Once again, this week we do a deep dive via special request.
There is an unmistakable feeling that the national conversation around the rights and respect for Indigenous Australians has reached fever pitch in the last twelve months. Discussion on changing the date of Australia Day has become more mainstream (that deep dive is here). We’ve just passed ten years since Kevin Rudd’s historic apology. Continuing reports on how the Closing the Gap program is failing to meet most of its goals has been damning. We’ve done previous deep dives into the current state of Indigenous Affairs. However, since that time, the Uluru Statement has been published, then rejected by the Turnbull government. For many, it’s one of the greatest setbacks on Indigenous relations in the 21st century.
In May, 2017, there was a historic summit at Uluru. It was convened by the Referendum Council – a bi-partisan group, brought together by Malcolm Turnbull and Bill Shorten in 2015. The goal of the group was to advise Bill and Malcolm on how to proceed towards a successful referendum to recognise Aboriginal and Torres Strait Islander people in the Constitution.
Our constitution is currently completely silent on the matter of Aboriginal and Torres Strait Islander people. In fact, our constitution holds some pretty cobwebby clauses. Section 25 still says States can disqualify people from voting in elections on account of their race. Section 51 (xxvi) empowers the government to legislate for “the people of any race for whom it is deemed necessary to make special laws”. But in order to change the constitution, we need a referendum – the whole country getting out and voting. So, the Referendum Council was formed in 2015 to advise them. The result was the Uluru Statement.
Below, in full, is the ‘Uluru Statement of the Heart’. It’s worth reading to really understand this issue and what Aboriginal and Torres Strait Islanders are asking for. For what’s it’s worth, it’s also beautifully written.
“We, gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky, make this statement from the heart:
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, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.
This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.
How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?
With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.
Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.
These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.
We seek constitutional reforms to empower our people and take a rightful place in our own country. 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.
We call for the establishment of a First Nations Voice enshrined in the Constitution.
Makarrata 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.
We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.
In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.”
So, the statement calls for two central things: a First Nations Voice, and a Makarrata Commission. Turnbull rejected both ideas.
The really contentious idea is the notion of a ‘First Nations Voice’: a bi-partisan body providing non-binding advice on legal and political matters affecting Aboriginal and Torres Strait Islander people. How this body would operate, look, and interact with the Australian Parliament is a matter of ongoing debate. Nevertheless, Turnbull isn’t keen. He reckons a new advisory body “would inevitably become seen as a third chamber of Parliament.” And, “our democracy is built on the foundation of all Australian citizens having equal civic rights, all being able to vote for, stand for and serve in either of the two chambers of our national Parliament — the House of Representatives and the Senate. A constitutionally enshrined additional representative assembly for which only Indigenous Australians could vote for or serve in is inconsistent with this fundamental principle.”
Critics of this argument say that Turnbull’s missing the point. If an Indigenous body’s advice is non-binding, then it poses little threat to the concept of Australian democracy. It only acknowledges the idea that Indigenous Australians have the right to be consulted on matters that directly affect them as the original inhabitants of Australia. The idea is certainly not without merit when looking at government programs like Closing the Gap, which have disastrously failed to meet their goals. There are plenty of reasons for this – a revolving door of government ministers, budgetary cuts – but underneath is a more fundamental quandary. The program is on government terms, predominantly white Australians. Surely programs like Closing the Gap stand a greater chance of success if under the guidance and consultation of a constitutionally-enshrined Indigenous Voice.
Others are advocating for a series of treaties, individual agreements between the government and Indigenous Australians. This is what has happened around the world with all Commonwealth countries and their Indigenous people, including Canada, the United States, and New Zealand. Of course, the treaties were made in the eighteenth or nineteenth century. Australia remains the only Commonwealth country not to have a treaty with its Indigenous peoples.
Turnbull is apparently comfortable with the idea of more symbolic recognition in the constitution, but fearful of constitutional changes that have potential legal ramifications such as the formulation of a new body.
Regardless, the matter is ongoing. As recently as this month, opposition leader Bill Shorten used the tenth anniversary of the apology to announce that the Labor Party would pursue the idea of legislating an Indigenous Voice to Parliament. This is the latest idea – that the constitution is ignored (because changing it is too hard with a referendum), so Parliamentary reform may be sought through Parliament itself. Indigenous Health Minister Ken Wyatt of the Turnbull’s own Liberal Party has also said that this is possible and he’s optimistic about the future.
On a State level, some change has already begun. NSW Labor has said that, if elected in 2019, they will establish a treaty recognising traditional Indigenous ownership of the state.
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