The Uluru statement and Indigenous recognition
Just under 10 years ago, the Australian people were preparing to vote out John Howard, and he knew it. In panic, Howard decided to reverse the politics of racial division that had long served him well.
On October 11, 2007, just six weeks out from the election, he came out with a commitment to reconciliation with Indigenous Australians.
“I announce that if I am re-elected, I will put to the Australian people within 18 months a referendum to formally recognise Indigenous Australians in our constitution – their history as the first inhabitants of our country, their unique heritage of language and culture, and their special, though not separate, place within a reconciled, indivisible nation,” he said.
Perhaps anticipating a sceptical response to his announcement, Howard adopted a humble tone, acknowledging his record included times “when dialogue between me as prime minister and many Indigenous leaders dwindled almost to the point of non-existence”.
“I fully accept my share of the blame for that,” he confessed.
The mea culpa had little effect. This was the man who ran the long scare campaign against land rights, who decried the “black armband view” of Australian history, who resisted calls to repudiate the naked racism of One Nation and who refused, in defiance of popular sentiment and massive public demonstrations including a 200,000-strong march across the Sydney Harbour Bridge, to say “sorry” to the Stolen Generations. Howard was the man whose government abolished the Aboriginal and Torres Strait Islander Commission (ATSIC) – which, despite its flaws, was a bold experiment in self-determination – and preferred the mainstreaming of services and old-fashioned paternalism.
We will never know for sure whether Howard’s promise was core or non-core, whether he was sincere or cynical, because he lost government and his seat. The point of the story, though, is that change has been a long time coming. We’ve been talking about it pretty much constantly ever since.
Over almost two centuries, powerfully worded cases have been presented by Indigenous people, first to colonial authorities, then to state governments and then to the federal government, seeking justice, recognition and greater control over their affairs. There have been sporadic investigations of various means by which symbolic recognition might be given through the constitution or by treaty, along with various efforts to implement practical measures to give Indigenous Australians greater power. All ultimately disappointing.
Now we are trying again. The short story of the latest attempt is that a Referendum Council on Constitutional Recognition of Aboriginal and Torres Strait Islander Australians was jointly appointed by Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten in December 2015 to consult and advise on potential change. The exhaustive process culminated in a four-day constitutional convention of 250-plus delegates at Uluru in late May.
The longer story is that the process built on the work of an expert panel on constitutional recognition, and a parliamentary joint select committee. And they, in turn, followed numerous previous talks about recognition including but not limited to Howard’s 2007 promise, his failed 1999 referendum on a constitutional preamble, not specifically about Indigenous recognition but encompassing it, and then prime minister Bob Hawke’s 1988 commitment to a treaty, a makarrata, “between the Aboriginal people and the government on behalf of all the people of Australia”, within the life of that parliament. In summary, a lot of talking, investigating and promising with no result.
So what’s different this time?
“Well,” says Mark Leibler, who was co-chairman of the council, “this is the first time there’s been a rigorous process to actually find out what Aboriginal and Torres Strait Islander peoples want. And what they didn’t want.
“And we found that out and, I must say, it came as a surprise to some. I was somewhat surprised myself.”
The constitutional reform Indigenous people wanted, it turns out, was not some rhetorical acknowledgement, such as that proposed by Howard. Nor, however, were they taken by legalistic and politically fraught suggestions that the race power under section 51 of the constitution, or the territories power of section 122, should be deleted or amended, nor that a racial non-discrimination clause should be inserted into the constitution.
“As the dialogues were proceeding,” Leibler says, “it became quickly clear that what people really wanted was a mechanism whereby they would be more effectively listened to.”
As articulated in the Uluru Statement from the Heart: “We call for the establishment of a First Nations Voice enshrined in the constitution.”
Perhaps it was the simplicity and conservatism that surprised people.
As Megan Davis, a pro-vice-chancellor and professor of law at the University of New South Wales, and a member of the referendum council, wrote in the most recent issue of The Monthly: “…the dialogues threw up a novel idea that not a single constitutional lawyer had contemplated: that a ‘voice’ to the parliament could monitor the use of the race power and the territories power.
“And, more practically, the voice could have multiple functions, the most important being direct input into decisions that are made about law and policy that affect Aboriginal and Torres Strait Islander peoples.
“Uluru brought clarity and coherence to a discursive process that has rambled on for 10 years.”
Such clarity and coherence, indeed, that Leibler, who was not sure going into the process “whether anything would come out of it”, now sees only two options: “Either take it or take Indigenous recognition off the agenda … Because the reality is these are the only alternatives unless one is prepared to contemplate a form that they, those being recognised, oppose.”
Anne Twomey, a professor of constitutional law at Sydney University, who provided drafting advice to the group, is impressed by the pragmatism of the proposal.
“The original idea of recognition in the constitution was indeed symbolism, if you go back and look at what John Howard was saying or Kevin Rudd was saying.
“But we’ve had Aboriginal recognition put into nearly all the state constitutions, but nobody knows about it … because nothing really changed as a result. Nothing. Zero.”
The call for a constitutionally supported “voice” also neatly sidestepped the legal and political complexities of other proposals.
“The idea was a pragmatic recognition that the previous proposals about an anti-racial discrimination provision and so on were unlikely to get political support from conservatives,” she says.
Equally importantly, she says, is the fact “all those previous proposals, which have been about changing the race power, sticking in an anti-discrimination clause et cetera, relied on laws and lawyers and courts. There was no active role for Aboriginal people in any of them. This is very, very different. It’s involving people in the process, a living, ongoing form of recognition.”
