the filling of Lake Argyle while the homestead of the Durack cattle family was, brick by brick, relocated to higher ground. When passing through Darwin, Patrick unexpectedly met a woman he embraced with enormous affection, telling me, ‘When we were children in the mid-50s, she was the one who ran to me and warned me I was about to be taken so I could hide’.

The dispossessed first peoples of Australia never conceded their status. From the frontier wars of the 19th and early 20th centuries, through the 1930s with movements led by such people as Yorta Yorta leader William Cooper who petitioned the King and established the national Day of Mourning, and in the 1950s with the legendary Doug Nicholls (later Governor of SA) “We want to walk with you, we do not wish to walk alone.”, indigenous Australians kept the flame of recognition alive.

In the 1950s we were still being taught that Aborigines were a dying race and that we were ‘smoothing the pillow’ for that end. But the 1960s put the lie to that as the movements for recognition and rights proved continuous and strong. In 1965 Arrernte leader Charles Perkins was joined by the students, including the young Jim Spigelman, later NSW Chief Justice, in the Freedom Rides. In 1966 the Gurindji walked off Wave Hill Station of Lord Vestey on their land. By 1967 the referendum finally removed the constitutional denial of aboriginal people. That momentum led to the work of Gary Foley to establish the tent embassy.

In 1971 Justice Richard Blackburn in the Milirrpum v. Nabalco litigation applied Cooper v Stuart to deny any legal rights to the Yolgnu, a people culturally and physically deeply rooted in their country in East Arnhem Land. That legal decision was so contrary to the obvious situation of the Yolgnu that it made the case for at least legislated land rights morally undeniable; as Whitlam said, it was ‘beyond argument’. In 1975 this finally happened in the NT (under federal law, a rare case of Fraser completing Whitlam’s work) and in the States, eg NSW and for limited lands in SA and Victoria.

But none of this resulted in constitutional recognition of the real history of Australia and its first peoples. Nor did it result in a treaty concluding the wars and disputes over land.

In the 1980s national land rights laws were proposed following the NT model. The mining industry in a major 1984 campaign led by Hugh Morgan of Western Mining came down on the proposal like a ton of bricks and killed it off. The new Prime Minister Bob Hawke and WA Premier Brian Burke caved in to the miners’ campaign which included the WA Chambers of Mines ads with black hands building brick walls of apartheid across the country.

In 1985 the Hawke government did return title to Uluru, which had been alienated as a National Park, to its indigenous owners. Title was to be granted but only on the basis of an immediate 99 year leaseback as a Park. This was in the face of a strident national opposition campaign by John Howard, ‘Ayers Rock for all Australians’. I was privileged with Phillip Toyne to act as lawyers for the indigenous owners on the title restoration as they stared down the government and at least insisted on an indigenous majority on the Park Board.

In 1988, at the Barunga Festival on Jawoyn country, the Barunga Statement (following previous bark petitions since 1963) was presented to Hawke by a group including Yunupingu, calling for a national body, national land rights, recognition of culture and customary law and a treaty. Hawke on the spot declared that ‘there shall be a treaty.” Nothing came of it.

In 2006 Yunupingu, frustrated by decades of broken promises, demanded the Barunga statement be returned from where it was hanging in Parliament House. He said it had been fundamentally disrespected by the settler-colonial government and should be buried at Barunga to symbolise the buried hopes of a fair and just settlement.

“Sovereignty became treaty, treaty became reconciliation and reconciliation turned into nothing … We will dig a hole and bury it.”?

Hawke’s government did however in 1990, after consultation nationally with indigenous people by the Aboriginal Affairs Minister Gerry Hand, establish ATSIC, the Aboriginal and Torres Strait Islander Commission. ATSIC was an elected body which had a level of financial authority as well as being representative of indigenous people nationally. When serious financial failings were raised as well the personal failings of Chair Geoff Clark, a report headed by Liberal John Hannaford recommended reform giving greater control at regional level. Instead John Howard teamed up with Labor under Mark Latham to abolish ATSIC completely rather than encourage it to mature. ATSIC ceased operating in 2005.

