Megan Davis
The Uluru statement, four years on

This year marks the beginning of the second decade of constitutional recognition. Who could’ve known when Julia Gillard created the expert panel, at the urging of the Greens and independents Rob Oakeshott and Tony Windsor, that 10 years, seven processes and nine reports later the nation would still be waiting for the Commonwealth to act?

Constitutional recognition is a common form of legal recognition in liberal democracies with Indigenous populations. It is recognition born not of race but of culture. It is a nation-building exercise that seeks to include the First Peoples within the framework of the state to ensure that, despite their vulnerability and unique issues, they have recognition by the state.

Most other countries entered into peace treaties at the point of dispossession. This process created a form of legitimacy in public law for Indigenous peoples, meaning their existence and claims on the state are taken seriously by the state – particularly if a manifestation of that peace treaty is recognition of sovereignty of constitutional rights. Australia did not enter into any peace treaties. And this is why recognition has been an ongoing pursuit of Aboriginal and Torres Strait Islander peoples.

Over the course of the recognition decade, the Commonwealth has asked First Nations what meaningful recognition would look like. The response, following serious deliberation, was the Uluru Statement from the Heart. It is a political and legal statement many First Nations peoples committed to in 2017: Voice, Treaty and Truth. This week it is four years since the Uluru Statement from the Heart was presented to the Turnbull government and promptly rejected. But Indigenous people remain committed to its principles and to engaging the broader Australian public to walk with us, as they did in 1967, to compel the politicians to act and not be afraid of change.

The Voice to Parliament is a structural reform. It will create an institutional relationship between governments and First Nations that will compel the state to listen to Aboriginal and Torres Strait Islander peoples in policy and in decision-making. The concept of a Voice derives from the experience of many Indigenous peoples around the world who seek to find pragmatic and functional ways of influencing government. After all, many Indigenous peoples are vulnerable to the state – the laws and policies of which shape how their lives are lived.

Other countries have structures that resemble a Voice. Norway, Sweden and Finland all have a first nations parliament with various degrees of authority over some matters and a right to be consulted on legislation. In Colombia, Ecuador and Peru, there are constitutional provisions requiring government to consult Indigenous peoples before allowing natural resource exploitation on indigenous lands.

Liberal democracies are a numbers game. But this game is stacked against action on Indigenous peoples’ issues. Majority rule means it is difficult for the voice of 3 per cent of the population to be heard and for First Nations people to influence the very laws that are made about them. For more than a century, we have argued for political representation and fairer consultation.

The idea behind a Voice to Parliament is that Aboriginal and Torres Strait Islander peoples need to be engaged in the development and implementation of laws, policies and programs that affect them and their rights. This is the only way to achieve higher-quality policy and laws, and a fairer relationship with government. And it is consistent with the United Nations Declaration on the Rights of Indigenous Peoples, particularly article 18, which states that “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions”.

Some have queried why “treaty” is sequenced second in the reform proposals. This speaks to the discussions in the dialogues run in communities around Australia during the formulation of the Uluru statement. Each dialogue was underpinned by civics and legal education, information about Australia’s Federation and how it operates. The Commonwealth government likes to say it’s only an ATM for the states and territories, but in reality, its power is great. It can even over-ride state and territory legislation. Negotiating a treaty is a nation-to-nation process that requires both leverage and resources. As such, having a Voice to Parliament will increase the likelihood of treaty negotiations being productive and successful.

As it stands, Aboriginal and Torres Strait Islander peoples are in a poor negotiating position compared with the state. Take South Australia, where the entire treaty framework fell over when there was a change of government from Labor to Liberal. The Victorian, Queensland and Northern Territory processes are yet to face a change of government. State treaty processes are particularly vulnerable. Without a national Voice, a treaty is vulnerable because of the considerable legal power of the Commonwealth.

During the Uluru statement dialogues, there were varying responses in dialogues to agreement-making. Some participants were fatigued by the process. Treaties are, after all, legal documents that are highly contested and endlessly litigated. Treaties create new areas of legal practice, and law firms that specialise in contract laws and Indigenous law. In other dialogues, where native title was not recognised, treaties were highly desired. But virtually everyone spoke to the negative impact of native title processes on families and clans and nations and the acute need for dispute resolution services. Many were burnt out by litigation. And all understood the complexity of negotiating treaties with little leverage. Certainly, Victoria’s sophisticated treaty process shows the wisdom of creating a Voice before negotiating treaty.

There has been some progress since the Uluru statement was issued in 2017. A joint parliamentary committee, chaired by Patrick Dodson and Julian Leeser, examined the recommendations of the Referendum Council. This committee said there needed to be more meat on the bones of what a Voice looks like before preceding to a referendum, recommending a “co-design” process first before the form of the Voice is decided. In the 2019 budget, the Morrison government committed $7 million to a co-design process and $160 million to run a Voice referendum. The Coalition’s election promise that year echoed the committee’s two stages: design first and then decide the timing of the referendum.

After the election, a Voice co-design process was set up by Minister for Indigenous Health Ken Wyatt. And this is where we remain, with an interim report made public in January this year. The committee behind the co-design process was hand-picked by Minister Wyatt, and many of its members have current relationships, contracts or funding with the government’s National Indigenous Australians Agency. The committee’s preferred models for a Voice look much like what currently exists and what has come before. However, qualitative and quantitative analysis of the public submissions to the co-design committee conducted by the Indigenous Law Centre at UNSW Law and Justice found close to 90 per cent support a referendum on a constitutionally enshrined Voice to Parliament. Many of these submissions are acutely aware that legislating the Voice first means there will never be a constitutional Voice.

This is where the real debate now stands: legislate or constitutionalise? If the government legislates the Voice first, yet another historic attempt to address unfinished business designed by Aboriginal and Torres Strait Islander peoples will fall over. The work of Wyatt’s committee is enough meat on the bones. They can prepare an exposure draft and take the nation to a referendum.

If the model is instead legislated, and it is successful, no government will seek to enshrine something in the constitution that keeps the nation accountable. On the other hand, if the legislated Voice is not successful as a model, like the dismal failure of the National Congress of Australia’s First Peoples, no one will ever want it enshrined. Keep in mind that the congress was not refunded when it spoke against government policy.

Legislating first is not “road-testing” the Voice. A legislated model doesn’t give the Voice the authority, legitimacy and stability it needs to speak to parliament. A legislated model is a creature of the parliament, created by the parliament, which can be abolished by the parliament. This establishes a very different relationship to a new constitutional body, which could speak to parliament as one constitutional institution to another.

It is not the job of Minister Wyatt’s Voice committee to utter a word about constitutional form. Its terms of reference do not allow its members to do so. Rather it is the Morrison government that anchored itself at the last election to consider a referendum following the design of the Voice.

Four years after the Uluru statement was issued as an invitation to the Australian people, momentum is building. Despite Malcolm Turnbull’s rejection – which really spoke to his own powerlessness – the Uluru statement has public support. This week, it was awarded the Sydney Peace Prize “for bringing together Australia’s First Nations Peoples around a clear and comprehensive agenda; for healing and peace within our Nation and delivering self-determination for Aboriginal and Torres Strait Islander Peoples, that enables Australia to move into the future united and confident”.

Uluru is still on the table and it is capable of winning acceptance in a referendum.

This article was first published in the print edition of The Saturday Paper on May 29, 2021 as "Healing power".

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Megan Davis is a Cobble Cobble woman from Queensland, and pro vice-chancellor and Balnaves chair in constitutional law at the University of New South Wales.

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