Can we get to an affirmative 91.4 percent again?

There has been an increase in discourse surrounding Indigenous-related constitutional reform following the 2022 federal election. The incumbent Labor government has promised to give constitutional recognition a higher priority in its first term reform agenda, however, it only has a majority in the lower house. The specific item to be pursued by the Labor government is the issue of a constitutionally entrenched Indigenous Voice to Parliament (“Voice”) as set out in the Uluru Statement (“the Statement”). The government does not have a majority in the Senate and will therefore require support from the minor parties and independent senators to enact legislative reform towards this goal. Constitutional reform will require further consensus building within Parliament to gain support from the wider Australian population.

Constitutional reform that can erase all, or even the greater part, of the historical disadvantage, damage and hurt of the past, will not be achieved in one fell swoop. The broad approach to constitutional reform that is recommended is two-part:

1. Rescind the historically “race based” provisions in the Constitution, namely sections 25 and 51(xxvi). Rescission should be augmented with a clear message from Parliament that prospectively there will be a presumption of racial equality and thus a level playing field.
2. Set out a scaffolded strategic approach for the future, which contains both symbolic and substantive reform elements, that will create full and formal recognition, equity and justice between the races, and a platform for the self-determination of Indigenous people within the meaning of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

The initial step, for the new government, can commence with its negotiated version of a Voice to Parliament, to be used as a launching pad for a suite of future reforms, both legislative and constitutionally entrenched.

Cognisant of the difficulties of achieving the double majority required for constitutional change, a carefully structured, strategic and long term plan is needed. This long term plan should set out to minimise and eventually remove potential obstacles. The future can then involve building trust, equity and justice for Indigenous people, while simultaneously ensuring current limitations and biases are not entrenched to the detriment of posterity.

While none of the colonial terms are ideal, I have used the term “Indigenous people” which, by consensus, is the preferred international English term. As an issue of domestic law, the term “Aboriginal and Torres Strait Islander” people appears to have contemporary legal currency.

The aftermath of the 2022 election

The newly elected government has promised it will hold a referendum with respect to an Indigenous Voice to the federal Parliament. The scope and composition of a Voice, however, are yet to be determined and will be subject to negotiation. While the Labor government has secured a majority in the House of Representatives, any legislative change will require the support of minor parties in the Senate. Furthermore, any attempt at Constitutional reform will require consensus building with Greens, Independents and Coalition members across both houses of Parliament. There was a significant swing to the Greens and “Teal” independents in the 2022 election. The Greens – who support the incorporation of the minimum standards of UNDRIP and a move towards treaty – generally are lukewarm about a Voice. The Teal independents focused their campaigns on issues other than those of Indigenous people, and those positions on Indigenous issues will be more nuanced and likely emerge over the coming months.

The previous government (which now forms the new opposition) has indicated it would not support a Voice as, in its view, it appears to form a third chamber of government. There has been a softening of this hard position – a position that arguably misunderstands or misrepresents the advisory nature of the Voice – but a further lurch to the right after the election does not bode well for Indigenous people. Those parliamentarians who are to the right of the Coalition are also unlikely to be supportive of the Voice, unless it is a muzzled and subservient Voice.

The Labor government, however, has promised to implement the Uluru Statement and particularly the establishment of an Indigenous Voice to Parliament. Clearly, what the government can deliver will depend on the will of the current Parliament and is likely to be subject to compromise before it is put to the people, hopefully with multi-party and independent support to ensure a likelihood of success. It is relevant to note there is a record number of Indigenous members and senators elected to this current Parliament, representing ideologies of all shades and forms the so-called “Black Caucus” and a range of Voices within Parliament.

A Voice to Parliament for Indigenous People

There are a number of key elements to the Uluru Statement, most notably the Voice to Parliament. The object of the Voice is for its membership to be able to address elected members and senators directly on matters of relevance to Indigenous communities. It will arguably help create both equality and equity more quickly than would be the case otherwise.

The Statement begins with the words:

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture[s], from the Creation, according to the common law from “time immemorial”, and according to science more than 60,000 years ago.

This part of the Statement, if incorporated into the Constitution as a statement of recognition, provides a sound basis for the mutual recognition of the many Indigenous people of the continent as “people” within the meaning of the UN Charter. That is, sovereign, self-determined, self-governing people with their own legal and other traditions who are now seeking to re-emerge and in time re-establish their pre-colonial societies mutatis mutandis but beginning with the rebuttable presumption of each as a people possessing full international legal personality. This recognition provides a legal basis for treaty in due course.

The Statement continues with the words, “This is the torment of our powerlessness”, which Professor Davis, a powerful woman in her own right, reasonably states is not an individual sense of powerlessness but one that subsists in an exclusion from the legal and governance structures of the nation, or as “the[se] dimensions of our crisis tell plainly the structural nature of our problem.”

