Document 1 - Page 1 of 2
s 22(1)
From: s 22(1)
@pmc.gov.au]
Sent: Monday, 29 May 2017 11:16 AM
To: s 22(1)
Cc: s 22(1)
Subject: FW: QB16-000513 [DLM=For-Official-Use-Only]
For Official Use Only
Good morning s 22(1)
Apologies for the delay getting this to you. Attached is our QTB, which includes a copy of the
Uluru Statement from the Heart.
If any changes are made in the MO, I will let you know. Also very happy to discuss further.
Thanks
s 22(1)
s 22(1)
l Senior Adviser
Constitutional Recognition Taskforce
Department of the Prime Minister and Cabinet | Indigenous Affairs
s 22(1)
s 22(1)
@pmc.gov.au | www.dpmc.gov.au | www.indigenous.gov.au
PO Box 6500 CANBERRA ACT 2600
The Department of the Prime Minister and Cabinet acknowledges the traditional owners of country throughout Australia
and their continuing connection to land, sea and community. We pay our respect to them and their cultures, and to the
elders both past and present.
______________________________________________________________________
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 1 of 211
Document 1 - Page 2 of 2
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message, you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If you
have received this message in error, please notify the sender immediately by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 2 of 211
Document 2 - Page 1 of 11
IN
CONFIDENCE
*
PDR: QB16-000513
QUESTION TIME BRIEF (QTB)
INDIGENOUS – CONSTITUTIONAL RECOGNITION
QUESTION: What is the Government doing to progress constitutional recognition?
KEY POINTS:
The Government is committed to the recognition of Aboriginal and Torres Strait
Formatted: Font: 14 pt
Islander people and we have worked in partnership with Indigenous Australians to
Formatted: Don't add space between paragraphs of the
same style, Don't allow hanging punctuation, Don't adjust
hear the views of communities across the country.
space between Latin and Asian text, Don't adjust space
between Asian text and numbers, Font Alignment: Baseline
Formatted: List Paragraph, Indent: Left: 0.63 cm, First line:
On 7 December 2015, the Prime Minister and the Leader of the Opposition
0 cm
created a Referendum Council to provide advice to Parliament on the next steps
Formatted: Don't add space between paragraphs of the
towards a successful referendum, including timing of a referendum and a possible
same style, Don't allow hanging punctuation, Don't adjust
space between Latin and Asian text, Don't adjust space
model.
between Asian text and numbers, Font Alignment: Baseline
Formatted: List Paragraph, Indent: Left: 0.63 cm, First line:
0 cm
We thank the National Constitutional Convention delegates for their work which
Formatted: Don't add space between paragraphs of the
will now be considered by the Referendum Council. The Council will, in turn,
same style, Don't allow hanging punctuation, Don't adjust
advise the Prime Minister and Leader of the Opposition and through them, the
space between Latin and Asian text, Don't adjust space
between Asian text and numbers, Font Alignment: Baseline
Parliament.
Formatted: List Paragraph, Indent: Left: 0.63 cm, First line:
s 22(1)
0 cm
Formatted: Don't add space between paragraphs of the
same style, Don't allow hanging punctuation, Don't adjust
space between Latin and Asian text, Don't adjust space
between Asian text and numbers, Font Alignment: Baseline
Formatted: Font: 14 pt
Formatted: List Paragraph, Indent: Left: 0.63 cm, First line:
0 cm
Formatted: Don't add space between paragraphs of the
same style, Don't allow hanging punctuation, Don't adjust
space between Latin and Asian text, Don't adjust space
between Asian text and numbers, Font Alignment: Baseline
Formatted: Indent: Left: 0.63 cm
Formatted: Don't add space between paragraphs of the
same style, Don't allow hanging punctuation, Don't adjust
space between Latin and Asian text, Don't adjust space
between Asian text and numbers, Font Alignment: Baseline
The Government is committed to the recognition of Aboriginal and Torres Strait
Formatted: List Paragraph, Indent: Left: 0.63 cm, First line:
0 cm
Islander peoples in our Constitution.
Formatted: Don't add space between paragraphs of the
same style, Don't allow hanging punctuation, Don't adjust
On 7 December 2015, the Prime Minister and the Leader of the Opposition created a
space between Latin and Asian text, Don't adjust space
between Asian text and numbers, Font Alignment: Baseline
Referendum Council to provide advice on the next steps towards a successful referendum, including
Formatted: Normal, Indent: Left: 0.63 cm, No bullets or
timing of a referendum and a possible model.
numbering
Formatted: Normal, No bullets or numbering
The Council has completed 12 First Nations Regional Dialogues, and an Information Day.
Formatted: Normal, Indent: Left: 0 cm
The Indigenous consultation process culminates in a National Constitutional Convention taking
Formatted: Normal, No bullets or numbering
place this week at Uluru. The Council also sought the views of the broader community through a
written submission process, digital consultations and targeted stakeholder engagement.
Formatted: Normal
CONTACT: s 22(1)
DIVISION: IER DATE:
294 MAY 2017 DEPARTMENTAL INPUT CLEARED BY: Gayle Anderson
*Not for tabling – For Official Use Only
1
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Page 3 of 211
Document 2 - Page 4 of 11
IN
CONFIDENCE
*
PDR: QB16-000513
s 22(1)
The National Convention is being held at Uluru on 23-26 May 2017.
The National Constitutional Convention was held at Uluru on 23-26 May 2017.
Delegates agreed the ‘Uluru Statement from the Heart’, which:
asserts continuing Aboriginal and Torres Strait Islander sovereignty, which co-
Formatted: List Paragraph, Bulleted + Level: 1 + Aligned at:
0 cm + Indent at: 0.63 cm
exists with the sovereignty of the Crown;
seeks the establishment of a constitutionally-enshrined First Nations Voice in the
Parliament; and
calls for the establishment of a Makarrata Commission to supervise a process of
agreement-making between governments and First Nations and truth-telling.
A copy of the Statement is at Attachment B.
Formatted: Font: 14 pt
s 22(1)
CONTACT: s 22(1)
DIVISION: IER DATE:
294 MAY 2017 DEPARTMENTAL INPUT CLEARED BY: Gayle Anderson
*Not for tabling – For Official Use Only
4
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 4 of 211
Document 2 - Page 9 of 11
IN
CONFIDENCE
*
PDR: QB16-000513
Attachment B
Formatted: Font: Bold
ULURU STATEMENT FROM THE HEART
Formatted: Right
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
CONTACT: s 22(1)
DIVISION: IER DATE:
294 MAY 2017 DEPARTMENTAL INPUT CLEARED BY: Gayle Anderson
*Not for tabling – For Official Use Only
9
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 5 of 211
Document 3 - Page 1 of 4
From:
s 22(1)
To:
s 22(1)
Cc:
Lewis, David; s 22(1)
; Virtue, Joanna; s 22(1)
; Anderson, Gayle
Subject:
s 47C(1)
[SEC=PROTECTED]
Date:
Thursday, 8 June 2017 6:51:25 PM
Attachments:
s 47C(1)
PROTECTED
No problem – many thanks to you too for your patience. For reference, I’ve attached final
agreed drafts.
Thanks
s 22(1)
Principal Legal Officer
Office of Constitutional Law
Attorney-General’s Department
s 22(1)
@ag.gov.au
From: s 22(1)
@pmc.gov.au]
Sent: Thursday, 8 June 2017 6:40 PM
To: s 22(1)
Cc: Lewis, David; s 22(1)
; Virtue, Joanna; s 22(1)
; Anderson, Gayle
Subject: s 47C(1)
[SEC=PROTECTED]
PROTECTED
Thanks so much s 22(1) – really appreciate everything today!
I will be in touch tomorrow – with any feedback from our Office and the s 47C(1)
.
Thanks again
s 22(1)
From: s 22(1)
@ag.gov.au]
Sent: Thursday, 8 June 2017 6:39 PM
To: s 22(1)
@pmc.gov.au>
Cc: Lewis, David s 22(1)
@ag.gov.au>; s 22(1)
@ag.gov.au>; Virtue, Joanna s 22(1)
@pmc.gov.au>; s 22(1)
@pmc.gov.au>; Anderson, Gayle s 22(1)
@pmc.gov.au>
Subject: s 47C(1)
[SEC=PROTECTED]
PROTECTED
Hi s 22(1) – this has now been cleared by our deputy secretary. We will send it to the AGO now.
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 6 of 211
Document 3 - Page 2 of 4
Thanks
s 22(1)
Principal Legal Officer
Office of Constitutional Law
Attorney-General’s Department
s 22(1)
@ag.gov.au
From: s 22(1)
@pmc.gov.au]
Sent: Thursday, 8 June 2017 6:10 PM
To: s 22(1)
Cc: Lewis, David; s 22(1)
; Virtue, Joanna; s 22(1)
Anderson, Gayle
Subject: s 47C(1)
[SEC=PROTECTED]
PROTECTED
Thanks s 22(1) – happy with that small change.
From: s 22(1)
@ag.gov.au]
Sent: Thursday, 8 June 2017 6:06 PM
To: s 22(1)
@pmc.gov.au>
Cc: Lewis, David s 22(1)
@ag.gov.au>; s 22(1)
@ag.gov.au>; Virtue, Joanna s 22(1)
@pmc.gov.au>; s 22(1)
@pmc.gov.au>; Anderson, Gayle s 22(1)
@pmc.gov.au>
Subject: s 47C(1)
[SEC=PROTECTED]
Importance: High
PROTECTED
Hi s 22(1)
We think this should be OK with one small change as marked. We’ll clear this with our Dep Sec
now as quickly as possible.
Thanks
s 22(1)
Principal Legal Officer
Office of Constitutional Law
Attorney-General’s Department
s 22(1)
@ag.gov.au
From: s 22(1)
@pmc.gov.au]
Sent: Thursday, 8 June 2017 5:58 PM
To: s 22(1)
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 7 of 211
Document 3 - Page 3 of 4
Cc: Lewis, David; s 22(1)
; Virtue, Joanna; s 22(1)
; Anderson, Gayle
Subject: s 47C(1)
[SEC=PROTECTED]
Importance: High
PROTECTED
Hi s 22(1)
Following our conversation, I have s 47C(1)
– can you let me know if you
are happy to proceed on this basis?
Separately, our MO are looking to have the paper by 6pm – do you have an ETA on when your
Secretary is likely to clear?
Apologies and thanks so much
s 22(1)
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
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must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If you
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If you have received this transmission in error please
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of information in the e-mail or attachments.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message, you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If you
have received this message in error, please notify the sender immediately by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
If you have received this transmission in error please
notify us immediately by return e-mail and delete all
copies. If this e-mail or any attachments have been sent
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 8 of 211
Document 3 - Page 4 of 4
to you in error, that error does not constitute waiver
of any confidentiality, privilege or copyright in respect
of information in the e-mail or attachments.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message, you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If you
have received this message in error, please notify the sender immediately by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 9 of 211
Document 5 - Page 1 of 1
ATTACHMENT A
ULURU STATEMENT FROM THE HEART
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.
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 10 of 211
Document 7 - Page 1 of 1
From:
s 22(1)
To:
s 22(1)
Cc:
; Lewis, David; Anderson, Gayle; Virtue, Joanna; s 22(1)
Subject:
s 47C(1)
[SEC=PROTECTED, DLM=Sensitive:Cabinet]
Date:
Friday, 9 June 2017 4:46:16 PM
Attachments:
s 47C(1)
PROTECTED Sensitive: Cabinet
Hi s 22(1)
Many thanks for your work clearing the revised paper. Please find attached finals, taking into
account all our changes – we will now provide to the MO.
s 22(1)
l Senior Adviser
Constitutional Recognition Taskforce
Department of the Prime Minister and Cabinet | Indigenous Affairs
s 22(1)
s 22(1)
@pmc.gov.au | www.dpmc.gov.au | www.indigenous.gov.au
PO Box 6500 CANBERRA ACT 2600
The Department of the Prime Minister and Cabinet acknowledges the traditional owners of country throughout Australia
and their continuing connection to land, sea and community. We pay our respect to them and their cultures, and to the
elders both past and present.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message, you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If you
have received this message in error, please notify the sender immediately by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 11 of 211
Document 10 - Page 1 of 2
ATTACHMENT C
TALKING POINTS
• The Coalition Government remains committed to the recognition of Aboriginal
and Torres Strait Islander people in the Constitution.
• The Prime Minister and the Leader of the Opposition appointed the Referendum
Council to provide advice to Parliament on the next steps towards a successful
referendum, including timing of a referendum and a possible model.
• We thank the delegates at Uluru for their work which wil now be considered by
the Referendum Council which wil in turn advise the Prime Minister and
Opposition Leader and through them, the Parliament.
s 22(1)
If asked – about the Government position on constitutional recognition
s 22(1)
• The work of the Uluru delegates is currently being considered by the Referendum
Council in developing its Final Report to the Prime Minister and Opposition
Leader.
If asked - about specific models for recognition including treaty and an Indigenous
voice in Parliament
• As a key part of the Uluru statement I expect the Referendum Council wil cover
this issue in its Final Report. We need to wait and consider any recommendations
of the Referendum Council in its Final Report which wil be presented to the
Prime Minister and the Leader of the Opposition soon by 30 June 2017.
• These matters are very important and they deserve very serious consideration.
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Page 12 of 211
Document 11 - Page 1 of 1
From:
s 22(1)
To:
s 22(1)
Cc:
Lewis, David; Anderson, Gayle; Virtue, Joanna; s 22(1)
Subject:
s 47C(1)
[SEC=PROTECTED, DLM=Sensitive:Cabinet]
Date:
Wednesday, 14 June 2017 4:26:53 PM
Attachments:
s 47C(1)
PROTECTED Sensitive: Cabinet
Hi s 22(1)
Please find attached the s 47C(1)
.
We will now send to the MO and PMO, seeking their confirmation that the papers can now be
lodged with s 47C(1) – if you could seek the same confirmation from AGO that would be fantastic.
We will let you know if there are any further developments – I understand the s 47C(1)
is
now calling all the MOs to lodge the paper asap.
Thanks again for all your assistance
s 22(1)
l Senior Adviser
Constitutional Recognition Taskforce
Department of the Prime Minister and Cabinet | Indigenous Affairs
s 22(1)
s 22(1)
@pmc.gov.au | www.dpmc.gov.au | www.indigenous.gov.au
PO Box 6500 CANBERRA ACT 2600
The Department of the Prime Minister and Cabinet acknowledges the traditional owners of country throughout Australia
and their continuing connection to land, sea and community. We pay our respect to them and their cultures, and to the
elders both past and present.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message, you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If you
have received this message in error, please notify the sender immediately by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 13 of 211
Document 13 - Page 1 of 2
ATTACHMENT C
TALKING POINTS
• The Coalition Government remains committed to the recognition of Aboriginal
and Torres Strait Islander people in the Constitution.
• The Prime Minister and the Leader of the Opposition appointed the Referendum
Council to provide advice to Parliament on the next steps towards a successful
referendum, including timing of a referendum and a possible model.
• We thank the delegates at Uluru for their work which wil now be considered by
the Referendum Council which wil in turn advise the Prime Minister and
Opposition Leader and through them, the Parliament.
s 22(1)
If asked – about the Government position on constitutional recognition • The work of the Uluru delegates is currently being considered by the Referendum
Council in developing its Final Report to the Prime Minister and Opposition
Leader.
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 14 of 211
Document 13 - Page 2 of 2
If asked - about specific models for recognition including treaty and an Indigenous
voice in Parliament
• As a key part of the Uluru statement I expect the Referendum Council wil cover
this issue in its Final Report. We need to wait and consider any recommendations
of the Referendum Council in its Final Report which wil be presented to the
Prime Minister and the Leader of the Opposition soon by 30 June 2017.
• These matters are very important and they deserve very serious consideration.
s 22(1)
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 15 of 211
Document 15 - Page 1 of 3
From:
To:
s 22(1)
Cc:
s 22(1)
; Virtue, Joanna; s 22(1)
; Lewis, David
Subject:
s 47C(1)
[SEC=PROTECTED, DLM=Sensitive:Cabinet]
Date:
Wednesday, 14 June 2017 4:00:42 PM
Attachments:
s 47C(1)
PROTECTED Sensitive: Cabinet
Hi s 22(1)
,
Attached is an updated version of the attachments to the paper, including s 47C(1)
.
Please let us know when you’re happy for us to send this and the paper to the AGO.
Regards
_________________________________
s 22(1)
Senior Legal Officer
Office of Constitutional Law
Attorney-General’s Department
s 22(1)
@ag.gov.au
s 22(1)
From: s 22(1)
Sent: Wednesday, 14 June 2017 3:22 PM
To: s 22(1)
'
Cc: s 22(1)
; Virtue, Joanna; s 22(1)
Subject: s 47C(1)
[SEC=PROTECTED,
DLM=Sensitive:Cabinet]
PROTECTED Sensitive: Cabinet
Hi s 22(1)
Some brief comments are included in the attached documents, shown in mark-up. We’ve
highlighted our changes (and removed the highlighting that was previously in the two
documents, but otherwise left all tracked changes in place). s 47C(1)
.
Happy to discuss,
_________________________________
s 22(1)
Senior Legal Officer
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 16 of 211
Document 15 - Page 2 of 3
Office of Constitutional Law
Attorney-General’s Department
s 22(1)
@ag.gov.au
s 22(1)
From: s 22(1)
@pmc.gov.au]
Sent: Wednesday, 14 June 2017 1:02 PM
To: s 22(1)
Cc: s 22(1)
; Virtue, Joanna
Subject: s 47C(1)
[SEC=PROTECTED,
DLM=Sensitive:Cabinet]
PROTECTED Sensitive: Cabinet
Hi s 22(1)
I’m not having much luck catching you both today – feel free to call to discuss.
The attached paper has been cleared by our FAS so from our perspective is ready to go. The only
change with this paper from the one that s 22(1) sent to you earlier, is to s 47C(1)
.
Do you have an ETA on when you might be able to get the paper cleared? Once you have cleared
we need to get this to the MIAO and AGO as soon as we can because s 47C(1)
says
that it needs to go ASAP today – preferably by 2pm!
Thanks
s 22(1)
Adviser
nal Recognition Taskforce | Indigenous Employment and Recognition Division
Department of the Prime Minister and Cabinet
p. s 22(1)
e. s 22(1)
@pmc.gov.au
www.dpmc.gov.au
GPO Box 6500 CANBERRA ACT 2600
s 22(1)
The Department acknowledges the traditional owners of country throughout Australia and their continuing
connection to land, sea and community. We pay our respects to them and their cultures and to their elders both
past and present.
From: s 22(1)
Sent: Wednesday, 14 June 2017 12:05 PM
To: s 22(1)
Cc: Virtue, Joanna; s 22(1)
; Lewis, David
Subject: s 47C(1)
[SEC=PROTECTED, DLM=Sensitive:Cabinet]
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 17 of 211
Document 15 - Page 3 of 3
Importance: High
PROTECTED Sensitive: Cabinet
Hi s 22(1)
Please find attached s 47C(1)
These are currently with Gayle for clearance, but wanted to provide them to you as well to
review. The PMO and MO have made further changes, and the attached is our feedback – would
appreciate your thoughts as well.
We are unclear what engagement the AGO has had at this stage.
Thanks so much
s 22(1)
l Senior Adviser
Constitutional Recognition Taskforce
Department of the Prime Minister and Cabinet | Indigenous Affairs
s 22(1)
s 22(1)
@pmc.gov.au | www.dpmc.gov.au | www.indigenous.gov.au
PO Box 6500 CANBERRA ACT 2600
The Department of the Prime Minister and Cabinet acknowledges the traditional owners of country throughout Australia
and their continuing connection to land, sea and community. We pay our respect to them and their cultures, and to the
elders both past and present.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message, you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If you
have received this message in error, please notify the sender immediately by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
Attorney-General's Department documents released under FOI23/417 - Date of access: 11/09/2024
Page 18 of 211
Document 16 - Page 1 of 1
ATTACHMENT A
ULURU STATEMENT FROM THE HEART
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.
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Page 19 of 211
Document 18 - Page 1 of 3
ATTACHMENT C
TALKING POINTS
s 22(1)
The Coalition Government remains committed to the recognition of Aboriginal
and Torres Strait Islander people in the Constitution.
The Prime Minister and the Leader of the Opposition appointed the Referendum
Council to provide advice to Parliament on the next steps towards a successful
referendum, including timing of a referendum and a possible model.
We thank the delegates at Uluru for their work which will now be considered by
the Referendum Council which will in turn advise the Prime Minister and
Opposition Leader and through them, the Parliament.
s 22(1)
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Page 20 of 211
Document 18 - Page 2 of 3
The work of the Uluru delegates is currently being considered by the Referendum
Council in developing its Final Report to the Prime Minister and Opposition
Leader.
If asked - about specific models for recognition including treaty and an Indigenous
voice in Parliament
As a key part of the Uluru statement I expect the Referendum Council will cover
this issue in its Final Report. We need to wait and consider any recommendations
of the Referendum Council in its Final Report which will be presented to the
Prime Minister and the Leader of the Opposition soon by 30 June 2017.
These matters are very important and they deserve very serious consideration.
s 22(1)
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Page 21 of 211
Document 19 - Page 1 of 1
From:
s 22(1)
To:
s 22(1)
Cc:
Lewis, David; Virtue, Joanna; s 22(1)
; Anderson, Gayle
Subject:
s 47C(1)
[SEC=PROTECTED, DLM=Sensitive:Cabinet]
Date:
Thursday, 15 June 2017 10:34:35 AM
Attachments:
s 47C(1)
PROTECTED Sensitive: Cabinet
Hi s 22(1)
As discussed, please find attached thes 47C(1)
We received these back from our MO this morning, cleared by the Minister for lodgement with
the s 47C(1)
.
The advice from our MO was also that they would check this version with AGO, to ensure they
are comfortable. We are waiting for this confirmation before lodging the documents – will keep
you posted when we hear anything further.
Thanks
s 22(1)
l Senior Adviser
Constitutional Recognition Taskforce
Department of the Prime Minister and Cabinet | Indigenous Affairs
s 22(1)
s 22(1)
@pmc.gov.au | www.dpmc.gov.au | www.indigenous.gov.au
PO Box 6500 CANBERRA ACT 2600
The Department of the Prime Minister and Cabinet acknowledges the traditional owners of country throughout Australia
and their continuing connection to land, sea and community. We pay our respect to them and their cultures, and to the
elders both past and present.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message, you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If you
have received this message in error, please notify the sender immediately by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
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Page 22 of 211
Document 22 - Page 1 of 2
ATTACHMENT C
TALKING POINTS
• The Commonwealth Government remains committed to the recognition of
Aboriginal and Torres Strait Islander people in the Constitution.
• The Referendum Council was appointed jointly by the Prime Minister and Leader
of the Opposition to conduct consultations and provide advice to Parliament on
the next steps towards a successful referendum, including timing of a referendum
and a possible model.
• The Uluru Statement was part of this process. That statement will now be
considered by the Referendum Council which wil report to the Parliament
through the Prime Minister and Leader of the Opposition.
s 22(1)
• We thank the delegates at Uluru for their work which wil now be considered by
the Referendum Council which wil in turn advise the Opposition Leader and
myself and through us the Parliament.
s 22(1)
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Page 23 of 211
Document 23 - Page 1 of 2
s 22(1)
From: s 22(1)
@pmc.gov.au]
Sent: Monday, 17 July 2017 5:48 PM
To: Virtue, Joanna; Lewis, David; s 22(1)
; 'Ian Nicholas';
s 22(1)
@aec.gov.au'; Johnston, Trish; Bulman, Ryan; O'Connor, Rachel; Taylor, Marie; Hill,
Leonard; Roddam, Mark; Curnow, Justine; Jocumsen, Katrina; Williams, Toni; Jacomb, Brendan;
Sloan, Troy; Curnow, Justine; s 22(1)
Cc: Anderson, Gayle; Harris, Sally; s 22(1)
Craigie, Michelle; s 22(1)
; Story,
William; Walker, John; Roberts, Anne-Marie; Conway, Rebekah; Keating, Kate; s 22(1)
Subject: Constitutional Recognition - whole of government talking points [DLM=For-Official-Use-
Only]
For Official Use Only
Good afternoon colleagues
This afternoon the Referendum Council’s Final Report was publically released. A copy is attached
to this email and can be found at https://www.referendumcouncil.org.au/final-report.
I also attach for your use a copy of our updated Whole of Government talking points.
If you require any further information, please let us know.
Kind regards
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Page 24 of 211
Document 23 - Page 2 of 2
s 22(1)
l A/g Assistant Secretary
Constitutional Recognition Taskforce
Department of the Prime Minister and Cabinet | Indigenous Affairs
s 22(1)
s 22(1)
@pmc.gov.au | www.dpmc.gov.au | www.indigenous.gov.au
PO Box 6500 CANBERRA ACT 2600
The Department of the Prime Minister and Cabinet acknowledges the traditional owners of country throughout Australia
and their continuing connection to land, sea and community. We pay our respect to them and their cultures, and to the
elders both past and present.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message, you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If you
have received this message in error, please notify the sender immediately by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
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Page 25 of 211
Document 24 - Page 1 of 9
FOR OFFICIAL USE ONLY
17 July 2017
Indigenous Constitutional Recognition
Whole-of-Government Talking Points
• The Government remains committed to the recognition of Aboriginal and Torres Strait Islander peoples in
the Constitution.
• The Prime Minister and the Leader of the Opposition have now received the Final Report of the Referendum
Council. The Report is available on the Referendum Council’s website.
• The Referendum Council was jointly appointed by the Prime Minister and the Leader of the Opposition to
conduct consultations and provide advice to the Parliament on the next steps towards a successful
referendum.
• The Referendum Council conducted a substantial Indigenous designed and led consultation process,
including 12 First Nations Regional Dialogues across the country and culminated in the National
Constitutional Convention where the ‘Uluru Statement from the Heart’ was adopted.
s 22(1)
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Page 26 of 211
Document 25 - Page 1 of 2
s 22(1)
From: s 22(1)
@pmc.gov.au]
Sent: Monday, 17 July 2017 5:48 PM
To: Virtue, Joanna; Lewis, David; s 22(1)
; 'Ian Nicholas';
s 22(1)
@aec.gov.au'; Johnston, Trish; Bulman, Ryan; O'Connor, Rachel; Taylor, Marie; Hill,
Leonard; Roddam, Mark; Curnow, Justine; Jocumsen, Katrina; Williams, Toni; Jacomb, Brendan;
Sloan, Troy; Curnow, Justine; s 22(1)
Cc: Anderson, Gayle; Harris, Sally; s 22(1)
Craigie, Michelle; s 22(1)
; Story,
William; Walker, John; Roberts, Anne-Marie; Conway, Rebekah; Keating, Kate; s 22(1)
Subject: Constitutional Recognition - whole of government talking points [DLM=For-Official-Use-
Only]
For Official Use Only
Good afternoon colleagues
This afternoon the Referendum Council’s Final Report was publically released. A copy is attached
to this email and can be found at https://www.referendumcouncil.org.au/final-report.
I also attach for your use a copy of our updated Whole of Government talking points.
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Page 27 of 211
Document 25 - Page 2 of 2
If you require any further information, please let us know.
Kind regards
s 22(1)
l A/g Assistant Secretary
Constitutional Recognition Taskforce
Department of the Prime Minister and Cabinet | Indigenous Affairs
s 22(1)
s 22(1)
@pmc.gov.au | www.dpmc.gov.au | www.indigenous.gov.au
PO Box 6500 CANBERRA ACT 2600
The Department of the Prime Minister and Cabinet acknowledges the traditional owners of country throughout Australia
and their continuing connection to land, sea and community. We pay our respect to them and their cultures, and to the
elders both past and present.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message, you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If you
have received this message in error, please notify the sender immediately by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
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Page 28 of 211
Document 26 - Page 1 of 183
Final Report
of the Referendum Council
30 June 2017
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Page 29 of 211
© Commonwealth of Australia 2017
ISBN 978-1-925362-56-5 (print)
ISBN 978-1-925362-57-2 (PDF)
ISBN 978-1-925362-58-9 (HTML)
Copyright in extracts from the Uluru Statement from the Heart reproduced in this report vests with the
Mutitjulu Community Aboriginal Corporation and are reproduced with its permission.
‘
Rom Watangu: The law of the land’ (Appendix D) is reproduced with the kind permission of
Schwartz Media and
The Monthly magazine.
Creative Commons licence
Except where otherwise noted, all material presented in this document is provided under a Creative Commons
Attribution–Non-Commercial-NoDerivs 3.0 Australia licence (http://creativecommons.org/licenses/by-nc-nd/3.0/au).
The details of the relevant licence conditions are available on the Creative Commons website (accessible using the
links provided) as is the full legal code for the CC BY-NC-ND 3.0 AU licence (http://creativecommons.org/licenses/by-nc-
nd/3.0/au/legalcode).
This document should be attributed as
Final Report of the Referendum Council.
Disclaimer
The material contained in this document has been developed by the Referendum Council. The views and opinions
expressed in this document do not necessarily reflect the views of or have the endorsement of the Commonwealth
Government or of any minister, or indicate the Commonwealth’s commitment to a particular course of action. In
addition, the members of the Referendum Council, the Commonwealth Government, and its employees, officers and
agents accept no responsibility for any loss or liability (including reasonable legal costs and expenses) incurred or
suffered where such loss or liability was caused by the infringement of intellectual property rights, including the moral
rights, of any third person, including as a result of the publishing of the submissions.
Inquiries
Inquiries regarding the licence and any use of this document are welcome at:
Group Manager, Indigenous Employment and Recognition
Department of the Prime Minister and Cabinet
PO Box 6500
Canberra ACT 2600
Email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxx.xxx.xx
Telephone: 02 6271 5111
Cover: photo James Widders-Hunt, design by Kylie Smith
Uluru Statement from the Heart image (p. i): photo Simonne Randall
Publishing consultant: Wilton Hanford Hanover
Sources of quotations in the Uluru Statement from the Heart (facing page):
… a spiritual notion … of sovereignty: International Court of Justice in its Advisory Opinion on Western Sahara (62)
(1975) ICJ Rep, [85]–[86], quoted in
Mabo v Queensland [No 2] (1992) 175 CLR 1 [40].
… the torment of our powerlessness: WEH Stanner,
Durmugam: A Nangiomeri (1959).
…
a rightful place: Gough Whitlam, ‘It’s Time’ (speech delivered at the Blacktown Civic Centre, 13 November 1972).
…
the coming together after a struggle: Galarrwuy Yunupingu, ‘
Rom Watangu’,
The Monthly (July 2016), 18.
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Final Report of the Referendum Council
LETTER OF TRANSMITTAL
The Hon Malcolm Turnbull MP
Prime Minister
Parliament House
CANBERRA ACT 2600
The Hon Bill Shorten MP
Leader of the Opposition
Parliament House
CANBERRA ACT 2600
30 June 2017
Dear Prime Minister and Leader of the Opposition
We are proud to present you with the Final Report of the Referendum Council. This report
has been prepared in accordance with the Referendum Council’s Terms of Reference.
Yours sincerely
Pat Anderson AO
Mark Leibler AC
Co-Chair, Referendum Council
Co-Chair, Referendum Council
ii
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FOREWORD FROM THE CO-CHAIRS
Aboriginal and Torres Strait Islander peoples have long struggled for constitutional recognition. As far
back as Yorta Yorta elder William Cooper’s letter to King George VI (1937), the Yirrkala Bark Petitions
(1963), the Larrakia Petition (1972) and the Barunga Statement (1988), First Peoples have sought a
fair place in our country.
All Prime Ministers of the modern era were conscious of the original omission of First Peoples from our
constitutional arrangements. Prime Minister the Hon Gough Whitlam spoke of the need for Aboriginal
and Torres Strait Islander peoples to take “their rightful place in this nation”. Prime Minister the Rt
Hon Malcolm Fraser established a Senate inquiry whose report,
200 Years Later: Report by the Senate
Standing Committee on Constitutional and Legal Affairs on the Feasibility of a Compact or ‘Makarrata’
between the Commonwealth and Aboriginal People, was delivered after the 1983 election. Prime
Minister the Hon Bob Hawke sought to respond to the Barunga Statement with his commitment for
a treaty or compact at the bicentenary of 1988. In his Redfern Speech in 1991, Prime Minister the
Hon Paul Keating said,
How well we recognise the fact that, complex as our contemporary identity is, it cannot be
separated from Aboriginal Australia.
Prime Minister the Hon John Howard committed to a referendum on the eve of the 2007 federal
election, saying:
I believe we must find room in our national life to formally recognise the special status of
Aboriginal and Torres Strait Islanders as the first peoples of our nation.
These promising intentions never came to pass. They nevertheless confirm constitutional recognition
is longstanding and unfinished business for the nation.
This history, from an Aboriginal perspective, is eloquently captured by Referendum Council member
Galarrwuy Yunupingu in his essay ‘
Rom Watangu’ at
Appendix D.
What Aboriginal people ask is that the modern world now makes the sacrifices necessary to
give us a real future. To relax its grip on us. To let us breathe, to let us be free of the determined
control exerted on us to make us like you. And you should take that a step further and recognise
us for who we are, and not who you want us to be. Let us be who we are – Aboriginal people
in a modern world – and be proud of us. Acknowledge that we have survived the worst that the
past had thrown at us, and we are here with our songs, our ceremonies, our land, our language
and our people – our full identity. What a gift this is that we can give you, if you choose to accept
us in a meaningful way.
In 2010 Prime Minister the Hon Julia Gillard established the Expert Panel on the Recognition of
Aboriginal and Torres Strait Islander Peoples in the Constitution, co-chaired by Patrick Dodson and
Mark Leibler, which reported in 2012. Prime Minister the Hon Tony Abbott established a Joint Select
Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, co-chaired
by Senator Ken Wyatt and Senator Nova Peris, which reported in June 2015. Prime Minister the
Hon Malcolm Turnbull and Opposition Leader the Hon Bill Shorten then established this Referendum
Council in December 2015.
iii
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Final Report of the Referendum Council
This report builds on the work of the Expert Panel and the Joint Select Committee. It takes into account
the political and legal responses to the earlier reports, as well as the views of Aboriginal and Torres
Strait Islander peoples and the general public.
We were required to consult specifically with Aboriginal and Torres Strait Islander peoples on their
views of meaningful recognition. The 12 First Nations Regional Dialogues, which culminated in the
National Constitutional Convention at Uluru in May 2017, empowered First Peoples from across the
country to form a consensus position on the form constitutional recognition should take.
This is the first time in Australia’s history that such a process has been undertaken. It is a significant
response to the historical exclusion of First Peoples from the original process that led to the adoption
of the Australian Constitution. The outcomes of the First Nations Regional Dialogues and the National
Constitutional Convention are articulated in the Uluru Statement from the Heart.
The findings of our broader community consultation supported the findings of the First Nations
Regional Dialogues. This strengthens our conviction that the Voice to the Parliament proposal and
an extra-constitutional Declaration of Recognition will be acceptable to Aboriginal and Torres Strait
Islander peoples and to the broader Australian community. We propose these reforms because they
conform to the weight of views of First Peoples expressed in the First Nations Regional Dialogues as
well as those of the wider community. With focussed political leadership and continued multiparty
support for meaningful recognition, the Voice to the Parliament proposal can succeed at a referendum.
The consensus view of the Referendum Council is that these recommendations for constitutional
and extra-constitutional recognition are modest, reasonable, unifying and capable of attracting the
necessary support of the Australian people. A statement by Amanda Vanstone is at
Appendix E.
