The Uluru Statement calls for voice, treaty and truth and is much more than a singular constructive contribution to the conversation about recognition of Indigenous Australians in the Constitution: it asserts a right to an ongoing voice in the Australian political system, write public law advocates ASSOCIATE PROFESSOR GABRIELLE APPLEBY and GEMMA MCKINNON.
Half a century after the 1967 referendum, more than 250 First Nations people gathered in the red dust of the nation’s heart and spoke to the people of Australia at the end of May. The Uluru Statement from the Heart represents a major interruption to the existing debate on constitutional reform. To date, this debate had been dominated by a few voices, including those appointed to the Expert Panel on Recognising Abo-riginal and Torres Strait Islander Peoples in the Constitution, which reported in 2012, and the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, which reported in 2015.
These have been accompanied by the premature “Recognise” campaign, which was largely distrusted by Aboriginal and Torres Strait Islander people because of its vocal support for a reform purportedly on their behalf, the content of which had not yet been determined, and on which they had never been asked their opinion. Calls from the Aboriginal and Torres Strait Islander community should be the central consideration of Parliament and the Australian people in this debate. The Uluru Statement is much more than a singular constructive contribution to the conversation: it asserts a right to an ongoing voice in the political system.
The journey to the Uluru Statement
In December 2016, a conversation started across Australia, and, for the first time, Aboriginal and Torres Strait Islander people were asked in an informed and systematic way to speak on the reforms they wanted to see to address the challenges that confronted their communities and regions.
The process was led by the Indigenous Steering Committee of the Referendum Council, a group appointed by Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten in December 2015 to advise on “progress and next steps towards a successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution”.
It eclipsed previous attempts to consult or listen to Aboriginal and Torres Strait Islander people about constitutional reform. It was designed by Aboriginal and Torres Strait Islander people; a series of preliminary meetings was held with Aboriginal leaders across the nation to determine the initial design of a series of regional dialogues. This was followed by a trial dialogue, attended by those selected to be conveners, and working group leaders responsible for running local dialogues. In this way, the agenda of the conversation was created and refined with Aboriginal and Torres Strait Islander people, and delivered by them.
Each dialogue took place over three days, hosted by a local organisation and attended by delegates identified by local conveners. The total delegation comprised 60 per cent land-based representatives (for instance, traditional owners or native title bodies), 20 per cent leaders from community organisations and 20 per cent individuals. Local conveners sought to achieve gender and demographic balance, and representation from the Stolen Generations.
The delegates were given a series of civics information sessions, in written, video and spoken form, using interpreters where necessary. In larger plenaries and smaller groups, delegates discussed the options on which the Referendum Council had been tasked to consult and relay their views on them, as well as discuss other possibilities.
Importantly, the dialogues were not limited to a “consultation” on pre-determined options. Rather, they were informed by local responses and circumstances. For instance, the option of agreement and treaty-making was added to the dialogues’ agenda after the leadership design meetings, and, particularly, after Victoria began treaty negotiations with Aboriginal people in that state in 2016. The final call for truth-telling in the Uluru Statement was never a formal “option” in the design of the dialogues. However, the call for truth to be told as part of any process of reform was so strong across all the dialogues that it could not be ignored.
The dialogues fed into the Uluru Convention in two ways. At the end of each dialogue, the delegates confirmed a statement that recorded their discussions and decisions. These statements included the challenges that the delegates had identified in their communities and regions, and then the preferences of the dialogue for reform to address these challenges. Second, each convention selected representatives for the Uluru Convention to take the dialogue’s positions forward into the national forum.
When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.
THE ULURU STATEMENT 2017
First Nations speak at Uluru
The Uluru Statement offers important, constructive contributions to the previous conversation on constitutional reform. Without attempting to be exhaustive, we have identified six we believe represent previously unrealised opportunities to move the debate forward.