As a matter of completeness, the entrenchment of the Voice can be a useful springboard to ensure that the Parliament, in addition to the Indigenous voices within the Parliament, hear the Voice, from this body and from those whom it represents. The Interstate Commission is a body entrenched in the Constitutionand although it is perhaps a body whose use has passed into history, it could nonetheless provide a precedent as to how such a body could be set up and work in practice.

The specific technical nature of the Interstate Commission provides a point of departure for the Voice. If it is in keeping with the democratic processes of the Constitution, the Voice’s constituent members would require election by the Indigenous people and would perhaps be composed of several elected members representing states, regions or groups of Aboriginal and Torres Strait Islander People. In keeping with British parliamentary norms such as Parliamentary Supremacy, not discussed here but otherwise canvased widely in this context, the Voice would be advisory and have no coercive impact on either or both chambers of Parliament. This is not to say that this would be a muzzled Voice, only that as a creature of a common-law based Constitution, it will be limited by common law and Westminster parliamentary conventions.

As mentioned, there are a record number of Indigenous men and women elected to the current Parliament, creating a so called “Black Caucus” and representing a range of political ideologies. While these elected members and senators are clearly representative of their constituencies as set out in the Constitution, it would nonetheless be a useful exercise to work out broadly how the Voice can interact with this Black Caucus with the aim of optimising interaction while avoiding any perception of creating a negative influence on the majority’s democratic sensibilities.

Clearly, the Voice is not an end in itself, but is a means to an end. The Statement goes on to state that:

Makarrata [treaty] is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

It is important to note here that makarrata is a Yoljnu word, encapsulating both the singular and plural, which captures the essence of a treaty-like agreement; however, many Yoljnu do not necessarily like the word being co-opted, as some of the shades of its nuanced meaning are lost in the translation to the legal meaning of treaty in English.

Sovereignty and self-determination are international law-based norms and are discussed more fully elsewhere. The intended scope and the direction of the evolving solutions to race relations leading to treaty and the legal foundation necessary of such relations is abundantly clear in both domestic and international law. Politics and economics are means by which people achieve the “good life”, whatever this might mean in a subjective sense. Self-determined Indigenous people should be free to determine for themselves what constitutes this “good life” and (and if self-determined people so desire) to do so within the bounds of their own laws and morés.

Limits and potential of symbolic measures of reform

There is a fear that some forms of constitutional recognition of Indigenous people, or symbolic and superficial reform, will do little to advance the cause of equality, dignity and justice for Aboriginal communities and people. Clearly this is possible, but it is an outcome that should not be met with the approval of the majority.

On the other hand, the value of symbolism can be empowering and can set Indigenous groups up for important negotiations in the future. One symbolic measure which provides a very useful, essential starting point for treaty negotiations is “mutual recognition” of both British settlers and all Indigenous communities who connect back to their pre-settlement societies. “Connection” is not a term of art and the unhelpful connection tests of Yorta Yorta v Victoria (2002) are rejected here as a possible legal test for connection. What is suggested here is a presumption of connection with the onus of proof to be placed on he who asserts otherwise.

What is recommended here is the legal and constitutional recognition that brings with it all the presumptions of recognition. That is, that the British encountered tribes who were in every true sense self-determined, self-governing, independent bodies politic with their own languages, cultures, laws and spiritualities together with a legal presumption of international legal personality.

While symbolic, this is a substantive recognition of a “people” within the meaning of the UN Charter. Such mutual and full recognition is a vital, fundamental basis for people to enter into treaties with each other. This recognition would allow Indigenous communities to enter into bilateral and multilateral treaty arrangements with other Indigenous communities, with local, federal, state/territory governments, as well as multilateral commercial entities, the UN, regional bodies, Westphalian states, and others worldwide. This level of legal personality and recognition is arguably an ambit claim, but one that should be the starting point of all future treaty negotiations or agreement making processes that will follow over the next few decades.

There are clearly limits to symbolic agreements. Other than for their legal effect of international legal personality, recognition statements could be written by lawyers and by poets and could capture a range of aspirational statements. Even if they may be stripped of legal content for the present, this content can be left to the substantive elements of change. For example, the 2007 apology to the stolen generations was a helpful symbolic gesture, despite the lack of legal content or change. Achieving deep symbolic recognition with more modest substantive changes that initially will reflect the low levels of trust, can be used as a first, confidence building step towards a deeper strategic plan of comprehensive change.