By contrast, far more serious corruption in various States over many years, particularly Queensland and NSW (where the corruption was bi-partisan) has been dealt with by scrutiny and reform. Had that been the path for ATSIC as recommended, we would probably not be having the Voice debate today.

In 1992 the Mason High Court finally overturned the fiction of terra nullius in the Mabo decision and in December that year at Redfern Paul Keating was the first Australian Prime Minister, over 200 years from first occupation, to dramatically acknowledge the European violence against indigenous people and their dispossession. The Native Title Act passed in 1993 but again this was legislative, not constitutional, recognition.

John Howard with his claim that many attitudes to indigenous policy involved a ‘black armband view of history’, led a government from 1996-2007 that was firmly opposed both to any notion of recognition, treaty and even any apology for the stolen generations. It is easily forgotten that the 1999 referendum on the Republic included a proposal for a preamble in the Constitution with 8 statements of principle on national issues. Buried in that list was a proposed statement ‘honouring Aborigines and Torres Strait Islanders, the nation’s first people’. The question however on the ballot paper simply said ‘Do you support a proposal to insert a preamble’ without setting out the 8 statements proposed to go in that preamble. Hardly surprising that in the context of the huge debate over the Republic, such a referendum mentioning indigenous people would be lost.

In 2000, the year of the Sydney Olympics with the eyes of the world on Australia, hundreds of thousands marched across the Bridge and all over the country for reconciliation. The Council for Aboriginal Reconciliation recommended a referendum to be held to change the Constitution's preamble to recognise First Nations peoples. In 2002 this was rejected outright by the Howard Cabinet on the quite spurious ground that the 1999 referendum had already rejected a reference in the preamble; spurious because that had clearly not been a referendum on recognition at all and also it was part of a patently flawed process.

As noted in September 2007 the Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted in the UN. Unsurprisingly given its record, Australia under the Howard government was one of four nations who voted against the Declaration claiming it raised customary law above national law.

But then just a month later in October 2007, and a month before the election Howard looked like losing, he suddenly proposed a referendum for recognition in the preamble to the Constitution. Of course he lost the election and his seat.

The Apology finally happened in 2008 under Kevin Rudd but still the continuing calls for constitutional recognition achieved nothing and nothing was done with Howard’s last minute gamble. While the Rudd government did have Australia sign the UNDRIP in 2009, nothing was done to implement the Declaration in Australian law. Not until 2022 would the question of implementation of UNDRIP be referred to the Senate Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs for inquiry and report, which is not yet complete.

In 2015 Malcolm Turnbull as Prime Minister and Bill Shorten as Leader of the Opposition jointly appointed a Referendum Council (of indigenous and non-indigenous people including politicians and lawyers, one being former Chief Justice Murray Gleeson) to advise on a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution. This was following the work of the 2010 Expert Panel on Constitutional Recognition of Indigenous Australians (set up by PM Julia Gillard) and the 2015 Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (set up by PM Tony Abbott).

The Referendum Council (https://www.referendumcouncil.org.au) consulted nationally through 12 First Nations Regional Dialogues, which culminated in the National Constitutional Convention at Uluru in May 2017 where the Uluru Statement from the Heart (https://ulurustatement.org)was formulated prior to the Referendum Council delivering its Final Report in June 2017.

The Uluru Statement asserts an ancient indigenous sovereignty which has never been ceded or extinguished and calls for a Voice to Parliament enshrined in the Constitution and a Makarrata Commission for a treaty and truth telling.

The Referendum Council only supported the Voice proposal and recommended a referendum for it to be within the Constitution, finding it a ‘modest and reasonable’ proposal which would not interfere with parliamentary supremacy and not be justiciable. (Unsurprisingly Amanda Vanstone dissented.) The Council noted three other matters of importance which came from the consultation process but which it did not recommend to be part of the Referendum for inclusion in the Constitution:-

1.???? An extra-constitutional statement of recognition

2.???? The establishment of a Makarrata Commission

3.???? A process to facilitate Truth Telling.