First, the statement offers a path through the seemingly intractable dispute over “sovereignty”. Drawing on the International Court of Justice’s Advisory Opinion on Western Sahara (1975), as quoted by Justice Brennan in Mabo v Queensland (No 2) (1992) 175 CLR 1 (at 63), it contains a powerful assertion of a sacred and fundamentally spiritual sovereignty over cultural lands and waters, while explaining that this sovereignty can co-exist with thatlegal conception of sovereignty of the Crown that the High Court has repeatedly affirmed is not subject to a judicial challenge.
Second, the statement requires non-Aboriginal Australia to confront the “torment of the powerlessness” of Aboriginal and Torres Strait Islander people. Rather than simply listing the statistics, it asks us to confront the implicit assumptions in Australia’s, historical and contemporary policiesthat have resulted in the today’shighest levels of incarceration in the world, the removal of children from families at unprecedented rates, and obscene levels of youth detention. The statement challenges us to deny the structural nature of these problems.
Third, the statement offers hope to all Australians. It offers “the fuller expression of Australia’s nationhood”; it offers all Australians the gift of Aboriginal and Torres Strait Islander culture: “When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.”
Fourth, the statement represents a disruption of the consensus on what “meaningful” constitutional recognition would look like. The reforms have been informed by the deliberative process that preceded it, from which 10 guiding principles have been distilled. These were:
- Does not diminish Aboriginal sovereignty and Torres Strait Islander sovereignty;
- Involves substantive, structural reform;
- Advances self-determination and the standards established under the United Nations Declaration on the Rights of Indigenous Peoples;
- Recognises the status and rights of First Nations;
- Tells the truth of history;
- Does not foreclose on future advancement;
- Does not waste the opportunity of reform;
- Provides a mechanism for First Nations agreement-making;
- Has the support of First Nations;
- Does not interfere with positive legal arrangements.
For anyone who has followed the historical calls by Aboriginal and Torres Strait Islander people for constitutional reform, from the Bark Petitions of 1963, the Barunga Statement of 1988, the Eva Valley Statement of 1993, the 1995 ATSIC report on the Social Justice Package to the Kirribilli Statement of 2015, it is unsurprising that the delegates at Uluru rejected “recognition” that amounted to no more than minimalistic, symbolic acknowledgement.
Minimalism, as explicitly rejected in the Kirribilli Statement, would amount to a package of three reforms. First would be the removal of section 25 of the Constitution. Second would be and the removal of the races power (section 51(xxvi) of the Constitution), to be replaced with a new power with respect to Aboriginal and Torres Strait Islander peoples. Third would be the introduction of a preface or preamble acknowledging the historical occupation of Australia by Aboriginal and Torres Strait Islander peoples and their continuing relationship with their lands and waters, and continuing cultures, languages and heritage.
What is apparent from the Uluru Statement is that if non-Aboriginal Australians wish to make these changes for their own reasons, whether that be to remove the explicit – and outdated – concept of “race” in the Constitution, or to acknowledge Aboriginal and Torres Straits Islanders peoples’ long history in Australia before colonisation and Federation, they need to accept that they would be doing it for themselves. Aboriginal and Torres Strait Islander people now have told us that it is not their priority.
A surprising contribution was that the statement does not call for the insertion of a racial non-discrimination clause. The statement, in effect, rejects legalism. In doing so, it rejects the solution that had been posited by the 2012 Expert Report and the 2015 Joint Select Committee. Each of these agreed that substantive constitutional reform was required, and that the substance should come from some form of racial non-discrimination clause to legally limit the extent of Parliament’s power to make negatively discriminatory laws.
The rejection of this option is easily understood when assessed against the guiding principles that informed the convention’s reform priorities. A prohibition on racial non-discrimination does not proactively advance self-determination for Aboriginal and Torres Strait Islander peoples: if framed broadly, it does not necessarily recognise the status and rights of First Nations; it tells no truth of history, depending on its interpretation, it may affect and foreclose future attempts at advancement; it provides no mechanism for First Nations agreement-making; it did not have support of all the regional dialogues; and it might interfere with and undermine existing, positive
The option of a racial non-discrimination clause drew similar concerns to the proposed amendments to the language of the race power: the final say in interpreting these clauses will continue to fall to people who are not Aboriginal or Torres Strait Islander.