Pat Anderson – Referendum Council Co-Chair
Mark Leibler – Referendum Council Co-Chair
iv
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Contents
ULURU STATEMENT FROM THE HEART
i
LETTER OF TRANSMITTAL
ii
FOREWORD FROM THE CO-CHAIRS
iii
INTRODUCTION 1
Recommendations 2
1. THE WORK OF THE REFERENDUM COUNCIL
3
1.1 The Referendum Council
3
1.2 Building on past processes
4
1.3 National consultation and community engagement process
5
1.4 Selecting the options to consider
5
1.5 Discussion Paper
7
1.6 Other matters
7
2. FIRST NATIONS REGIONAL DIALOGUES AND NATIONAL CONSTITUTIONAL CONVENTION
9
2.1 First Nations Regional Dialogues
10
2.2 National Constitutional Convention
16
3. BROADER COMMUNITY CONSULTATION PROCESS
33
3.1 Digital platform
33
3.2 Submissions
34
3.3 Outcomes
35
4. FINDINGS
36
Constitutional issues
36
CONCLUSION 38
Modest and substantive
38
Reasonable 38
Unifying 38
Capable of attracting the necessary support
39
APPENDIX A: REFERENDUM COUNCIL MEMBERSHIP
42
APPENDIX B: TERMS OF REFERENCE
46
APPENDIX C: REFERENDUM COUNCIL COMMUNIQUES
48
APPENDIX D: ROM WATANGU – THE LAW OF THE LAND
53
APPENDIX E: QUALIFYING STATEMENT FROM AMANDA VANSTONE
65
APPENDIX F: EXECUTIVE SUMMARIES FROM PREVIOUS REPORTS
68
APPENDIX G: KIRRIBILLI STATEMENT
88
APPENDIX H: DISCUSSION PAPER
92
APPENDIX I: PROCESS FOR FIRST NATIONS REGIONAL DIALOGUES
109
APPENDIX J: COX INALL RIDGEWAY REPORT ON DIGITAL CONSULTATIONS
114
APPENDIX K: URBIS ANALYSIS OF SUBMISSIONS RECEIVED
137
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INTRODUCTION
The Australian story began long before the arrival of the First Fleet on 26 January 1788. We Australians
all know this. We have always known this.
As the Uluru Statement from the Heart puts it: the
‘Aboriginal and Torres Strait Islander tribes that
were the first sovereign Nations of the Australian continent and its adjacent islands, possessed it
under our own laws and customs’ and
‘[t]his 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 is the first part of the story of Australia, which tells of the epic discovery of our country by our
most ancient tribes who crossed the northern land bridge from Papua New Guinea and southeast
Asia, establishing in this country one of the planet’s earliest civilisations. It is the longest continuous
surviving civilisation.
With every advance of science our understanding increases, but the shadow of this ancient past
– and its enduring presence – has never disappeared from our consciousness. Though the
Great
Australian Silence about this history persisted for much of the first 150 years of British colonisation,
we have always known the truth.
We have known this but we did not acknowledge it and make it part of our Australian story.
The second part of the Australian story is recognised by 26 January: the arrival of the First Fleet and the
establishment of the first colony in New South Wales. From the perspective of those who laid claim to
the eastern seaboard of Australia under the sovereignty of the British Crown, this was a settlement.
From the perspective of the First Nations this was an invasion. Their land and sovereignty was annexed
without consent and without treating with the country’s rightful owners.
The words ‘settlement’ and ‘invasion’ are highly charged for both sides of this historic encounter, but
there is no use denying these two perspectives. It is understandable why some Australians speak of
settlement, and why some speak of invasion. The maturation of Australia will be marked by our ability
to understand both perspectives.
There is no doubt the second story of Australia is replete with triumph and failure, pride and regret,
celebration and sorrow, greatness and shame. Like human history the world over. There is no doubt our
constitutional system, our system of government, the rule of law, and our public institutions inherited
from Britain are the heritage of the Australian people and enure for the benefit of all of us, including
the First Peoples.
The third part of our Australian story is written by generations of migrants from Europe, Asia, the
Middle East, the Pacific and the world over, who have come to make their home in this continent.
They have made Australia a multicultural triumph of diversity in unity.
We now have the opportunity to bring together these three parts of the story of Australia through two
measures, one involving constitutional amendment and the other involving an extra-constitutional
symbolic statement.
1
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Final Report of the Referendum Council
Recommendations
The Council recommends:
1. 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 specific 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.
It will be for the Parliament to consider what further definition is required before the proposal is in a
form appropriate to be put to a referendum. In that respect, the Council draws attention to the Guiding
Principles that emerged from the National Constitutional Convention at Uluru on 23–26 May 2017 and
advises that the support of Aboriginal and Torres Strait Islander peoples, in terms of both process and
outcome, will be necessary for the success of a referendum.
In consequence of the First Nations Regional Dialogues, the Council is of the view that the only option
for a referendum proposal that accords with the wishes of Aboriginal and Torres Strait Islander peoples
is that which has been described as providing, in the Constitution, for a Voice to Parliament.
In principle, the establishment by the Constitution of a body to be a Voice for First Peoples, with the
structure and functions of the body to be defined by Parliament, may be seen as an appropriate form of
recognition, of both substantive and symbolic value, of the unique place of Aboriginal and Torres Strait
Islander peoples in Australian history and in contemporary Australian society.
The Council recommends this option, understanding that finalising a proposal will involve further
consultation, including steps of the kind envisaged in the Guiding Principles adopted at the Uluru Convention.
The Council further recommends:
2. 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.
A Declaration of Recognition should be developed, containing inspiring and unifying words articulating
Australia’s shared history, heritage and aspirations. The Declaration should bring together the three parts
of our Australian story: our ancient First Peoples’ heritage and culture, our British institutions, and our
multicultural unity. It should be legislated by all Australian Parliaments, on the same day, either in the
lead up to or on the same day as the referendum establishing the First Peoples’ Voice to Parliament,
as an expression of national unity and reconciliation.
In addition, the Council reports that there are two matters of great importance to Aboriginal and
Torres Strait Islander peoples, as articulated in the Uluru Statement from the Heart, that can be
addressed outside the Constitution. The Uluru Statement called for the establishment of a Makarrata
Commission with the function of supervising agreement-making and facilitating a process of local and
regional truth telling. The Council recognises that this is a legislative initiative for Aboriginal and Torres
Strait Islander peoples to pursue with government. The Council is not in a position to make a specific
recommendation on this because it does not fall within our terms of reference. However, we draw
attention to this proposal and note that various state governments are engaged in agreement-making.
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1. THE WORK OF THE REFERENDUM COUNCIL
1.1 The Referendum Council
The Referendum Council was appointed by the Prime Minister, the Hon Malcolm Turnbull MP, and
the Leader of the Opposition, the Hon Bill Shorten MP, on 7 December 2015. It comprises Aboriginal
and Torres Strait Islander members and non-Indigenous members from a range of expert fields and
backgrounds. At the time of drafting this report, Council Co-Chairs Pat Anderson AO and Mark Leibler
AC are joined by Professor Megan Davis, Andrew Demetriou, Murray Gleeson AC, Tanya Hosch, Kristina
Keneally, Jane McAloon, Noel Pearson, Michael Rose AM, Natasha Stott Despoja AM, Amanda Vanstone,
Dalassa Yorkston and Galarrwuy Yunupingu AM (represented by Denise Bowden). Details of current and
past members are at
Appendix A.
The Council’s terms of reference are at
Appendix B. They require us to:
1. Lead the process for national consultations and community engagement about constitutional
recognition, including a concurrent series of Indigenous designed and led consultations.
2. Be informed by the Parliamentary Joint Select Committee on Constitutional Recognition of
Aboriginal and Torres Strait Islander Peoples chaired by Mr Ken Wyatt AM MP, with Deputy Chair,
Senator Nova Peris OAM. The Committee will have input into the discussion paper on various
issues regarding constitutional change to help facilitate an informed community discussion.
3. Consider the recommendations of the 2012 Expert Panel on Constitutional Recognition of
Indigenous Australians.
4. Report to the Prime Minister and the Leader of the Opposition on:
– outcomes of national consultations and community engagement about constitutional
recognition, including Indigenous designed and led consultations;
– options for a referendum proposal, steps for finalising a proposal, and possible timing for a
referendum; and
– constitutional issues.
The Council first met on 14 December 2015 with the Prime Minister and the Leader of the Opposition
in attendance. The Council met on 11 subsequent occasions.
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Final Report of the Referendum Council
Meeting
Date
Location
1
14 December 2015
Sydney
2
28 January 2016
Melbourne
3
21 and 22 March 2016
Melbourne
4
10 May 2016
Melbourne
5
9 August 2016
Melbourne
6
20 October 2016
Melbourne
7
25 November 2016
Canberra
8
6 December 2016
Videoconference
9
20 March 2017
Melbourne
10
17 May 2017
Videoconference
11
6 June 2017
Melbourne
12
27 June 2017
Melbourne
The Council released a communiqué following some of the meetings. These communiqués are at
Appendix D.
1.2 Building on past processes
Consistent with points 2 and 3 of our terms of reference, the Council was mindful of the need to pay
close regard to the work completed through previous processes and this largely accounted for the
structure of our Discussion Paper in
Appendix H. These processes include: the Parliamentary Joint
Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples 2015
(‘the Joint Select Committee’), the Aboriginal and Torres Strait Islander Peoples Act of Recognition
Review Panel 2014 (‘the Act of Recognition Review Panel’) and the Expert Panel on Constitutional
Recognition of Indigenous Australians 2012 (‘the Expert Panel’). The options proposed by the Expert
Panel and the Joint Select Committee were the basis of the Council’s work and the subject of the
First Nations Regional Dialogues. The executive summaries and recommendations from these three
reports are at
Appendix F.
The Council’s establishment followed a meeting between the former Prime Minister, the Hon Tony
Abbott MP, the Leader of the Opposition, the Hon Bill Shorten MP, and 40 Aboriginal and Torres Strait
Islander leaders from around the country on 6 July 2015 at Kirribilli.
The Kirribilli meeting agreed on a number of outcomes. These included an agreement to hold a series
of community conferences across the country to provide an opportunity for everyone to have a say and
for all significant points of view to be considered. It was also agreed that a Referendum Council would
be established to progress a range of issues around constitutional change and inform the further steps
to be taken.
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The Aboriginal and Torres Strait Islander leaders present at that meeting were united in their view that
any constitutional change must be substantive. The leaders stated the following:
[A]ny reform must involve substantive changes to the Australian Constitution. It must lay the
foundation for the fair treatment of Aboriginal and Torres Strait Islander peoples into the future.
A minimalist approach, that provides preambular recognition, removes section 25 and moderates
the race power [section 51(xxvi)], does not go far enough and would not be acceptable to
Aboriginal and Torres Strait Islander peoples.
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. These recommendations were a key
motivation for the creation of this Council. The Kirribilli Statement is at
Appendix G.
1.3 National consultation and community engagement process
Point 1 of the Council’s terms of reference emphasises the importance of an Aboriginal and Torres
Strait Islander designed and led consultation process. The Council agreed early on in its work that this
process must not be a ‘tick a box’ exercise but a true dialogue between Aboriginal and Torres Strait
Islander peoples. It is the Council’s view that there is no practical purpose to suggesting changes to the
Constitution unless they are what Aboriginal and Torres Strait Islander peoples want.
The First Nations Regional Dialogues were therefore at the heart of the Referendum Council’s work.
The methodology and outcomes of this process are detailed in
Chapter 2.
The Council’s terms of reference also required it to engage with the broader community and encourage
understanding of the need for constitutional reform. We understood this as necessary not only for a
successful referendum, but for a productive consultation process. The broader community, including
Aboriginal and Torres Strait Islander peoples who did not attend the regional dialogues, were
encouraged to share their views through our digital platform, written submissions process and targeted
stakeholder engagement.
Further detail on these processes, and their outcomes, is in
Chapter 3.
1.4 Selecting the options to consider
The Council adopted the Expert Panel’s four principles to guide its assessment of proposals for
constitutional reform, meaning that each proposal must:
• contribute to a more unified and reconciled nation;
• be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples;
• be capable of being supported by an overwhelming majority of Australians from across the political
and social spectrums; and
• be technically and legally sound.
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Five proposals for reform formed the basis of the Council’s work. Four of these proposals are
based on the substantial overlap between the Expert Panel’s recommended model, and the
Joint Select Committee:
• a statement acknowledging Aboriginal and Torres Strait Islander peoples as the First Australians
(which could be placed in the Constitution or outside it);
• amending the existing ‘race power’, section 51(xxvi) of the Constitution, or deleting it and inserting
a new power for the Commonwealth to make laws for Aboriginal and Torres Strait Islander peoples;
• inserting a guarantee against racial discrimination, Section 116A, into the Constitution; and
• deleting section 25, which contemplates the possibility of a state government excluding some
Australians from voting on the basis of their race.
The Council also included a fifth option, providing for a First Peoples’ Voice to be heard by
Parliament, and the right to be consulted on legislation and policies that relate to Aboriginal and
Torres Strait Islander peoples. This proposal emerged after the Expert Panel’s work had concluded,
as a response to the political blockages for the Expert Panel’s proposed section 116A, a constitutional
non-discrimination clause. Submissions supporting a proposal for the Voice were provided to the
Joint Select Committee.1, As a result, the Committee noted that the proposal ‘would benefit from
wider community and debate’ and suggested:
community consultation, particularly with Aboriginal and Torres Strait Islander peoples … in order
to gauge community views on the establishment of such a body, and [so] that Aboriginal and
Torres Strait Islander peoples may consider [if] it has merit and [if they] may wish to pursue it in
the future.’2
The Council wrote to the Prime Minister and the Leader of the Opposition on 22 March 2016 proposing
these five options as the basis of our consultations. On 7 April 2016, the Council received their approval
to proceed in this regard.
The Council was also conscious of concrete actions toward negotiating treaties commencing in
Victoria and in South Australia during the its tenure, and the Northern Territory Government has also
committed to commence discussions during this time. These treaty negotiations have had a significant
impact on our engagement process.
The Council adopted the view that, although the five proposed options formed an important and useful
focus for discussion, people should also be permitted to propose new options or to put forward their
views in any way that suited them. Given the significant interest in agreement-making from Aboriginal
and Torres Strait Islander peoples, it was included as a substantive reform option at the First Nations
Regional Dialogues and was also touched on in the broader community consultations.
Although agreement-making and these other matters do not form part of our formal terms of
reference, it is our view that they are inextricably linked to the issue of constitutional reform. Further
detail on the outcomes of the consultations with regard to these issues is in
Chapter 2, below.
1
Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples: Final Report, June 2015,
Submission 38, Supplementary submission 2, Submission 81 and Submission 112.
2
Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples: Final Report, June 2015, p. 38
(with further analysis on pp 33–38).
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1.5 Discussion Paper
The Council developed a Discussion Paper to inform the public. The paper included detail on each
of the five proposed options outlined above, and posed a number of questions to gauge the public
response. It was published in October 2016 on the Council’s website. It was promoted on social media
and through the Regional Dialogues and targeted stakeholder engagement.
A plain English Introduction to the Issues Paper was also published on the Council’s website to
supplement the Discussion Paper. This paper was interpreted into 12 major First Nations languages
as part of the Council’s effort towards engaging with all Aboriginal and Torres Strait Islander peoples
in a meaningful way, with audio of these interpretations available on the Council’s website. This was
the first time that information about options for constitutional reform had been made available in a
concerted way in First Nations languages.
Languages for interpretation were carefully selected in consultation with expert linguists, with a focus
on the regions to be covered throughout the consultations and the number of language speakers.
The languages into which the Discussion Paper was interpreted were Warlpiri, Pintupi-Luritja, Eastern
Central Arrernte, Pitjantjatjara, Katherine Kriol, Murrinh-patha, Anindilyakwa, Burrara, Yolngu Matha,
Fitzroy Valley Kriol, Wik Mungkan and Yumpla Tok.
The Discussion Paper is at
Appendix H.
1.6 Other matters
Although we were originally required to report by 30 June 2016, the Council soon became conscious
of the need for a comprehensive dialogue with Aboriginal and Torres Strait Islander peoples, and that
this would take more than the six months originally allocated to our work. We sought, and received,
an extension of our tenure to 30 June 2017 to allow time for this engagement to take place. In view
of the extended timeline, we submitted an Interim Report to the Prime Minister and Leader of the
Opposition on 8 September 2016.
The terms of reference also required us to engage with members of the former Parliamentary Joint
Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, to
seek their views on the draft Discussion Paper. As the Committee had since disbanded, and some of its
members were no longer in the current Parliament, the Council sought advice from the Prime Minister
and Leader of the Opposition on how to fulfil this requirement.
We were advised that an Informal Parliamentary Group had been established to provide advice on
the Discussion Paper, as well as to provide ongoing liaison between the Council and the Parliament.
The Informal Parliamentary Group comprised:
• the Minister for Indigenous Affairs, Senator the Hon Nigel Scullion;
• the Minister for Aged Care and Indigenous Health, the Hon Ken Wyatt AM MP;
• the Shadow Assistant Minister for Indigenous Affairs and Aboriginal and Torres Strait Islanders,
Senator Patrick Dodson;
• the Shadow Minister for Human Services, the Hon Linda Burney MP; and
• Malarndirri McCarthy, Senator for the Northern Territory.
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The Referendum Council met with the Prime Minister, the Leader of the Opposition and the Informal
Parliamentary Group on 25 November 2016 to discuss the work the Council had undertaken to
date and provide an update on the Council’s future plans. The Council also wrote to the Informal
Parliamentary Group on the following occasions:
• 2 February 2017 – invitation to attend the First Nations Regional Dialogues;
• 26 April 2017 – invitation to attend the National Constitutional Convention; and
• 1 May 2017 – to seek a meeting in Canberra with the Indigenous Steering Committee on
12 May 2017 (to provide a briefing prior to the Uluru Convention).
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2. FIRST NATIONS REGIONAL DIALOGUES AND
NATIONAL CONSTITUTIONAL CONVENTION
The Prime Minister and the Leader of the Opposition endorsed a plan put forward by the Referendum
Council for the conduct of a series of First Nations Regional Dialogues culminating in a national
constitutional convention at Uluru. The Referendum Council gave final approval to the framework for
the regional dialogues on 20 October 2016.
The Australian Institute of Aboriginal and Torres Strait Islander Studies was engaged to provide
assistance in delivering logistics and supporting delegates to attend.
The First Nations Regional Dialogues were convened in the following locations:
• Hobart, hosted by Tasmanian Aboriginal Corporation (9–11 December 2016)
• Broome, hosted by the Kimberley Land Council (10–12 February 2017)
• Dubbo, hosted by the New South Wales Aboriginal Land Council (17–19 February 2017)
• Darwin, hosted by the Northern Land Council (22–24 February 2017)
• Perth, hosted by the South West Aboriginal Land and Sea Council (3–5 March 2017)
• Sydney, hosted by the New South Wales Aboriginal Land Council (10–12 March 2017)
• Melbourne, hosted by the Federation of Victorian Traditional Owners Corporation
(17–19 March 2017)
• Cairns, hosted by the North Queensland Land Council (24–27 March 2017)
• Ross River, hosted by the Central Land Council (31 March – 2 April 2017)
• Adelaide, hosted by the Aboriginal Legal Rights Movement Inc (7–9 April 2017)
• Brisbane, (21–23 April 2017)
• Thursday Island, hosted by Torres Shire Council and a number of Torres Strait regional organisations
(5–7 May 2017).
An information session hosted by the United Ngunnawal Elders Council was held in Canberra on
10 May 2017.
The National Constitutional Convention was then held at Uluru (23–26 May 2017).
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2.1 First Nations Regional Dialogues
2.1.1 Process
A full account of the process undertaken in relation to the First Nations Regional Dialogues and the
convening of the National Constitutional Convention is set out in
Appendix I. The following features
of the process need to be emphasised:
The Dialogue process was unprecedented
This process is unprecedented in our nation’s history and is the first time a constitutional convention
has been convened with and for First Peoples. It is a significant response to the historical exclusion of
Aboriginal and Torres Strait Islander peoples from the original processes which led to the drafting of
Australia’s Constitution.
The Dialogues engaged 1200 Aboriginal and Torres Strait Islander delegates – an average of
100 delegates from each Dialogue – out of a population of approximately 600,000 people nationally.
This is the most proportionately significant consultation process that has ever been undertaken with
First Peoples. Indeed, it engaged a greater proportion of the relevant population than the constitutional
convention debates of the 1800s, from which First Peoples were excluded.
The process was structured and principled
The process was structured and principled, modelled partly on the Constitutional Centenary
Foundation framework utilised through the 1990s to encourage debate on constitutional issues in local
communities and schools. It was adapted to suit the needs of the First Nations Regional Dialogues but
the characteristics remained the same: impartiality; accessibility of relevant information; open and
constructive dialogue; and mutually agreed and owned outcomes. The dialogues were a deliberative
decision-making process that followed an identical structured agenda across all the regions.
The process engaged leading Aboriginal and Torres Strait Islander organisations and individuals
Delegates to each Regional Dialogue were selected according to the following criteria: 60% from
First Nations/traditional owner groups, 20% from community organisations and 20% involving key
individuals. The Australian Institute of Aboriginal and Torres Strait Islander Studies and the host
organisation engaged closely with relevant organisations in each region to meet the criteria on
participation. A core principle was to ensure that the First Nations formed the core representation
to these Dialogues.
The following leading organisations were engaged in the process:
• Aboriginal Legal Rights Movement Inc
• Central Land Council
• Federation of Victorian Traditional Owners Corporation
• Kimberley Land Council
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• New South Wales Aboriginal Land Council
• North Queensland Land Council
• Northern Land Council
• South West Aboriginal Land and Sea Council
• Tasmanian Aboriginal Corporation
• Torres Shire Council
• Torres Strait Regional Authority
• United Ngunnawal Elders Council.
The Dialogues canvassed legal and policy issues and political viability
The structured nature of the Dialogues provided for a comprehensive legal explanation of each of the
proposals set out in the Referendum Council’s Discussion Paper. Delegates then engaged in break out
groups that focussed on each of the proposals in turn. Relevant legal and policy issues were canvassed
during these sessions and reported back to the plenary session. The level of engagement and intensity
of the evaluation of proposals was very high. Furthermore, delegates grappled with questions of
political viability and were prepared to assess and prioritise options for reform.
The process led to consensus at Uluru
The integrity of the process is evidenced in the fact that the exhaustive deliberations and informed
participation of participants in the First Nations Regional Dialogues led to consensus at Uluru. The
outcome captured in the Uluru Statement from the Heart was a testament to the efficacy of the
structured process, which allowed the wisdom and intent of the representatives of the First Nations
Regional Dialogues to coalesce in a common position.
2.1.2 Assessment of reform proposals
Every First Nations Regional Dialogue had the opportunity to learn about each of the reform proposals
set out in the Referendum Council’s Discussion Paper. The process enabled the delegates to assess the
proposals and then prioritise each option according to the views of their region.
The following is a summary of the assessment of the reform options that emerged from the dialogues
and the reasoning put forward by delegates.
A statement of recognition
A statement of recognition or acknowledgement in the Constitution was rejected by the Dialogues.
There were concerns raised about the question of sovereignty. During the Expert Panel’s consultations
in 2011, Aboriginal and Torres Strait Islander peoples also raised serious concerns about ‘recognition’
in the Constitution and sovereignty.3 As a consequence, the Expert Panel sought legal advice about the
status of sovereignty, as follows:
3
Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples,
Recognising Aboriginal and Torres Strait Islander
Peoples in the Constitution: Report of the Expert Panel, January 2012, pp. 205–212.
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Phillip’s instructions assumed that Australia was terra nullius, or belonged to no-one. The
subsequent occupation of the country and land law in the new colony proceeded on the fiction of
terra nullius. It follows that ultimately the basis of settlement in Australia is and always has been
the exertion of force by and on behalf of the British Crown. No-one asked permission to settle.
No-one consented, no-one ceded. Sovereignty was not passed from the Aboriginal peoples by
any actions of legal significance voluntarily taken by or on behalf of them.4
The final report of the Joint Select Parliamentary Committee found that
… at almost every consultation, Aboriginal and Torres Strait Islander participants raised issues of
sovereignty, contending that sovereignty was never ceded, relinquished or validly extinguished.
Participants at some consultations were concerned that recognition would have implications for
sovereignty.5
All Dialogues asserted the fact that Aboriginal peoples and Torres Strait Islander peoples never ceded
their sovereignty. For this reason, delegates were not persuaded of the benefit of acknowledgement
inside the Constitution.
Another concern raised was the content of any statement of acknowledgement. Dialogues spoke about
the likelihood of government lawyers whittling down an acknowledgement into a bland statement
incompatible with truth telling. For this reason, a Declaration outside the Constitution was endorsed by
most Dialogues because it was considered that such a Declaration could be a more fulsome account of
Aboriginal and Torres Strait Islander culture and history in Australia.
Removal of section 25
Section 25 did not feature because it is a dead letter addressed to past historical circumstances that
are unlikely to be replicated in the future. Its original intent was not directed at Aboriginal and Torres
Strait Islander peoples. It was modelled upon the United States 14th Amendment, which sought to
disincentivise states from denying the vote to certain races. In any case, any attempt on the part of a
state or territory to deny the vote to certain races today would fall foul of the
Racial Discrimination Act
1975. Delegates to the Dialogues therefore understood that the removal of section 25 would confer no
substantive benefit on Aboriginal and Torres Strait Islander peoples.
Section 51A
Section 51A as proposed by the Expert Panel was precluded because of the rejection by the First
Nations Regional Dialogues of the statement of recognition or acknowledgement in the Constitution.
Section 51 (xxvi)
Section 51 (xxvi) is the essential achievement of the 1967 referendum. Delegates to the First Nations
Regional Dialogues were conscious of this. Many expressed the view that, as archaic as the term
‘race’ might be according to contemporary standards, the triumph of 1967 and the mostly beneficial
legislation that has flowed from it, argues against the deletion of this historically important provision.
4
Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples,
Recognising Aboriginal and Torres Strait Islander
Peoples in the Constitution: Report of the Expert Panel, January 2012, p. 22.
5
Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples,
Final Report, 25 June 2015, p. 69.
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Delegates placed focused attention on the discriminatory potential of section 51(xxvi). The three most
frequently cited examples used in the dialogues were the amendments to the
Native Title Act, the
Hindmarsh Island Bridge amendments and the Northern Territory Emergency Response, the latter
enacted under the Territories power.
However proposed solutions aimed at removing or ameliorating this discriminatory potential were
assessed as equivalent to maintaining the head of power in its current form.
Amending or deleting the race power was ranked low in many Dialogues and rejected in other
Dialogues. Delegates understood there was no iron clad guarantee that Parliament could be prevented
from passing discriminatory laws that single out Aboriginal and Torres Strait Islander peoples for
adverse treatment.
Many participants at the dialogues felt it was too risky to amend section 51 (xxvi) because it could not
be assured that the judicial interpretation of words such as ‘benefit’ or ‘advancement’ would accord
with the desires and aspirations of the affected peoples.
Delegates were concerned that section 51 (xxvi) had empowered significant legislation in cultural
heritage protection, land rights and native title that may be placed at risk. Similar concerns were raised
by the Joint Select Committee in relation to the implications of altering or deleting section 51 (xxvi)
upon the
Native Title Act.6
There was no significant appetite for removing the word ‘race’. Dialogues understood that although
the concept of ‘race’ was a social construction, removing the word ‘race’ and inserting ‘Aboriginal and
Torres Strait Islander Peoples’ does not alter the adverse discriminatory potential of the race power.
Therefore, removing the word ‘race’ was not regarded as an improvement on the status quo of the
people affected.
Section 116A
Section 116A as proposed by the Expert Panel was one of two substantive proposals. The other
substantive proposal was the Voice to the Parliament.
Delegates to the First Nations Regional Dialogues were conscious that these two substantive proposals
were options, each being an alternative to the other. The protection against adverse discrimination
provided by section 116A was viewed as a shield dependent upon interpretation by the High Court
of Australia, whereas a Voice to the Parliament was viewed as a sword, enabling First Peoples to
advocate directly to the Parliament.
The 116A proposal was explicitly supported in seven of the First Nations Regional Dialogues whereas
the Voice to Parliament was supported in all of them.
Delegates were well aware, following considerable discussion at the Dialogues, that section 116A was
subject to interpretation by the High Court and prohibitive in relation to costs of litigation both in terms
of finance and time.
On the issue of political viability, the dialogues discussed media reports of section 116A being a ‘one
clause bill of rights’ and not being politically feasible.
6
Opinion on recommendations made by the Expert Panel on the Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples,
Mr Neil Young QC, 11 June 2014.
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Dialogues in the Northern Territory (Darwin and Ross River) and the information session at the
Australian Capital Territory were focused on section 122, the plenary power for the Commonwealth to
make laws for the territories unconstrained by the Racial Discrimination Act.
The Dialogues discussed that there was no certainty that section 116A would apply to the
Commonwealth power to make laws for the Territories in a way that absolutely prevented
discriminatory legislation.
A Voice to the Parliament
The proposal for the enhanced participation of Aboriginal and Torres Strait Islander peoples in the
democratic life of the Australian state, especially the federal Parliament, is not a new one. It is as
equally prominent in Aboriginal political advocacy as a racial non-discrimination clause. The Voice was
the most endorsed singular option for constitutional alteration. A constitutionally entrenched Voice
appealed to Aboriginal and Torres Strait Islander communities because of the history of poor or non-
existent consultation with communities by the Commonwealth. Consultation is either very superficial or
it is more meaningful, but then wholly ignored.
For Dialogue participants, the logic of a constitutionally enshrined Voice – rather than a legislative
body alone – is that it provides reassurance and recognition that this new norm of participation and
consultation would be different to the practices of the past.
The Dialogues recommended that one of the functions of the Voice would be ‘monitoring’ the
Commonwealth’s use of the race power (section 51 (xxvi)) and Territories power (section 122).
This means that discriminatory legislation like the Northern Territory Emergency Response would be
contested before it originates.
Even though the Voice was not a foolproof way to prevent the Parliament passing discriminatory
laws because of parliamentary sovereignty, the potential for the Voice to have additional functions
that provided Aboriginal and Torres Strait Islander people with an active and participatory role in
the democratic life of the state was viewed as more empowering than a non-discrimination clause
(section 116A) or a qualified head of power.
Agreement-making
Agreement-making was the next most endorsed reform. It was viewed as an option that could
empower communities to take control of their lives. It does not require constitutional alteration.
The state-based treaty processes in Victoria and South Australia had provided some nuance to
the discussion about the complexity of processes for negotiating agreements and the need for
communities to be provided with resources. Also there is much agreement-making across the
country under the native title statutory framework.
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2.1.3 Outcomes
The reforms that emerged from the Dialogues with the highest level of support across the country
were the Voice to Parliament, Agreement-making through Treaty and Truth-telling.
The Dialogues’ responses to the reform proposals, as recorded in the Records of Meeting, are
evidenced in the table below. Truth telling is not an option in the table as it was not in the Referendum
Council’s Discussion Paper. However it was unanimous at every Dialogue.
Prohibition
Statement of
A Voice to
Agreement-
Head of Power
on Racial
Acknowledgement
Parliament
Making
Discrimination
Hobart
Broome
Dubbo
Darwin
Perth
Sydney
Melbourne
Cairns
Ross River
Adelaide
Brisbane
Thursday Island
Canberra
■ Endorsed
■ Not endorsed
■ Inconclusive
Not recorded
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2.2 National Constitutional Convention
The National Constitutional Convention was held at Uluru between 23 and 26 May 2017.
2.2.1 Process
A synthesis of the Records of Meetings of the First Nations Regional Dialogues was produced by the
Referendum Council. This synthesis, entitled ‘Our Story’, recounted the themes that emerged in the
Dialogues and is reproduced below.
Note: The shaded sections of text in the following pages are extracts from the Uluru Statement from
the Heart.
OUR STORY
Our First Nations are extraordinarily diverse cultures, living in an astounding array of environments,
multi-lingual across many hundreds of languages and dialects. The continent was occupied by our
people and the footprints of our ancestors traversed the entire landscape. Our songlines covered
vast distances, uniting peoples in shared stories and religion. The entire land and seascape is
named, and the cultural memory of our old people is written there.
This rich diversity of our origins was eventually ruptured by colonisation. Violent dispossession and
the struggle to survive a relentless inhumanity has marked our common history. The First Nations
Regional Dialogues on constitutional reform bore witness to our shared stories.
All stories start with our Law.
The Law
We have coexisted as First Nations on this land for at least 60,000 years. Our sovereignty
pre-existed the Australian state and has survived it.7
‘We have never, ever ceded our sovereignty.’ (Sydney)8
The unfinished business of Australia’s nationhood includes recognising the ancient jurisdictions of
First Nations law.9
‘The connection between language, the culture, the land and the enduring nature of Aboriginal law
is fundamental to any consideration of constitutional recognition.’ (Ross River)10
7
Hobart Record of Meeting (ROM), p2; Broome ROM, p2; Dubbo ROM, p3; Perth ROM, p4; Canberra ROM, p2; Darwin ROM, p1;
Melbourne ROM, p3, p6; Ross River ROM, p5; Cairns ROM, p2.
8
Sydney ROM, p1.
9
Brisbane ROM, p6: ‘Belonging to country and spirituality are central to Aboriginal and Torres Strait Islander identity, and these need to
be the basis for far-reaching structural change.’
Torres Strait ROM, p2: ‘Communities here should be in control of their own affairs. This is not a new concept. People in the Torres Strait
did so for thousands of years prior to invasion.’
10 Ross River ROM, p1.
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Every First Nation has its own word for The Law. Tjukurrpa is the Anangu word for The Law. The
Meriam people of Mer refer to Malo’s Law.11 With substantive constitutional change and structural
reform, we believe this surviving and underlying First Nation sovereignty can more effectively and
powerfully shine through as a fuller expression of Australia’s nationhood.12
The Law was violated by the coming of the British to Australia. This truth needs to be told.
Invasion
Australia was not a settlement and it was not a discovery. It was an invasion.13
‘Cook did not discover us, because we saw him. We were telling each other with smoke, yet
in his diary, he said “discovered”.’ (Torres Strait)14
‘Australia must acknowledge its history, its true history. Not Captain Cook. What happened all
across Australia: the massacres and the wars. If that were taught in schools, we might have
one nation, where we are all together.’ (Darwin)15
The invasion that started at Botany Bay is the origin of the fundamental grievance between the old
and new Australians: that Australia was colonised without the consent of its rightful owners.16 Now
is an opportunity for the First Nations to tell the truth about history in our own voices and from our
own point of view.17 And for mainstream Australians to hear those voices and to reconsider what
they know and understand about their nation’s history. This will be challenging, but the truth about
invasion needs to be told.
‘In order for meaningful change to happen, Australian society generally needs to
“work on
itself” and to know the truth of its own history.’ (Brisbane)18
‘People repeatedly emphasised the need for truth and justice, and for non-Aboriginal
Australians to take responsibility for that history and this legacy it has created:
“Government
needs to be told the truth of how people got to there. They need to admit to that and sort it
out.”’ (Melbourne)19
Invasion was met with resistance.
11 Perth ROM, p2:
‘We’ve got to continue the fight for the unwritten constitutions. We know there were 260 language groups, and in
each language group there were unwritten constitutions. … Prior to white man coming, there were 260 unwritten constitutions,
rules, policies, procedures governing Aboriginal People and their lands.’