Limits of Constitutional reform

Changing the Australian Constitution is a two-step process as set out in section 126 of the Constitution. The founders arguably sought to ensure that the Grundnorm of Anglo-Australian law would change and evolve with the passage of time but ensured that change would be quite gradual by requiring a double majority to effect change to the Constitution. That is, change would only occur if a majority of the voters in a majority of the states would approve the constitutional changes put to the people. It is important to note that the notion of who votes in such referenda remains Parliament’s prerogative. People such as “aboriginal natives”, coloured inferiors and women — all groups not eligible to vote under the initial franchise provisions at Federation – are now part of a broader group of voters who will determine the success or otherwise of the amending provisions of the form of words the Parliament puts to the people.

By its nature, a constitution needs to state matters of principle at a higher level of abstraction. The prescription of matters at greater levels of detail is likely to prove too temporally “bound” and or condemn posterity to the limits of the visions and constraints of today. In any event, this approach to constitutional reform is likely to be unsuccessful. By stating issues at a higher level of abstraction, contemporary morés, especially on issues such as race and class, can be used to defeat the limitations of the past and would – as argued here – be ideal. If posterity disagrees strongly enough with the amendments of today, they are at liberty to reverse or amend these changes. It might be trite to say that unnecessary matters should not be entrenched. The impediments of the entrenchment of detrimental amendments are self-evident.

As the British became more secure and gradually leading up to Federation and the Constitutional Conventions, the settler community’s leadership largely ignored the Aboriginal population, seeking to leave them alone and separated until they would, in the view of the many, simply die out. To ensure the creation of a British-like/White society, post-Federation, the constitutional “aliens” power (section 51(xix)) allowed the exclusion or deportation of foreign-born coloured British subjects and further included the exclusion of aliens, such as the Afghans, when their usefulness had been exhausted.

The aliens’ power once clearly excluded jurisdiction over “aboriginal natives”. However, the desire to exclude Indigenous people from the body politic of the nation led recent Executive to seek to expand, albeit unsuccessfully, the meaning of “alien” to include Indigenous people – a position well outside the meaning of “alien” set out by even the most racist of their forebearers. Failure did not deter the previous government, which, despite providing no accepted legal ground for review, sought to have the precedent in Love v Commonwealth (2020) – of not deporting a class of Indigenous person who were subject to the criminal law – overturned, arguably, relying solely on a change in the composition of the High Court (see Montgomery v Minister for Immigration (2021)).

Through the early 1920s until after the Second World War, the Aboriginal population showed much greater resilience and “refused to disappear”. This led to a period of attempted assimilation in the mid-20^th century. Failure to achieve this, together with an uncomfortable international gaze, led to a more contemporary process of integration following the (almost unavoidable) recognition at law of Indigenous people as the first occupiers of the continent, following the decision of the High Court in Mabo v Queensland (No 2) (1992).

The period in the mid-20^th century of an intensively coercive assimilation of Indigenous people also coincided with the development of international human rights standards largely based on a European model. The primary beneficiaries of these rights, at that time, were Europeans, having been severely and adversely affected by the deeply racist views of “superior” Europeans against those of “inferior” European descent. Countries such as Australia arguably belonged to the “superior European” class. Australian leaders were closely allied with the development of these international “human” rights standards and frameworks and did so quite unself-consciously, given the background of Australia’s own racism against the Aboriginal population, both in law and in practice.

As the UN-based anti-colonial movement moved from an emphasis of those struggling against Euro/White colonialism to one that is a more human-centred approach, the plight of oppressed coloured populations such as the Blacks in Southern Africa, Australia and the USA began to be noticed by the UN and the de-colonial movements. The UN itself had initially focused on the so-called “blue water” decolonisation process (in contrast with the settler-colonial situation in Australia). Decolonisation of blue water colonies led to political independence of a people from its colonial power generally followed by membership of the UN as a full and sovereign State party.

Towards the end of the 20^th century there was a greater focus by the international community (and initially by the International Labour Organisation) on tribal or Indigenous people. The subsequent development of the UNDRIP, and the UN’s focus on Indigenous people through its Special Rapporteurs, provided a gradual but empowering focus on Indigenous rights including by domestic constituencies who were now beginning to emerge as a force within settler-colonial states. A combination of domestic efforts combined with a greater emphasis by the UN and international human rights bodies on the rights of all people, highlighted the historical injustices and ongoing exploitation of people in the class of the Aboriginal people and lands, by the settler-colonial society in their midst. The inertia, including the difficulties of amending the Constitution, against reforms that would recognise Indigenous people’s dignity and equality is, however, proving very difficult to achieve and the progress is really no more than at a snail’s pace, if that!