Sixth is the statement’s explanation that only through truth, justice and self-determination can we address the current structural disempowerment
of Aboriginal and Torres Strait
The statement calls for voice, treaty and truth and, more specifically, a singular constitutional reform: a constitutionally entrenched “First Nations Voice”. The details of this “Voice” are not set out in the statement, but the discussions give some idea as to what is anticipated. The “voice” is intended to be a representative body that has a role in the legislative process, so as to operate as a political brake on Parliament’s power to pass laws that affect Aboriginal and Torres Strait Islander peoples (both under section 51(xxvi) and section 122). There are examples of such bodies in other countries in myriad forms.
The closest to what is called for are Sámi Parliaments in Norway, Sweden and Finland, which must be consulted by the nation’s parliaments before policy and legislative decisions are made that affect the Sámi people.
This, of course, would be no guarantee that the Parliament’s powers would not be used to pass future negatively discriminatory laws, but it would create a political tension and, hopefully, result in laws better designed for Aboriginal and Torres Strait Islander peoples. As many delegates at the dialogues highlighted, it would reduce the situation in which laws and policies are imposed on Aboriginal and Torres Strait Islander peoples, and gives Aboriginal and Torres Strait Island Peoples a voice and responsibility in those decisions.
The statement then calls for a non-constitutional reform: a Makarrata Commission to oversee a national treaty framework and a process of truth-telling about Australia’s history.
The call for Makarrata, a Yolngu word meaning the coming together after a struggle, echoes the long-held and voiced aspirations of Aboriginal and Torres Strait Islander people for a treaty or treaties. By seeking a formal process for treaty-making, Aboriginal and Torres Strait Islander people wish to achieve self-determination, autonomy and self-government and express their sovereignty.
In Victoria, South Australia and the Northern Territory there have already been moves towards negotiating such instruments with the local Aboriginal clans. The call is for a process to oversee a national treaty framework, which would provide minimum substantive and process standards for regional treaties to be negotiated. It would be an important standard-setting intervention in those already initiated regional processes. The statement calls for a process, anticipating that it will be, as it must be, a long negotiation, along which difficult questions around the parties, process, content and enforcement must be resolved with the mutual agreement of all involved.
Truth was perhaps the most surprising of all the reforms called for. This was not because it is particularly novel. Truth-telling is recognised internationally as opening the way for justice, healing, the restoration of dignity and, on those bases, reconciliation. It is common in other post-colonial countries that have attempted reconciliation: South Africa (the South African Truth and Reconciliation Commission (1995-2002)), Canada (the Truth and Reconciliation Commission of Canada (2009-2015)), New Zealand (the Waitingi Tribunal) have each implemented different forms of truth-telling in their journeys. Many international instruments recognise its importance, including the 2013 UN General Assembly Resolution on the Right to Truth, which, in Article 4, encourages states to establish specific mechanisms to do so, including, where appropriate, truth and reconciliation commissions.
The Australian debate previously had been silent on this issue. This is, perhaps, unsurprising: the desirability of telling the truth of the colonisation of Australia, including the frontier wars and massacres, has been the cause of ongoing disagreement, and, as the ongoing Australia Day/Invasion Day debate demonstrates, this agitation remains unresolved. But Aboriginal and Torres Strait Islander people now have expressed their considered view that this is simply unsatisfactory. As other countries and international instruments have recognised, reconciliation cannot be achieved without truth.
On 30 June, the full Referendum Council reported to Prime Minister Turnbull and Opposition Leader Shorten. The report was released on 17 July, and was heavily informed by the reforms in the Uluru Statement.
- That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a voice to the Commonwealth Parliament. One of the functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.
- 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.
The Referendum Council also noted the calls in the Uluru Statement for the creation of a Makarrata Commission to oversee agreement-making and facilitate a truth-telling process, although it made no recommendations on these matters as they fell outside of the terms of reference.
Aboriginal and Torres Strait Islander people spoke at Uluru with historic and constructive contributions, disrupting a debate that had been dominated by the same voices, the same positions and the same seemingly intractable issues. Non-Aboriginal Australians would do well to keep listening.