12 Cairns ROM, p2:
‘No one gives you sovereignty, you go out there and practice it and go out there and enforce it. But we are in a
position that there are certain laws that mean we can’t go out and practise our sovereignty.’
13 Dubbo ROM, p4: ‘Delegates spoke of the need to acknowledge the illegality of everything done since colonization, the first act
aggression on first contact, the extreme cruelty and violence of the government, and the impact of the forced removals.’
14 Torres Strait ROM, p2.
15 Darwin ROM, p2.
16 Sydney ROM, p3: ‘Some spoke about the possibility of having a “La Perouse” statement, that reflected the impact of colonisation on
that community. “Dispossession started there.”’
17 Cairns ROM, p3:
‘The names of our people. We’ve got nothing that bears the names of our ancestors.’
18 Brisbane ROM, pp6–7.
19 Melbourne ROM, p2.
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Final Report of the Referendum Council
Resistance
This is the time of the Frontier Wars, when massacres, disease and poison decimated First Nations,
even as they fought a guerrilla war of resistance.20 The Tasmanian Genocide and the Black War
waged by the colonists reveals the truth about this evil time. We acknowledge the resistance of
the remaining First Nations people in Tasmania who survived the onslaught.
‘A statement should recognise
“the fights of our old people”.’ (Hobart)21
Everywhere across Australia, great warriors like Pemulwuy and Jandamarra led resistance against
the British. First Nations refused to acquiesce to dispossession and fought for their sovereign rights
and their land.
‘The people who worked as stockmen for no pay, who have survived a history full of
massacres and pain. We deserve respect.’ (Broome)22
The Crown had made promises when it colonised Australia. In 1768, Captain Cook was instructed
to take possession ‘with the consent of the natives’. In 1787, Governor Phillip was instructed to
treat the First Nations with ‘amity and kindness’. But there was a lack of good faith. The frontier
continued to move outwards and the promises were broken in the refusal to negotiate and the
violence of colonisation.
‘We were already recognised through the Letters Patent and the Imperial statutes that should
be adhered to under their law. Because it’s their law.’ (Adelaide)23
‘Participants expressed disgust about a statue of John McDouall Stuart being erected in Alice
Springs following the 150th anniversary of his successful attempt to reach the top end. This
expedition led to the opening up of the “South Australian frontier” which lead to massacres
as the telegraph line was established and white settlers moved into the region. People feel
sad whenever they see the statue; its presence and the fact that Stuart is holding a gun is
disrespectful to the Aboriginal community who are descendants of the families slaughtered
during the massacres throughout central Australia.’ (Ross River)24
Mourning
Eventually the Frontier Wars came to an end. As the violence subsided, governments employed
new policies of control and discrimination.25 We were herded to missions and reserves on the
20 Perth ROM, p4: ‘A number of delegates expressed the importance of remembering and honouring First Nations people who had
fought in wars, including frontier wars, but had not been recognised.’
Ross River ROM, p1:
‘[We] recall the Coniston massacre, and the many other massacres throughout the region. [We] remember
the Aboriginal people involved in fighting in the frontier wars…If the government wants to speak about ‘recognition’ they need to
recognise the true history, recognise the frontier wars.’
Melbourne ROM, p1: ‘People spoke of the mass slaughter of Aboriginal people during colonisation and how genocide had been
committed on over 180 clans in Victoria.’
Torres Strait ROM, p1: The meeting ‘remembered the massacres of the Kaurareg nation, and that the hurt and pain this had continues
to this day, unresolved.’
21 Hobart ROM, p2.
22 Broome ROM, p7.
23 Adelaide ROM, p3.
24 Ross River ROM, p3.
25 Sydney ROM, p2: ‘under non-Aboriginal law there have been killings, massacres, genocide, the stealing of land, the introduction of
disease, and the taking of children.’
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fringes of white society.26 Our Stolen Generations were taken from their families.27
‘The Stolen Generations represented an example of the many and continued attempts to
assimilate people and breed Aboriginality out of people, after the era of frontier killing was
over.’ (Melbourne)28
But First Nations also re-gathered themselves. We remember the early heroes of our movement
such as William Cooper, Fred Maynard, Margaret Tucker, Pearl Gibbs, Jack Patten and Doug Nicholls,
who organised to deal with new realities. The Annual Day of Mourning was declared on 26
January 1938. It reflected on the pain and injustice of colonisation, and the necessity of continued
resistance in defence of First Nations. There is much to mourn: the loss of land, the loss of culture
and language, the loss of leaders who led our struggle in generations past.
‘Delegates spoke of the spiritual and cultural things that have been stolen. Delegates spoke
of the destruction of boundaries because of the forced movement of people, the loss of First
Peoples and Sovereign First Nations spirituality, and the destruction of language.’ (Dubbo)29
‘The burning of Mapoon in 1963 was remembered:
“Mapoon people have remained strong,
we are still living at Mapoon. Mapoon still exists in western Cape York but a lot of our
grandfathers have died at New Mapoon. That isn’t where their spirits need to be.”’ (Cairns)30
But as we mourn, we can also celebrate those who have gone before us.31 In a hostile Australia,
with discrimination and persecution, out of their mourning they started a movement – the modern
movement for rights, equality and self-determination.
‘We have learnt through the leaders of the Pilbara Strike, we have learnt from the stories of
our big sisters, our mothers, how to be proud of who we are.’ (Perth)32
‘The old men and women were carrying fire. … Let’s get that fire up and running again.’ (Darwin)33
Activism
The movement for political change continued to grow through the 20th Century. Confronted by
discrimination and the oppressive actions of government, First Nations showed tenacity, courage
and perseverance.34
26 Ross River ROM, p1: ‘Some of us can’t speak our language. Some of us went to school and it was bashed out of us. There are
psychological reasons why we can’t speak our language.’
27 Perth ROM, p1: ‘
There’s a lot of sad stories from the Stolen Generations: genocide, abuse. And none of the people will be brought
before the justice system for the abuse of those children.’
28 Melbourne ROM, p1.
29 Dubbo ROM, p2.
30 Cairns ROM, p1.
31 Adelaide ROM, p2: ‘
[We] want the history of Aboriginal people taught in schools, including the truth about murders and the theft of
land, Maralinga, and the Stolen Generations, as well the the story of all the Aboriginal fighters for reform. Healing can only begin
when this true history is taught.’
32 Perth ROM, p1.
33 Darwin ROM, p2.
34 Darwin ROM, p2: ‘
The government will always try to find a way to break you or beat you down. That doesn’t mean that we’re any
weaker as Indigenous people because we lost. We’ve only lost in their eyes, they don’t know what we have underneath.‘
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Final Report of the Referendum Council
‘Those who came before us marched and died for us and now it’s time to achieve what
we’ve been fighting for since invasion: self-determination.’ (Adelaide)35
‘Torres Strait Islanders have a long history of self-government. The civic local government was
established in the late 1800s, and in the 1930s after the maritime strikes, local councils were
created, and in the 1990s, the TSRA. The Torres Strait Islander peoples also have rights under
the Torres Strait Treaty.’ (Torres Strait)36
Our leaders knew that empowerment and positive change would only come from activism.37 Right
across Australia, First Nations took their fight to the government, the people and the international
community. From Yorta Yorta country, Yirrkala and many other places, people sent petitions urging
the King, the Prime Minister and the Australian Parliament to heed their calls for justice. There
were strikes for autonomy, equality and land in the Torres Strait, the Pilbara and Palm Island.
‘The history of petitions reminded people about the nationally significant Palm Island Strike.
So many people from this region had been removed from Country to the “penal settlement”
of Palm Island since its establishment in 1916. The Strike was also sparked by a petition, this
time from seven Aboriginal men demanding improved wages, health, housing and working
conditions, being ignored by the superintendent. We commemorate 60 years of the Strike in
June 2017.’ (Cairns)38
Our people fought for and won the 1967 Referendum, the most successful Yes vote in Australian
history. In front of the world, we set up an embassy on the lawns of Parliament House and we
marched in the streets of Brisbane during the Commonwealth Games.39 In the west, grassroots
leaders like the late Rob Riley took the fight on sacred sites, deaths in custody and justice for the
Stolen Generations to the highest levels of government.
Land Rights
At the heart of our activism has been the long struggle for land rights and recognition of native
title. This struggle goes back to the beginning. The taking of our land without consent represents
our fundamental grievance against the British Crown.40
The struggle for land rights has united First Nations across the country, for example Tent Embassy
activists down south supported Traditional Owners in the Territory, who fought for decades to
retain control over their country. The Yolngu people’s fight against mining leases at Yirrkala and the
35 Adelaide ROM, p1.
36 Torres Strait ROM, p1.
37 Sydney ROM, p2: ‘Several delegates said that it was important to learn from the work of those who have gone before, for example
from the demands that were contained in the three Yolngu petitions, including the Barunga statement, the Makaratta, Coe vs the
Commonwealth, the Mabo decision, the 1938 10-point plan, as well as the Rights, Recognition and Reform Report compiled by ATSIC
as a social justice package.’
38 Cairns ROM, p1.
39 Canberra ROM, p1: ‘
[We] remember marching in the past despite knowing that we’d be met with police brutality and unwarranted
arrests.’
Brisbane ROM, p1: ‘The dialogue emphasised the unique political activism in Queensland, in particular the South East region. This
history reflects the indelible relationship between Aboriginal and Torres Strait Islander Peoples in the struggle, with and for each
other. It is important that this special relationship, based on our old people’s leadership, is recognized and continued.’
40 Perth ROM, p3: ‘
We don’t have access to our own land … We can’t access special places for women’s and men’s business. Without
our spirituality and identity we are nothing … There needs to be a mechanism to allow these things to take place. … We don’t have
access to our own sea as well.’
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Gurindji walk-off from Wave Hill station were at the centre of that battle. Their activism led to the
Commonwealth legislating for land rights in the Northern Territory.
The epic struggle of Eddie Mabo and the Meriam people resulted in an historic victory in 1992,
when the High Court finally rejected the legal fallacy of terra nullius and recognised that the land
rights of First Nations peoples survived the arrival of the British.41
Makarrata
The invasion of our land was met by resistance. But colonisation and dispossession cut deeply into
our societies, and we have mourned the ancestors who died in the resistance, and the loss of land,
language and culture. Through the activism of our leaders we have achieved some hard-won gains
and recovered control over some of our lands. After the
Mabo case, the Australian legal system can
no longer hide behind the legal fiction of terra nullius. But there is Unfinished Business to resolve.
And the way to address these differences is through agreement-making.42
‘Treaty was seen as the best form of establishing an honest relationship with government.’
(Dubbo)43
Makarrata is another word for Treaty or agreement-making. It is the culmination of our agenda. It
captures our aspirations for a fair and honest relationship with government and a better future for
our children based on justice and self-determination.44
‘If the community can’t self-determine and make decisions for our own community regarding
economic and social development, then we can’t be confident about the future for our
children.’ (Wreck Bay)45
Through negotiated settlement, First Nations can build their cultural strength, reclaim control and
make practical changes over the things that matter in their daily life.46 By making agreements at
the highest level, the negotiation process with the Australian government allows First Nations to
express our sovereignty – the sovereignty that we know comes from The Law.
‘The group felt strongly that the Constitution needed to recognise the traditional way of life for
Aboriginal people. … It would have to acknowledge the “Tjukurrpa” –
“our own Constitution”,
which is what connects Aboriginal people to their creation and gives them authority.’
(Ross River)47
‘There is a potential for two sovereignties to co-exist in which both western and Indigenous
values and identities are protected and given voice in policies and laws.’ (Broome)48
41 Darwin ROM, p2: ‘
We have to fight for black and white. Mabo said to his son – let’s fight for black and white. His son asked, but why
are we fighting for whitefellas? And Mabo said, because they are blindfolded, we need to open their eyes and let them recognise
that we were in this country before them.’
42 Broome ROM, p2: ‘There is a potential for two sovereignties to co-exist in which both western and Indigenous values and identities
are protected and given voice in policies and laws.’
43 Dubbo ROM, p4.
44 Adelaide ROM, p4: ‘
We want Australia to take a giant leap in humanity. This is about truth-telling. Whether it is constitutional change
or Treaty. It is not about colour. It is about truth-telling and justice.’
45 Canberra ROM, p3.
46 Brisbane ROM, p8: ‘[A] treaty process will only be worth the effort if its effects and benefits can filter down to the grassroots and
make a difference to people in their daily lives.’
47 Ross River ROM, p5.
48 Broome ROM, p2.
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Final Report of the Referendum Council
2.2.2 Assessment
Prior to the National Constitutional Convention, a set of Guiding Principles were distilled from the
First Nations Regional Dialogues, which provided a framework for the assessment and deliberation
on reform proposals. The National Convention did not reopen the work that had been done in the
Dialogues. Rather, the task of the National Convention was to bring together the outcomes from the
Dialogues in order to arrive at a consensus.
The Guiding Principles adopted at Uluru are reproduced below:
GUIDING PRINCIPLES
The following guiding principles have been distilled from the Dialogues. These principles have
historically underpinned declarations and calls for reform by First Nations. They are reflected, for
example, in the Bark Petitions of 1963, the Barunga Statement of 1988, the Eva Valley Statement
of 1993, the Kalkaringi Statement of 1998, the report on the Social Justice Package by ATSIC in
1995 and the Kirribilli Statement of 2015. They are supported by international standards pertaining
to Indigenous peoples’ rights and international human rights law.
The principles governing the assessment by the Convention of reform proposals were that an
option should only proceed if it:
1. Does not diminish Aboriginal sovereignty and Torres Strait Islander sovereignty.
2. Involves substantive, structural reform.
3. Advances self-determination and the standards established under the
United Nations
Declaration on the Rights of Indigenous Peoples.
4. Recognises the status and rights of First Nations.
5. Tells the truth of history.
6. Does not foreclose on future advancement.
7. Does not waste the opportunity of reform.
8. Provides a mechanism for First Nations agreement-making.
9. Has the support of First Nations.
10. Does not interfere with positive legal arrangements.
1. Does not diminish Aboriginal sovereignty and Torres Strait Islander sovereignty
Delegates at the First Nations Regional Dialogues stated that they did not want constitutional
recognition or constitutional reform to derogate from Aboriginal sovereignty and Torres Strait
Islander sovereignty. All of the Dialogues agreed that they did not want any reform to have
consequences for Aboriginal sovereignty; they did not want to cede sovereignty: Melbourne,49
49 Melbourne ROM, 17-19 March 2017, pp3,5-6.
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Hobart,50 Broome,51 Dubbo,52 Darwin,53 Perth,54 Sydney,55 Cairns,56 Ross River,57 Brisbane,58 Torres
Strait59 and Canberra.60
The Barunga Statement called ‘on the Commonwealth Parliament to negotiate with us a Treaty or
Compact recognising our prior ownership, continued occupation and sovereignty and affirming our
human rights and freedoms.’
The Expert Panel’s report in 2012 stated that the legal status of sovereignty is as follows:
‘Phillip’s instructions assumed that Australia was terra nullius, or belonged to no-one. The
subsequent occupation of the country and land law in the new colony proceeded on the fiction
of terra nullius. It follows that ultimately the basis of settlement in Australia is and always has
been the exertion of force by and on behalf of the British Crown. No-one asked permission
to settle. No-one consented, no-one ceded. Sovereignty was not passed from the Aboriginal
peoples by any actions of legal significance voluntarily taken by or on behalf of them.’61
And the final report of the Joint Select Parliamentary Committee found that ‘at almost every
consultation, Aboriginal and Torres Strait Islander participants raised issues of sovereignty,
contending that sovereignty was never ceded, relinquished or validly extinguished. Participants at
some consultations were concerned that recognition would have implications for sovereignty’.62
2. Involves substantive, structural reform
Delegates at the First Nations Regional Dialogues stated that the reform must be substantive,
meaning that minimal reform or symbolic reform is not enough. Dialogues emphasising that
reform needed to be substantive and structural include: Hobart,63 Broome,64 Darwin,65 Perth,66
Sydney,67 Ross River,68 Adelaide,69 Brisbane,70 Torres Strait71 and Canberra.72
50 Hobart ROM, 9-11 December 2016, pp2-6.
51 Broome ROM, 10-12 February 2017, pp2,3,6-7.
52 Dubbo ROM, 17-19 February 2017, pp1-5.
53 Darwin ROM, 22-24 February 2017, pp1,3.
54 Perth ROM, 3-5 March 2017, p4.
55 Sydney ROM, 10-12 March 2017, pp1,4.
56 Cairns ROM, 24-26 March 2017, pp2,3.
57 Ross River ROM, 31 March-2April 2017, p5.
58 Brisbane ROM, 21-23 April 2017, pp1,8.
59 Torres Strait ROM, 5-7 May 2017, pp2,6-7.
60 Canberra ROM, 10 May 2017, pp1-2.
61 The Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples,
Recognising Aboriginal and Torres
Strait Islander Peoples in the Constitution: Report of the Expert Panel, January 2012, p22.
62 Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples,
Final Report, 25 June 2015, p69.
63 Hobart ROM, 9-11 December 2016, p6.
64 Broome ROM, 10-12 February 2017, p6.
65 Darwin ROM, 22-24 February 2017, pp5-6.
66 Perth ROM, 3-5 March 2017, pp2,5.
67 Sydney ROM, 10-12 March 2017, p5.
68 Ross River ROM, 31 March-2April 2017, p4.
69 Adelaide ROM, 7-9 April 2017, pp5-6.
70 Brisbane ROM, 21-23 April 2017, pp6-7,10.
71 Torres Strait ROM, 5-7 May 2017, p7.
72 Canberra ROM, 10 May 2017, p2.
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Final Report of the Referendum Council
This is consistent with the Kirribilli Statement that ‘any reform must involve substantive changes to
the Australian Constitution. A minimalist approach, that provides preambular recognition, removes
section 25 and moderates the races power [section 51(xxvi)], does not go far enough and would
not be acceptable to Aboriginal and Torres Strait Islander peoples’.73
This is consistent with Article 3 of the
United Nations Declaration on the Rights of Indigenous
Peoples: ‘Indigenous peoples have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and cultural
development’.74 In addition, the
United Nations Declaration on the Rights of Indigenous Peoples provides that ‘Indigenous peoples have the right to the recognition, observance and enforcement
of Treaties, Agreements and Other Constructive Arrangements concluded with States or their
successors and to have States honour and respect such Treaties, Agreements and other Constructive
Arrangements’.75
3. Advances self-determination and the standards established under the United Nations
Declaration on the Rights of Indigenous Peoples
Many delegates at the First Nations Regional Dialogues referred to the importance of the right
to self-determination as enshrined in Article 3 of the
United Nations Declaration on the Rights of
Indigenous Peoples.76 In 1988, the Barunga Statement called for the recognition of our rights ‘to
self-determination and self-management, including the freedom to pursue our own economic, social,
religious and cultural development.’ One of the fundamental principles underpinning ATSIC’s report
on the Social Justice Package was ‘self-determination to decide within the broad context of Australian
society the priorities and the directions of their own lives, and to freely determine their own affairs.’77
Dialogues that referred to self-determination and the
United Nations Declaration on the Rights of
Peoples include: Hobart,78 Broome,79 Darwin,80 Perth,81 Sydney,82 Cairns,83 Ross River,84 Adelaide,85
Brisbane,86 Torres Strait87 and Canberra.88
73 Statement presented by Aboriginal and Torres Strait Islander attendees at a meeting held with the Prime Minister and Opposition
Leader on Constitutional Recognition, HC Coombs Centre, Kirribilli, Sydney, 6 July 2015.
74 See also Article 38: ‘States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including
measures to achieve the ends of this Declaration’; and Article 37: ‘1. Indigenous peoples have the right to the recognition, observance and
enforcement of Treaties, Agreements and Other Constructive Arrangements concluded with States or their successors and to have States
honour and respect such Treaties, Agreements and other Constructive Arrangements. 2. Nothing in this Declaration may be interpreted as
to diminish or eliminate the rights of Indigenous Peoples contained in Treaties, Agreements and Constructive Arrangements.’
75 Art 37, UNDRIP.
76 Art 3, UNDRIP.
77 ATSIC,
Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures (1995), 10.
78 Hobart ROM, 9-11 December 2016, pp2,10.
79 Broome ROM, 10-12 February 2017, p2.
80 Darwin ROM, 22-24 February 2017, p3.
81 Perth ROM, 3-5 March 2017, pp1,3,5.
82 Sydney ROM, 10-12 March 2017, pp2-3.
83 Cairns ROM, 24-26 March 2017, pp2,3,5.
84 Ross River ROM, 31 March-2April 2017, pp2,4-5.
85 Adelaide ROM, 7-9 April 2017, pp1-3,5-6.
86 Brisbane ROM, 21-23 April 2017, pp2,9.
87 Torres Strait ROM, 5-7 May 2017, pp2-3,5,7-8.
88 Canberra ROM, 10 May 2017, pp2-3.
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4. Recognises the status and rights of First Nations
Many delegates at the First Nations Regional Dialogues wanted the status and rights of First
Nations recognised. Dialogues that referenced status and rights of First Nations include:
Melbourne,89 Hobart,90 Broome,91 Dubbo,92 Darwin,93 Perth,94 Sydney,95 Cairns,96 Ross River,97
Adelaide,98 Brisbane,99 Torres Strait100 and Canberra.101
The Barunga Statement called for the government to recognise our rights ‘to respect for, and
promotion of our Aboriginal identity, including the cultural, linguistic, religious and historical
aspects, and including the right to be educated in our own languages and in our own culture
and history.’ One of the fundamental principles underpinning ATSIC’s report on the Social Justice
Package was ‘recognition of Indigenous peoples as the original owners of this land, and of the
particular rights that are associated with that status.’102
Consistent with Article 3 on the right of self-determination, the preamble of the
United Nations
Declaration on the Rights of Indigenous Peoples recognises ‘the urgent need to respect and
promote the inherent rights of indigenous peoples which derive from their political, economic and
social structures and from their cultures, spiritual traditions, histories and philosophies, especially
their rights to their lands, territories and resources’.
5. Tells the truth of history
The Dialogues raised truth-telling as important for the relationship between First Nations and
the country. Many delegates at the First Nations Regional Dialogues recalled significant historical
moments including the history of the Frontier Wars and massacres. Dialogues that stressed
the importance of truth-telling include: Melbourne103, Broome104, Darwin105, Perth106, Sydney107,
Cairns108, Ross River109, Adelaide110, Brisbane111, Torres Strait.112
89 Melbourne ROM, 17-19 March, p5.
90 Hobart ROM, 9-11 December 2016, pp6-7.
91 Broome ROM, 10-12 February 2017, pp1,2,4,5.
92 Dubbo ROM, 17-19 February 2017, pp1-5.
93 Darwin ROM, 22-24 February 2017, pp1,4,7.
94 Perth ROM, 3-5 March 2017, pp1,3,5.
95 Sydney ROM, 10-12 March 2017, pp3-4.
96 Cairns ROM, 24-26 March 2017, pp3-5.
97 Ross River ROM, 31 March-2April 2017, pp2-3, 5.
98 Adelaide ROM, 7-9 April 2017, p5.
99 Brisbane ROM, 21-23 April 2017, pp1-3,11.
100 Torres Strait ROM, 5-7 May 2017, pp3-4, 6.
101 Canberra ROM, 10 May 2017, p2.
102 ATSIC,
Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures (1995).
103 Melbourne ROM, 17-19 March, pp2, 5.
104 Broome ROM, 10-12 February 2017, pp1,7.
105 Darwin ROM, 22-24 February 2017, pp2,6.
106 Perth ROM, 3-5 March 2017, pp1,4.
107 Sydney ROM, 10-12 March 2017, p5.
108 Cairns ROM, 24-26 March 2017, p1.
109 Ross River ROM, 31 March-2April 2017, pp1,5.
110 Adelaide ROM, 7-9 April 2017, pp2,4,6.
111 Brisbane ROM, 21-23 April 2017, pp1-2,6-7.
112 Torres Strait ROM, 5-7 May 2017, pp2,5.
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The importance of truth-telling as a guiding principle draws on previous statements such as
the ATSIC report for the Social Justice Package.113 The Eva Valley Statement said that a lasting
settlement process must recognise and address historical truths.
The
United Nations Declaration on the Rights of Indigenous Peoples enshrines the importance of
truth-telling,114 as does the United Nations General Assembly resolution on the basic principles on
the right to a remedy and reparation for victims of gross violations of international human rights
law and serious violations of international humanitarian law.115
In its Resolution on the Right to the Truth in 2009, the Human Rights Council stressed that the
victims of gross violations of human rights should know the truth about those violations to the
greatest extent practicable, in particular the identity of the perpetrators, the causes and facts of
such violations, and the circumstances under which they occurred. And that States should provide
effective mechanisms to make that truth known, for society as a whole and in particular for
relatives of the victims.116 In 2010, the UN General Assembly proclaimed the International Day for
the Right to the Truth Concerning Gross Human Rights Violations and for the Dignity of Victims.117 In
2012, the Human Rights Council appointed a Special Rapporteur on the promotion of truth, justice,
reparation and guarantees of non-recurrence.118 In 2013, the UN General Assembly passed the
Resolution on the right to the truth.119
6. Does not foreclose on future advancement
Many delegates at the First Nations Regional Dialogues stated that they did not want constitutional
reform to foreclose on future advancement. Constitutional reform must not prevent the pursuit of
other beneficial reforms in the future, whether this be through beneficial changes to legislation,
policy, or moving towards statehood (in the Northern Territory) or towards Territory status (in the
Torres Strait). Dialogues that referenced this include: Hobart,120 Sydney,121 Darwin,122 Torres Strait123
and Canberra.124
7. Does not waste the opportunity of reform
Many delegates at the First Nations Regional Dialogues stated that constitutional reform was an
opportunity and therefore should not be wasted on minimalist reform: a minimalist approach, that
provides preambular recognition, removes section 25 and moderates the races power (section
51(xxvi)), does not go far enough and would not be acceptable to Aboriginal and Torres Strait
113 ATSIC,
Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures (1995) Recommendations 53-55.
114 Preambular paragraphs 3, 4, 8, 15 and 21; Articles 5, 15, 37 and 40.
115 A/RES/60/147.
116 A/HRC/RES/9/11; A/HRC/RES/12/12.
117 General Assembly resolution 65/196 of 21 December 2010.
118 A/HRC/RES/18/7.
119 A/RES/68/165.
120 Hobart ROM, 9-11 December 2016, p 8.
121 Sydney ROM, 10-12 March 2017, p 4.
122 Darwin ROM, 22-24 February 2017, p 7.
123 Torres Strait ROM, 5-7 May 2017, p 6.
124 Canberra ROM 10 May 2017, p 2.
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Islander peoples. Dialogues emphasising that reform needed to be more than a minimalist position
include: Melbourne,125 Hobart,126 Broome,127 Dubbo,128 Darwin,129 Perth,130 Sydney,131 Cairns,132
Adelaide,133 Torres Strait134 and Canberra.135
8. Provides a mechanism for First Nations agreement-making
Many delegates at the First Nations Regional Dialogues stated that reform must provide a
mechanism for First Nations agreement-making. Dialogues that referenced a mechanism for
agreement-making include: Melbourne,136 Broome,137 Perth,138 Cairns,139 Ross River,140 Adelaide,141
Brisbane142 and Torres Strait.143
The obligation of the state to provide agreement-making mechanisms is reflected in the
United
Nations Declaration on the Rights of Indigenous Peoples. Article 37 proclaims, ‘Indigenous peoples
have the right to the recognition, observance and enforcement of Treaties, Agreements and Other
Constructive Arrangements concluded with States or their successors and to have States honour
and respect such Treaties, Agreements and other Constructive Arrangements’.
9. Has the support of First Nations
A message from across the First Nations Regional Dialogues was that any constitutional reform
must have the support of the First Nations right around the country. The Dialogues emphasised
that constitutional reform is only legitimate if First Nations are involved in each step of the
negotiations, including after the Uluru Convention. Dialogues emphasising that reform needed
the support of First Nations include: Hobart,144 Broome,145 Dubbo,146 Darwin,147 Perth,148 Sydney,149
125 Melbourne ROM, 17-19 March, p4.
126 Hobart ROM, 9-11 December 2016, p6.
127 Broome ROM, 10-12 February 2017, p3.
128 Dubbo ROM, 17-19 February 2017, p1.
129 Darwin ROM, 22-24 February 2017, p6.
130 Perth ROM, 3-5 March 2017, pp4,5.
131 Sydney ROM, 10-12 March 2017, p5.
132 Cairns ROM, 24-26 March 2017, p5.
133 Adelaide ROM, 7-9 April 2017, pp5-6.
134 Torres Strait ROM, 5-7 May 2017, pp5-6.
135 Canberra ROM, 10 May 2017, p2.
136 Melbourne ROM, 17-19 March, pp2-7.
137 Broome ROM, 10-12 February 2017, p5.
138 Perth ROM, 3-5 March 2017, p5.
139 Cairns ROM, 24-26 March 2017, p5.
140 Ross River ROM, 31 March-2 April 2017, pp5-6.
141 Adelaide ROM, 7-9 April 2017, p4.
142 Brisbane ROM, 21-23 April 2017, pp3,8-10.
143 Torres Strait ROM, 5-7 May 2017, pp7-8.
144 Hobart ROM, 9-11 December 2016, p9.
145 Broome ROM, 10-12 February 2017, pp2, 6.
146 Dubbo ROM, 17-19 February 2017, pp1, 2, 3.
147 Darwin ROM, 22-24 February 2017, pp2, 5, 7.
148 Perth ROM, 3-5 March 2017, pp1, 3.
149 Sydney ROM, 10-12 March 2017, pp2, 4, 5.
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Melbourne,150 Canberra,151 Brisbane,152 Torres Strait,153 Adelaide,154 Ross River155 and Cairns.156
The failure to consult with First Nations has been a persistent cause of earlier activism. For
example, the 1963 Yirrkala Bark Petition was launched by the Yolngu people after the Federal
Government excised their land without undertaking consultation or seeking Yolngu consent. They
complained that ‘when Welfare Officers and Government officials came to inform them of decisions
taken without them and against them, they did not undertake to convey to the Government in
Canberra the views and feelings of the Yirrkala aboriginal people.’ The Eva Valley Statement of
1993 demanded that the development of legislation in response to the
Mabo decision have ‘the
full and free participation and consent of those Peoples concerned.’
The importance of First Nations’ support is recognised by the
United Declaration on the Rights
of Indigenous Peoples, which states in Article 3, that through the right of self-determination,
Indigenous peoples must be able to ‘freely determine their political status and freely pursue their
economic, social and cultural development’. The
Declaration also recognises in Article 19 that,
before any new laws or policies affecting Indigenous peoples are adopted, ‘States shall consult and
cooperate in good faith with the indigenous peoples concerned through their own representative
institutions in order to obtain their free, prior and informed consent’.
10. Does not interfere with positive legal arrangements
Many delegates at the First Nations Regional Dialogues expressed their concerns that any
constitutional reform must not have the unintended consequence of interfering with beneficial
current arrangements that are already in place in some areas, or with future positive arrangements
that may be negotiated. Dialogues that supported this principle were: Cairns,157 Torres Strait158 and
Canberra (Wreck Bay).159
150 Melbourne ROM, 17-19 March 2017, p5.
151 Canberra ROM, 10 May 2017, pp2-3.
152 Brisbane ROM, 21-23 April 2017, pp2, 4.
153 Torres Strait ROM, 5-7 May 2017, pp2, 6.
154 Adelaide ROM, 7-9 April 2017, pp2-3, 6.
155 Ross River ROM, 31 March-2 April 2017, pp2-3, 6.
156 Cairns ROM, 24-26 March 2017, p6.
157 Cairns ROM, 24-26 March 2017, p5.
158 Torres Strait, 5-7 May 2017, ROM, pp2-3.
159 Canberra ROM 10 May 2017, p3.
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Below is an assessment of the reform proposals against the Guiding Principles. The priority of the Voice
to the Parliament and Agreement-making is clear from the assessment.
Prohibition
Statement of
A Voice to
Agreement-
Head of Power
on Racial
Acknowledgement
Parliament
Making
Discrimination
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
■ Meets principle
■ Does not meet principle
■ Inconclusive
2.2.3 Outcomes
The following analysis of the three propositions that subsequently emerged in the Uluru Statement of
the Heart was presented to the National Constitutional Convention and approved.
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Voice to Parliament
A constitutionally entrenched Voice to Parliament was a strongly supported option across the
Dialogues.160 It was considered as a way by which the right to self-determination could be
achieved.161 Aboriginal and Torres Strait Islander peoples need to be involved in the design of any
model for the Voice.162
There was a concern that the proposed body would have insufficient power if its constitutional
function was ‘advisory’ only, and there was support in many Dialogues for it to be given stronger
powers so that it could be a mechanism for providing ‘free, prior and informed consent’.163 Any
Voice to Parliament should be designed so that it could support and promote a treaty-making
process.164 Any body must have authority from, be representative of, and have legitimacy in
Aboriginal and Torres Strait Islander communities across Australia. It must represent communities
in remote, rural and urban areas, and not be comprised of handpicked leaders.165 The body must be
structured in a way that respects culture.166 Any body must also be supported by a sufficient
160
Hobart: Supported a powerful representative body.
Broome: Four out of five groups ranked the Indigenous voice as number one, either on its own or in combination with other options.
Dubbo: All groups supported the voice to parliament, with two groups prioritising this option.
Darwin: Considered important by all groups and was ranked as a priority in any reform package.
Perth: First preference for a voice for the First Nations people of Australia to Parliament and agreement making.
Sydney: Constitutionally guaranteed a First Nations Voice to Parliament was priorities by several groups and was considered as crucial.
Melbourne: The most supported package alongside agreement making. The Voice to Parliament was important to increase political
power and authority and needs to be enshrined into the Constitution.
Cairns: Strong agreement across the groups for a Voice to Parliament as an important priority.
Ross River: Some people suggested embedding a representative body for Aboriginal people in the Constitution as a good option.
Brisbane: Well supported option.
Torres Strait: A Voice to Parliament was seen as an ‘engine room’ for change and a way of realising the right to self-determination.
161
Torres Strait: A Voice to Parliament was seen as an ‘engine room’ for change and a way of realising the right to self-determination.
162
Brisbane: The Aboriginal and Torres Strait Islander People need to be consulted on the model.
163
Hobart: Supported a powerful representative body with the consensus that a body must be stronger than just an advisory body to
Parliament.
Broome: Someone suggested that the Parliament would need to be compelled to respond to the advice of the Body, and there was
discussion of giving the body the right to address the Parliament.
Dubbo: There was a strong view that the Indigenous body must have real power: a power of veto and the power to make a
difference.
Melbourne: There was a concern that the body could become a tokenistic process. Hence, it must be more than advisory and
consultative. It needs powers of compliance and to be able to hold Parliament on account against the standards of the UNDRIP.
Brisbane: The body needs to be more than just advisory. It needs to be able to provide free, prior and informed consent that is
binding on government.
164
Melbourne: Support was also given for the statement that would underpin and strengthen a Voice to Parliament to enable it to
progress and protect a treaty process. This should be a statement of ‘intent’ and a statement of the ‘inherent rights of the First
Peoples’. The statement could refer to Australia’s international obligation (e.g. UNDRIP) and acknowledge the sovereign position of
Australia’s First Peoples and the crimes committed against the humanity.
Cairns: It could be used to pursue economic developments and to pursue negotiations of treaties with government.
Torres Strait: It could support and promote a treaty-making process.
165
Hobart: A selection process should be put in place to ensure that the body is representative of Aboriginal and Torres Strait Islander
Peoples.