Doffing the shackles of history

The history of Anglo-Australian laws’ treatment of Indigenous people is one of crushing oppression. The constitutionally entrenched disadvantages for Aboriginal people have persisted in law, resulting in continued exclusion from the life of the national body politic. These disadvantages and discrimination lawfully persist in different ways, but they ultimately lie in Parliament’s power to make laws based on race, under section 51(xxvi) of the Constitution.

The political goodwill directed towards treating Aboriginal people more equally received a boost in 1967 with the referendum that saw the rescission of section 127 of the Constitution. The changes received unprecedented approval, an outcome we can only hope will be repeated in subsequent Indigenous-related referenda.

Unfortunately, the political good wishes of the population in 1967 did not translate into legal “equality” for Aboriginal people. Inequality persists and this author has argued elsewhere that Parliament’s constitutional power to act detrimentally against Indigenous people only must be rescinded so we can achieve a level playing field on race. Australia, an otherwise developed industrial state with a good human rights record, does not need a broad and coercive “races” power to regulate the affairs of the three percent of its population which is of Indigenous descent.

While adding appropriately worded provisions into the Constitution can help to create equality, it is much easier, certain and more prudent to remove Parliament’s power to discriminate against one race of people, a power that it has used to the detriment of Indigenous people alone. As long as the races power remains in the Constitution, the courts cannot lawfully be expected to discount its related jurisprudence. Consequently, it is strongly recommended that the rescission of the “races power” from the Constitution is a next step for constitutional reform (in addition to other race-based powers, such as section 25).

The rescission of the “races” power will not, as some appear to believe, prevent the Parliament from creating positive measures (for any social group) including for Indigenous people. Special measures must be for the benefit (but not to the detriment) of Indigenous people, as can be the case with the races power (see Kartinyeri v Commonwealth (1998)). Rescission of the races power can establish a prospective presumption of legal, constitutional and common law equality for all people, including Indigenous people. The Voice too can be established as a “special measure” or, alternatively, as promised by the government and subject to a successful referendum outcome, as one deriving its existence under a new constitutional provision and power.

The history of contact between the British and the Indigenous people of the continent is not a happy one. Anglo-Australian law created many “myths”, often termed legal fictions, such as the myth of an empty continent, or that Aboriginal people were too low on the scale of civilisation, including a narrative surviving up to the 1967 referendum of depicting Indigenous people as a very primitive sub-human species with less organisational capacity than an ant colony. Such narratives arguably set out to dehumanise, but once the British’s military prowess subdued the Indigenous people with whom they had come into contact, land and other resources could be taken at will and without any form of compensation.

The race-based provisions in the Constitution allowing discrimination and oppression must first be rescinded so that all “races” can once again begin their relationships anew based on a presumption of legal equality. Following this, the British and their successors and the Indigenous people of the continent can begin to build up a new relationship based on equality. The three key demands of the Uluru Statement: Voice, Truth and Treaty are the three important issues to be achieved and its elements are stated here in the temporal order in which these elements are likely to be achieved.

The first step to be achieved at the next referendum is the entrenchment of a Voice: the form, content, scope of power and shape which are yet to be decided by agreement. This leaves the issue of truth telling, a medium-term goal which will help set out the truthful foundation of settler-Indigenous relationships and on which a mutually cognisable history can be constructed. This leaves as a final aspiration, the establishment of treaty between all parties, treaty that finally establishes lawful, fair and respectful relationships between the various people and their bodies-politic which now occupy this continent.

This tumultuous, violent and fiction-based history has created a Constitution that would provide powers to the successors to the Colonies and then the Federation, to continue Anglo-Australian dominance over the Indigenous people of the continent. As global morés have moved to denounce “race” as a useful or objective marker of human intelligence, society has moved slowly to accept the humanity of Indigenous people.

Both the British and their successors as well as Indigenous people are now facing the attendant consequences. This is a great opportunity to reset the relationship on a lawful, fair and reasonable basis and one that will help create some forms of redress, while Indigenous people generously make some difficult concessions themselves.

The nation achieved constitutional change with 91.4 percent voting in favour of the referendum in 1967. It did so with the strong support of all sides of politics. Could we achieve this in the next referendum by 2024? The consensus appears to indicate that it would be difficult get to the double majority, let alone 91.4 percent.

The nation should, however, remember that while it righteously pontificates about foreign wars, invaders and dictators, there is a deafening silence with respect to its own invasion, its own thefts, its own oppressions and its own war crimes over a period of two centuries that have received little to no attention.

Perhaps then, curing “the people” of their somnambulism, waking them up from a stupor is perhaps the first necessary step to getting “yes”.

Hopefully, it will not be too slow a ride to equity and fairness between the races. An affirmative vote of 91 percent or better at the next referendum will rekindle the spirits of 1967 and will set the stage to carry that positive step to a just, equal and equitable future.