Twomey stresses the modesty of the proposal, seeking “an ability only to influence, rather than an ability to command”. She says “the real question now is, will the influence be effective”.
That will require two things.
First, says Twomey, “it will depend very much on what Indigenous people make of it. If it’s dysfunctional, then it will not achieve anything”.
Second, she says, it will require willingness on the part of politicians to listen. And that gets to the real import of putting it in the constitution.
“To be effective there has to be a sense of moral obligation,” Twomey says.
“You can see this in other countries where they do feel a moral obligation to pay attention to indigenous voices.”
And that has been lacking for a long time here. One message that came up over and over again during the dialogues, delegates say, was that the administration of Indigenous affairs had never been so remote from the grassroots, with, as one puts it, “white public servants in Canberra being completely in control of people’s lives”.
This brings us back to something we mentioned at the top: the Howard government’s decision to abolish the Aboriginal and Torres Strait Islander Commission, back in 2004, a decision supported by the Labor opposition, although Labor wanted it replaced with another elected body.
Until 1973, white paternalism ruled in Indigenous affairs. Then the Whitlam government established the first representative body actually elected by Indigenous people. The role of the National Aboriginal Consultative Committee (NACC) was advisory only, but it provided, for the first time, a voice.
The NACC was disbanded in 1977, and replaced with another body, the National Aboriginal Conference. An issues brief from the parliamentary library noted in 2004 that while “there was a range of bodies and agencies involved in policy-making and service delivery in the Indigenous affairs area, it is important to note that there was almost always an elected national Indigenous body providing advice to government.”
ATSIC’s establishment represented the ultimate evolution of the process. As the brief said: “The Government’s proposal was for a body to combine both representative and executive roles.”
That is to say, it had both an advisory role and a responsibility for service delivery.
The parliamentary brief continued: “The John Howard-led Opposition was vehemently opposed to the concept of ATSIC … because [it] was perceived to give Indigenous people separate status. Many Coalition parliamentarians saw ATSIC as a kind of black parliament.”
ATSIC survived 14 years, but the truth is Howard always wanted to knock it off.
On April 15, 2004, he got his wish.
“We believe very strongly that the experiment in separate representation, elected representation, for Indigenous people, has been a failure,” Howard told a press conference. “We will not replace ATSIC with an alternative body.”
Thus Indigenous-specific democracy was extinguished. Advice would henceforth come from people appointed by government. So it remains to this day.
Howard’s Indigenous affairs minister, Amanda Vanstone, suggested it was what Indigenous Australians themselves wanted – that a review commissioned by the government found Indigenous people felt “an absolute disconnect” between themselves and ATSIC.
This was a very limited truth. Certainly, the review had found “detachment between local Indigenous communities and the national board” but it advocated amendment not abolition.
“ATSIC should have been improved, it shouldn’t have been abolished,” says Shireen Morris, constitutional reform research fellow.
“There have been so many of these bodies in the past. And as soon as politicians don’t like them, they abolish them. That’s why we need a constitutional guarantee. It is the only way to ensure a strong and permanent Indigenous voice that is always there to hold parliament to account in Indigenous affairs.”
The Uluru proposal is not a replication of ATSIC. A lesson from that time is that it is probably too much to expect that a representative body should fulfil both an advocacy role and a service-delivery role. As one puts it: The question was, “Are you an advocate or a public servant?”
And the answer from most involved in the process is, “Advocate.”
Says Leibler: “Those functions should never have been united. That created all sorts of conflicts of interest.
“What’s coming next is purely an advisory body to parliament. It’s an advisory body. It can look at legislation; it can’t hold up the deliberations of parliament.”
Much work is yet to be done on the design of the representative body, says Morris, but the concept is modest, even conservative.
“It is less constitutionally uncertain than a non-discrimination clause. It’s also far less constitutionally risky than inserting symbolic words. Many experts point out that if you insert symbolic words, you don’t know how the High Court might interpret them, whereas a body in the constitution can be drafted in a way that is a mechanical, practical change.
“There’s an elected Indigenous body operating in the ACT now. In New Zealand there’s an elected Maori body now. Both set up by parliaments. This is not new or something parliaments are unaccustomed to doing.
“And it aligns with the prime minister’s own promise to do things with Indigenous people, not to them. This would constitutionalise that promise.
“Politicians should not kick this can down the road.”
Funny that Morris should use that expression. For it was used also by the one member of the reform council who deemed it necessary to produce a separate “qualifying” statement to the council’s final report. That was Amanda Vanstone, ATSIC’s executioner.
In her statement, submitted only hours before the report was to be published, Vanstone seemed dismayed to learn that what Indigenous Australia wanted from constitutional reform was a voice, and advised caution.
“The advice to parliament would be public and thus any disagreement would feed into the public debate,” she wrote. “Advice opposing a proposal before parliament would in effect be perilously close to a veto.”
Vanstone sees a threat in the idea that a duly elected, representative body might express an opinion – just an opinion – contrary to that of government, lest it gain popular support,
She wrote: “I recognise that some will say my remarks are just another example of non-Indigenous Australians responding to a positive policy for Indigenous Australians by ‘kicking the can down the road’.”
Like I said earlier, change has been a long time coming. And the reason is that some people really don’t want it.
And to the extent they countenance recognition of Indigenous people, they do it in the sense of simple acknowledgment. Seen, that is, but not heard.
This article was first published in the print edition of The Saturday Paper on Jul 29, 2017 as "Voice recognition". Subscribe here.