Darwin: The body would need to be elected and connected to the community.
Perth: Very strong support for a Voice to Parliament that would represent all lands and waters across Australia.
Ross River: The body must represent communities across Australia and have legitimacy in remote, rural and urban areas. It was also
suggested that it should include representatives across generations.
Brisbane: The body needs to be representative of grassroots. Not a handpicked organisation like the Indigenous Advisory Council. It
needs to be elected by grassroots and consult back with the community.
Adelaide: The Aboriginal Voice could be drawn from the First Nations and reflect the song lines of the country.
166
Brisbane: The structure of the body needs to respect Aboriginal cultural heritage – ‘the oldest governance structure on the planet’.
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and guaranteed budget, with access to its own independent secretariat, experts and lawyers.167
It was also suggested that the body could represent Aboriginal and Torres Strait Islander Peoples
internationally.168 A number of Dialogues said the body’s representation could be drawn from an
Assembly of First Nations, which could be established through a series of treaties among nations.169
Treaty
The pursuit of Treaty and treaties was strongly supported across the Dialogues.170 Treaty was
seen as a pathway to recognition of sovereignty and for achieving future meaningful reform
for Aboriginal and Torres Strait Islander Peoples. Treaty would be the vehicle to achieve self-
determination, autonomy and self-government.171
The Dialogues discussed who would be the parties to Treaty, as well as the process, content
and enforcement questions that pursuing Treaty raises. In relation to process, these questions
included whether a Treaty should be negotiated first as a national framework agreement under
which regional and local treaties are made. In relation to content, the Dialogues discussed that a
Treaty could include a proper say in decision-making, the establishment of a truth commission,
reparations, a settlement, the resolution of land, water and resources issues, recognition of
authority and customary law, and guarantees of respect for the rights of Aboriginal and Torres
Strait Islander peoples.172 In relation to enforcement, the issues raised were about the legal force
the Treaty should have, and particularly whether it should be backed by legislation or given
constitutional force.
167
Broome: The body must be supported – with a budget, with experts (eg, through a supporting secretariat) and with lawyers.
Darwin: The body would need to be properly resourced.
Brisbane: The body needs to have guaranteed funding. One way of guaranteeing funding that was discussed was through a
percentage of taxes (land taxes, water taxes) or linked to representatives.
168
Thursday Island: The body could be a way of achieving representation internationally (at the UN) and also connecting with other First
Nations people internationally.
169
Cairns: A number of groups suggested the body could be drawn from an Assembly of First Nations which could be established
through a series of treaties among nations.
Brisbane: Other ways of achieving political representation were discussed, including designated seats, or the creation of ‘our own
Parliament’.
170
Hobart: Supported and firmly committed to pursuing Treaty.
Dubbo: Strong consensus across all groups for a treaty as a form of establishing an honest relationship with government and perhaps
achieving other options.
Darwin: As an overarching aspiration, Treaty was regarded as important.
Perth: Agreement making and Treaty was a high priority for a number of groups.
Sydney: While there was strong support in many of the groups for pursuing Treaty negotiations, there was no overall consensus as to
how this could be achieved.
Melbourne: The most supported package alongside the Voice.
Cairns: Strong support for treaty, but not a clear consensus when a treaty should be pursued.
Torres Strait: A strong support for the pursuit of treaty that would give Torres Strait Islander Peoples self-determination, autonomy
and self-government.
Sydney: Strong support to pursue Treaty negotiations but no overall consensus on how to do that.
171
Torres Strait: A strong support for the pursuit of treaty that would give Torres Strait Islander Peoples self-determination, autonomy
and self-government.
172
Hobart: Treaty needs to recognise sovereignty, a land and a financial settlement, and recognition of rights.
Broome: People looked to agreement-making for a proper say in decision-making, recognition of authority and customary law,
guaranteed or quarantined funding so people can plan for the long term, addressing issues that fall outside the scope of native title
agreements, a better form of legal enforcement and better legal protection of rights.
Dubbo:
Strong consensus across all groups for a treaty as a form of establishing an honest relationship with government and perhaps
achieving other options.
Adelaide: Strong support for Agreement Making as a vehicle for implementing policies such as a truth and reconciliation commission,
designated seats in Parliament, self-determination policies, and economic measures.
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There were different views about the priority as between Treaty and constitutional reform.173 For
some, Treaty should be pursued alongside, but separate from, constitutional reform.174 For others,
constitutional reform that gives Aboriginal and Torres Strait Islander peoples a voice in the political
process will be a way to achieve Treaty.175 For others, specific constitutional amendment could set
out a negotiating framework, and give constitutional status to any concluded treaty.176
Truth-telling
The need for the truth to be told as part of the process of reform emerged from many of the
Dialogues.177 The Dialogues emphasised that the true history of colonisation must be told: the
genocides, the massacres, the wars and the ongoing injustices and discrimination.178 This truth
also needed to include the stories of how First Nations Peoples have contributed to protecting
and building this country.179 A truth commission could be established as part of any reform, for
example, prior to a constitutional reform or as part of a Treaty negotiation.180
173
Dubbo: Treaty could be pursued outside the constitutional reform process, or it could be pursued together with constitutional
recognition through a voice to Parliament and a racial non-discrimination clause.
Darwin: This could be achieved inside or outside the Constitution.
Perth: For a number of groups, agreement making and Treaty was a high priority, but that in terms of timing it could follow
constitutional reform.
Cairns: Strong support for treaty, but not a clear consensus when a treaty should be pursued.
Brisbane: This was a primary aspiration for the region but not ranked as a major priority for the reform.
174
Hobart: Treaty needed to be included in the final report from the Referendum Council and put into legislation, but not included in a
referendum proposal.
175
Sydney: Some suggested that this could be done simultaneously while pursuing constitutional reform or achieved and strengthened
through constitutional change such as through the inclusion of a Voice in Parliament.
Broome: The general sense was that agreement-making should be in the Constitution, because it is proper recognition of people,
sovereignty and the importance of local culture, values and customary law.
Perth: Should be timed to follow constitutional reform.
Adelaide: Some chose to package the Voice with Agreement Making because they felt the agreement making process would be
enhanced by the involvement of the Aboriginal Voice.
176
Darwin: Negotiating framework for the treaty needs to be enshrined in the Constitution.
177
Sydney: One group also suggested that dealing with question of ‘truth and justice’ had to be part of the process of constitutional
reform.
Melbourne: People repeatedly emphasised the need for truth and justice, and for non-Aboriginal Australians to take responsibility for
that history and this legacy it has created. The group believed that there needed to be a truth and reconciliation process as part of the
larger process.
Cairns: This history and the suffering needed to be acknowledged before progress could be made with constitutional reform.
Ross River: The meeting recalled the Coniston massacre, and the many other massacres throughout the region. The meeting
remembered the Aboriginal people who had been involved in fighting in the frontier wars. They also spoke of the Aboriginal
people who fought in the wars, such as in the Vietnam war, but have not been recognised. If the government want to speak about
‘recognition’ they need to recognise the true history, recognise the frontier wars. They need to recognise the atrocity of Maralinga.
178
Broome: The need to generate greater understanding of our people and our history across Australia. The massacres were referred to
many times across the Dialogue.
Dubbo: One group stated that it was important to correct the record. Delegates spoke of the need to acknowledge the illegality of
everything done since colonization, the first act of aggression of first contact, the extreme cruelty and violence of the government,
and the impact of the forced removals.
179
Darwin: There was a very strong feeling that the true history of Australia, the massacres and frontier killings, the stolen generations
and other stories of how First Nations peoples have contributed to protecting and building this country are not taught in Australian
education institutions.
180
Melbourne: One suggestion was to achieve change by 2020, with a truth and reconciliation commission to occur during that time,
and a checkpoint in 2018.
Adelaide: Strong support for Agreement Making as a vehicle for implementing policies such as a truth and reconciliation commission,
designated seats in Parliament, self-determination policies, and economic measures.
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3. BROADER COMMUNITY CONSULTATION PROCESS
3.1 Digital platform
The Council was conscious that any future referendum would be the first in the age of social media.181
Recent international experience demonstrates that social media can be a powerful determinant
of public sentiment in referendums, and one that brings with it a complex set of challenges and
opportunities. The Council engaged Cox Inall Ridgeway and BWM Dentsu to develop a digital platform
comprising an interactive website and social media channels.
This online presence was established in the following stages:
Date
Event
26 October 2016
Phase 1 Council website goes live
6 December 2016
Council’s Twitter channel goes live
9 December 2016
Online submission process opens
3 February 2017
Council’s Facebook channel goes live
28 February 2017
Phase 2 Council website, including digital consultations, goes live
15 March 2017
Online submissions process and digital consultations close
The online consultation period was divided into five ‘key topics’, each showcasing one of the five
key options in the Discussion Paper. A brief animated video was developed explaining the key
features, rationale and potential limitations of the proposal. This content was then supplemented with
infographics, social media posts and short textual descriptions on the website.
Content development was guided by the following goals:
• To provide an official voice for the Council to engage in existing online conversations about
constitutional recognition, including correcting misinformation.
• To broadcast information quickly and effectively about the Council to a network of interested
stakeholders, including alerting stakeholders to new information on the digital platform and
encouraging discussion.
Australians were able to engage with this content by leaving a comment, by posting on social media,
by completing a submission, or by emailing the Council directly.
The Council went to some effort to develop content that was informative and factual, and to promote
this online discussion as broadly as possible. A modest sum of money was allocated to paid promotion
on social media, and four Electronic Direct Mails were distributed between March and May 2017
to drive traffic to the online discussions. As a result, the Council and the options were talked about
2,824,702 times, and 195,831 people actively engaged in the discussion. Sentiment was measured
181
Final Report of the Act of Recognition Review Panel, September 2014, p. 17.
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Final Report of the Referendum Council
and reviewed through machine filtering and analysis by research experts to assess support for the five
reform options.
A total of 5,300 people also participated in online and telephone surveys over a six-month period
between November 2016 and May 2017. This included two samples of 2,500 Australians representative
of Australia’s diverse geography and demography, as well as 100 Australians identifying as Aboriginal
and/or Torres Strait Islander. The aim of the surveys was to benchmark and determine levels of
awareness and attitudes toward constitutional reform across a range of demographics, within both
Aboriginal and Torres Strait Islander communities and the wider community. Importantly, the surveys
were also used to determine any changes in awareness or attitudes across the consultation period.
Cox Inall Ridgeway found that the social and digital consultations and online and telephone surveys
delivered starkly different results. The majority of those who participated in the online and telephone
surveys were in favour of constitutional reform, while the social media sentiment was overwhelmingly
neutral or negative. A wide range of views were expressed on social media, and the process revealed
the challenges inherent in engaging and informing Australians about such complex issues. Some who
commented worried that the proposed reforms appeared to give ‘special treatment’ to a single group,
while others were concerned about the erosion of existing rights, particularly sovereignty.
A report on the outcomes of the digital consultations is at
Appendix J.
3.2 Submissions
The Council called for public submissions, based on its Discussion Paper, between December 2016 and
May 2017. An online form was developed to facilitate this process, together with the facility for free-
form submissions from key stakeholder organisations. The online form incorporated all 20 questions
posed in the Discussion Paper, based on the five reform proposals.
The Council conducted a large, targeted stakeholder engagement campaign. This included requesting
that stakeholders reach out to their networks to promote discussion on constitutional recognition.
The Council produced a Community Discussion Kit to aid these conversations and provide a means of
reporting the feedback to the Council.
A total of 1,111 submissions were received, including 1,057 submissions via the online form
(structured submissions) and 54 submissions taking the form of an email, letter or other document
(free form submissions).
Urbis was engaged to analyse the submissions received; its report is at
Appendix K. It found strong support
for recognition, based on a desire to see Aboriginal and Torres Strait Islander peoples acknowledged as
Australia’s First Peoples, and enshrinement of an ongoing set of rights based on that legacy.
A large majority of submissions supported all five of the key proposals (see Figure 1). With strongest
support, more than nine in ten (93%) backed the inclusion of an Indigenous voice when Parliament
and government make laws and policies about Indigenous affairs. A total of 77% supported the
creation of a group providing this voice under the Constitution.
A statement of acknowledgement of Aboriginal and Torres Strait Islander peoples as the First Peoples
of Australia also received significant backing, with 91% supporting this measure – 86% in favour of a
statement within the Constitution and 5% in favour of a statement in normal Australian law.
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Changes to the ‘race’ provisions, section 25 and section 51 (xxvi), also received strong support
with 85% of submissions supporting the removal of section 25 and more than two in three (67%)
supporting removal of the word ‘race’ from the Constitution. A further 78% supported the insertion of
a constitutional prohibition against racial discrimination.
Figure 1: Preferred proposals for recognition
Source: Urbis, Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples: Analysis of public submissions,
unpublished report, 13 June 2017, p. ii.
Each submission provided to the Council (where the author consented to publication) can be found on
our website.
3.3 Outcomes
Both the digital consultations and the public submissions process found the following:
• A majority of participants supported all five reform options.
• No public submission expressed support for a statement of acknowledgement in isolation from
other reform options – rather, a package of reforms was favoured.
• There was strong support for the Voice to Parliament option and, in particular, emphatic agreement
in the public submissions that Aboriginal and Torres Strait Islander people should have a say when
Parliament makes laws and policies relating to Indigenous affairs.
It is also important to note that both the public submissions process and research relating to the digital
platform highlighted strong interest among the general population in knowing that the proposed
reforms are supported by Aboriginal and Torres Strait Islander peoples, before choosing whether or not
to support them. In other words, only a referendum proposal backed by Aboriginal and Torres Strait
Islander peoples is likely to succeed.
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4. FINDINGS
The Council refers to the summary of the outcomes at Uluru (see 2.2.3). The Council bears in mind,
in particular, one of the four Guiding Principles adopted by the Council, namely, that the Council’s
recommendations must ‘be of benefit to and accord with the wishes of Aboriginal and Torres Strait
Islander peoples’. Of the proposals referred to in the Discussion Paper, the only one to emerge as
in accordance with the wishes of the Aboriginal and Torres Strait Islander peoples is the Voice to
Parliament. The reasoning underlying this is set out earlier in this report and is regarded by the Council
as deserving respect.
The Council emphasises the uniqueness of the First Nations Regional Dialogue process – designed
by, owned by, and adopted by the Indigenous Steering Committee after extensive consultations with
Aboriginal and Torres Strait Islander traditional owners, leaders, elders and organisations.
The First Nations Regional Dialogues process must be contrasted with the consultations conducted
by the Expert Panel. The Expert Panel conducted ‘a broad national consultation program’ and held
more than 250
consultations with more than 4,600
attendees. The Expert Panel process involved
Australia-wide consultations but was not designed with a view to securing a representative view from
Aboriginal and Torres Strait Islander peoples.
Constitutional issues
Although the proposals in relation to a Voice to the Parliament have not all been identical in
form or substance, they have certain features in common:
• The proposed body should take its structure from legislation enacted by the Parliament of the
Commonwealth. No one has suggested there be an attempt to enshrine in the Constitution
provisions of the kind more appropriately left to Parliament. Legislation of the Parliament would
deal with how the body is to be given an appropriately representative character and how it can
properly and most usefully discharge its advisory functions.
• It is not suggested that the body should have any kind of veto power.
• The constitutional description of the function of the body and its relationship to the parliamentary
process is obviously of central importance. The concept of providing advice on certain matters
requires definition of the relevant matters. For example, it would not be realistic to provide advice
on all matters ‘affecting’ Aboriginal and Torres Strait Islander peoples because most laws of general
application affect such peoples. On the other hand, it may be too narrow to limit the subject
matters to laws with respect to Aboriginal and Torres Strait Islander peoples because some laws of
general application have particular impact on or significance to such peoples.
• It would be for the legislation establishing such a body to deal with its constitution and procedures.
It is not the intention of the proposal to limit the legislative power of the Commonwealth
Parliament but, rather, to provide where such power is exercised in relation to Aboriginal and Torres
Strait Islander peoples, they have appropriate input by way of advice and consultation.
• The Council notes the submission of the Law Council of Australia paragraphs [43], [44] and [45].
In particular, paragraph 43 states,
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Exercising the right to self-determination can encompass a range of different actions. In the
Law Council’s view, one aspect is the capacity for Aboriginal and Torres Strait Islander peoples
to determine their own political future. Being provided with a role when Parliament and
government make laws and policies about Indigenous affairs is integrally linked to freely
pursuing their political status and freely pursuing their economic, social and cultural development
as outlined in Article 1 of ICESCR [the International Covenant on Economic, Social and Cultural
Rights] and Article 1 of ICCPR [the International Covenant on Civil and Political Rights].
Extra-constitutional proposals
The Council recommends, not by way of proposed alteration to the Constitution, but as guidance for
associated legislation, that one of the specific functions of the body be to monitor the head of power
section 51(xxvi) and section 122.
In addition, the Council reports that there are matters of great importance to Australia’s Indigenous
peoples that can be addressed more appropriately outside the Constitution. They are:
1. An extra-constitutional statement of recognition
2. The establishment of a Makarrata Commission
3. A process to facilitate Truth Telling.
The Council recommends an extra-constitutional statement of recognition.
Support for dealing with matters outside the Constitution was partly attributable to an understanding
of the difficulties associated with amending the Constitution and recognition of the importance of the
principle of parliamentary supremacy.
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CONCLUSION
The window of constitutional opportunity is limited for well-known reasons. The political and
electoral challenges facing the promulgation and passage of a Bill of the Commonwealth Parliament
to initiate a referendum are considerable. The political and electoral challenges facing the conduct
of a referendum are also considerable. Bipartisanship, indeed multi-partisanship, amongst political
parties within the parliament and constituencies in the wider community, is necessary but not always
sufficient for success.
Modest and substantive
We put forward a single recommendation for constitutional amendment –
that a referendum be held
to provide in the Australian Constitution for a body that gives Aboriginal and Torres Strait Islander
peoples a Voice to the Commonwealth Parliament – in order to fit into this window of constitutional
opportunity. Our recommended option for constitutional amendment is both modest and substantive.
The proposed Voice would not interfere with parliamentary supremacy, it would not be justiciable,
and the details of its structure and functions would be established by Parliament through legislation
that could be altered by Parliament. This is modest. It would place into the supreme law of our
Commonwealth, a Voice that will enable the First Peoples of Australia to speak to the Parliament and
to the nation about the laws and policies that concern them. This is substantive.
Reasonable
The proposed Voice which we recommend is also reasonable. It was the first preference of Aboriginal
and Torres Strait Islander delegates to the First Nations Regional Dialogues, and the consensus proposal
coming out of the National Constitutional Convention at Uluru.
This preference took account of the objections raised against the alternative substantive constitutional
amendment option: the insertion of some form of non-discrimination protection into the Constitution.
The objections to a non-discrimination provision which would render parliamentary legislation
justiciable under the jurisdiction of the High Court, may be appropriate or inappropriate – but that
is not the point. The point is that such a non-discrimination provision has strong objections and
objectors, which the Council believes will see it fail at a referendum.
The choice of an institutional alternative – a Voice to the Parliament – is therefore a highly reasonable
proposal, put forward at Uluru and supported by our Council.
Unifying
We believe that the recommendation we have made for enshrining a First People’s Voice in the
Constitution will be unifying for the nation, because constitutional inclusion is fundamental to a
reconciled future. The symbolic and practical effects of the Voice will enable good measures to flow
from future legislation, institutions, agreements and policies.
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Our recommendation of an extra-constitutional Declaration will also be unifying. This will give our
nation the opportunity to bring together the story of Australia and afford mutual recognition of the
three parts of our shared heritage: the First Peoples, the British and the Migrant. It is not possible
to recognise First Peoples within the Australian Commonwealth without recognising the whole.
That whole includes two other parts, which the proposed Declaration would also encompass.
Capable of attracting the necessary support
Finally, this single, modest and substantive constitutional amendment combined with a unifying extra-
constitutional Declaration is capable of attracting the necessary support of the Australian people. Much
work and goodwill will need to flow for their achievement, but these reforms are foundational to
a better future. It is our Council’s fervent belief that we have before us the best opportunity we are
likely to ever have, to achieve something profound for our children’s future, that they may live in a
reconciled future and be proud of their identity as Australians and feel the gift of all its parts.
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Appendices
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APPENDIX A: REFERENDUM COUNCIL MEMBERSHIP
Pat Anderson AO, Co-Chair
Pat Anderson is an Alyawarre woman and the Chairperson of the Lowitja Institute. Previously,
Ms Anderson was Chief Executive Officer of Danila Dilba Health Service in Darwin, Chair of the
National Aboriginal Community Controlled Health Organisation and Executive Officer of the
Aboriginal Medical Services Alliance Northern Territory. Ms Anderson co-authored Little Children
Are Sacred, a report on the abuse of Aboriginal children in the Northern Territory.
Mark Leibler AC, Co-Chair
Mark Leibler is the senior partner at Arnold Bloch Leibler and head of the firm’s taxation practice.
Mr Leibler is the National Chairman of the Australia/Israel and Jewish Affairs Council and was
Co-Chair of Reconciliation Australia. Mr Leibler served as a Co-Chair of the Expert Panel on
Constitutional Recognition of Indigenous Australians.
Megan Davis
Megan Davis is a Cobble Cobble Aboriginal woman from Queensland and a Professor of Law and
Pro Vice Chancellor, UNSW, Sydney. Professor Davis is an Acting Commissioner of the NSW Land and
Environment Court and a member of the NSW Sentencing Council. Professor Davis is a expert member
of the UN Human Rights Council’s Expert Mechanism on the Rights of Indigenous Peoples and served
for six years as an expert and chair of the UN Permanent Forum on Indigenous Issues. Professor Davis
is a constitutional lawyer and was a member of the Expert Panel on Constitutional Recognition of
Indigenous Australians.
Andrew Demetriou
Andrew Demetriou is the former Chief Executive Officer of the Australian Football League. Mr Demetriou
previously held the positions of Managing Director of Ruthinium Group and Chief Executive Officer of
the AFL Players Association. Mr Demetriou currently serves as Chairman of Capitol Health Ltd and is a
Director–Sports Marketing at Bastion Group (Australia).
Natasha Stott Despoja AM
Natasha Stott Despoja is the Australian Ambassador for Women and Girls. She is the founding
Chair of Our Watch, a national organisation to prevent violence against women and their children.
Ms Stott Despoja is an Honorary Visiting Research Fellow at the University of Adelaide. She is
the former leader of the Australian Democrats and was a Senator for South Australia (1995–2008).
Murray Gleeson AC
Murray Gleeson is a former Chief Justice of the High Court of Australia and was Chief Justice of
the Supreme Court of New South Wales. Mr Gleeson was appointed Queen’s Counsel in 1974.
Mr Gleeson was previously Lieutenant Governor of New South Wales. Mr Gleeson currently serves
as a nonpermanent Judge for the Court of Final Appeal (Hong Kong Special Administrative Region).
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APPENDIX A: REFERENDUM COUNCIL MEMBERSHIP
Tanya Hosch
Tanya Hosch is a Torres Strait Islander woman, and was recently appointed as the first-ever General
Manager, Inclusion and Social Policy, for the Australian Football League. Ms Hosch is also a Director of the
Australian Indigenous Governance Institute and the Indigenous Land Council. She previously served as
the Joint Campaign Director of Recognise, and worked on the design and establishment of the National
Congress of Australia’s First Peoples. Ms Hosch was also a member of the Act of Recognition Review Panel.
Kristina Keneally
Kristina Keneally is a former Premier of New South Wales, and held a range of ministerial portfolios
including Planning, Infrastructure, Disability Services, and Ageing. Professor Keneally currently
serves as Director of Gender Inclusion and Adjunct Professor at the Macquarie Graduate School of
Management. Professor Keneally cohosts ‘To the Point’; is Patron of the Stillbirth Foundation Australia;
and is an Ambassador for both Opportunity Australia International and the John Berne School.
Jane McAloon
Jane McAloon is a strategic and corporate adviser. Previously, Ms McAloon was President of Governance
and Group Company Secretary of BHP Billiton, and served as Director General of the New South Wales
Ministry of Energy and Utilities. Ms McAloon is a non-Executive Director of Energy Australia, a Fellow of
the Institute of Chartered Secretaries and a former Director of the Australian War Memorial.
Noel Pearson
Noel Pearson comes from the Guugu Yimidhirr community of Hope Vale on south eastern Cape
York Peninsula. Mr Pearson is a lawyer, and Founder and Director of Strategy of the Cape York
Partnership. Mr Pearson also co-founded the Cape York Land Council, and helped to establish
Apunipima Health Council, Balkanu Cape York Development Corporation and Indigenous Enterprise
Partnerships. Mr Pearson served as a member of the Expert Panel on Constitutional Recognition of
Indigenous Australians.
Michael Rose AM
Michael is a lawyer and the former Chief Executive Partner of Allens. He is the Chairman of a
number of government, arts and not-for-profit organisations including the Committee for Sydney,
Sydney Living Museums and ChildFund Alliance, an international development NGO. Michael is
Chairman of the Indigenous Engagement Task Force of the Business Council of Australia, and Deputy
Chairman of the Aurora Education Foundation. He is an Ambassador for the Australian Indigenous
Education Foundation and the Menzies School of Health Research. He is also a Fellow of the Australian
Institute of Company Directors.
Amanda Vanstone
Amanda Vanstone is a former Senator for South Australia, and held a number of ministerial portfolios
in the Howard Government, including Minister for Immigration and Multicultural and Indigenous Affairs.
Ms Vanstone is Australia’s longest-serving female Cabinet Minister since Federation. Ms Vanstone also
served as Australia’s Ambassador to Italy and San Marino from 2007 to 2010. Ms Vanstone is currently
Chair of Vision 2020 Australia and the Royal Flying Doctor Service.
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APPENDIX A: REFERENDUM COUNCIL MEMBERSHIP
Dalassa Yorkston
Dalassa Yorkston is a Torres Strait Islander woman and Chief Executive Officer of the Torres Shire
Council. She is the first Indigenous local woman to hold this position. Ms Yorkston has been a
member of the Executive Management Team within Council since 2008, and has long experience
working with local government.
Galarrwuy Yunupingu AM
Galarrwuy Yunupingu is an Elder of the Gumatj clan of the Yolngu people and assisted in the drafting of
the Bark Petition at Yirrkala. Dr Yunupingu was a member of the Yirrkala Town Council and is a former
Chairman of the Northern Land Council. Dr Yunupingu was named Australian of the Year in 1978 for his
negotiations on the Ranger uranium mine agreement. Dr Yunupingu was a member of the Council for
Aboriginal Reconciliation.
Denise Bowden (proxy representative for Mr Yunupingu)
An Indigenous woman from Katherine, Northern Territory, Denise Bowden is the Chief Executive Officer
and Director of the Garma Festival at the Yothu Yindi Foundation Aboriginal Corporation. Through
Aboriginal Hostels Limited Denise sits as a Board of Director. She is active in the north-east Arnhem
land region, working on a number of education and governance policy projects. Denise holds many
significant positions networked throughout the Northern Territory with regional and very remote
Indigenous communities.
Past Council members
Patrick Dodson
Patrick Dodson is a Yawuru man from Broome, Western Australia. He was Co-Chair of the Expert Panel,
and attended the summit meeting on 6 July 2015 in Kirribilli. He is Chair of the Yawuru Native Title
Company “Nyamba Buru Yawuru Ltd”, and a director on the Yawuru PBC. Mr Dodson was the founding
Chairman of the Council for Aboriginal Reconciliation, a Royal Commissioner into Aboriginal Deaths
in Custody, and is a former Director of the Central and Kimberley Land Councils. In 1975, he became
Australia’s first ordained Aboriginal Catholic priest (although he has since left the priesthood). Patrick
has devoted his life to building bridges between Indigenous and non-Indigenous Australians.
Professor Patrick Dodson resigned as a member of the Council on 2 March 2016 .
Mick Gooda
Mick Gooda is a descendant of the Gangulu people of central Queensland, is the Aboriginal and Torres
Strait Islander Social Justice Commissioner, and a Royal Commissioner of the Royal Commission into the
Child Protection and Youth Detention Systems of the Government of the Northern Territory. Mr Gooda
was previously Chief Executive Officer of the Cooperative Research Centre for Aboriginal Health, and
served as a member of the Expert Panel on Constitutional Recognition of Indigenous Australians.
Mick Gooda resigned as a member of the Council on 27 February 2017.
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APPENDIX A: REFERENDUM COUNCIL MEMBERSHIP
Stan Grant
Stan Grant is a Wiradjuri man and a distinguished journalist. Mr Grant is the Indigenous Affairs Editor
for Guardian Australia as well as the International Editor at Sky News. As the Managing Editor of NITV,
he also hosts the network’s nightly current affairs show, ‘The Point’. His 30 year career as a political
affairs correspondent, news anchor and international journalist has been recognised with a number
of awards, including a Walkley Award in 2015.
Stan Grant resigned as a member of the Council on 4 March 2017.
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APPENDIX B: TERMS OF REFERENCE
Purpose
The Referendum Council (the Council) will advise the Prime Minister and the Leader of the Opposition
on progress and next steps towards a successful referendum to recognise Aboriginal and Torres Strait
Islander peoples in the Constitution, as set out in these terms of reference.
The Council will build upon the extensive work of the Expert Panel on Constitutional Recognition of
Indigenous Australians and the Joint Select Committee on Constitutional Recognition of Aboriginal
and Torres Strait Islander Peoples.
Role
1. The Council will lead the process for national consultations and community engagement
about constitutional recognition, including a concurrent series of Indigenous-designed and
led consultations.
2. The Council will be informed by the Parliamentary Joint Select Committee on Constitutional
Recognition of Aboriginal and Torres Strait Islander Peoples chaired by Mr Ken Wyatt AM MP with
Deputy Chair, Senator Nova Peris OAM. The Committee will have input into the discussion paper on
various issues regarding constitutional change to help facilitate an informed community discussion.
3. The Council and consultations it leads, will also consider the recommendations of the 2012 Expert
Panel on Constitutional Recognition of Indigenous Australians.
4. The Council will report to the Prime Minister and the Leader of the Opposition by 30 June 2016 on:
a. outcomes of national consultations and community engagement about constitutional
recognition, including indigenous-led consultations;
b. options for a referendum proposal, steps for finalising a proposal, and possible timing for a
referendum; and
c. constitutional issues.
Membership
1. The Council will have up to 16 members, including two Co-Chairs.
2. Membership will be for a term of one year.
3. The Prime Minister, after consultation with the Leader of the Opposition, will determine
appointment of members and extensions of membership.
Meetings and Working Methods
1. The Council will meet once every three months or as otherwise agreed.
2. The quorum for Council meetings will be ten members, including one Co-Chair.
3. The Council may convene working groups as necessary, to consider particular issues in depth and
report back to the full Council.
4. Deliberations of the Council will be confidential.
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APPENDIX B: TERMS OF REFERENCE
Indigenous Reference Group
1. The Government will appoint an Indigenous Reference Group of non-Council Members to advise
the Referendum Council on the roll-out of the national consultation and community engagement
process and provide a sounding board for views among Indigenous communities and groups on
constitutional recognition.
2. The Indigenous Reference Group will include members of the Indigenous leaders meeting on
6 July 2015 and others.
Remuneration
1. The Co-Chairs will be part-time paid positions.
2. Other Council members will be paid sitting fees and costs for in-person attendance at Council and
Indigenous Reference Group meetings and for participation in community conferences provided
that such participation is agreed in advance by the Council. Other Council members will not be
paid sitting fees or costs for participation in working groups or any other activities related to the
Referendum Council.
3. Indigenous Reference Group members will not receive sitting fees. Their reasonable costs of travel
to participate in-person meetings will be paid.
Secretariat
1. The Council will be supported by a Secretary and secretariat provided by the
Department of the Prime Minister and Cabinet.
2. The Referendum Council and its activities will be properly supported by the Department of the
Prime Minister and Cabinet.
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APPENDIX C: REFERENDUM COUNCIL COMMUNIQUES
COMMUNIQUE, 14 December 2015
The Referendum Council, appointed by the Prime Minister, the Hon Malcom Turnbull MP, and the
Leader of the Opposition, the Hon Bill Shorten MP, met in Sydney today, 14 December 2015, for its first
meeting. The Council was announced on 7 December 2015.
The Council comprises sixteen Australians, and includes eight Aboriginal and Torres Strait Islander and
eight non-Indigenous Members. Eight members are women; eight are men. Members have a range of
backgrounds and bring different and important experiences and expertise to the table.
The Prime Minister and the Leader of the Opposition joined the Council at the start of its meeting.
They discussed progress that has been made to date, the task before the Council, and the potential for
constitutional recognition to make a significant contribution to Australia.
The Referendum Council Co-Chairs, Professor Patrick Dodson and Mr Mark Leibler AC, welcomed the
shared, bipartisan commitment of the Prime Minister and the Leader of the Opposition to recognition.
Their leadership and commitment will be critical on the path ahead.
The Co-Chairs also welcomed the shared commitment of all state and territory governments to
recognition, which was reaffirmed by all Premiers and Chief Ministers at the Council of Australian
Governments meeting on 11 December 2015.
The Referendum Council discussed the need for constitutional recognition to be progressed as part of a
broader conversation that addresses concerns among Indigenous communities about Indigenous affairs
and the settlement of ‘unfinished business’.
The Referendum Council considers that consultation and community engagement is paramount. There
have, to date, been two exhaustive processes with over 260 public meetings and over 3600 submissions.
There needs to be opportunities for all Australians to have their voices heard. This could commence
with a digital platform, which will provide more information on options, and submissions and
discussions will be encouraged.
As options are further distilled, community meetings or conferences could occur to get views on
the proposition.
Given the importance of ensuring the proposition reflects the wishes of Indigenous Australians, a series
of Indigenous-designed and led consultations will also occur.
The Referendum Council determined that an initial step will be the development of an information
pack that will guide consultations and discussions. This information pack should provide a narrative
about the contribution that recognition can make to Australia’s national identity, and detail the various
options for constitutional reform.
Further details will be announced in the near future.
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APPENDIX C: REFERENDUM COUNCIL COMMUNIQUES
COMMUNIQUE, 10 May 2016
The Referendum Council, appointed by the Prime Minister, the Hon Malcolm Turnbull MP, and the
Leader of the Opposition, the Hon Bill Shorten MP, held its fourth meeting in Melbourne today.
The Council has agreed to a thorough and inclusive process for consulting Australians, including
Aboriginal and Torres Strait Islander peoples, about recognising Indigenous peoples in the Constitution.
Indigenous leadership meetings
The Council will commence its consultation process with three significant meetings with Aboriginal and
Torres Strait Islander leaders, including traditional owners and representatives of peak bodies.
At these Indigenous leadership meetings, participants will discuss constitutional recognition and the
process of consulting Aboriginal and Torres Strait Islander peoples about options for recognition.
Indigenous, community-wide and digital consultations
The Council will conduct a concurrent series of Indigenous consultations and community-wide
consultations in the second half of 2016. The Council will also lead a national conversation on
recognition through an innovative digital platform that gives all Australians the chance to have their say.
These consultations will include a series of regional dialogues for Aboriginal and Torres Strait Islander
peoples to discuss options for a referendum proposal that could be supported by Indigenous peoples.
All Australians will have the opportunity to contribute to the national discussion. At the same time
as the Indigenous meetings, the Council will provide opportunities for all Australians to have their
say through a range of online discussions on constitutional recognition. The Council will also hold
community consultations in each State and Territory across Australia.