Surprisingly Turnbull as Prime Minister dismissed the Uluru Statement out of hand as establishing a third chamber of Parliament. He cannot have read the report of his own Referendum Council.

Since then Victoria has begun a Treaty process and South Australia has established a Voice to Parliament by legislation but not by amendment of the SA Constitution Act.

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The Referendum

So in that historical and international context we come to the Voice referendum proposal as the first real proposal for constitutional recognition in our 250 year European history of occupation. That background confirms:-

1.???? Constitutional acknowledgement and empowerment of dispossessed indigenous peoples is established in international law and widespread around the world in domestic law. Australia is a constitutional stand-out.

2.???? Indigenous Australians have never conceded on the need for constitutional recognition as a fundamental ingredient of nationhood.

The Referendum Bill introduced to Parliament is to include in the Constitution:-

Ch IX Recognition of Aboriginal and Torres Strait Islander People

In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

1.???? There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;

2.???? The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;

3.???? The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.

The Bill is only for recognition by establishing the Voice. It does not recognise sovereignty. It does not establish a Makarrata Commission for a treaty and truth telling as also called for by the Uluru Statement. The Voice is not to be a law making authority, will not have any financial power and will not provide programs and services.

On any view of it, the conclusion by the Referendum Council is indeed correct; this is a limited, modest and reasonable proposal which in no way seeks to counter the supremacy of Parliament. The only obligation it imposes is to establish a Voice with the right to make representations, leaving full power to Parliament to regulate that Voice. Compared with other models of constitutional recognition internationally, it is very limited. It is not even within the self-determination Articles of the UN Declaration.

It is important to reflect on the outstanding calibre and personal stories of indigenous leaders who have been part of the most recent processes leading to the Uluru call for the Voice, including some who have not lived to see this moment:-

Yunupingu, Dodson, Anderson, Calma, Langton, Pearson, Gooda, Wyatt, Burney, Davis, Ah-Kit, Foley, Ross, Shaw, Scrymgour, McCarthy, Peris……

They head an endless list of indigenous people and organisations spread across the nation. All those leaders, after a lifetime’s engagement with other indigenous people from the remote communities to the national stage and a devotion to all aspects of the movement for indigenous rights, were fully aware, even knowing the worst of the history of the treatment of indigenous people and their rights, that if the next step is to be achieved by constitutional change, it must be limited and modest.

Prime Minister Anthony Albanese called the proposal generous in the context of calls from many in the indigenous community for far more. Yet the attacks on the proposal are on many grounds.

Divisive or embracing and healing

The loudest attack is that the Voice will be divisive. This has been the common basis for decades for attacking almost every aspect of addressing indigenous dispossession and disadvantage. However it will only be divisive if leaders seek to persuade the community that it is divisive, rather than leading the community to understand that the Voice is part of a healing process, embracing the history of indigenous people as part of bringing the nation closer together.

No Detail

The claim there is little detail can only come from people who can’t (or won’t) read. In fact it’s a fraudulent claim which formed the basis of the Opposition’s attack in Parliament for months. The truth is that the Indigenous Voice Co-design Process Final Report co-chaired by Marcia Langton and Tom Calma https://voice.niaa.gov.au/final-report is a 250 page analysis of an inter-related representative structure for the Voice at three levels, local, regional and national. The repetition of this falsehood has worked and it has become a common claim in the wider community.

In any event, that detail remains a matter for considered debate in Parliament which will determine the operation of the Voice, at which time there will be ample opportunity to scrutinise and critique the detail.

Not at the Grass Roots

The Voice Co-design Process Report puts the lie to the attacks on the Voice that it does not operate at the local and grass roots level. The Opposition Leader began his announcement of Liberal Party support for the No case by describing the Voice as ‘the Prime Minister’s Canberra Voice’. He obviously chose to completely ignore the nationwide work of the last five or so years, including that commissioned by his own predecessors.

Discriminatory when relating to only 3%

The Voice proposal discriminates against nobody and says nothing about how the other various disparate groups in all areas of Australian society interact with government. It provides a structure for that indigenous group to be heard, grounded in the history of the nation and in the world history of dealing with dispossession.

