By Pat Anderson, Megan Davis and Noel Pearson
The Indigenous recognition process has a very clear trajectory from the days of the Republic referendum in 1999, to the expert panel in 2011, the work of the Referendum Council from 2015 to 2017 and the parliamentary joint select committee which reported late last year.
The key question driving recognition over a decade has been what form of recognition is desirable and whether that form is capable of being supported at a referendum by the Australian people. One thing is clear: First Nations must support the form of recognition or it is not recognition.
After the stonewalling of the expert panel’s "one-clause bill of rights" by the major parties, Aboriginal people compromised by looking for alternative forms of recognition acceptable to both major parties. We were conscious of ensuring any proposal aligned with Australia’s political and legal traditions.
In a series of constitutional conventions, or "dialogues", run for Indigenous communities, it was the proposal for an enhanced role in the decision-making of the state with respect to policies that impact upon our communities – the Voice to Parliament – that won the support of a majority of First Nations people.
After all, all Australians of every political persuasion agree that the status quo, with minimal Indigenous input into laws and policies, is not working.
The fidelity of a Voice to Australia’s democratic traditions and the rule of law was confirmed by the legal profession, including the Law Council of Australia and 22 law firms, who endorsed Uluru and the Voice proposal. This was followed by the nation’s leading jurists, including two former chief justices of the High Court, Murray Gleeson and Robert French.
This was no mean feat. This was years of hard work and careful thought into a form of recognition that would have an impact on the lives of Aboriginal and Torres Strait Islander peoples who want to be active, not passive, participants in the democratic life of the state.
That the Voice is the only form of recognition worth pursuing was endorsed by the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, chaired by the Liberal Party's Julian Leeser and Labor's Patrick Dodson. The JSC said in its final report last November:
"A constitutionally enshrined First Nations Voice would empower Aboriginal and Torres Strait Islander peoples to shape the policy and legislation governing their affairs across the longer term. It would provide a First Nations Voice with the independence and permanence to provide frank advice."
Yet in an interview with the ABC's Patricia Karvelas on October 16, Ken Wyatt, the Minister for Indigenous Australians, said: ‘we have to think about whether we want to be recognised in the Constitution".
This is mystifying. If we take Wyatt’s recognition starting point as John Howard’s preamble, then that’s 20 years or two decades of the nation pursuing constitutional recognition. That is five formal processes since the expert panel in 2011, and eight published reports in eight years.
The state-led, taxpayer-funded recognition process since 2011 has a very clear trajectory and a very lengthy history of political discussion about the form of recognition capable of support at a referendum. It has been an iterative process over this time.
Yes, First Nations people want recognition. No, they don’t seek the minimalist reform Wyatt is unilaterally now pursuing.
The history is black and white. The decision to set up the Referendum Council which led to the Uluru Statement From the Heart followed a meeting held at Kirribilli in 2015 where representatives of First Nations across Australia stated a baseline threshold that would not be acceptable: minimalist changes to the race power and a symbolic statement.
The Kirribilli leaders recommended that there be an ongoing dialogue between Aboriginal and Torres Strait Islander peoples and the government to negotiate the proposal to be put to referendum, as well as engagement about the acceptability of the proposed question. This was the work of the Referendum Council, the dialogues (December 2016 to April 2017), the national constitutional convention at Uluru (May 2017) and the Joint Select Committee (November 2018).
The Referendum Council’s work focused on seeking the views of First Nations in a deliberative way so that Australians could, after so many years, receive a robust understanding of what form of recognition Indigenous peoples seek. The primary constitutional reform settled upon through that process was a Voice to Parliament. This is an enabling provision that provides the Parliament with the power to legislate for a Voice.
The Joint Select Committee endorsed the process, finding: "The committee recommends that, following a process of co-design, the Australian government consider, in a deliberate and timely manner, legislative, executive and constitutional options to establish the Voice."
The Voice is recognition.
Throughout the inquiry, the committee observed broad support for the concept of a First Nations Voice, both as a form of recognition and particularly as a mechanism to empower Aboriginal and Torres Strait Islander peoples to have a greater say in the policy and legislation that governs their affairs.
Uluru was a major turning point. The parliamentary committee process confirmed this.
Not only did it bring a new element, The Voice, into the debate but it rejected much that had gone before in terms of proposals for constitutional recognition.
At the centre of the Statement from the Heart is The Voice. The Voice is the matter on which we have focused most of the efforts of this Committee.
The minister cannot walk back the past nine years. The Referendum Council’s work cannot be ignored. The Uluru Statement From the Heart cannot be ignored.
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Related to SDG 10: Reduced inequalities and SDG 16: Peace, justice and strong institutions