Consultation framework
The Council has also agreed on elements of potential referendum proposals that should form the basis
of consultations:
• addressing the sections of the Constitution, including section 25 and section 51(xxvi), that are
based on the outdated notion of ‘race’,
• ensuring continued capacity for the Commonwealth Government to make laws for Aboriginal and
Torres Strait Islander peoples,
• formally acknowledging Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia,
• providing an Aboriginal and Torres Strait Islander body to advise Parliament about matters affecting
Indigenous peoples, and
• providing a constitutional prohibition on racial discrimination.
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Timeframe
The Indigenous leadership meetings will begin in June. The regional dialogues, community-wide and
digital consultations will take place in the second half of 2016.
The Council is confident that the decisions made today are an important step towards constitutional
recognition.
The Co-Chairs will seek the approval of the Prime Minister and the Leader of the Opposition to continue
the Council’s work throughout the caretaker period.
The Council has set out a considered process for respectful and inclusive consultations and discussions
with Aboriginal and Torres Strait Islander peoples and the wider Australian community about
constitutional reform. This is an exciting opportunity for all Australians to have their say and create the
foundations for a successful referendum.
The Council will step through this process carefully and deliver its final report to the Prime Minister and
the Leader of the Opposition following the conclusion of the consultations.
COMMUNIQUE, 9 August 2016
The Referendum Council met in Melbourne today to discuss the progress of its work and next steps.
Co-Chair Mark Leibler and Pat Anderson reported to members that Prime Minister Malcolm Turnbull
and Leader of the Opposition Bill Shorten had reaffirmed to them their joint and ongoing commitment
towards a successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the
Constitution.
The Prime Minister and the Leader of the Opposition have requested the Council provide them with an
interim report by 8 September 2016 to outline progress to date and the next phase of consultation. In
a conversation with the Co-Chairs, Mr Turnbull reiterated the imperative that the Council’s report reflect
the outcome of comprehensive consultation with Indigenous people and that no proposal should
proceed without the support of Indigenous people. He also emphasised the importance of the proposal
being achievable and having near-universal support.
Council members discussed the outcome of the first phase of consultation which comprised three
meetings involving Aboriginal and Torres Strait Islander leaders in Broome, Thursday Island and
Melbourne. The meetings were a critical first step for the Council to seek guidance from leaders
about the upcoming series of Indigenous-led dialogues to be held around the country. Members noted
that about 150 participants had attended the meetings, including participants who took part in the
6 July 2015 Kirribilli meeting with former Prime Minister Tony Abbott and Mr Shorten.
Members acknowledged the broad-ranging views being raised at the meetings and noted this was
to be expected given the complexity of the issue, the diversity of people being canvassed across the
country and the reality that Indigenous peoples had not been given such an opportunity previously to
express their hopes and concerns to the wider community.
Members also noted the strong message received from meeting participants that the consultation
process should not be rushed by working to an artificial deadline.
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In light of the feedback, the Council today agreed to a new timeframe for its work, which will now see
consultations continuing into 2017 with a view to presenting a final report to the Prime Minister and
Leader of the Opposition by mid-year.
The Council agreed to the framework for the upcoming series of regional dialogues, set to begin in
the coming months. It was noted that a separate engagement process would be held to take the
conversation to the broader Australian community.
Members also considered a public discussion paper, which sets out the options and issues for
constitutional change to help guide community discussion. The paper will be translated into a number
of Indigenous languages and will be published just prior to the next phase of consultation.
During the meeting, Council members reinforced their commitment to the process and the role
they had been tasked with, as well as their desire to ensure the process was managed with respect
and understanding.
The Referendum Council consists of 16 eminent Australians and was appointed by Prime Minister
Malcolm Turnbull and Leader of the Opposition Bill Shorten in December 2015. Its role is to provide
advice on constitutional change, including a proposal to create the foundations for a referendum.
COMMUNIQUE, 20 October 2016
The Referendum Council has settled on timeframes and locations for its next phase of Indigenous
consultation on constitutional recognition.
The council will hold 12 First Nations dialogues over November and December and into early 2017,
and will culminate in a national convention of Indigenous leaders at Uluru.
The council’s Indigenous steering committee members designed the series of Indigenous-led dialogues
with Aboriginal and Torres Strait Islander leaders during the council’s first phase of consultation earlier
this year. Through the dialogues, the council will seek the views of Aboriginal and Torres Strait Islander
representatives on options for a referendum proposal.
The council has agreed that between November and December 2016, locations for dialogues will
include Adelaide, Hobart and Perth. Locations in 2017 will include Darwin, Broome, Dubbo, Brisbane,
Torres Strait, Sydney, Melbourne, Cairns and Alice Springs.
The council will meet with Aboriginal and Torres Strait Islander representatives from across Australia,
including representatives from First Nations and community organisations, as well as key individuals.
The council’s digital consultation process, which will complement the dialogues, is due to go live
in November. The digital platform will provide information about constitutional recognition and an
opportunity for people to put forward their views.
Given the complexity of the issue, council members emphasised the importance of helping people
to better understand the options being explored for constitutional change so they are well placed to
provide input when the council calls for formal submissions next year.
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Members also discussed the latest iteration of the public discussion paper, which sets out the options
and issues for constitutional change to help guide community discussion. The paper, which will also be
available in a number of Indigenous languages, will be published next month.
The Referendum Council consists of 16 eminent Australians and was appointed by Prime Minister
Malcolm Turnbull and Leader of the Opposition Bill Shorten in December 2015. Its role is to provide
advice on constitutional change, including a proposal to create the foundations for a referendum.
COMMUNIQUE, 25 November 2016
The Referendum Council met at Parliament House, Canberra, today to progress steps towards a national
referendum on constitutional recognition.
The Prime Minister the Hon Malcolm Turnbull MP and the Leader of the Opposition, the Hon Bill
Shorten MP, attended the meeting to discuss the work the council has undertaken to date, as well
as to receive an update on the council’s future plans.
The meeting was also attended by the Minister for Indigenous Affairs, Senator the Hon Nigel Scullion,
Assistant Minister for Health and Aged Care, the Hon Ken Wyatt AM MP, Shadow Assistant Minister for
Indigenous Affairs and Aboriginal and Torres Strait Islanders, Senator Patrick Dodson, Shadow Minister
for Human Services, the Hon Linda Burney MP, and Senator Malarndirri McCarthy.
The Prime Minister and the Leader of the Opposition both reaffirmed their strong, bipartisan
commitment to the Referendum Council’s work.
The Referendum Council remains committed to maintaining momentum in its consultations and providing
all Australians with the opportunity to consider all possible proposals for constitutional change.
The Prime Minister and the Leader of the Opposition asked the Council to progress its work without
delay and to provide its report by 30 June 2017 to enable the Parliament to give due consideration to
the issues.
The council has now published a discussion paper designed to support conversations with Australians
about five key proposals, available on its website. The Prime Minister and the Leader of the Opposition
had previously endorsed these proposals forming the basis of consultations.
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APPENDIX D:
ROM WATANGU – THE LAW OF THE LAND
ROM WATANGU
The law of the land
B Y G A L A R R W U Y Y U N U P I N G U
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APPENDIX D:
ROM WATANGU – THE LAW OF THE LAND
Our song cycles have the greatest impor-
tance in the lives of my people. They
guide and inform our lives.
A song cycle tells a person’s life: it
relates to the past, to the present and to
the future.
Yolngu balance our lives through
the song cycles that are laid out on the ceremony grounds.
These are the universities of our people, where we hone and
perfect our knowledge.
It is through the song cycles that we acknowledge our
allegiance to the land, to our laws, to our life, to our ances-
tors and to each other. We work from the new moon to the
full moon – travelling these song cycles as a guide to life and
the essence of our people: keeping it all in balance so that
wealth and prosperity might flow. This is the cycle of events
that is in us and gives us the energy for life, the full energy
that we require. Without this, we are nobody and we can
achieve nothing.
As a man reaches the final points in his journey it is
then for others to do the singing. Others must take the lead,
acknowledge him and guide him. If there is unfinished
business it is no longer for that man to carry that busi-
ness; others who have taken responsibility and who have
taken leadership must then bear the burden of creation.
The future is theirs, to be taken by them, crafted along the
spix
terms set by law as given to us by those that have come
ew
before. And failure will be theirs also, to own and bear wit-
an / N
ness to if they fail.
ikm
I have lived my song cycle and I have done what I can
os A
m
to translate the concepts of the Yolngu world into the real-
ity of my life. I have endured much change and seen many
different faces – I have watched both Aboriginal and non-
erritory. © A
Aboriginal leaders move in and out. And of course I have
mixed feelings when I reflect on my life’s work. I feel a deep
orthern T
sadness at times, yet I know that I have done much that is
useful. I know that I have secured my family’s birthright –
and, N
we will not drift off with the tide; we will stand and endure,
hem L
and our names will pass down through the decades and the
rn
centuries. Yunupingu means “the rock that stands against
ast A
n E
time”, and so be it. But I think always of what has been
lost around me against what endures. It is a form of tor-
estival i
ture for a Yolngu person to see the loss of our life: every
a f
arm
word, every note, every slip in the song is pain; every patch
of land taken; every time an outsider takes control from
he G
t t
Yolngu; every time we compromise; and every time we lose
ingu a
something or someone. I tell my family to stand strong
and endure, stay within the guidelines of our law, stay with
unup
uy Y
the song cycles and be armed with this knowledge so as
to secure for our people our lands, our way of life and our
alarrw
G
place in the world.
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My father, Mungurrawuy, understood the difficul- One of the things that gave him the most recogni-
ties and the complexities of white men, and the
tion just before the missionaries arrived occurred when he
threats posed to his people’s future by white society.
joined Birrikitji and his younger brother Buwatjpuy from
As a young man he had been present when the massacres
the Dhalwangu clan in a dispute with the Djapu clan, the
occurred in the 1920s and 1930s, and as a young man he was
Madarrpa clan and other clan groups. This came in the
shot by a man licensed to do so. These were days not too dis-
middle of a terrible feud among the clans. Mungurrawuy
How do we balance the wrongs that have been done
with a need to work together in the future?
tant from today – days that every Yolngu person knows of,
walked side by side with Birrikitji and his brother to a
and remembers. The men who hunted my father were simply
peacemaking event – a
makarrata – that was held on the
tasked to their job by their superiors, and they carried it out
beach at Birany Birany.
as well as they could.
The dispute was very deep and very serious, and in the
At Gan Gan these men on horseback performed their
event Mungurrawuy made the peace.
duties and killed an entire clan group – men, women and
It was my father, perhaps for the last time before the mis-
children. They shot them out and killed them in any way
sionaries arrived, who had the responsibility to make this
they could so that they could take the land. These men on
happen in a proper way, in a proper Yolngu way – to bring
horseback then rode to Birany Birany and killed many of
about reconciliation.
our Yarrwidi Gumatj, the saltwater people who cared for
After the
makarrata my father was widely praised by the
the great ceremonies at Birany Birany. There are few places
senior leadership throughout East Arnhem Land.
in our lives as sacred as Gan Gan – from its fresh waters all
So the quest for “peace and harmony” in the world
things come – and Birany Birany.
wasn’t anything new to Yolngu when the missionaries came
When Europeans came to East Arnhem Land, this is
and spoke of such ideals. They were already our words and
how they introduced their world to the Yolngu. The old
our way of life. We had seen it through the actions of my
people carried the knowledge of these murders inside them,
father, who performed these duties in his time.
and when they spoke about it they were loud and clear and
And we still think in this way when we think about our
we all heard their words. It was a wave of history that broke
future. How do we reconcile? What do we need to give, and
over us, and that we had to contend with. We heard that
what must be given to us for our loss, for our grievance?
my father and other senior men from all the clans unified
How do we balance the wrongs that have been done with a
against the cattle prospectors and land thieves, who hunted
need to work together in the future?
and killed Yolngu women and children.
These events and what lies behind them are burned
into our minds. They are never forgotten. Such things are
Mungurrawuy was the pioneer who took the mission-
aries to the fresh water at Yirrkala and approved
remembered. Like the scar that marked the exit of the bullet
their presence there. I grew up with my family on
from my father’s body.
the beach at Yirrkala. We lived in a series of humpies made
M
out of bent iron and a mix of stringybark and paperbark –
ungurrawuy stood out among the leaders of East
simple structures designed to keep the rain out. There were
Arnhem Land. He was strong. He could present
five or six different humpies in our camp, which was set up
himself. He could fight. He could lead his people
in a traditional way, with my father overseeing the lot.
and mediate between troublesome clans to make peace. By
We slept on sheets with blankets or sheets over us. No
the time Mungurrawuy brought his families to Yirrkala on
mattresses. We slept on the sand bars, close to the beach – a
the Gove Peninsula, after the earlier days of terror, he was the
bit softer for us. I have no complaints, really. Looking back,
most senior elder and land-owner, and he had the highest sta-
I was safe and with my family.
tus in Yolngu law. He obtained this status by right – he was
The fires of the camp burned all night – our grandmoth-
born to it by Yolngu law – but he earned it by performance
ers would tend them, keeping them alive, which was a great
and responsibility, and through his care for the families.
gift they gave to the family. Eventually the missionaries
20
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built a hut for my father, so he was the first to receive proper
qualifying me for the future – and burdening me for the future.
accommodation, if you could call it that.
I left the great man then and completed my initiation
While I was growing up at Yirrkala in the 1950s, my sis-
into manhood. I remember this like it was yesterday. It is
ters were with me always, watching over me as I made my
clear in my mind.
way to manhood. And my elder sisters, women of the highest
degree, the most brilliant people, were married to men from
the Djapu clan. These marriages brought the Gumatj and
It was during my schooling at Yirrkala when, one morning
as I moved through the camp to visit my sister, I heard the
Djapu people closer together. And so it fell to my brother-in-
news that Wonggu had passed away. I went to his camp,
law, a Djapu man, to supervise my initiation and purification.
where my sister was, and there the body lay on a stretcher
My brother-in-law was a son of the great Wonggu, who had
covered by a white sheet. Wonggu was peaceful but we were
also played a central role at the
makarrata at Birany Birany.
all in shock at the death of the great man. Preparations were
Like Mungurrawuy with the Gumatj, Wonggu had led the
made, and I watched quietly as the Djapu men sang to the
Djapu through many dangers and had given them strength.
spirit world. I sat motionless as my brother-in-law, with great
He was a partner of my father’s, and though each man would
love, removed the shirt from his father’s body. Murtitjpuy
contest and challenge the other they did this always with the
took his delicate human-hair brush and his ochres, and began
good of their people in mind – not with an eye on personal
to paint his father’s body. I remember the painting as the
gain. They were a parliament unto themselves when it came
most beautiful I have ever seen. Murtitjpuy was so focused.
to the affairs of Gumatj and Djapu, two great clans of East
He was in his own world, delicately working with the brush.
Arnhem Land, and the Yolngu people as a whole.
He said no words to explain, but the painting spoke of power
When I was initiated, Yirrkala was a very different world.
and authority. The work covered all of Wonggu’s upper body
It was the world of our fathers – men who were of their own
including his face, which was most carefully done. His hair
time. These men held life and death in their hands: should
was decorated with white clay, and his authority and great-
your life be in their hands, you were safe and all your needs
ness were obvious for all to see.
were met; should your death be in their minds, then your
Four Djapu men then came to the body. With great
future was under grave threat.
respect they rewrapped it, making a shroud, and placed it
My brother-in-law’s name was Murtitjpuy. He was the
on a stretcher of stringybark. With sacred words they sang
man who painted the sacred stories for Wonggu, and he did
a special ceremony, a song cycle of the Djapu people, and
this in brilliant and distinctive ways. Murtitjpuy was Wong-
raised the great man above their heads, carrying him to his
gu’s attendant and worked closely under his direction. So it
final resting place. The men and women of the Yolngu world
was Murtitjpuy who supervised the painting of the sacred
came and lined the beach, and Wonggu’s sons carried him
designs on my body, and when I had been painted he took
on high, in a procession of dignified authority. And then the
me to sit on the lap of my father-in-law, Wonggu. Just to be
tears broke: men and women, including my father, were cry-
in Wonggu’s presence was a great honour; to sit with him
ing and lamenting the passing, throwing themselves about
was a sign of respect from his people. It indicated his accept-
and calling out in respect of this man. At the grave we were
ance of me, even before I was initiated.
directed in the shark dance, the sacred totem of the Djapu.
The great man spoke little. His words were power and he
used them carefully. In those days he smoked a pipe made of
corkwood. It was about a metre long and on it were the most
Today when a man dies he is taken by the police or a
coroner and he is made cold and sterile. Too often he
beautiful carvings done by Murtitjpuy. His cuts were very fine
dies violently or suddenly, surrounded by tokens of
and detailed, carved as if part of a painting. The pipe was
the Western world, not the Yolngu world. Tokens that have
empowered with these magnificent designs – a sacred pipe
drawn him to his peril. The family loses the deceased and
of the Djapu people. Murtitjpuy lit Wonggu’s pipe. He drew
the deceased loses the family. He goes into a coffin, nailed in,
breath and blew smoke over me, then passed me the pipe and
screwed down, without love and without respect. Then he is
directed me to softly draw, even though I could not smoke.
returned in that way to the family for burial.
The smoke passed over and around me as I sat with the old
It is a different world today from what it was then. It will
man. This recognised me and gave me the greatest honour,
be a different world tomorrow from what it is today.
and I knew even then that this signalled that trust was to be
ever-present between my brother-in-law and me. As I grew to
be a man, Murtitjpuy and his family would trust and not ques-
I did well at school and I enjoyed learning. There were
Yolngu teachers in the classroom with us. They would
tion me, allowing me into their world to ensure the safety and
write the numbers or words in the sand and we would
security of our laws and ceremonies. It was a special moment,
write the numbers or words in the sand underneath. Then
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they would push the sand over and we would do it again.
Like me, they seek a simple truth. Like me, they seek a simple
Later we moved on to blackboards and pens and paper.
recognition – the recognition of the truth of who we are.
For a time my father was pressured to send me to Geelong
Grammar. He decided I had not reached a point in my Yolngu
learning that he could risk me to the outside world. He held me
In the 1970s the federal government gave the Northern
Territory the power of self-government with the ability
in Yirrkala, and my training continued under his supervision.
to pass its own legislation.
The federal government knew this would happen –
it was warned but did it anyway
The time came, though, when he decided that I must go
I thought at that time this decision had just come out of
and learn the ways of the outside world, and for this I trav-
nowhere. It took the people of East Arnhem Land by surprise,
elled with cousins and brothers to a Methodist Bible college
as it was made without discussion. At this time in my life I
in Brisbane. I spent two and a half years there. With me was
had spent many years negotiating land rights for Aboriginal
my cousin from the Dhalwangu clan, Mr Wunungmurra. He
people with the Whitlam and Fraser governments, acting on
and I formed a partnership that ran for many, many years
my commission. And we had started the homeland move-
until his passing. As men we trusted each other and under-
ment. In 1974 Murtitjpuy and I had established a homeland
stood the hard road that Yolngu people must tread, and the
at Birany Birany with our families. Birany Birany troubled
discipline and determination that is required.
my father for it brought back old memories, but we made a
You see, Mr Wunungmurra and I were commissioned by
home there and looked to the future where the younger ones
both our fathers – Mangarri and Mungurrawuy – and other
would have what they needed, living and working on their
elders, and blessed by all of them. Mangarri and my father
own land, and where the older people were happy on their
ustralia
f A
and other elders gave us and our other brothers and cousins
homelands and could end their days in dignity and comfort,
our commission. And this commission was not just to be the
and in the knowledge that their world was in order.
ives o
rch
interpreters of the future for Yolngu people but to be the
All over the place Yolngu were moving back to their
future. We were sent to Brisbane for a purpose, and that pur-
homelands, and there was good support and recognition
ational A
pose was to arm ourselves with knowledge and education for
for this work. I know because I was there. The homeland
the future: not just for ourselves but also for our people. And
movement was proving very effective at bringing hope to
978. © N
that was a lifelong commission. Mr Wunungmurra lived it
people on the ground. Homelands were being set up every-
to the end and I will live it to the end also – there is no other
where: the Dhalwangu clan took back Gan Gan for us, as
erritory, 1
way for men like us.
well as the homeland of Gurrumurru further north. These
It was an honour to be commissioned by such men as our
are sacred places to us, and today our most senior people
orthern T
fathers, and it was important to my life, for when I came back
look after them. This task spread like wildfire, and more and
to Yirrkala I was received into two kinds of ceremonies at
more homelands were established. Work was carried out by
abiru, N
the same time: the Dhalwangu ceremonies and the Gumatj
land-owning groups who saw a way to return to themselves
t J
ceremonies. And it was Mangarri himself who requested I go
and to become whole again, by living on their country with
raser a
into the Dhalwangu world, to see that world and to respect
their ancestors. Plans were drawn up for businesses and we
that world. Dhalwangu men – Bukumarra, Yumutjin, Waar-
set rules: “no work, no pay” was one of them. This was one
alcolm F
ralka, to name a few – have sat closely with me ever since,
time when Yolngu instinct and necessity met the government
mentoring and protecting me, and they have honoured me
policy of the day. And it was in people’s minds that the activi-
ister M
in
lately as my days get shorter. These are men who carry the
ties and involvement of government and others like the mis-
e M
same inheritance as I do, who have been on the same path
sionaries would simply be transferred from the central areas,
rim
as I have and who share the same world of ceremony as I do.
like Yirrkala, to the homelands. This was seen as an arrange-
nd P
These men have passed to their children, and to their chil-
ment to fulfil the needs of the people. Education, health and
ingu a
dren’s children, the same stories that their fathers and grand-
housing, sewerage and electricity – and economic activity of
unup
fathers gave to them – the same belief system, the same laws
any kind the clan thought fit for the land – would come out
uy Y
and the same ways. Like me, like all Yolngu, they are proud
to those homelands. Linked together, this would stand as an
and certain about who they are, and they will not change.
achievement of Yolngu land-owners doing their own thing.
alarrw
G
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Then two things came, halting
both our progress and our initiative.
The federal government started a
process, which is still continuing
to this day, of cutting its ties with,
and its responsibility for, Yolngu
people. It handed over our trust to
a new Northern Territory govern-
ment. And then it gave us a form of
welfare, which killed off this whole
idea of self-management. And the
federal government knew this
would happen – it was warned but
did it anyway. The arrival of wel-
fare demoralised the willingness
of local people in every homeland
to do things for themselves. This
is because of the way that the gov-
ernment developed the program:
you had to be on your homeland
to receive the welfare payment but
you did not have to work. There was
no development agenda and there
was no employment. Think about
that – the only requirement to get
money was that you were on the
homeland on a given day. Whether
working or not, you still got your
payments of $200 or $300 each fort-
night. So self-determination and
self-management were out the
window almost immediately, and
later the Community Development
and Employment Projects (CDEP)
took control of Aboriginal peo-
ple throughout the Territory – and
badly so in East Arnhem Land,
where I had a firsthand view of the
destructive impact of this government program.
leaving behind them confused people who wondered what
As it grew, the CDEP scheme did something else: it
this was all about. And, of course, people being as they are,
brought with it a new caste, or a new class, of managers. These
Yolngu adapted to this system and started using these tem-
were mostly people who were at the lowest level of the gov-
porary workers as best they could, taking what they could
ernment public service, or had come for some reason of their
from them and turning a blind eye to abuses by the
balanda
own, either well intentioned or not. These people found that
(white people) if it meant being able to get something on the
with the programs they ran they had power and influence
day for themselves. And this became normal, for soon there
beyond their previous experience. There were good people
were no other choices or outcomes – we were trapped in a
in the mix, but overall these people either made comforta-
welfare world with welfare thinking. This was the system as
ble nests for themselves or they took what they could while
it was, and soon people came to know only that system. And
they were there, financially or otherwise. Some simply stayed
government turned its head away, not interested anymore,
for a short time until they found another job and moved on,
not concerned about working with us to make these home-
never accountable, never doing or achieving anything, and
lands functional.
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It was during this period that my father, Mungurrawuy, responsibility for the families. And with that gesture he
became very ill, and he requested that I return from Dar-
ordered me to take charge of everything that he was able
win to be at his bedside and bear witness to his passing. I
to do.
left Darwin, where I was now commissioned as chairman of
I could feel the silence of the crowd, filled with many
the Northern Land Council, and came to him. I stayed close
great senior men of exceptional knowledge and learning,
by, visiting Dad every day.
and all my sisters. Soon they started talking among them-
I was trying to achieve then
what I am trying to achieve now
Dad had aged greatly in the last few years of his life. The
selves, saying that this was the symbolic moment, the cer-
smoke from the Gove refinery had affected his eyes, as he
emonial event that marked the date of my blessing and
lived close to the smokestacks at Galupa, on a small excision
anointment to the world of leadership in a real sense. Then,
he had won from the government in his battles.
as they spoke, my father died.
He was very old. He had 11 wives, many, many children,
I led the ceremony for him for six weeks. People and
and many grandchildren and great-grandchildren.
leaders and simple family members came from all over to
I was with my brothers when an urgent message came
farewell him. There were dignitaries from the Yolngu world
that I had to be with my father. My brothers, nephews and
and elders of the highest degree from every tribe. His burial
many other relations and I headed back to Dad’s house at
day marked a special farewell to our leader: a man who had
Galupa, where all my sisters were gathered. All the families
fought for and defended his land, bled for his land and his
were there – everyone watching over him. All the men gath-
people, taken the missionaries to water, and mediated the
ered in a group, as did the women, with my dying father
relationship between the outside world and the Yolngu of
watching over us all in the centre of our circle.
the Gove Peninsula. A man who had sung into our ears as
He was the most senior man in the community – in our
children since first we could hear. A man who believed in the
world – such that his passing called many, many people of
future and our place in it.
great seniority and experience to his side, to sit with the
Those of us who had known him missed him greatly
family while he died.
because we were suddenly left without seniority and felt
As we sang to his mind, to his head and to his ears, all the
fragile and exposed.
songs he loved and had taught us, we made the way and set
Later we took his belongings and buried them at
up the direction for his spirit. Our song cycle, so important
Galupa. A lease had been set aside for him there. It was
to our lives, is particularly important to individuals at the
called Kings Village.
moment of their dying. It means a lot to their past, present
The cleaning and purifying ceremony took place there
and future. The future is already in the song cycle, and it
at Galupa, looking out across to Melville Bay. The ceremony
takes senior ceremonial people, with great knowledge and
involved water and smoke. The last song I sang was ‘Djäpana’
love, to relate that to the dying person. Ordinary people can-
(Sunset Dreaming), our final song cycle. I was seated as I
not understand this or comprehend the critical importance
sang this famous song cycle, but I felt as if I were standing,
of the event. Normally there is no hope in finding a place in
elevated. I sang it in a way that Dad would sing it, and I could
the spirit home if there is no song. The songline sends you on
hear my sisters crying as I brought back Dad’s voice, his deep-
a course so that your spirit arrives at its rightful destination.
est spirit, in the singing. My sisters were wailing and crying,
I was the master of the ceremony that night, when Dad’s
throwing themselves at the ground as I sang ‘Djäpana’. I then
time had come and he had to leave us.
actually stood and sang, in my thoughts saying my farewell,
I held clap sticks, but I noticed that night that he held
my final tribute to Dad’s passing. I ceased singing and every-
clap sticks of his own, and as his time came and we sang for
one was silent, wondering what was going to happen next.
him, he still had strength to reach out, clenching his own
They were looking for a direction. I gave that direction. It
clap sticks in his right hand. And he directed them to where
was my first as leader of the clan. I simply said that I, my fam-
I was sitting, singing for him.
ily, and my Gumatj brothers and sisters would come out of
“Take them,” he said, and symbolically he passed to
Yirrkala and start a new life and a new community, with a new
me all his power and authority over the ceremonies, his
direction, at Gunyangara, 30 kilometres from Yirrkala and
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just to the west of Galupa. They were my words. I was try-
at the time: Kormilda College in Darwin, Yirara College in
ing to achieve then what I am trying to achieve now: a place
Alice Springs, and Dhupuma College that had been going
where my family could live and prosper on their own country,
for quite a while and whose graduates were our best and
within the modern world.
brightest. It was heartbreaking for the communities, the par-
A
ents and most particularly the students, who were summarily
s time went on we realised that there was actually
told that they could no longer get their opportunity of an
a Northern Territory government and that it was
education.
in power and that it had power over us. This was a
I think that from then on a Mickey Mouse education has
new thing to us entirely. The party of power in the early ’70s
been given to Aboriginal communities, and a much higher
was the Country Liberal Party, which was started in Alice
standard to white communities in towns and cities. I think it
Springs by cattlemen and other newcomers to our lands. It
bears out that this is the case.
was led for a time by a thin, tall bloke by the name of Dr
For many years I have looked at the kids who went to Dhu-
Letts, who hung around the Batchelor community at that
puma College at one time or another, and I have followed their
time. Located about 100 kilometres south of Darwin, Batch-
lives. They are involved in their communities: taking leader-
elor is an old mining town and the entry point to what is now
ship, actively participating, delivering services. These individ-
Litchfield National Park. How he became the leader of the
uals still stand out as people whose brains have been trained
Northern Territory I really don’t know. But soon enough I
to take on roles of leadership and service. And I think straight
realised that things were not the same and that any balance
away, when I run into these individuals or I think about them,
we had achieved – first with the missionaries and then with
that these are people who were given a chance of an education
the government in Canberra – was gone.
but in most cases had the opportunity to complete it taken
Consider the education of my people, a big part of my
away for no reason, with no explanation. I realise that these
life’s work. It was changed for the worse. With a stroke of a
individuals have only what they received in their time at Dhu-
pen the government in Darwin simply closed up Dhupuma
puma College, and it is with this that they serve their commu-
College, the hub of education for all of East Arnhem Land
nities and their people. I wonder how high they could have
and beyond, a place where I worked mentoring young men
flown if they had been allowed to train themselves to the full.
and women as their sport and recreation officer. Dhupuma
And then came the attacks on land rights. This is a dis-
College had been opened by my father and Prime Minister
graceful chapter in Australian history, which saw a group of
William McMahon. It was a school that went to the second-
people, made up of all sorts of itinerant workers who came
ary level, and one that was working. Dhupuma was not just a
from somewhere else, attack and attack and attack the land
place but also an idea that inspired Yolngu people. A Yolngu
rights of people who had been there forever, and who had
word,
dhupuma means “look up to the future”, reminding
been given rightful ownership by the federal parliament. It
us of the leadership of our ancestor Ganbulapula. Students
was disgraceful and wrong, but attack us the Northern Ter-
came from all over Arnhem Land to learn, supported by their
ritory government did. Year after year they ran legal cases
parents, relatives and communities. It was devastating when
against us, trying to stop the important work we were doing
the college was closed. It was said that the Northern Terri-
in the land councils. And when we defended ourselves, when
tory government could not carry this school anymore. There
we fought back, they punished us in different ways. There
were only three of these schools in the Northern Territory
were reductions in services to our communities, the taking
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APPENDIX D:
ROM WATANGU – THE LAW OF THE LAND
away or withholding of the services that had been entrusted
by Gumatj through the line of our ancestor, Ganbulapula.
by the Commonwealth – by the people of Australia – to the
Many songlines run to Gulkula, and it is Ganbulapula who
new Northern Territory government to rightly deliver to us.
is the master of the ceremony. Gulkula is where the Garma
And the Commonwealth parliament stood back and let it
festival is held each year.
happen, occasionally joining in one way or another, but never
It was Ganbulapula, our ancestor, who set our future.
again taking responsibility as it once had. They never forgot
He was a hard man, to whom leadership was a challenge
about the wealth of our land, and when the Commonwealth
and a right. He spoke with a tongue of fire and had great
intervened it was to make a track for the mining companies,
strength for action. He knew the songlines. He was the sing-
or the developers, or whoever wanted to use our land. They
ing man and the ceremonial manager.
were very sure of this, and this thinking continues today.
Ganbulapula led a funeral ceremony and an initiation
A lot of the suffering we see in the remote places of the
ceremony for the Matjurr people. The Damala people and
Northern Territory can be traced back to the total neglect
the Matjurr people were the dancers. As a funeral, the cer-
of governance and responsibility by those charged with that
emony was a grieving for the past. Decorated log coffins lay
duty. Instead of working with us and accepting us, govern-
in the centre of the ceremony ground, waiting to receive
ments fought us – from both sides of politics. Something
the bodies of the dead that lay in a shelter of stringybark.
gave them the idea that they didn’t need to provide the same
This was also a ceremony looking to a new future. Young
level of service to us as they did to other people in the North-
men were initiated into manhood, families were brought
ern Territory. The fact that this behaviour continues in dif-
together, and there was a healing of the divisions of the
ferent ways is not lost on Aboriginal people in the Northern
past – an affirmation of a collective determination to go on
Territory. The impact upon us is the same, and that impact
together. There was an agreement to change, and to find
can be really bad.
peace through that change.
G
But others came forward and challenged the ceremony –
ulkula is a place chosen by our ancestors. It is a spe-
insiders who thought they knew better. There was fighting
cial place made for open discussion and debate, and
and disagreement, confusion and conflict. The ceremony
for the contest of ideas. It is Gumatj land, owned
began to disintegrate into a hardening of past divisions,
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APPENDIX D:
ROM WATANGU – THE LAW OF THE LAND
disagreements and oppositions. Ganbulapula would not
My answer as it came was given to me by our songlines,
be denied, though, and he did something extraordinary.
and I led my family as we set about connecting and secur-
He picked up one of the painted log coffins waiting there
ing our songlines so as to ensure our life. First we built
to receive its body, a coffin saturated with cultural mean-
Birany Birany, and then we made Gunyangara our base.
ing, a living object of power. And he flung it eastwards,
We then went to Dhanaya and reasserted ourselves near
a little to the south from Gulkula. It landed in the sea at
the waters of the stingray, where the anchor from the deep
Djalambu. From Djalambu the hollow log was carried by
past lies in the rock, remembered by all for its meaning. We
the tides to other parts of East Arnhem Land. The hollow
connected the sacred string of our songlines: from Birany
log became one means by which knowledge was sent out to
Birany, to Dhanaya, to Garrathiya, to Gulkula, through
other groups who were then linked through the sharing of
Bay Bay Mi and then to our northern bases at Galupa and
this knowledge.
Gunyangara. We reclaim and hold these places as capitals
This action was both stunning and brilliant, and it lifted
of our lands and places for our future. Gunyangara is our
people’s eyes from the mire of disorder, disagreement and
base and the centre of our administration. At Gulkula we
bitter division. In that unprecedented throwing of the deco-
run the Garma festival and have placed the Garma Knowl-
rated log coffin, that unexpected shift into a new context, a
edge Centre. Close by is our training centre. At Garrathiya
new network of cultural meaning was created – a new future
we have a cattle station and abattoir, and at Dhanaya we
was believed in. The action generated the possibility of a
have secured a place of rest and ceremony, and a base for
future different from the past. Bitter division was healed by
our workers – it’s our favourite place. Further south, at
way of bold, confident leadership.
Birany Birany, we hold close a place of beauty and memory,
My father believed in this future. He chose to look up
the site of the last
makarrata.
to the future as Ganbulapula had. At Gulkula he was the
Each place is special, with its own patterns, sacred
one who had named the school aimed at training our peo-
words, song cycles and meaning. Each place is connected
ple for the future as Dhupuma, telling us to “look up to the
and part of a whole. No one must threaten or terrorise these
future”. And then he took us to Dhanaya, to the place of our
places again.
ancestors, and he told us to anchor ourselves to our land, to
anchor our future.