All students of jurisprudence know that justice is not treating all equally, but treating like cases alike and different cases differently. Lawyers like French and Gleeson acknowledge this. Discriminatory laws are those which work against social groups. Laws and structures which address discrimination are the opposite of discriminatory. The whole recent international law of indigenous recognition is in that category.

And as to the proportion of any society to whom such legal reform is addressed, that is simply irrelevant. ?Notably, the indigenous people of Colombia, recognised in their Constitution, number less than 5% of the population.

Apartheid and racist

The most heinous strand of the discrimination argument was seen on the recent Tamworth platform for the No case where Alan Jones, Pauline Hanson, Gary Johns and Barnaby Joyce were gathered. Jones described the Voice as apartheid. None of the others disagreed. It was a shameful moment in Australian public life.

The Voice is about embracing indigenous people within the constitutional fold of the nation with a structure for them to contribute to the local regional and national debate on issues relating to their lives and well-being. It is evil to affix the apartheid charge to that structure.

At the next level of offensive description, Barnaby Joyce on the same platform called the Voice racist.

As simply put by former Chief Justice Robert French ‘The Voice is not about race. It is about our First Peoples as the indigenous people of Australia.’?That is, the relevant characteristic which defines the peoples involved in this constitutional structure is not their race but their role as the continuation of the first peoples of this ancient continent.

Backward looking for what is now a multi-cultural Australia

Yes we are now a multi-cultural society but part of the strength of that society is fostering the diverse elements that constitute the society in the manner most relevant to their contribution.

In this regard it should be noted that indigenous art is now a principal defining characteristic of our whole society, drawing as it does from its ancient cultural and artistic forms. The nation is commonly badged internationally using indigenous designs and cultural references.

Open to High Court review

A common charge is that the Voice will open the floodgates to litigation before the High Court. Two former Chief Justices of the High Court reject this contention.

Robert French’s opinion is:-

‘…there is always the possibility that someone, someday will want to litigate matters relating to The Voice. That said there is little or no scope for constitutional litigation arising from the words of the proposed amendment. The amendment is facilitative and empowering. Parliament cannot legally be compelled to make laws for The Voice. It cannot be compelled to make a particular kind of law. Nor can it be prevented from repealing or amending the laws it makes.’

The Referendum Council of which Murray Gleeson was a member went so far as to state that ‘it would not be justiciable’.

But one may say, so what? Review by the courts of the operation of the Constitution is a fundamental element of our system of government and whether or not a provision of the Constitution can be judicially reviewed is no argument against constitutional change.

Will be used to lead to a Treaty

One argument against a Voice is that it will be used to support further demands for recognition of co-existing sovereignty, a Makarrata commission for a treaty and monetary compensation. Those other proposals, certainly for a treaty, have been proposed and debated for decades and will continue to be. To the contrary, some indigenous people argue that a Voice is a backward step because it takes indigenous issues off the table and makes a treaty even less likely. My own view is establishing a Voice makes other initiatives no more or less likely.

Won’t solve problems

Of course the Voice of itself will not directly solve the problems as it is not a process to deliver solutions but rather to facilitate the engagement of indigenous people with government in addressing those problems and needs. That is not a reason to refuse to establish it. What it seeks to achieve is better advice to Parliament for better laws and better advice to the Executive arm of government for better solutions and programs. The gap is far from closed.

Conclusion

If this ‘moderate and reasonable’ proposal for the Voice is defeated it will set Australia back for a very long time to come, both domestically and in the eyes of the world. Noel Pearson so poignantly captured what a loss would mean:-

(ABC 7.30, 21 February https://www.youtube.com/watch?v=M35CeusgZBo)

I will fall silent. That’ll be the end of it….I have pursued a middle path between the original Australians and the new Australians. If the advocacy of that pathway fails, then a whole generation of indigenous leadership will have failed because we will have advocated for a coming together in partnership with government and we will have made an invitation to the Australian people that was repudiated, and I don’t think we have anything left after that. … Our proposition for peace and reconciliation will have been rejected, and that will be a profound decision for the country to make. I hope that it never comes to that.