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Our people needed anchors when the mining came
and set itself upon us with a full force. We fought
the Gove bauxite mine and lost, and our elders were
frightened and worried about what the future held for the
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young men and women of their clans. And rightfully so.
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man and woman of their age group died before their time –
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ushered in – a world that threatened everything for us.
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APPENDIX D:
ROM WATANGU – THE LAW OF THE LAND
the worry of politicians who are most of all concerned about
whether they will be re-elected. That’s their first commit-
There is always something wanted by someone who
knows nothing of our land or its people. There is
always someone who wants us to be like them, to give
ment. That’s the real situation. So the only way through it
up our knowledge and our laws, or our land. There is always
is for a politician to risk prestige with the voters to make the
someone who wants to take something from us. I disapprove
achievement, and to believe that an outcome can be good for
of that person, whoever he or she is. There is no other way
all concerned.
for us. Our laws tell us how to live and lead in the proper way.
This type of sacrifice from strength is the key to leader-
Others will always seek to interrupt my thinking, but I will
ship. My father had to sacrifice much, too much, to reconcile
tell the difference between their ways and my laws, which
his life with the ways of the modern world. But he did so.
are the only ones to live by. I am mindful of the continuing
What Aboriginal people ask is that the modern world now
attempts to change all that is in us, and I know that it is not
makes the sacrifices necessary to give us a real future. To
workable at all. It cannot work. We are covered by a law of
relax its grip on us. To let us breathe, to let us be free of the
another kind and that law is lasting and alive, the law of the
determined control exerted on us to make us like you. And
land,
rom watangu – my backbone.
you should take that a step further and recognise us for who
we are, and not who you want us to be. Let us be who we
are – Aboriginal people in a modern world – and be proud
of us. Acknowledge that we have survived the worst that the
I remember that there was a time when I believed that a
government and its departments were there to meet the
needs, to understand the needs, and to act on the needs
past had thrown at us, and we are here with our songs, our
of the people for whom they have taken responsibility. It
ceremonies, our land, our language and our people – our
took me some time to question why it was in relation to my
full identity. What a gift this is that we can give you, if you
people that they did not meet the needs, or take the steps,
choose to accept us in a meaningful way.
that responsible government demands. Why do they not
provide the simple basics in the ways that work for us? Why
not? There has never been an honest answer to this.
I still sit here and wait for the day when someone will
stand up and say, “Hey, I’m responsible and I will do what W ith my family I have built Gunyangara into a
place that we hoped all Yolngu places might be,
back when hope powered the homeland move-
ment. Men and women go to work and sweat for their wages,
is required of my leadership. I am the provider of housing,
children go to school, old people are safer and happier, and
education, health, law, order and good government, and I
we are making our way. Let me tell you this: Murtitjpuy’s
will provide as is rightly required and in accordance with
granddaughter Djurrathi runs the Gunyangara coffee shop,
people’s needs. I will adjust and act in the way you seek – not
and should I drop in of a morning she will make me cof-
as I seek – and I will give up something from my side. And
fee, at our own coffee shop. Djurrathi’s mother, Yanany-
I will make decisions that will not be popular at times with
mul, is Murtitjpuy’s daughter, and she is often there now,
my people, but I will do this so that we may have what we
at our coffee shop, learning from her daughter these new
both require.”
skills. Yananymul’s husband is Yalpi, who oversees Birany
Birany. And Murtitjpuy is buried at Birany Birany with his
wife, my elder sister Lamangirra, in the land of our fathers,
with our ancestors. Djurrathi’s daughter, Gali Gali, who is
I live in the total knowledge that politics is a business
that runs hot and cold every time a new office holder
comes to Canberra (and Darwin), and they have to
Murtitjpuy and my great-granddaughter, is across the road
find some answers to what they can do in their time. Three
from the coffee shop each morning at our preschool.
years is such a short time, and politicians are under pres-
And it was Yananymul and Djurrathi and their sisters
sure to do something instead of biting their fingernails and
who, under my instructions, led the painting of the designs
having no solutions.
for the petition that I gave to Kevin Rudd, as Her Majes-
Aboriginal people need to understand that the govern-
ty’s representative, as the elected leader of Australians, in
ment of the day will always seek to justify itself, protect itself
2008. It is their precise and beautiful lines that mark out the
and get its reputation straight. Its members will worry about
designs on that petition – diamonds and fire and the fire-
their jobs and about saying things that will keep them in the
carrier,
djirrikitj (the quail). Little Gali Gali is learning these
good books with their electors, who are mainly white peo-
song cycles as her mother learned them, who knows them
ple. And those people will often have little good to say about
as well as her mother does, who knows them as Murtitjpuy
Aboriginal people; when the voters do talk to their politi-
knew them, and as his father and my father knew them.
cians they may want something from us or have some prob-
These song cycles are inscribed on that petition and they are
lem with us, because we are not like them. And this adds to
as important as the words. Your children and grandchildren
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APPENDIX D:
ROM WATANGU – THE LAW OF THE LAND
will read the words on the petition but they will be ignorant
Ahead, waiting for them, were Wonggu and his sons and
about the designs and the patterns. Gali Gali will read both
clansmen, aggrieved and angry. On the sand at Birany
and understand everything.
Birany the peace was made, grievances were settled and a
In this story is a key to any Yolngu person’s future. To
better future was created.
find a part to play, to be dedicated to that work, to feed a
Like they did that day, I must dream of a future that is
child’s brain with knowledge, to arm that child with the tools
different from the past. A future that has in it everything my
for life, to make a home, to feed your family. To live on our
people need.
land, to be guided by our ceremonies and to be lifted up by
My ancestors and my fathers have dreamed of this
the song cycles of our life. To believe totally in our way of life
future, and I have tried in my life, in my times, to bring it to
as the anchor, and to be confident enough to match our ways
reality. But I will not see it all, and I will not see the reality,
with the way of the world as it is today. Never let an outsider
only the dream.
determine your life for you. Never forget who you are and
Now when I am at Dhanaya, my most special place, I see
where you come from. Never forget what is rightfully yours.
the future running above the water, down the blue skyline
K
and through the horizon, as if it were on a projector screen
evin Rudd, like prime ministers before and after
revealing to me a portrait of the future.
him, acknowledged my leadership and made
At other times I see a beautiful painting, created by
promises to my people. Tony Abbott made the same
the hands of masters, now broken into a thousand pieces.
promises and came and lived on my land at Gulkula, and
Those pieces are split up and thrown about, and I am seek-
from there he ran the government for five or six days. Both
ing always to put them back together, to refit the pieces, to
were decent and respectful men. All the prime ministers
re-create the picture as it should be and then to hang it again
I have known have been friendly to me, but I mark them
on the wall – a beautiful picture for all to see.
all hard. None of them has done what I asked, or delivered
In these moments I tune myself up so high that some-
what they promised. I asked each one to be truthful and
times I can’t even hear myself think. I wonder, then, who
to honestly recognise the truth of history, and to reconcile
understands me, who could understand?
M
that truth in a way that finds unity in the future. But they
are who they are and they were not able or not permitted
to complete their task. For a prime minister is beholden to
his party and to the parliament, which in turn is held by the
Australian people. And the Australian people seem to disap-
prove of my simple truths, or the idea of proper reconcilia-
tion. The Australian people do not wish to recognise me for
who I am – with all that this brings – and it is the Australian
people whom the politicians fear. The Australian people
know that their success is built on the taking of the land, in
making the country their own, which they did at the expense
of so many languages and ceremonies and songlines – and
people – now destroyed. They worry about what has been
done for them and on their behalf, and they know that rec-
onciliation requires much more than just words.
So the task remains: to reconcile with the truth, to find
the unity and achieve the settlement. A prime minister must
lead it and complete it. The leader of the nation should
The word on the day’s politics from Sean Kelly,
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settlement. These men walked to an outcome that
was uncertain. Behind them lay wrongfulness and death.
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APPENDIX E: QUALIFYING STATEMENT FROM AMANDA VANSTONE
Qualifying Statement
The proposal to hold a referendum to insert into the constitution a requirement for an indigenous voice
to Parliament is not one I can recommend to the Prime Minister and Leader of the Opposition at this
point without this clarifying qualification. I hope we can get to the point where such a referendum is
successfully put.
A New Journey
The Referendum Council undertook, through the Indigenous sub committee , a very significant
consultative process to ascertain what form of recognition Indigenous Australians want. It is clear
that the single constitutional change wanted expressed through those consultations is a voice to
Parliament enshrined in the constitution. If Parliament and the Australian people want to progress
with constitutional recognition of first Australians the consultations have made clear that a voice to
Parliament is not so much the best shot at it but that it is the only shot in the locker.
This is a relatively new development. If that were not the case indigenous leaders speaking on behalf
of indigenous Australians would have said so some time ago. That means despite all the effort,
contributions and time expended over a number of years we now find ourselves at a new starting
point. Exhausting as that may seem to some that’s where we are.
Polling, to the extent that we can rely on it in these days, indicates there is significant support for
recognition of indigenous Australians in our constitution.
My own experience leads me to conclude that Australians think it only fair and just to do so. That they
were thinking of symbolic recognition in the constitution is an indicator, in my view, that Australians
inherently understand the importance of the constitution and regard recognition in that as important.
I believe that is because they expect that, over time, symbolic constitutional change can and does both
reflect and bring about better understanding and positive change .
We now understand through the Indigenous consultations that Indigenous Australians do not attach
the same importance to that type of recognition and in fact reject it. The outcome of the consultations
has thus taken us to new territory. In one sense we are all at the start of a new journey.
Broad Australian Community Support
It would be a folly to take the support previously expressed by Australians for Constitutional
Recognition in the Constitution to be unconditional. Whilst one would expect that Australians would
not support something which Indigenous Australia did not endorse it is not clear that they would
automatically endorse whatever indigenous Australia prefers. The substantive change contemplated
is quite different from what had been contemplated by everyone and everyone will have to refresh
their thinking.
I listened carefully to the Indigenous members from both sides of politics and both Houses of
Parliament. They clearly expressed a view that in pursuing change a softly softly approach was
required and that a radical proposal for change would not succeed. They were offering helpful insight.
Whether they still hold that view I do not know. However that others do I am certain.
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APPENDIX E: QUALIFYING STATEMENT FROM AMANDA VANSTONE
Parliamentary Control
The report highlights that the details of the nature and scope of an indigenous voice to Parliament
would be the province of Parliament. That would mean that once there was a constitutional requirement
for such a body it would be established through an Act of Parliament and could be changed over time
by subsequent Acts of Parliament.
We need not be concerned here with what future Parliaments may choose to do. They would have the
authority of being elected by us. We do however need to be concerned with what would be initially
put forward to Parliament as the first such body. Australians need to see a reasonable, relatively non
contentious and largely agreed plan as to what they would be voting for in the first instance.
The Difficulty of This New Journey
Members of the Council, other than myself, believe that in saying that the details are within the province
of Parliament one is acknowledging just how much additional work needs to be done. I do not agree.
Those words merely point out in the most general terms possible that there is more to be done and that it
is up to the parliament. In one sense that is true as it would be for any referendum proposal.
However those words do not make clear some factors I think it important to spell out. A much wiser
person than myself might ask the question as to whether this fruit ( the proposal) is ripe. The newness
of the idea in broad public debate means there is a tremendous amount of work to be done before
Parliament and the broader community will consider this proposal’s time has come.
For example , there is no point in pretending that there are not expectations as to the nature and
scope of such a voice. Those expectations may well not accord with what either the Parliament or the
Australian people see as appropriate.
What I can envisage as such a voice, that I imagine a majority of Australians would be prepared to
endorse, might be considered unacceptable to indigenous Australians. On the other hand a model,
which has been discussed, is not one I believe would be acceptable to the majority of Australians.
Not every detail of a proposed voice would need to be settled but the major structural ones would.
The report acknowledges some of these difficulties.
What is called for is a representative voice. To some that means elected, to others appointed but in both
cases by indigenous Australians. Some would envisage it may include indigenous Australians appointed
by either Parliament or the government. It could mean a combination of all of the above. Questions as
to voting eligibility would need to be resolved.
One of the reasons for seeking a body enshrined in the constitution is so that it cannot be removed, as
ATSIC was, without being replaced by another body. It is important to reflect on the fact that in terms of
electing representatives to an indigenous body Indigenous Australians have not in the past shown great
enthusiasm. An incredibly low proportion of indigenous Australians voted in ATSIC elections. If voting
were compulsory it would raise the question of whether there should be elections simultaneous with
Federal elections and if so terms of office.
Australians would, in my view, need to be assured that any such body, whilst intended to be a step towards
coming together would not in fact be an inbuilt dissonance within our system. The advice to parliament
would be public and thus any disagreement would feed into the public debate. Advice opposing a proposal
before parliament would in effect be perilously close to a veto. It would be important that such a body did
not become another combatant in a frankly all too combative political arena.
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APPENDIX E: QUALIFYING STATEMENT FROM AMANDA VANSTONE
The Task Ahead
The task therefore is to find a version of an indigenous voice to parliament that will be acceptable to
indigenous Australians and the parliament of the day. That debate, the one that gets to the basics of
what would be acceptable to both indigenous Australia and the Parliament should be had before a
referendum is contemplated.
Without finding that common ground before a referendum Parliament may find itself with significant
Indigenous voices dissatisfied with what is subsequently proposed and yet be in a position that the
constitution requires a body to be set up. What was intended to be a unifying and progressive move
forward could turn into a lightning rod for discontent. That would be a terrible outcome for everyone.
What is the Difference?
The Council members clearly do understand that an enormous amount of work would need to be
done before a referendum could proceed. The report from the consultations also acknowledges in the
proposed roadmap how much work needs to be done. The Indigenous members in particular through
the consultations understand how hard it can be to bring together diverse views. The consultations
have shown everyone how engaging substantively can produce unexpected results.
The broader community consultations and the call for submissions cannot be said to have captured the
imagination of the broad Australian community. The electorate is not all fired up, let alone set alight
with enthusiasm at this point. For a referendum to pass we will need to get close to that point.
To recommend to proceed to a referendum whilst acknowledging that the shape et cetera is within
the province of parliament seems to me to assume that we are close to that point and that agreement
between the Parliament and indigenous Australians can be found. Bearing in mind we are on a new
journey that assumption cannot be made. To use a much overused idiom, it is putting the cart before
the horse. A voice in the constitution is the only option we now have. Recommending a referendum is
the last step. The first is finding the common ground.
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”. To pick
up on the kicking aspect of that metaphor let me say it was the indigenous consultations that put a
relatively new “can” on the field. That “can” will not get through the goal posts unless we all work
together as a team and get the right game plan.
A recent discussion in the Council highlighted for me the need to spell out these concerns. The reality
of Australian politics is an unknown world to some people. A suggestion that we could, with political
will, move to a referendum in January 2018 is testament to that. The roadmap in the Uluru statement,
whilst recognising that much needs to be done only serves to highlight the gap between how people
think the parliamentary process could work and the day to day reality of its operation.
Calls for courage and leadership are easy to make. Substantive change however is not easy to achieve.
It is hard and frustrating work. Poetry and polemics will not overcome the necessary practicalities.
They must be dealt with first. Unless that happens a referendum would be lost.
A loss would set back by a decade, probably more, the opportunity to move forward together as
a nation in both coming to terms with our past and building a better future. It would do a great
disservice to indigenous Australians.
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APPENDIX F: EXECUTIVE SUMMARIES FROM PREVIOUS REPORTS
F.1 Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution:
Report of the Expert Panel (2012)
Executive summary
Current multiparty support has created a historic opportunity to recognise Aboriginal and
Torres Strait Islander peoples as the first peoples of Australia, to affirm their full and equal
citizenship, and to remove the last vestiges of racial discrimination from the Constitution.
The Expert Panel was tasked to report to the Government on possible options for
constitutional change to give effect to indigenous constitutional recognition, including advice
as to the level of support from indigenous people and the broader community for these
options. This executive summary sets out the Panel’s conclusions and recommendations.
Methodology
The
introduction sets out the background to the Panel’s work and its methodology.
In formulating its recommendations, the Panel adopted four principles to guide its assessment
of proposals for constitutional recognition of Aboriginal and Torres Strait Islander peoples,
namely that each proposal must:
• contribute to a more unified and reconciled nation;
• be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples;
• be capable of being supported by an overwhelming majority of Australians from across the
political and social spectrums; and
• be technically and legally sound.
Between May and October 2011, the Panel conducted a broad national consultation and
community engagement program to raise awareness about the question of constitutional
recognition of Aboriginal and Torres Strait Islander peoples. The program included public
consultation meetings, individual discussions with high-level stakeholders, presentations at
festivals and other events, a website, and a formal public submissions process. To ascertain the
views of a wider spectrum of the community, and to help build an understanding of the likely
levels of support within the community for different options for constitutional recognition,
the Panel commissioned Newspoll to undertake quantitative and qualitative research between
February and November 2011.
The Panel placed a strong emphasis upon ensuring that its consultation program enabled it to
capture the views of as many Aboriginal and Torres Strait Islander people and communities as
possible within the available timeframes. It also sought legal advice from leading practitioners
of constitutional law on options for, and issues arising in relation to, constitutional recognition
to ensure that its proposals were technically and legally sound.
Historical background
The Panel examined the history of the Australian Constitution and law and policy relating
to Aboriginal and Torres Strait Islander peoples since Federation in order to fully address its
terms of reference.
Chapter 1 details the most relevant aspects of that history, which have
Executive summary
xi
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informed the Panel’s consideration of the substantive matters in this report. This chapter
chronicles the history of racial discrimination and non-recognition of Aboriginal and Torres
Strait Islander peoples within the Constitution, and the use of the fiction of
terra nullius to
justify the taking and occupation of their lands.
The Panel’s consultations revealed limited understanding among Australians generally of
our constitutional history, especially in relation to the exclusion of Aboriginal and Torres
Strait Islander people from full citizenship. During the consultation process, many people
were surprised or embarrassed to learn that the Constitution still provides a head of power
that permits the Commonwealth Parliament to make laws that discriminate on the basis of
‘race’. While Australians are justifiably proud of the modern nation whose foundation is the
Constitution, they are increasingly aware of the blemish on our nationhood caused by two of
its sections, section 25 and the ‘race power’ in section 51(xxvi).
Comparative and international recognition
Chapter 2 surveys comparative and international experience with recognition of indigenous
peoples. The countries considered include the settler states Canada, the United States and
Aotearoa/New Zealand, which have similar constitutional and common law traditions to those
of Australia. Also considered are Finland, Norway, Sweden, Denmark, the Russian Federation,
Bolivia, Brazil, Colombia, Ecuador, Mexico, the xxxxxxpines and South Africa, all of which have
pursued constitutional reform in recent decades to provide recognition of indigenous peoples.
The example of comparative jurisdictions provides encouragement that such recognition can
be successfully achieved with the support of a majority of the population.
The national conversation: Themes from the consultation
program
Chapter 3 outlines the key themes that emerged from consultations, submissions and
research, other ideas for change provided during consultations and in submissions, and the
views of some who were not supportive of the ideas in the Panel’s discussion paper of May
2011. In the discussion paper, the Panel set out seven ideas for constitutional recognition of
Aboriginal and Torres Strait Islander peoples and invited the views of the community on these
ideas. The ideas for change were as follows:
Statements of recognition/values
Idea 1. Statement of recognition in a preamble
Idea 2. Statement of recognition in the body of the Constitution
Idea 3. Statement of recognition and statement of values in a preamble
Idea 4. Statement of recognition and statement of values in the body of the Constitution
Equality and non-discrimination
Idea 5. Repeal or amend the ‘race power’
Idea 6. Repeal section 25
Constitutional agreements
Idea 7. Agreement-making power.
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Forms of recognition
Chapter 4 addresses the following issues, which emerged at consultations and in submissions
in relation to statements of recognition or values:
• recognition in the preamble to the Imperial Act (4.1);
• recognition in a new preamble or in a new section of the Constitution (4.2);
• placing a statement of recognition, together with a new head of power (4.3);
• recognition in a new preamble, accompanied by a statement of values (4.4);
• the content of a statement of recognition (4.5); and
• recognition of Aboriginal and Torres Strait Islander cultures, languages and heritage in the
Constitution (4.6).
Among the Panel’s principles for assessing proposals for constitutional recognition were
that they must ‘contribute to a more unified and reconciled nation’ and ‘be capable of being
supported by an overwhelming majority of Australians from across the political and social
spectrums’. During consultations with the community and in submissions, a number of
questions were raised with respect to recognising Aboriginal and Torres Strait Islander peoples
in a preamble at the beginning of the Constitution. The Panel concluded that there is too
much uncertainty in having two preambles—the preamble to the Imperial Commonwealth
of Australia Constitution Act 1900, by which the Parliament at Westminster enacted the
Constitution in 1900, and a new preamble. The Panel found there are too many unintended
consequences from the potential use of a new preamble in interpreting other provisions of
the Constitution and there was next to no community support for a ‘no legal effect’ clause to
accompany a preamble. The Panel has concluded, however, that a statement of recognition
of Aboriginal and Torres Strait Islander peoples in the body of the Constitution would be
consistent with both principles.
Another principle was that a proposal must ‘be of benefit to and accord with the wishes of
Aboriginal and Torres Strait Islander peoples’. The Panel has concluded that a majority
of Aboriginal and Torres Strait Islander people would support a proposal for constitutional
recognition. Such support, however, would depend upon the form of recognition and
whether such recognition was also accompanied by a change to the body of the Constitution.
The Panel has concluded that the option which would best conform with the principle of
being ‘technically and legally sound’ would be a new grant of legislative power with its own
introductory and explanatory preamble to replace section 51(xxvi).
The Panel has further concluded that a declaratory languages provision affirming that English
is the national language of the Commonwealth of Australia, and declaring that Aboriginal and
Torres Strait Islander languages are the original Australian languages, a part of our national
heritage, would be consistent with each of its four principles.
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The ‘race’ provisions
In
Chapter 5 the so-called ‘race’ provisions of the Constitution are addressed. At its early
meetings, the Panel came to the view that, in order to recognise Aboriginal and Torres Strait
Islander peoples in the Constitution, there was a case for removing the two provisions that
contemplate discrimination against them (as well as against people of any so-called ‘race’).
The Panel’s discussion paper therefore raised a number of ideas for change in relation to the
two so-called ‘race’ provisions: section 25 and the race power in section 51(xxvi).
In relation to section 25, which contemplates the possibility of State laws disqualifying
people of a particular race from voting at State elections, the discussion paper identified the
option of repeal.
In relation to section 51(xxvi), the discussion paper identified a number of options, including:
• repealing the provision altogether;
• amending it so that it can only be used to make laws for the benefit of Aboriginal and
Torres Strait Islander peoples or other racial groups;
• creating a new head of power to make laws with respect to Aboriginal and Torres Strait
Islander peoples; and
• inserting a new guarantee of racial non-discrimination and equality for all Australians in
the Constitution.
The Panel’s consultations and submissions to the Panel overwhelmingly supported the repeal
of section 25 and, in relation to section 51(xxvi), a large majority supported change.
Racial non-discrimination
The Panel came to the view that there is a case for moving on from the history of
constitutional non-recognition of Aboriginal and Torres Strait Islander peoples and
racial discrimination and for affirming that racially discriminatory laws and executive
action have no place in contemporary Australia.
Chapter 6 addresses the possibility of
a new racial non-discrimination provision in the Constitution to strengthen protection against
discrimination for Australians of all ethnic backgrounds. The Panel was, however, clear from
the outset that any discussion of a bill or statement of rights was well outside its remit.
The submissions to the Panel overwhelmingly supported a racial non-discrimination provision
and argued in favour of the principle of racial equality.
The Panel concluded that a constitutional prohibition of racially discriminatory laws and
executive action would be consistent with each of the four principles identified in its
discussion paper to guide assessment of proposals for recognition.
The Panel carefully considered the relationship between a racial non-discrimination
provision, the race power in section 51(xxvi), and the proposed replacement power,
‘section 51A’. The Panel is conscious that there would be less need to qualify the preamble
to the proposed replacement power in ‘section 51A’ with a word like ‘advancement’ if a racial
non-discrimination provision with a special measures exception were to be included as part
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of the constitutional amendments. In order to minimise the risk of invalidating current and
future Commonwealth laws with respect to Aboriginal and Torres Strait Islander peoples, the
proposed racial non-discrimination provision needs to be qualified so that the following laws
and actions are secure:
• laws and measures adopted to overcome disadvantage and ameliorate the effects of
past discrimination; and
• laws and measures adopted to protect the cultures, languages or heritage of any group.
Governance and political participation
Chapter 7 discusses the historical exclusion of Aboriginal and Torres Strait Islander peoples
from participation in the processes of government in Australia—nationally, in the States
and Territories, and in local government—and the perceived lack of accountability of the
institutions of government to Aboriginal and Torres Strait Islander people, who constitute
2.5 per cent of the population.
Specifically, this chapter addresses:
• participation and representation of Aboriginal and Torres Strait Islander people in
Australian parliaments and public life;
• autonomous Aboriginal and Torres Strait Islander representative institutions; and
• how governments interact with Aboriginal and Torres Strait Islander communities.
The Panel welcomes the increasing participation of Aboriginal and Torres Strait Islander
people in Australian parliaments and public life, as well as moves to autonomous Aboriginal
and Torres Strait Islander representative structures and institutions. At this time, however,
the Panel does not recommend further consideration of dedicated or reserved seats in federal
Parliament for Aboriginal and Torres Strait Islander peoples.
In relation to the way governments deal with Aboriginal and Torres Strait Islander communities
and the economic and social disempowerment of many of these communities, raised so frequently
and with such anguish, hurt and anger at consultations, the Panel recognises that these matters
require attention beyond amendment of the Constitution. The Panel has concluded, however, that
it would be remiss not to comment on the often cited failures of Australian governments at all
levels to deliver better outcomes for Aboriginal and Torres Strait Islander peoples. While it is clear
that constitutional recognition would not directly address many of the issues that are of concern
to communities and governments, many of those consulted by the Panel supported the idea
that constitutional recognition could provide a more positive framework within which the issues
collected under the heading ‘closing the gap’ could be addressed more successfully.
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Agreement-making
Chapter 8 addresses another of the key themes to emerge at consultations and in
submissions to the Panel: the aspirations of many Aboriginal and Torres Strait Islander peoples
in relation to agreement-making. It was apparent that there is also strong support among the
non-indigenous community for forms of binding agreements between Aboriginal and Torres
Strait Islander communities and governmental and non-governmental parties.
Those who referred to agreement-making identified a number of different forms that
agreements with indigenous peoples can take:
• treaties entered into on a sovereign-to-sovereign basis;
• agreements with constitutional backing;
• agreements that are enforceable as contracts; and
• agreements with statutory backing.
While calls for an amendment to confer constitutional backing to such agreements are likely to
continue, the Panel does not consider that these questions can be resolved or advanced at this
time by inclusion in a constitutional referendum proposal. However, the Panel was interested
in a mechanism for conferring constitutional backing to an agreement or agreements with
Aboriginal and Torres Strait Islander peoples that might be negotiated with them in the future.
Like the Constitutional Commission in 1988, the Panel was not persuaded that any
alteration to the Constitution should be attempted until such agreement or agreements had
been negotiated in a process involving Aboriginal and Torres Strait Islander peoples, the
Commonwealth and the States and Territories. The Panel considered that no proposal for
an agreement should be taken to the Australian people at referendum until they were in a
position to know what they were being asked to approve. This is a challenge for the future.
The question of sovereignty
At consultations and in submissions to the Panel, there were numerous calls for a reappraisal
of currently accepted perceptions of the historical relationship between indigenous and non-
indigenous Australians from the time of European settlement.
Chapter 9 discusses one of
the significant issues to have emerged during the consultation process: the aspiration of some
Aboriginal and Torres Strait Islander peoples for recognition of their sovereign status.
The Panel has concluded that any proposal relating to constitutional recognition of
the sovereign status of Aboriginal and Torres Strait Islander peoples would be highly
contested by many Australians, and likely to jeopardise broad public support for the Panel’s
recommendations. Such a proposal would not therefore satisfy at least two of the Panel’s
principles for assessment of proposals, namely ‘contribute to a more unified and reconciled
nation’, and ‘be capable of being supported by an overwhelming majority of Australians from
across the political and social spectrums’. While questions relating to sovereignty are likely to
continue to be the subject of debate in the community, including among Aboriginal and Torres
Strait Islander people, the Panel does not consider that these questions can be resolved or
advanced at this time by inclusion in a constitutional referendum proposal.
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Approaches to the referendum
The Panel has concluded that the options for constitutional recognition of Aboriginal and
Torres Strait Islander peoples recommended in chapters 4, 5 and 6 are capable of succeeding
at a referendum. The success of the 1967 referendum, at which a record high of 90 per cent
support was secured, is a reminder that constitutional change in relation to Aboriginal and
Torres Strait Islander peoples can gain the support of a significant majority of Australians.
At the same time, the Panel is conscious of the record of unsuccessful referendum proposals
in Australia.
Chapter 10 addresses the three issues most frequently raised with the Panel in
relation to the referendum: the need for simplicity of proposals for recognition, the timing of
the referendum and the general lack of public knowledge about the Constitution.
The Panel has further concluded that the Government and the Parliament should carefully
consider whether the circumstances in which any referendum will be held are conducive to
its success. Factors that should be taken into consideration include:
• whether there is strong support for the proposals to be put at referendum across the
political spectrum;
• whether the referendum proposals are likely to be vigorously opposed by significant and
influential groups;
• the likelihood of opposition to the referendum proposals from one or more State
governments;
• whether the Government has done all it can to lay the groundwork for public support for
the referendum proposals;
• whether there would be sufficient time to build public awareness and support for the
referendum proposals;
• whether the referendum would be conducted in a political environment conducive to
sympathetic consideration by the electorate of the referendum proposals; and
• whether the referendum proposals would be seen by electors as genuine and meaningful
so as to avoid the risk of rejection on the basis that they represent an inadequate or
‘tokenistic’ response to the profound questions raised by constitutional recognition of
Aboriginal and Torres Strait Islander peoples.
For many Australians, the failure of a referendum on recognition of Aboriginal and Torres
Strait Islander peoples would result in confusion about the nation’s values, commitment to
racial non-discrimination, and sense of national identity. The negative impact on Aboriginal
and Torres Strait Islander peoples would be profound.
In the Panel’s view, achieving a successful referendum outcome should be the primary
consideration of the Government and Parliament. It has therefore proposed a number of
recommendations in relation to the process for the referendum.
Chapter 11 puts forward a draft Bill for an Act to alter the Constitution to recognise
Aboriginal and Torres Strait Islander peoples and to replace current racially discriminatory
provisions with a racial non-discrimination provision.
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Recommendations
Recommendations for changes to the Constitution
The Panel recommends:
1
That section 25 be repealed.
2
That section 51(xxvi) be repealed.
3
That a new ‘section 51A’ be inserted, along the following lines:
Section 51A Recognition of Aboriginal and Torres Strait Islander peoples
Recognising that the continent and its islands now known as Australia were first
occupied by Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander
peoples with their traditional lands and waters;
Respecting the continuing cultures, languages and heritage of Aboriginal and Torres
Strait Islander peoples;
Acknowledging the need to secure the advancement of Aboriginal and Torres Strait
Islander peoples;
the Parliament shall, subject to this Constitution, have power to make laws for the
peace, order and good government of the Commonwealth with respect to Aboriginal
and Torres Strait Islander peoples.
The Panel further recommends that the repeal of section 51(xxvi) and the insertion of
the new ‘section 51A’ be proposed together.
4
That a new ‘section 116A’ be inserted, along the following lines:
Section 116A Prohibition of racial discrimination
(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds
of race, colour or ethnic or national origin.
(2) Subsection (1) does not preclude the making of laws or measures for the purpose
of overcoming disadvantage, ameliorating the effects of past discrimination, or
protecting the cultures, languages or heritage of any group.
5
That a new ‘section 127A’ be inserted, along the following lines:
Section 127A Recognition of languages
(1) The national language of the Commonwealth of Australia is English.
(2) The Aboriginal and Torres Strait Islander languages are the original Australian
languages, a part of our national heritage.
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Recommendations on the process for the referendum
a. In the interests of simplicity, there should be a single referendum question in relation
to the package of proposals on constitutional recognition of Aboriginal and Torres Strait
Islander peoples set out in the draft Bill (Chapter 11).
b. Before making a decision to proceed to a referendum, the Government should consult with
the Opposition, the Greens and the independent members of Parliament, and with State
and Territory governments and oppositions, in relation to the timing of the referendum and
the content of the proposals.
c. The referendum should only proceed when it is likely to be supported by all major political
parties, and a majority of State governments.
d. The referendum should not be held at the same time as a referendum on constitutional
recognition of local government.
e. Before the referendum is held, there should be a properly resourced public education and
awareness program. If necessary, legislative change should occur to allow adequate funding
of such a program.
f. The Government should take steps, including through commitment of adequate financial
resources, to maintain the momentum for recognition, including the widespread public
support established through the
YouMeUnity website, and to educate Australians about
the Constitution and the importance of constitutional recognition of Aboriginal and Torres
Strait Islander peoples. Reconciliation Australia could be involved in this process.
g. If the Government decides to put to referendum a proposal for constitutional recognition
of Aboriginal and Torres Strait Islander peoples other than the proposals recommended
by the Panel, it should consult further with Aboriginal and Torres Strait Islander peoples
and their representative organisations to ascertain their views in relation to any such
alternative proposal.
h. Immediately after the Panel’s report is presented to the Prime Minister, copies should
be made available to the leader of the Opposition, the leader of the Greens, and the
independent members of Parliament. The report should be released publicly as soon as
practicable after it is presented to the Prime Minister.
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F.2 Final Report of the Aboriginal and Torres Strait Islander Act of Recognition Review
Panel (2014)
Executive Summary
“
I suppose to some extent I see this as nation building. We have now matured as a
nation and our Constitution needs to recognise that.”1
The recognition of Aboriginal and Torres Strait Islander peoples in our country’s founding
document is a matter of profound importance. We cannot afford to get it wrong. Since
1967, when over 90% of Australians supported the inclusion of Indigenous Australians in
the national census and a new Commonwealth responsibility for Indigenous policy
matters, no other referendum has come close in its significance or impact on Australia’s
national psyche.
Constitutional recognition embodies the strong spirit of reconciliation across Australia,
signalling the next important step in our maturity as a nation. Non-Indigenous Australians
who have not been subject to racism need to understand the debilitating effect it has on
those who regularly experience it.
Most Australians know of the existence of the Constitution in broad terms and see it as
the rulebook that ensures ‘fair play’ for all. Against that backdrop it is only logical that
many Indigenous Australians feel that the Constitution not only fails to acknowledge their
unique place in the country’s history, but also, that it has let them down. In fact, it is more
often the case that when discrimination happens it is because we have failed to uphold
the intent and inherent values of the Constitution.
It is readily apparent from the research that most Australians want to ensure that the
Constitution reflects what it means to be Australian in the 21st century. We have a
landmark opportunity to recognise our first peoples and ensure the Constitution never
again allows for the omissions and inequalities that have happened in the past. It would
allow us to protect what is uniquely Australian and acknowledge over 40,000 years of
history. It ensures our Constitution reflects our values and recognises the equal worth
and dignity of each citizen.
As a principle, there is broad support for the recognition and acknowledgement of our
nation’s first peoples in the Constitution. Indeed, in the current climate, few issues have
such a solid base of public support. However, it is also clear that levels of awareness and
understanding of why change is needed, and what it would mean, are stil low.
1 Evidence to Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait
Islander Peoples, Senate, Halls Creek, 22 July 2014, p. 16. (Mr Ian Trust, Chairman and Executive
Director, Wunan Foundation).
3
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Despite the issue of constitutional recognition being on the national agenda since 2006,
there is evidence that we are losing momentum and awareness is drifting. Over the past
year public awareness levels on the referendum have dropped to less than 40% across
the country. Encouragingly, support remains steady across both Indigenous and
non-Indigenous people but this is at risk of declining if there isn’t a clear path to a
referendum.
We have not yet reached a point where we can proceed immediately to a referendum on
the issue. To give the greatest chance of success, a number of pre-conditions need to be
met. Fundamentally, this rests on a number of interdependent elements: agreeing a final
proposal that can win the support of Indigenous Australians, parliaments and the people;
setting a clear timeframe to show renewed commitment and urgency; and significantly
raising the profile and understanding of constitutional recognition across the population.
Our report reflects on each of these matters.
We are ready to take the next step on the path to a referendum. A ‘circuit-breaker’ is
needed to move the debate forward. The time for clarity of intention and action is now.
First and foremost, the Panel has found that there is an
immediate imperative to remove
any sense of ambiguity around the intention to proceed to a referendum. The process to
date has been challenging, with many moving parts, unclear timelines and a lack of
certainty about next steps. This has led to unrealistic expectations on several fronts,
leading to ambiguity and a sense of frustration among key groups. In our consultations
we consistently heard the need for a clear public re-commitment to constitutional
recognition. Indeed, there is a need for strong public commitment from all sides of
politics, from state and territory governments, and from a wide range of Aboriginal and
Torres Strait Islander people. This must be accompanied by a clear pathway forward,
articulating the steps to get the country to a point of readiness and delivery of a
referendum.
As noted above, awareness levels are flagging.
Raising awareness of why we should
pursue a referendum is a relatively straightforward matter, but efforts to promote this
understanding need to be ramped up in the near future as investment in a wide-scale
national campaign has been limited. The campaign wil require new investment and a
focus on the place our first Australians held in this nation before European settlement
together with the valuable ongoing contribution of Aboriginal and Torres Strait Islander
peoples and cultures to modern Australia. There is also a very real need for strong
political leadership in explaining the place and role of our Constitution.
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Crystallising the question to be put to the Australian voters lies at the heart of the
referendum. Indeed, shaping a final proposition is by far the most complex matter on the
path to a referendum. Definitively assessing the country’s readiness for a referendum is
difficult in the absence of the final proposal to be put to a vote.
It is clear that there is a thirst for change that is both symbolic and substantial. History
confirms that to vote ‘yes’, Australians must be convinced that the proposed change to
the Constitution is worth the investment. Consultations and research show that the
change must be more than symbolic to win both Indigenous support and that of the
wider public. The broader population also want to know that the final proposal is one that
is wanted by the majority of Aboriginal and Torres Strait Islander Australians before they
wil support it. There are a range of diverse views on wording of the final proposition.
Finding the ‘sweet spot’ that meets the test of meaningful change without significantly
increasing the risk of uncertainty and judicial activism is challenging but possible.
Our report provides some observations around the issues that wil need to be confronted
when settling on a final model. Research shows that there is strong support for changes
that recognise the place and history of Indigenous Australians and the removal of
references to race. Australians want to address inequality in our Constitution but are
wary of ‘special treatment’ for one group of people on the basis of race. The scope of the
final proposition is narrowing and centres on:
the placement of a statement of recognition;
removal of section 25, which currently envisages the ability of state governments
to disqualify a group of people from voting based on race; and
re-formulation of the race power (section 51(xxvi)) to avoid the potential for
perverse outcomes while retaining the Commonwealth’s responsibility for
Indigenous affairs.
It is worth noting that the 1967 referendum changes were arguably not as substantial as
the modern public narrative indicates – yet the moral force of the changes have been
tremendous. While not of itself sufficient, the importance of symbolic change through a
statement of recognition should not be understated, and the strength of unity and
goodwil accompanying such changes wil be a landmark moment in our nation.
The current debate lends itself to more substantial changes – changes which wil amend
the Constitution so that it reflects our values. Section 25 of the Constitution is out-dated
and indeed reflective of a time long past – where our leaders could restrict, on the basis
of race, access to the most fundamental democratic right, the right to vote. The Panel
considers that the Australian people are ready for this change.
5
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Changes beyond these have become the real focus of the debate. This centres on the way
in which the Commonwealth can exercise its powers under the Constitution and
discharge its responsibilities in Indigenous affairs without the risk of perverse outcomes.
These changes elicit the most polarised opinions.
As noted above, the Panel found a significant divergence of perspectives on what the final
proposition should look like, and what the rightful role of the Constitution is in
recognising Indigenous Australians. Importantly the Panel is optimistic that a strong
proposition can be agreed – one which balances symbolism, while also ensuring there is
substance to the change.
The work of the Expert Panel on the Constitutional Recognition of Indigenous Australians
and more recently the Joint Select Committee on Constitutional Recognition of Aboriginal
and Torres Strait Islander Peoples has been invaluable in exploring the options and
building multi-party support. Ultimately, however, the referendum rests on finalising a
set of words that can be widely supported by Aboriginal and Torres Strait Islander people
and the wider public. Political leadership is needed to break through the ongoing cycle of
deliberations. There are a number of ways to achieve this, but any mechanism must have
legitimacy, trust across the political spectrum, the direct involvement of Indigenous
people and be above the challenges of day to day politics. It requires dedicated
commitment, leadership and focus to bring about a truly multi-partisan approach – one
where Indigenous Australians are ful and respected partners in the change.
The
timing of a referendum also needs to be settled quickly to give renewed certainty
that we are progressing to a vote and to build momentum. The complex and hard work
of finalising a model does not get any easier with delays or deferral. There are mixed
views on when to hold a referendum and whether to hold it with an election or as a
standalone vote. Holding a referendum within this term of government is ambitious but
possible if all the pre-conditions are met. This hinges on gaining agreement to a final set
of words and building sufficient understanding and support for the change. All efforts
must be highly synchronised and coordinated.
The Panel heard views that holding a referendum at the time of the next election is
possible, and in some cases desirable, principally to reduce cost. This needs to be
balanced with the risks associated with holding a referendum that is designed to unite the
nation, and which needs unwavering multi-partisan support, at a time of inevitable
political tension. Others were of the strong view that the imperative to ‘get it right’
justifies holding a referendum after the next election. The Panel also heard that many
6
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Aboriginal and Torres Strait Islander people were increasingly concerned about the ability
to deliver constitutional change if the timeframe lingers.
However, almost all of the people we spoke to made it clear that reaching agreement on
a final proposition to put to a referendum will ultimately determine the timeframe.
The Panel is of the view that an end-date must be identified – to remove ambiguity and
achieve a sense of focus. The Panel suggests that a referendum should be held no later
than the first half of 2017, within a fifty year window of the 1967 referendum. If the pre-
conditions outlined in this report can be met earlier, including widespread support for an
agreed proposition, then there remains a case for an earlier referendum. However,
above all else, the Panel recognises that such a referendum is a most fundamental step
for our nation. Getting it right and achieving success must be the overriding imperative.
Recommendations:
On the basis of the evidence before it, the Panel recommends:
1. A ‘circuit breaker’ needs to be rapidly identified to settle the final form of words
and draw debate on the model to a conclusion. This wil build a sense of national
urgency and provide renewed certainty that the country wil proceed to a
referendum. Delivering on the commitment to form a special committee to guide
the referendum, a Referendum Council of trusted national figures is
recommended.
The Referendum Council would:
a. Have legitimacy in the eyes of the nation, be seen as apolitical and include
both Indigenous and non-Indigenous members.
b. Advise on the final proposition and gain agreement to it from Indigenous
peoples, constitutional experts, parliaments and the wider public.
c. Draw on the work of this report and the Joint Select Committee.
d. Ensure that the final proposition is legally sound, clear, easily understood and
does not significantly increase constitutional uncertainty.
2. The Parliament, state and territory governments and Aboriginal and Torres Strait
Islander peoples publicly re-declare their commitment to constitutional
recognition and working in col aboration towards a referendum.
3. Timing parameters for a referendum should be settled as soon as possible to
provide certainty and focus. A referendum should be held no later than the first
7
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half of 2017. If the pre-conditions outlined in this report can be met earlier,
including widespread support for an agreed proposition, then there remains a
case for an earlier referendum.
4. The Government should continue to support and resource Recognise, and its
partner organisations, to finalise an increased public awareness strategy that
builds a better understanding of why recognition is important in the wider
community. This strategy should:
a. include a focus on the enduring contributions of Aboriginal and Torres Strait
Islander peoples and cultures on the life of the nation;
b. focus on real Australians tel ing real stories;
c. draw on social research and historical facts;
d. target a wide audience, but with a focus on those groups that have the lowest
levels of awareness;
e. ensure Aboriginal and Torres Strait Islander peoples are engaged in
community education activities as broadly as possible; and
f. be educational in nature and include raising awareness of the role of the
Constitution.
5. The Parliament should amend the
Aboriginal and Torres Strait Islander
Recognition Act 2013 to demonstrate continuing commitment and ensure the Act
does not sunset in March 2015. The Act should be extended for no more than
three years, to align with the timing of the referendum (as per Recommendation
3 above).2
2 Note: in this report the term ‘Indigenous people/s’ refers to both the Aboriginal and Torres Strait
Islander peoples of Australia.
8
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APPENDIX F: EXECUTIVE SUMMARIES FROM PREVIOUS REPORTS
F.3 Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait
Islander Peoples: Final Report (2015)
Executive summary
The committee recommends that a referendum be held on the matter of recognising
Aboriginal and Torres Strait Islander peoples in the Australian Constitution, and that it
be held at a time when it has the highest chance of success.
The committee recommends that a referendum be held on the matter of
recognising Aboriginal and Torres Strait Islander peoples in the
Australian Constitution (paragraph 9.32)
.
The committee recommends that the referendum on constitutional
recognition be held when it has the highest chance of success (paragraph
2.40)
.
The committee has considered mechanisms for engagement on the topic of
constitutional recognition, and recommends that conventions consisting of Aboriginal
and Torres Strait Islander delegates as well as delegates from the broader Australian
community be held to build support for a referendum and to engage a wide cross-
section of the community (paragraphs 8.49-8.50).
The committee puts forward three options which it considers would meet the dual
objectives of achieving constitutional recognition and protecting Aboriginal and
Torres Strait Islander peoples from racial discrimination (paragraphs 4.88-4.94).
The committee recommends that section 25 of the Constitution be repealed, and that
section 51 (xxvi) be replaced, with the retention of a persons power so that the
Commonwealth government may legislate for Aboriginal and Torres Strait Islander
peoples as per the 1967 referendum result (paragraphs 3.19-3.20).
During the inquiry, the committee formed the view that amending the
Human Rights
(Parliamentary Scrutiny) Act 2011 to include scrutiny of the United Nations
Declaration on the Rights of Indigenous Peoples would act as an enhancement to the
existing parliamentary scrutiny framework (paragraph 6.18).
The committee has achieved its objective of building a secure strong multi-partisan
parliamentary consensus around the timing, specific content and wording of
referendum proposals for Indigenous constitutional recognition.
The committee recommends that each House of Parliament set aside a full day of
sitting to debate concurrently the recommendations of the Joint Select Committee on
Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, with a
view to achieving near-unanimous support for and build momentum towards a
referendum to recognise Aboriginal and Torres Strait Islander peoples (paragraph
2.32).
As a mechanism to focus engagement on this important debate, the committee
recommends that a parliamentary process be established to oversight progress towards
a successful referendum (paragraph 9.33).
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Recommendations
Recommendation 1 2.32 The committee recommends that each House of Parliament set aside a full day
of sitting to debate concurrently the recommendations of the Joint Select Committee
on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, with a
view to achieving near-unanimous support for and build momentum towards a
referendum to recognise Aboriginal and Torres Strait Islander peoples.
Recommendation 2 2.40 The committee recommends that the referendum on constitutional recognition
be held when it has the highest chance of success.
Recommendation 3 3.19 The committee recommends that section 25 of the Constitution be repealed.
Recommendation 4 3.20 The committee recommends the repeal of section 51(xxvi) and the retention of
a persons power so that the Commonwealth government may legislate for Aboriginal
and Torres Strait Islander peoples as per the 1967 referendum result.
Recommendation 5 4.88 The committee recommends that the three options, which would retain the
persons power, set out as proposed new sections 60A, 80A and 51A & 116A, be
considered for referendum.
4.89 The first option the committee recommends for consideration is its amended
proposed new section 51A, and proposed new section 116A, reported as option 1 in
the committee's Progress Report:
51A Recognition of Aboriginal and Torres Strait Islander Peoples
Recognising that the continent and its islands now known as Australia were
first occupied by Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing relationship of Aboriginal and Torres Strait
Islander peoples with their traditional lands and waters;
Respecting the continuing cultures, languages and heritage of Aboriginal and
Torres Strait Islander peoples;
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The Parliament shall, subject to this Constitution, have power to make laws for
the peace, order and good government of the Commonwealth with respect to
Aboriginal and Torres Strait Islander peoples.
116A Prohibition of racial discrimination
(1)
The Commonwealth, a State or a Territory shall not discriminate on the
grounds of race, colour or ethnic or national origin.
(2)
Subsection (1) does not preclude the making of laws or measures for the
purpose of overcoming disadvantage, ameliorating the effects of past
discrimination, or protecting the cultures, languages or heritage of any group;
4.90 The committee considers that this proposal:
is legally and technically sound;
retains a persons power as per the 1967 referendum result;
contains a special measures provision;
limits the constitutional capacity of the Commonwealth, states and
territories to discriminate;
offers a protection for all Australians;
is a broad option;
had the overwhelming support of Aboriginal and Torres Strait Islander
peoples and non-Aboriginal and Torres Strait Islander peoples during the
inquiry; and
accords with the recommendation of the Expert Panel.
4.91 The second option was proposed by Mr Henry Burmester AO QC, Professor
Megan Davis and Mr Glenn Ferguson after their consultation process:
CHAPTER IIIA
Aboriginal and Torres Strait Islander Peoples
Section 80A
(1)
Recognising that the continent and its islands now known as Australia
were first occupied by Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing relationship of Aboriginal and Torres Strait
Islander peoples with their traditional lands and waters;
Respecting the continuing cultures and heritage of Aboriginal and Torres Strait
Islander peoples;
Acknowledging that Aboriginal and Torres Strait Islander languages are the
original Australian languages and a part of our national heritage;
the Parliament shall, subject to this Constitution, have power to make
laws with respect to Aboriginal and Torres Strait Islander peoples, but
so as not to discriminate against them.
xiv
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(2)
This section provides the sole power for the Commonwealth to make
special laws for Aboriginal and Torres Strait Islander peoples.
4.92 The committee considers that this proposal:
is legally and technically sound;
retains a persons power as per the 1967 referendum result;
is clear in meaning;
limits the capacity of the Commonwealth only with regard to
discrimination, so states and territories are not affected by constitutional
change;
is a narrow option; and
offers constitutional protection from racial discrimination for Aboriginal
and Torres Strait Islander peoples.
4.93 The third option which would retain the persons power is the proposal from the
Public Law and Policy Research Unit at the University of Adelaide:
60A Recognition of Aboriginal and Torres Strait Islander Peoples
Recognising that the continent and its islands now known as Australia were
first occupied by Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing relationship of Aboriginal and Torres Strait
Islander peoples with their traditional lands and waters;
Respecting the continuing cultures and heritage of Aboriginal and Torres Strait
Islander peoples;
Acknowledging that Aboriginal and Torres Strait Islander languages are the
original Australian languages and a part of our national heritage;
(1) The Parliament shall, subject to this Constitution, have power to make laws
for the peace, order and good government of the Commonwealth with respect
to Aboriginal and Torres Strait Islander peoples.
(2) A law of the Commonwealth, a State or a Territory must not discriminate
adversely against Aboriginal and Torres Strait Islander peoples.
4.94 The committee considers that this proposal:
is legally and technically sound;
retains a persons power as per the 1967 referendum result;
is clear in meaning;
is both a narrow and a broad option;
limits the 'adverse discrimination' provision to Aboriginal and Torres
Strait Islander peoples; and
limits the capacity of the Commonwealth, states and territories
constitutionally to discriminate.
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Recommendation 6 6.18 The committee recommends that the
Human Rights (Parliamentary Scrutiny)
Act 2011 be amended to include the United Nations Declaration on the Rights of
Indigenous Peoples in the list of international instruments which comprise the
definition of human rights under the Act.
Recommendation 7 8.49 The committee recommends that the government hold constitutional
conventions as a mechanism for building support for a referendum and engaging a
broad cross-section of the community while focussing the debate.
Recommendation 8 8.50 The committee further recommends that conventions made up of Aboriginal
and Torres Strait Islander delegates be held, with a certain number of those delegates
then selected to participate in national conventions.
Recommendation 9 9.32 The committee recommends that a referendum be held on the matter of
recognising Aboriginal and Torres Strait Islander peoples in the Australian
Constitution.
Recommendation 10 9.33 The committee recommends that a parliamentary process be established to
oversight progress towards a successful referendum.
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APPENDIX G: KIRRIBILLI STATEMENT
Monday, 6 July 2015
Statement presented by Aboriginal and Torres Strait Islander attendees
at a meeting held today with the Prime Minister and Opposition Leader
on Constitutional Recognition
HC Coombs Centre, Kirribilli, Sydney
We welcome the willingness of the Prime Minister and Opposition Leader to
meet with Aboriginal and Torres Strait Islander people to discuss next steps
towards recognition of Aboriginal and Torres Strait Islander peoples in the
Australian Constitution.
We encourage the Government and the Parliament to identify a strong, multi-
partisan consensus on the timing, content and wording of a referendum
proposal, and acknowledge the stated commitment of all parties to this end.
We acknowledge the work to date by the Expert Panel (2012), Joint Select
Committees on Constitutional Recognition of Aboriginal and Torres Strait
Islander Peoples (2013-15) and, prior to these, the Council for Aboriginal
Reconciliation (1991-2000) in identifying options for recognition.
We note the guiding principles laid out by the Expert Panel that constitutional
recognition must:
Contribute to a more unified and reconciled nation;
Be of benefit to and accord with the wishes of Aboriginal and Torres
Strait Islander peoples;
Be capable of being supported by an overwhelming majority of
Australians from across the political and social spectrum; and
Be technical y and legally sound.
Further, we agree with the Joint Select Committee (Interim Report, July 2014),
that a successful referendum proposal must:
Recognise Aboriginal and Torres Strait Islander peoples as the first
peoples of Australia
Preserve the Commonwealth’s power to make laws with respect to
Aboriginal and Torres Strait Islander peoples; and
In making laws under such a power, prevent the Commonwealth from
discriminating against Aboriginal and Torres Strait Islander peoples.
On this basis, the meeting participants:
Emphasize the importance of leadership from the Prime Minister and
Opposition Leader to ensure that:
Constitutional recognition is progressed in a non-partisan manner; and
1
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that the debate shifts to discussion of concrete proposals for reform to
avoid the process stalling.
Request that the Government and the Opposition identify the
parameters of what they will support in relation to constitutional
recognition, based on the issues identified by the various review
processes to date, as well as their willingness to consider further
measures to address the specific circumstances faced by Aboriginal
and Torres Strait Islander peoples.
Process issues
Call for the following process moving forward:
a) An ongoing dialogue between Aboriginal and Torres Strait Islander
people (via a referendum council, steering committee or other
mechanism) and the government and parliament, based on the
significant work already completed, to negotiate on the content of the
question to be put to referendum;
b) Development of accessible and useful information for the Aboriginal
and Torres Strait Islander community about the key issues to enable
informed decision making;
c) Engagement over the coming months with Aboriginal and Torres Strait
Islander peoples about the acceptability of the proposed question for
constitutional recognition; and
d) Continuation of a parliamentary process to oversight the work towards
a successful referendum.
Note the Joint Select Committee’s final report recommendations on
engagement processes moving forward, including the role of National
Congress, the ongoing public awareness and education role of Recognise,
and the need to reform the referendum process. There is a need for ongoing
resources to be allocated for these processes.
Substantive issues
Identify that any reform must involve substantive changes to the Australian
Constitution. It must lay the foundation for the fair treatment of Aboriginal and
Torres Strait Islander peoples into the future.
A minimalist approach, that provides preambular recognition, removes section
25 and moderates the races power [section 51(xxvi)], does not go far enough
and would not be acceptable to Aboriginal and Torres Strait Islander peoples.
The recommendations of the Joint Select Committee were endorsed, noting
that further engagement with Aboriginal and Torres Strait Islander peoples is
2
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required in relation to Recommendation 5 and in relation to a proposed
Aboriginal and Torres Strait Islander advisory body and proposed Declaration.
To progress these matters, clarity from the Government and Opposition of
their positions on two key issues is critical: prevention of racially
discriminatory laws and the proposed advisory body.
There was significant concern expressed that the Constitution as it stands
enables current and future parliaments to enact discriminatory measures
against Aboriginal and Torres Strait Islander peoples. Any reform option must
address this concern.
At this stage, there are several proposals on the table that are aimed at
addressing this issue ranging from: a stand alone prohibition of racial
discrimination (proposed new section 116A); a new, contained power to make
laws for Aboriginal and Torres Strait Islander peoples that does not extend to
making adverse discriminatory laws; and a role for a new advisory body
established under the Constitution.
It is recognized that Constitutional Recognition is only part of the solution to
ensuring that Aboriginal and Torres Strait Islander peoples are treated equally
in Australia, and that it must be accompanied by other measures to address
the historic and ongoing disadvantage that has resulted from our past
mistreatment.
Attachment A is a list of Aboriginal and Torres Strait Islander attendees
at today’s meeting with the Prime Minister and Opposition Leader.
3
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Attachment A: List of Aboriginal and Torres Strait Islander attendees at meeting
held today with the Prime Minister and Opposition Leader on constitutional
recognition, Monday 6 July, 2015.
Djapirri Mununggirrtj
Sean Gordon
Rachel Perkins
Denise Bowden
Selwyn Button
Jason Mifsud
Tanya Hosch
Ngiare Brown
Samuel Bush-Blanasi
Noel Pearson
Joe Morrison
Kenny Bedford
Megan Davis
Bruce Martin
Lester Irabinna Rigney
Ken Wyatt MP
David Ross
Charlee-Sue Frail
Richie Ah Mat
Gail Mabo
Djawa Yunupingu
Pat Anderson AO
Aden Ridgeway
Shannan Dodson
Shane Duffy
Kirstie Parker
Les Malezer
Josephine Cashman
Mick Gooda
Tom Calma
Geoff Scott
Marcia Langton
Jill Gallagher
Patrick Dodson
Nova Peris
Warren Mundine
Leah Armstrong
Pat Turner
Justin Mohamed
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APPENDIX H: DISCUSSION PAPER
Discussion Paper on
Constitutional Recognition
of Aboriginal and
Torres Strait Islander Peoples
October 2016
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APPENDIX H: DISCUSSION PAPER
Contents
Introduction 94
What is the Constitution and how can it be changed?
96
Indigenous Peoples and the Constitution
97
What does ‘recognition’ mean?
99
Recent steps on the path to a referendum
100
Constitutional recognition and treaty issues
101
What are some key proposals for reform?
102
Statement of acknowledgement
102
Power to make laws for Aboriginal and Torres Strait Islander peoples
103
A constitutional prohibition against racial discrimination
104
An Indigenous voice to Parliament
104
Deleting section 25
105
Now have your say
106
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Introduction
Aboriginal and Torres Strait Islander peoples have lived on the land and seas around the Australian
continent for more than 60,000 years. They are the First Peoples.
The rich languages, cultures and traditions of Aboriginal and Torres Strait Islander peoples represent
the world’s oldest continuous cultural heritage. This unique legacy is recognised internationally and is
one of the things that sets Australia apart from the rest of the world.
Those lands and waters were colonised by Europeans, who took them without treaty or consent, and
Australia’s Constitution, our most important legal document, contains no acknowledgement of the
First Peoples of Australia. Aboriginal and Torres Strait Islander people were not given a voice in the
convention debates of the 1890s, which led to the drafting of the Constitution in 1901, and few were
able to vote for it.
Many laws and policies enacted since 1901 have discriminated against Aboriginal and Torres Strait
Islander peoples. Our Constitution could offer protections against unfair treatment. But at present it
does not—nor does it recognise the special place of Aboriginal and Torres Strait Islander peoples within
the life of the nation.
Australians now have an opportunity to change this situation.
Much work has already been done on what form constitutional change could take, most recently by
the Expert Panel appointed by the Australian Government in 2011 and by a Parliamentary Joint Select
Committee that completed its work in 2015.
In December 2015, the Australian Government and the Opposition came together to appoint a
16-member Referendum Council to consult widely throughout Australia and take the next steps
towards achieving constitutional recognition of the First Australians.
The council wants to hear the views of all Australians on constitutional change regarding Aboriginal
and Torres Strait Islander peoples. Through our consultations, we will ask you some fundamental
questions, such as:
Do you support constitutional change? And, if you do, What form do you think
change should take? We will also ask what you think about some specific proposals for symbolic and
practical reform and how they might ensure that the Constitution treats Aboriginal and Torres Strait
Islander peoples more fairly.
Over the same period, the council will hold a series of Indigenous consultations to give Aboriginal and
Torres Strait Islander people the chance to say what meaningful recognition is to them. Indigenous
people will design and lead these consultations.
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The council will report to the Government and the Opposition on what people say and on how the
Constitution might best be changed.
This Discussion Paper sets out some of the different options for change and outlines some of the issues
to be taken into account. We want to know what you think.
Pat Anderson – Referendum Council co-Chair
Mark Leibler – Referendum Council co-Chair
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What is the Constitution and how can it be changed?
The Constitution is the legal and political foundation document of Australia. It was drafted following
a series of constitutional conventions held in the 1890s and was passed by the British Parliament in
1900. It took effect on 1 January 1901.
The Constitution is the Australian government’s ‘rulebook’. It establishes Australia as a federation and
defines the national law-making powers of the Commonwealth or federal government. Every law
passed by the federal Parliament must be empowered by the Australian Constitution—it must be based
on what is a called a
head of power set down in the Constitution, which is divided into
sections.
The Constitution distributes power between the Commonwealth and the States and Territories and
sets out the roles of the federal Parliament and the executive (the government of the day). It
empowers federal courts and establishes the High Court of Australia as the ultimate decision maker on
questions about the meaning of the Constitution. It is essentially a structural plan for a federal system
of government.
By allocating and also limiting government powers, the Constitution protects certain rights and
freedoms, but it is not a charter of human rights.
The Australian Constitution, like all foundation documents, also says something about the values of
our society.
The drafters of the Constitution wanted to make sure it could be amended over time, but only with
the clear consent of the Australian people. This consent is given through a
referendum, when all
Australians registered on the electoral roll cast a vote. Under section 128, a majority of Australian
voters and a majority of voters in a majority of States (that is, in at least four out of the six States)
must approve any proposed amendment. This is known as a
double majority. People cast their votes
by writing either a ‘yes’ or ‘no’ in response to specific questions put to them.
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Indigenous Peoples and the Constitution
Aboriginal people lived on the land when the British arrived, but the British did not recognise their
ownership and authority. A legal fiction applied that was later called
terra nullius: the incorrect belief
that the land was owned by nobody. The High Court says Australia was a ‘settled’ colony and that
meant sovereignty passed to the British.
The Joint Select Committee cited legal advice obtained by the Expert Panel on the relationship
between settlement and sovereignty:
Given the previous presence of all the different indigenous inhabitants and owners of all the
different countries now comprising the territory of the nation Australia, contemporary legal
doctrine implies acceptance that the basis of settlement of Australia is and always has been,
ultimately, the exertion of force by and on behalf of the British arrivals. They did not ask
permission to settle. No-one consented, no-one ceded. Sovereignty was not passed from the
aboriginal peoples to the settlers by any actions of legal significance voluntarily taken by or on
behalf of the former or any
of them.1
Six Australian colonies were eventually established. The Constitution united these colonies in a federal
system and was approved by popular vote in each colony. The position on settlement and sovereignty
was taken for granted and did not arise. As Professor Patrick Dodson has observed, the Constitution of
1901 was drafted ‘in the spirit of
terra nullius’.2
The process of writing the Constitution excluded Aboriginal and Torres Strait Islander peoples. The
Constitution made no direct mention of them, except for two references designed to exclude them:
• section 51 (xxvi) gave the federal government the power to make national laws for ‘the people
of any race for whom it is deemed necessary to make special laws’— the ‘race power’. But the
wording excluded Aboriginal people from the power. That meant outside the Northern Territory,
the States remained in control of Indigenous affairs
• section 127 said that when calculating the ‘people of the Commonwealth’ Aboriginal people were
not to be counted.
In 1967, after a long period of advocacy and protest by both Indigenous people and non-Indigenous
Australians, a referendum was held to determine whether these two references, which were seen to
discriminate against Aboriginal people, should be deleted. More than 90% of Australians voted ‘yes’ to
change the Constitution by:
• amending section 51 (xxvi) so that federal laws under the race power could apply to Aboriginal and
Torres Strait Islander people
• deleting section 127 so that Aboriginal and Torres Strait Islander peoples could be counted in the
national population.
1
Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report, June 2015, p. 72.
2
Patrick Dodson, ‘Welcoming Speech’, Position of Indigenous People in National Constitutions Conference, Canberra, 4 June 1993, quoted in
Bain Attwood and Andrew Markus,
The 1967 Referendum: Race, Power and the Australian Constitution (2nd edn, 2007), pp. 146–7. {‘edn’
(no full point) is correct according the
Style manual—it’s a contraction.}
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But the 1967 referendum also left unresolved issues. It did not implement any constitutional
guarantee of fair treatment, nor any specific recognition for Indigenous people and their rights.
It left section 25 in the Constitution, which contemplates that certain races could be banned
from voting in State elections. As a result, Aboriginal and Torres Strait Islander advocacy for
constitutional change continued.
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What does ‘recognition’ mean?
Much of the recent debate over constitutional change has used the word ‘recognition’, but that
can mean different things to different people. Recognition might be as basic as acknowledging the
existence of people, their history and their culture. Or it might mean confirming their legal rights
and freedoms, or giving them a voice and political representation, or making a treaty or agreement
with them—or all of these things. Recognition in one way or another is common around the world in
countries with Indigenous populations. It can happen within a national constitution, or outside it.
Aboriginal and Torres Strait Islander advocacy for constitutional recognition has emphasised the
importance of a constitutional guarantee of fairer treatment, because the Constitution is where binding
and enduring guarantees can be made. Many Aboriginal and Torres Strait Islander leaders have sought
constitutional recognition to ensure that Australian governments treat Aboriginal and Torres Strait
Islander peoples more fairly. As Yolngu leader Galarrwuy Yunupingu explained in 1998:
Our Yolgnu law is more like your Balanda Constitution than Balanda legislation or statutory law. It
doesn’t change at the whim of short-term political expediency. It protects the principles which go
to make up the very essence of who we are and how we should manage the most precious things
about our culture and our society. Changing it is a very serious business …
If our Indigenous rights were recognised in the Constitution, it would not be so easy for
Governments to change the laws all the time, and wipe out our rights …3
Professor Patrick Dodson has similarly noted:
It may be a harsh thing to say, but many actions of Australian Governments have given Aboriginal
people little faith in the promises Governments make in relation to protecting and defending the
rights of Indigenous Australians. That is why we need a formal Agreement that recognises and
guarantees the rights of Indigenous Australians within the Australian Constitution.4
Noel Pearson has also called for a national ‘promise’, in the form of a constitutional guarantee that the
discrimination of the past will not be repeated.5
Recognition can also happen outside the Constitution. In Australia, the Mabo decision was a form of
recognition in common law, and the official Apology to Aboriginal and Torres Strait Islander peoples
was a form of political recognition.
In the Mabo decision, the High Court ruled in 1992 that the lands of this continent were not
terra
nullius or ‘land belonging to no-one’ when European settlement occurred, and that the Meriam people,
the traditional owners, were ‘entitled as against the whole world to possession, occupation, use and
enjoyment of (most of) the lands of the Murray Islands’. This recognition was then incorporated into
legislation in the
Native Title Act 1993 (Cth).
3
See Galarrwuy Yunupingu, Vincent Lingiari Memorial Lecture, Darwin, 20 August 1998. ‘Balanda’ means European/Western
4
Patrick Dodson, ‘Until the Chains are Broken’, Vincent Lingiari Memorial Lecture, Darwin, 8 September 1999.
5
Noel Pearson, ‘Next step for the nation is to leave race behind’,
The Australian, 25 May 2013.
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The formal Apology by then Prime Minister Kevin Rudd in 2008 recognised the damage that had been
done to Indigenous peoples, and particularly members of the Stolen Generations, by past government
policies of forced child removal and Indigenous assimilation.
In deciding what constitutes a fair form of recognition, Aboriginal and Torres Strait Islander views are
important. There would be no point proceeding with a form of recognition that Aboriginal and Torres
Strait Islander peoples do not support. This is why the Referendum Council is consulting Aboriginal and
Torres Strait Islander peoples on what is meaningful recognition to them.
Recent steps on the path to a referendum
Over the decades, there has been a lot of discussion and many proposals for recognition, from both
Indigenous people and non-Indigenous Australians. Many of the earlier suggestions have themes that
we see again in the options presented in this paper:
• giving Indigenous people a
voice in federal Parliament and
a role in making decisions about
matters that affect them directly
• a guarantee against
discrimination by the Parliament
• acknowledgement of status as First Peoples.
The most detailed recent discussion on constitutional recognition was by the Expert Panel, set up
by former Prime Minister Julia Gillard. Its report, presented in January 2012, contained a number of
recommendations that combined symbolic and practical change, including a racial non-discrimination
clause.
There was no formal government response to the recommendations in the report, although the
federal Parliament did pass an Act in 2013 that recognised the unique and special place of Aboriginal
and Torres Strait Islander peoples in the nation. In 2014, a review panel convened under this Act
recommended that the Government proceed towards a referendum, provided certain preconditions
were met.
The Parliamentary Joint Select Committee set up in 2013 to consider options for reform also
recommended that a referendum be held on constitutional recognition and set out a range of options
for change largely in line with the Expert Panel’s recommendations.
Throughout the discussion Aboriginal and Torres Strait Islander communities have made it clear that
they seek substantive and practical recognition. On 6 July 2015, then Prime Minister Tony Abbott and
Opposition Leader Bill Shorten hosted a meeting in Sydney with 40 Indigenous leaders to discuss
constitutional recognition.
After the meeting, the leaders submitted a statement to the Prime Minister and the Opposition
Leader saying that a ‘minimalist’ approach—one that provided symbolic recognition in a constitutional
preamble, removed section 25 and moderated the race power (section 51 (xxvi))—would not be
acceptable to Aboriginal and Torres Strait Islander peoples. They sought substantive changes to the
Constitution that would lay the foundation for fair treatment of Aboriginal and Torres Strait Islander
peoples into the future.
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It was later agreed that further meetings and consultations—designed and led by Indigenous leaders—
would be held to settle on a proposal containing options for recognition that were meaningful to
Indigenous people. The Referendum Council was set up to lead further national consultations and
promote community engagement.
Constitutional recognition and treaty issues
Many people ask where treaties and sovereignty fit in with the discussion of constitutional recognition.
Talking about the Constitution draws our attention to basic questions about power in society. For many
Aboriginal and Torres Strait Islander people, that brings up topics like treaty-making and sovereignty
because it connects with the process of colonisation.
When people talk about a treaty, they generally mean an agreement between Indigenous people and
government that has legal effect. The emphasis is on resolving difficult problems by negotiation rather
than fighting things out in court or governments imposing top–down legislation. Treaties were common
in the past in the United States. In New Zealand, the Treaty of Waitangi was signed long ago but still
plays a central role in law and government administration today. In Canada, a modern treaty-making
process is going on right now. In each of these countries, treaties form the basis for relationships
between governments and First Peoples, even though each side might disagree over the definition
of sovereignty. As long ago as 1983, an Australian Senate committee put forward a proposal for an
agreement-making provision in the Australian Constitution.
Both the Expert Panel and the Parliamentary Joint Select Committee acknowledged strong community
interest in a treaty or an agreement-making process with constitutional backing. But both bodies put it
on a longer timeline, saying it needed more discussion.
In the meantime, Aboriginal and Torres Strait Islander groups are already making significant and
legally binding agreements with governments and other parties. For example, native title legislation
supports wide-ranging negotiations and hundreds of agreements have been registered. The historic
Noongar Agreement in Western Australia has been described by many as being akin to a modern
treaty. In Victoria, the State government has entered into treaty discussions with Aboriginal people and
the new Northern Territory government plans to do so as well. The Expert Panel suggested that the
Commonwealth could start negotiations for a treaty or similar agreement using its existing powers,
and that a constitutional amendment down the track could help to give any agreement greater
legal force.
All this suggests that constitutional recognition and treaty discussions are complementary processes
and one is not a legal impediment to the other. Existing and enhanced agreement-making may be
considered an important form of recognition.
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What are some key proposals for reform?
We are interested in what you think about proposals for constitutional reform in the near future. As
well as delivering reports, both the Expert Panel and the Joint Select Committee conducted extensive
public consultations, and debate has continued since. Here are some of the key proposals to emerge
from that process:
• drafting a
statement acknowledging Aboriginal and Torres Strait Islander peoples as the First
Australians, and inserting it either in the Constitution or outside the Constitution, either as a
preamble in a new head of power or in a statutory Declaration of Recognition
• amending or deleting the ‘race power’, section 51 (xxvi) and replacing it with a new head of
power (which might contain a statement of acknowledgement as a preamble to that power) to
enable the continuation of necessary laws with respect to Indigenous issues
• inserting a constitutional prohibition against racial discrimination into the Constitution
• providing for an
Indigenous voice to be heard by Parliament, and the right to be consulted on
legislation and policy that affect Aboriginal and Torres Strait Islander people
• deleting section 25, which contemplates the possibility of a State government excluding some
Australians from voting in State elections on the basis of their race.
Let’s look more closely at each of these options, remembering that both the Expert Panel and the Joint
Select Committee favoured a
package of amendments rather than a single change to the Constitution.
Statement of acknowledgement
A statement of acknowledgement is a statement of facts. It could acknowledge that the continent
was occupied by Aboriginal and Torres Strait Islander peoples before the arrival of the British. It
could acknowledge that there is a continuing relationship between Aboriginal and Torres Strait
Islander peoples, their lands and waters, and their cultures, languages and heritage. Some suggest a
broader statement that acknowledges Australia’s ancient Indigenous heritage, its British institutional
inheritance, and its multicultural achievement.
The Expert Panel recommended a statement of acknowledgement as an introduction (preamble) to a
proposed new law-making power along the following lines:
Recognising that the continent and its islands now known as Australia were first occupied by
Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with
their traditional lands and waters;
Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander
peoples;
Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander
peoples;
the Parliament shall … [etc.]
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Another suggestion is that a statement of acknowledgement could be enshrined in a Declaration
outside the Constitution, perhaps in legislation enacted by all parliaments—federal, State and
Territory—at the same time to create a national defining moment of reconciliation. This would not
require a referendum.
Power to make laws for Aboriginal and Torres Strait Islander peoples
Section 51 is the part of the Constitution that contains the powers to make national laws on various
matters, such as taxation, foreign affairs and social security. To pass a law on anything, the federal
government needs to identify a head of power.
The head of power that allows the federal Parliament to make laws regarding Aboriginal and Torres
Strait Islander peoples on issues such as native title and heritage protection, is known as the ‘race
power’. Section 51 (xxvi) currently states:
Section 51. The Parliament shall, subject to this Constitution, have power to make laws for the
peace, order, and good government of the Commonwealth with respect to:
… (xxvi) The people of any race for whom it is deemed necessary to make special laws
One of the options for reform is to delete this head of power and insert a new head of power
elsewhere in the Constitution that avoids the word ‘race’ and more accurately describe who the
power is to be used for. It would be a power to make laws with respect to ‘Aboriginal and Torres Strait
Islander peoples’. Locating the power outside section 51 would make it easier to insert a
preambular statement of acknowledgement. If the power were simply deleted, with no replacement, then we
would go back to the situation before the 1967 referendum. Outside the Northern Territory, the States
would be left in charge of Aboriginal and Torres Strait Islander affairs and the Commonwealth would
lack power to make national laws dealing with native title and so on.
Another approach, with a similar effect, would be to amend, rather than delete, the current power
in section 51 (xxvi) so that it authorises laws with respect to ‘Aboriginal and Torres Strait Islander
peoples’ and the concept of ‘race’ is removed.
‘Race’ is a concept that belongs to the 19th century rather than the 21st. But removing the word ‘race’
and replacing it with the words ‘Aboriginal and Torres Strait Islander peoples’ in a new or amended
power does not solve the problem of Parliament having the power to pass racially discriminatory laws.
This is why a guarantee against racial discrimination by the federal Parliament is another option (see
next section).
A new or amended power could also list some of the things that communities would like to
see created in the future, for example, an Indigenous voice in the Parliament (see below) or an
agreement-making process.
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A constitutional prohibition against racial discrimination
The proposal to insert a guarantee in the Constitution to stop the federal Parliament from
discriminating against a people of any race or cultural background has been made many times since
1901. A racial non-discrimination clause was discussed in the lead up to the 1967 referendum but
the government did not include it in the proposal put to the vote. Advocacy for a prohibition against
racial discrimination grew among Indigenous people following a High Court decision in 1998 that the
race power can likely be used to support racially discriminatory laws that single them out for
adverse treatment.
Australia’s commitment to the principle of racial non-discrimination is accepted in legislation and
policy in all the States and Territories. There has also been a national law since 1975, the Racial
Discrimination Act. Only the federal Parliament is not bound. A constitutional guarantee against racial
discrimination would change this: it would bind the federal Parliament.
A non-discrimination clause could be inserted as a new section of the Constitution. Or it could be
included as a limit inside the wording of a new or amended Commonwealth power to make laws
for Aboriginal and Torres Strait Islander peoples. Either way it would need to allow for laws that are
specific to Aboriginal and Torres Strait Islander peoples but which don’t discriminate against them.
An Indigenous voice to Parliament
Aboriginal and Torres Strait Islander peoples are the First Peoples, but they are less than 3% of the
Australian population. In Australia’s representative democracy, which works by majority vote at the
ballot box and in Parliament, it is difficult for their voice to be heard and for them to influence laws
that are made about them. Indigenous people have long advocated for better political representation
and fairer consultation.
Australia has acceded to the United Nations Declaration on the Rights of Indigenous Peoples, which
emphasises the importance of genuine Indigenous participation and consultation in political decisions
made about their rights—but no formal processes for this to occur have yet been implemented.
If section 51 (xxvi) were to be replaced or amended, Aboriginal people and Torres Strait Islanders
would need some assurance that any new or amended power could only be used for their
advancement or benefit. This is the reasoning behind the suggestion of providing for an Indigenous
voice in Parliament.
It is critical that Aboriginal and Torres Strait Islander peoples are engaged in the development and
implementation of laws, policies and programs that affect them and their rights. This is important
in achieving better policies and outcomes for Indigenous peoples, and a fairer relationship with
government. It may also help prevent discriminatory laws and policies being enacted.
The Constitution could be amended by establishing an Indigenous body—as many other countries
have—to advise Parliament on laws and policies with respect to Indigenous affairs. Such an
amendment could ensure that the views of First Peoples are heard by lawmakers and could help
Parliament to enact better and more effective laws.
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Deleting section 25
Section 25 contemplates that the States might pass a law banning people from voting at a State
election, on the basis of their race.
Under this section, if a racial group were denied the right to vote in State elections, the people of
that race would not be counted in working out the number of seats which that State has in the
Commonwealth House of Representatives. By reducing federal representation, in theory it acts as a
penalty against race-based voting laws at the State level. But people and politicians on all sides have
long said that section 25 should be deleted.
The problem is not State voting laws—the Racial Discrimination Act would take care of them. In
that sense, section 25 is a dead letter. The problem is that, with section 25, our Constitution still
contemplates that a government would ban an Australian from voting on the basis of their race.
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Now have your say
Australians now face a historic opportunity to engage in a national discussion about improving the
relationship between Indigenous peoples and Australian governments. We have an opportunity to
amend the Constitution to ensure Indigenous peoples are treated more fairly than in the past, and to
recognise the important place of Aboriginal and Torres Strait Islander peoples within our national life.
This is our chance to make real the advocacy of so many Indigenous activists over the decades, and to
come together as Australians to make our great country even greater.
Join in the conversation. Have your say. Let’s all work together to come up with the right solutions and
make recognition a reality.
Here are some questions to help you frame your response to this Discussion Paper.
What do you think?
General
1. Do you support constitutional or other legal change to deal with the question of recognition?
2. If you do, what form do you think change should take?
What about the specific proposals for reform?
Statement of acknowledgement
3. Should we have a statement of acknowledgement in Australian law?
4. To effect an inspiring statement of recognition, should it be within the Constitution or
outside it?
5. If it is to be within the Constitution, is the statement best placed as an introduction to a
head of power to make laws with respect to the people it acknowledges?
6. What should be included in a statement of acknowledgement?
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A federal power to make laws for Aboriginal and Torres Strait Islander peoples
7. Should references to ‘race’ be removed from the Constitution?
8. Should the federal Parliament retain a specific power to make laws with respect to
Aboriginal and Torres Strait Islander peoples, to enable laws on issues like native title?
9. Do you have any suggestions about how it is worded or where it is located in the
Constitution?
A constitutional prohibition against racial discrimination
10. Do you think that a guarantee against racial discrimination should be inserted in the
Constitution?
11. Do you have any suggestions about how it is worded or where it is located in the
Constitution?
12. Should any racial non-discrimination clause protect all Australians, or Indigenous
Australians only?
13. Are there other ways of preventing racial discrimination in Commonwealth laws and
policies if such a clause does not win support?
An Indigenous voice
14. Do you think Indigenous people should have a say when Parliament and government
make laws and policies about Indigenous affairs?
15. Should Aboriginal and Torres Strait Islander peoples have an advisory role or body
mandated in the Constitution, so they are guaranteed a voice in political decisions made
about them?
16. Given that the proposal is for the body to offer non-binding advice, so it cannot veto
legislation, would it still be worthwhile?
17. Do you have any ideas about the design of such a body?
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Deleting section 25
18. What would be achieved by deleting section 25?
19. Is there any point in retaining it?
In conclusion
20. Do you have any other comments?
To make a submission, visit: www.referendumcouncil.org.au.
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APPENDIX I: PROCESS FOR FIRST NATIONS REGIONAL DIALOGUES
Process and significance
The bipartisan support of the Government and the Opposition for the Council to host a series of
Aboriginal and Torres Strait Islander designed and led dialogues provided a historic opportunity to
genuinely engage with First Peoples. For the first time, the voices of Aboriginal and Torres Strait
Islander leaders and communities were placed at the centre of discussions. This was achieved through
a series of leadership meetings followed by a trial dialogue convened in Melbourne to test the
methodology. The First Nations Regional Dialogues commenced in December 2016 and culminated in a
National Constitutional Convention at Uluru in May 2017.
The process developed for the First Nations Regional Dialogues was modelled partly on the one that
was used by the Constitutional Centenary Foundation through the 1990s to encourage debate on
constitutional issues in local communities and schools. It was adapted to suit the needs of this process
but the characteristics remained the same: impartiality; accessibility of relevant information; open and
constructive dialogue; and mutually agreed and owned outcomes.
The First Nations Regional Dialogues engaged 1,200 Aboriginal and Torres Strait Islander delegates,
out of a population of approximately 600,000 Aboriginal and Torres Strait Islander peoples nationally.
This is the most proportionately significant consultation process that has ever been undertaken
with Aboriginal and Torres Strait Islander peoples – it engaged a greater proportion of the relevant
population than the constitutional convention debates of the 1800s, from which Aboriginal and Torres
Strait Islander peoples were excluded.
This is the first time in our nation’s history that such a process has been undertaken, and the first time
a constitutional convention has been held with and for Aboriginal and Torres Strait Islander peoples. It
was significant, not only as a step toward recognising Aboriginal and Torres Strait Islander peoples in
the Australian Constitution, but as a response to their historical exclusion from the original processes
which led to the drafting, establishment and oversight of Australia’s Constitution.
Initial stages
The Council established an Indigenous Steering Committee from its Aboriginal and Torres Strait
Islander membership to design and deliver the Dialogues. The Australian Institute of Aboriginal and
Torres Strait Islander Studies was engaged to provide expert assistance in delivering logistics and
supporting delegates to attend. The Steering Committee also engaged an Executive Officer, through
the Australian Human Rights Commission, to support efficient decision making and communicate with
key stakeholders.
The Council sought input to the design of the framework through a series of three Indigenous
leadership meetings with around 150 Aboriginal and Torres Strait Islander traditional owners, peak
body representatives and individuals. These meetings were held in Broome (28–29 June 2016),
Thursday Island (12–13 July 2016) and Melbourne (18–19 July 2016), and involved consideration of the
Council’s proposed approach to its task, as well as an overview of the proposals and the Council’s role.
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Several key themes emerged from the Indigenous Leadership meetings:
• the Council’s framework for the Dialogues was widely supported;
• the Dialogue process should not be rushed;
• constitutional reform must be meaningful and supported by Aboriginal and Torres Strait Islander
peoples;
• there is growing interest in and support for the proposal for an Indigenous representative body
or voice to the Parliament;
• a ‘package’ of reforms in Indigenous affairs to accompany constitutional reform is necessary, and
constitutional recognition is in no way a solution by itself;
• treaty/treaties (or a framework for treaties) is the most meaningful form of ‘recognition’ and
constitutional ‘recognition’ that undermines sovereignty was unacceptable; and
• the role of Recognise needed to be clearly delineated from the Referendum Council.
A ‘trial’ Regional Dialogue was held in Melbourne on 4–6 November 2016. The purpose of the trial was
to test and, if necessary, adjust, the format proposed for the twelve First Nations Regional Dialogues
that would follow. There were approximately70 participants involved, including many who would
go on to become the convenors and workshop leaders for the Dialogues in their region. This had the
advantage of ensuring that a core group of participants in most of the Dialogues would be familiar
with the agenda to be followed.
The trial Dialogue confirmed that the structure of the First Nations Regional Dialogues – namely,
plenary sessions combined with structured working groups on each of the five principal constitutional
reform options – was effective in achieving the aims of the Dialogue process. It also provided
important learnings about the types of support required for convenors and working group leaders,
the need to include discussion of sovereignty and agreement-making, and confirmation of the
message of the Kirribilli Statement that, whatever recognition involved, it should make a substantive
difference. A minimalist approach to reform, which provides preambular recognition, removes
section 25 and moderates the race power, was viewed as unacceptable to Aboriginal and Torres Strait
Islander peoples.
The Referendum Council gave final approval of the framework for the Dialogues on 20 October 2016.
The approach continued to be refined throughout the delivery of the Dialogues.
The First Nations Regional Dialogues
The aim of the First Nations Regional Dialogues was to enter into a dialogue with Aboriginal and
Torres Strait Islander peoples about what constitutional recognition involves from their perspectives.
The format was designed to give participants a chance to examine the main options for recognition
that had been put forward, to understand them in detail, to discuss the pros and cons of each proposal
and to explore their potential significance for the relationship between Aboriginal and Torres Strait
Islander peoples and other Australians. Through this process, delegates were invited to identify an
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approach to recognition that seemed most likely to be meaningful. The Dialogues involved a sample
of Aboriginal and Torres Strait Islander peoples from a sample of regions in Australia. The deliberative
decision-making nature of the Dialogues meant that the numbers had to be capped and the
agenda structured.
The Dialogues were held between December 2016 and May 2017:
Dates
Location
Host organisation
9–11 December 2016
Hobart, Tasmania
Tasmanian Aboriginal Corporation
10–12 February 2017
Broome, Western Australia
Kimberley Land Council
17–19 February 2017
Dubbo, New South Wales
NSW Aboriginal Land Council
22–24 February 2017
Darwin, Northern Territory
Northern Land Council
3–5 March 2017
Perth, Western Australia
South West Aboriginal Land and
Sea Council
10–12 March 2017
Sydney, New South Wales
NSW Aboriginal Land Council
17–19 March 2017
Melbourne, Victoria
Federation of Victorian Traditional
Owners Corporation
24–26 March 2017
Cairns, Queensland
North Queensland Land Council
31 March – 2 April 2017
Ross River, Northern Territory
Central Land Council
7–9 April 2017
Adelaide, South Australia
Aboriginal Legal Rights Movement Inc
21–23 April 2017
Brisbane, Queensland
-
5–7 May 2017
Torres Strait, Queensland
Torres Strait Regional Authority in
partnership with a number of Torres
Strait Islander organisations
10 May 2017
Canberra,
United Ngunnawal Elders Council
Australian Capital Territory
(Information Day)
Each First Nations Regional Dialogue was delivered in partnership with a local host organisation
with an understanding of the region. Two convenors were selected from the local region to facilitate
discussions according to an agenda prepared by the Council’s Indigenous Steering Committee. Five
local working group leaders, supported by legal and technical advisors, facilitated the working group
discussions at each Dialogue. The host organisations, together with co-convenors, and, in some cases,
working group leaders, provided guidance on a range of issues including: invitees, venues, Welcome to
Country, and community functions held on the first evening.
Up to 100 delegates were invited to each First Nations Regional Dialogue. Those attending from
outside the regional centre were supported to travel and attend. Delegates were selected according
to the following split: 60% of places for First Nations/traditional owner groups, 20% for community
organisations and 20% for key individuals. The Council, together with the Australian Institute of
Aboriginal and Torres Strait Islander Studies, worked with the host organisation at each location to
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ensure the local community was appropriately represented, including a reasonable spread across age
and gender demographics.
As relevant and appropriate, at each Dialogue, interpreting services were offered, in the local
languages of the region.
Each Dialogue was held over two and a half days, beginning at 12.30pm on day 1 and ending with
lunch on day 3. The agenda was a structured agenda. It involved intensive civics education on the
Australian legal and political system and a history of Aboriginal and Torres Strait Islander advocacy for
structural legal and political reform.
The first half-day was spent on introductions, an overview of the struggle of the First Nations
Peoples for reform since the early 19th century, and a plenary discussion that was broad-ranging on
constitutional reform and the aspirations of delegates for the future of their region.
The second morning commenced with a civics lecture that included the following information:
• What is the Constitution?
• Why have constitutions?
• Who determines the interpretation of the Constitution?
• What is the difference between the Constitution and ordinary laws?
• Who makes ordinary laws?
• What is the Parliament?
• How is a bill generated and then is passed?
• What scrutiny is there of Australian government actions?
• What role for ordinary citizens?
• What role for Aboriginal and Torres Strait Islander peoples in that process?
The remainder of the morning included a discussion of the word ‘recognition, an overview of relevant
constitutional and legal frameworks, and comparative international models. Six principal reform
options were explained: a statement of acknowledgement, within or outside the Constitution;
amendment or replacement of the ‘race power’; repeal of section 25; constitutional prohibition of
racial discrimination; agreement-making; and an Indigenous Voice to the Parliament, with a base
in the Constitution. All of these, with the exception of the repeal of section 25, were allocated to a
working group to examine in the next session.
The remainder of the day involved a dialogue in plenary and small group sessions. In working groups,
delegates examined and reported back on the reform options, including possible benefits, any
concerns and their preference for what should be taken forward. Each working group was led by a
regional working group leader and guided by advice from a constitutional lawyer or technical advisor.
Delegates were advised that it was open to them to agree or disagree that constitutional reform
was necessary or desirable, indicate what might be a priority and that they could propose additional
options for reform beyond those presented in the Discussion Paper.
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The day ended with discussion of the process to select delegates for the National Constitutional
Convention at Uluru. All delegates were invited to nominate. The selection process was determined
by each region, but mostly was done by secret ballot.
On the final day, delegates were presented with a draft Record of Meeting which synthesised the
discussion and debate from the plenary sessions and provided the opportunity to make changes.
Nominees for the National Constitutional Convention delegation were then invited to address the
full group on why they should be selected to attend and a vote was taken. From each Dialogue, ten
delegates were selected to represent their region together with the convenors and working group
leaders from the Dialogue (17 delegates in total). In addition to these delegates, the Council invited
a number of other key individuals to attend the National Constitutional Convention, in order to ensure
representation of an appropriate range of views.
Two short films, commissioned by the Council, were played at each Dialogue. These short films,
researched and written by Council member Megan Davis and produced and narrated by Rachel Perkins,
provided an inspirational historical overview of the Indigenous advocacy for reform and an educational
overview of the structure of the Australian political system and the role of the constitution. They not
only assisted in framing the several days of deliberation of each Dialogue, but also emphasised the
importance of the Dialogues as further history-making events in the long line of Aboriginal and Torres
Strait Islander political engagement.
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APPENDIX J: COX INALL RIDGEWAY REPORT ON DIGITAL CONSULTATIONS
Constitutional
Recognition of
Aboriginal and
Torres Strait
Islander Peoples
Analysis of Digital Consultations
Final Report
Prepared on behalf of the Referendum Council
June 2017
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TABLE OF CONTENTS
About this report
4
Social and digital consultations
4
Surveys
5
Survey results
5
Social and digital consultation sentiment
8
Preferred options across all platforms
8
Consistent themes
8
Interpreting the findings: consideration and insights
9
Changing the Constitution to help stop
racial discrimination
11
Removing section 25
13
Removing or amending the ‘race power’
14
An Indigenous voice to parliament
16
A statement about the First Peoples of Australia
18
Appendix 1: Survey Questions
20
We stand in footsteps millennia old, may we acknowledge all traditional
owners of this great brown land both past and present.
Prepared in partnership with
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WHO ENGAGED IN
CONVERSATION?
GENERATING
199,961 WEBSITE VIEWS
195,831
A REACH OF
PEOPLE ENGAGED WITH
70,570 FACEBOOK & TWITTER
QUESTIONS ONLINE
2,824,702
LIKES, COMMENTS, SHARES
MARCH - MAY 2017
IMPRESSIONS
5,300 SURVEY PARTICIPANTS
TOP 5 LOCATIONS
GENDER
FEMALE
MALE
43.35%
54.65%
AGE
24-35YR & 65+YR
GREATEST PARTICIPATION
ON SOCIAL
TELEVISION IDENTIFIED
WORD OF MOUTH,
AS SOURCE OF MOST
SOCIAL & COMMUNITY
INFORMATION ON THE
EVENTS WERE KEY
ISSUE FOR
INFORMATION SOURCES
NON-ABORIGINAL &
FOR THE ABORIGINAL
TORRES STRAIT
& TORRES STRAIT
ISLANDER
ISLANDER POPULATION
POPULATION
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About this report
the five reform options were also posed to
facilitate discussion.
This report summarises the findings of a
social and digital consultation project (the
Total reach generated by digital consultation
consultations) hosted by Cox Inall Ridgeway
efforts was 2,824,702 impressions.
(in partnership with BWM Dentsu), to explore
levels of support for constitutional reform
As well as hosting consultation and encouraging
and to determine the key reactions to the five
discussion, the Council’s digital platforms provided
options for reform that formed the basis of the a place for the public to access information about
Referendum Council’s consultations.
constitutional reform and the Referendum Council.
The platforms were intended to exist only for the
The five options for reform included:
duration of the consultation and the Referendum
Council’s tenure.
• Inserting an acknowledgement of Aboriginal
and Torres Strait Islander peoples as the First The process for developing the platforms included
Peoples of Australia,
research to determine current awareness of, and
• Amending or replacing the ‘race power,’
attitudes towards, constitutional reform. A review
was undertaken of the cultural appropriateness for
• Inserting a guarantee against racial
Aboriginal and Torres Strait Islander audiences of
discrimination,
digital strategies and content.
• Providing for an Indigenous voice to be
heard by Parliament, and
Measuring online sentiment
• Deleting section 25.
Council’s digital platforms were constructed
The level of support for constitutional
with integrated consultation tools via social
change was measured in two ways - a survey
media and an on-site submission form.
conducted online and via telephone, and
through sentiment tracking across social and
Data was collected throughout the digital
digital consultations held on the Council’s
consultation period using reporting software
website and social media platforms.
that included Google Analytics, Facebook
Dashboard, Twitter Reports and Sysomos
The two methods delivered starkly different
Social Monitoring.
results. The majority of those who participated
in the online and telephone surveys were in
Sentiment was measured and reviewed
favour of constitutional reform. This result was through a dual process of machine filtering
in direct contrast to social media sentiment,
and analysis by research experts to ensure
which was overwhelmingly neutral or negative. humour, sarcasm and irony, as well as overall
intonation, were evaluated. All posts were
reviewed in relation to the specific options for
Social and digital consultations
reform. The following defines how sentiment
has been identified in this report.
Social and digital consultations were carried
out across the Referendum Council website
• Positive sentiment represents a positive
opinion towards the option.
(www.referendumcouncil.org.au), Facebook
page and Twitter feed.
• Neutral sentiment represents an indecisive
opinion or a question regarding the topic
Consultation began in February 2017 and
requesting further information.
finished on 15 May 2017. During this time, the
• Negative sentiment represents a negative
platforms were updated weekly with news,
opinion on the options for reform.
content and weekly themes to engage the
Australian population to share their ideas,
• ‘Not Applicable’ sentiment represents
opinions and thoughts on the options for
comments not providing any indication of
reform. Approved questions relating to
positive, negative or neutral support on the
options for reform.
4
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Surveys
Survey results
A total of 5,300 people participated in online
The majority of those who participated in the
and telephone surveys over a six month
online and telephone surveys were in favour
period between November 2016 and May
of the Council’s five reform options. This
2017. Surveys were conducted in three phases
includes a majority among the wider
during this period.
community and Aboriginal and Torres Strait
Islander communities.
Two samples of 2,500 Australians completed
a 5-minute online survey. The first survey was
A very strong level of support was expressed
conducted in November 2016, the second
for the guarantee against racial discrimination,
survey in April 2017, both with different
with three in four members of the wider
samples. The third survey re-contacted
community and four in five Aboriginal and
all participants from both surveys at the
Torres Strait Islander peoples, in favour of the
completion of the digital consultations (May
option.
2017) to assess any significant changes in
sentiment and preference for the reform
While strong support was also expressed
options. Participants were representative
for an Indigenous voice to Parliament, this
of Australia’s diverse geography and
option was favoured by a larger proportion of
demography.
Aboriginal and Torres Strait Islander peoples
(80%) than the non-Aboriginal and Torres
A boost sample of 100 participants identifying Strait Islander population (68%).
as Aboriginal and/or Torres Strait Islander
were also surveyed via CATI (telephone
A majority of both groups supported
interviews) at the same time that each
removing or amending the ‘race power’ (65%
online survey was conducted. Telephone
and 62% respectively).
surveys were conducted with Aboriginal and
A similar majority supported the insertion
Torres Strait Islander peoples to understand
of a statement acknowledging Aboriginal
their views compared to those of the wider
and Torres Strait Islander peoples as the
community.
First Australians, with 63% of online survey
The aim of the surveys was to benchmark and
participants and 67% of Aboriginal and Torres
determine levels of awareness and attitudes
Strait Islander peoples in favour of this option
toward constitutional reform across a range of for reform.
demographic groups, within both Aboriginal
The lowest levels of support were expressed
and Torres Strait Islander communities and
for the deletion of section 25 (62% of the
the wider community. Importantly, the surveys wider community and 56% of Aboriginal and
were also used to determine any changes in
Torres Strait Islander peoples).
awareness or attitudes across the consultation
period. The survey included a mix of nominal
Overall, support was highest amongst young
and interval questions. The specific issues
and educated Australians. For example, 76%
quantified related to levels of:
of higher educated Australians supported the
option for a statement of acknowledgement
• awareness of constitutional reform,
compared with 63% of the broader population.
• understanding of possible reforms,
These survey results are indicative only
• positive/negative views on the options, and
and provide a point of comparison for the
online sentiment results. They also assist
• understanding of information sources
in measuring changes in views over time,
that influenced respondents’ awareness
including as a result of the Referendum
of constitutional reform.
Council’s public engagement process.
5
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SENTIMENT:
SURVEY VS SOCIAL
+
-
MAJORITY OF THOSE
PUBLIC CONVERSATIONS ON
WHO PARTICIPATED IN THE
SOCIAL MEDIA DURING THE
ONLINE AND TELEPHONE
CONSULTATION PERIOD
SURVEYS WERE IN FAVOUR
WERE LARGELY NEUTRAL
OF THE OPTIONS FOR REFORM
OR NEGATIVE
WHO WAS MOST SUPPORTIVE?
OVERALL, SUPPORT WAS HIGHEST AMONGST
YOUNG AND EDUCATED AUSTRALIANS
63%
80%
80% OF ABORIGINAL AND
OF THE BROADER POPULATION
TORRES STRAIT ISLANDER
SUPPORTED THE OPTION
PEOPLE SUPPORTED THE
FOR A STATEMENT OF
OPTION FOR AN
ACKNOWLEDGEMENT
INDIGENOUS VOICE
TO PARLIAMENT
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SENTIMENT ACROSS SURVEYS
76%
24%
CHANGES TO PREVENT RACIAL DISCRIMINATION
68%
32%
AN INDIGENOUS VOICE TO PARLIAMENT
POWER TO MAKE LAWS FOR ABORIGINAL AND
65%
35%
TORRES STRAIT ISLANDER PEOPLES
63%
37%
STATEMENT ABOUT THE FIRST PEOPLES OF AUSTRALIA
61%
39%
REMOVING SECTION 25
Prepared to support
Not prepared to support
SENTIMENT ACROSS SOCIAL
19% 12%
41%
28%
CHANGES TO PREVENT RACIAL DISCRIMINATION
16.4% 11%
37.7%
34.9%
STATEMENT ABOUT THE FIRST PEOPLES OF AUSTRALIA
14%
42%
34%
REMOVING SECTION 25
10%
24.3% 24.7%
42.65%
AN INDIGENOUS VOICE TO PARLIAMENT
8.35%
POWER TO MAKE LAWS FOR ABORIGINAL AND
48%
27%
24.1%
TORRES STRAIT ISLANDER PEOPLES
0.9%
Positive
Neutral
Negative
N/A
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Access to information
in favour) and for removing or amending the
‘race power (less than 1% in favour).
The online and telephone surveys generated
other insights into perceptions of the
Insights into levels of negative sentiment are
adequacy and availability of information about further explained in ‘Interpreting the Findings.’
the reform options and preferred channels for
receiving information.
Preferred options across all platforms
Among online survey participants, just two
in five people felt they had access to enough
When the levels of positive sentiment from the
information to make an educated decision on
surveys, website and social media sentiment
constitutional reform. Television was identified are combined, an Indigenous voice to
as the biggest channel for information on the
Parliament is the most popular reform (39.3%).
issue, followed by print media. Only 22% could This is followed by changes to prevent racial
recall the last place they saw reference to
discrimination (35.6%), a statement about the
constitutional reform.
First Peoples of Australia (34%) and removing
section 25 (31.9%). There was significantly less
Levels of awareness were higher among
overall positive support for the inclusion of a
Aboriginal and Torres Strait Islander peoples,
power to make laws for Aboriginal and Torres
with one in two reporting they felt adequately Strait Islander peoples (16.3%).
informed on the issues. Word of mouth, social
media and community events were prioritised
Consistent themes
as key information sources by Aboriginal and
Torres Strait Islander peoples.
A number of themes emerged throughout the
consultation period in relation to the options
Social and digital consultation
for reform and constitutional recognition more
sentiment
broadly.
Mistrust of Government: There was a high level
In contrast to the popular support expressed
of mistrust expressed among both the wider
in the online and telephone surveys, public
community and Aboriginal and Torres Strait
conversations on social media during the
Islander peoples, as well as suspicion as to the
consultation period were largely neutral or
‘true motivation’ for some of the options for
negative.
reform.
Negative sentiment was sitting around 40%
Interest in Aboriginal and Torres Strait Islander
for the proposed guarantee against racial
preferences: There was strong interest from
discrimination (41.2%). The option to include
the wider community as to which options
a statement acknowledging Aboriginal and
Aboriginal and Torres Strait Islander peoples
Torres Strait Islander peoples as the First
prefer, and why, as a way to inform their own
Australians was at 37.7% negative and the
decision-making.
option to delete section 25 was at 42.5%
negative. In each case, negative sentiment
Closing the Gap agenda:
There was some
was two to three times higher than positive
concern that constitutional reform will
sentiment.
‘replace’ or ‘draw attention away from’ other
pressing issues including social justice and the
Social media commentary in relation to the
Closing the Gap agenda.
option to include an Indigenous voice to
Parliament and the option to amend or remove Lack of community input:
There was
the ‘race power’ was largely neutral, although
concern that this was a ‘government driven’
one in four expressed negative sentiment
rather than ‘community driven’ process
(24.9% and 27% respectively). Positive
and that community leadership had limited
sentiment was at its lowest level for options
opportunities to participate in the discussion.
for an Indigenous voice to Parliament (8.35%
8
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This was one of the most discussed topics
reform. It is also useful in understanding the
throughout the digital consultations.
key misapprehensions and concerns of people
who are unfamiliar with the issues.
For example, many people expressed their
frustration at the Referendum Council’s
dialogues. Some social media users criticised
Low participation
the Council for not running the dialogues
There were a number of challenges in
with the broader community and raised
attracting a wide and diverse audience to the
concerns that key members were not allowed
digital conversation. Although an advertising
to participate in conversations. Others raised
budget of $50,000 was spread across the
the issue that some Elders live in remote
full eight week campaign to ensure maximum
areas with no access to internet and may be
visibility of posts, this proved to be insufficient
unaware of the conversations taking place.
to engage a large number of commentators in
Substantive versus ‘meaningless’ change:
the discussion.
There was some concern that the options
Almost 200,000 people viewed content
offered meaningless changes that would not
on the digital platform, but few chose to
positively impact the lives and experiences of
actively engage through comments, shares or
Aboriginal and Torres Strait Islander peoples.
reactions to the posts. This participation was
Recognition stops Treaty:
Some discussed
mostly limited to people with extreme views,
the move toward recognition being a ploy by
including those making racist comments, or
the Government that sounded beneficial to
expressing a singularly pro-sovereignty view.
Aboriginal and Torres Strait Islander peoples
Some commenters who supported the
but that would prevent any chance of having a Council’s reform options or asked questions
Treaty in Australia.
were trolled, while others appeared to have a
Special treatment:
The singling out of
vendetta against the Council. Others asked
Aboriginal and Torres Strait Islander peoples
for an anonymous method of providing
in the constitution was viewed by some as a
their views.
backwards step in terms of achieving racial
Through the screening and moderation
equality in Australia.
process profanity and discriminatory posts
were discarded, as per the terms and
Interpreting the findings:
conditions of participation.
considerations and insights
Sentiment change in online surveys
Online disinhibition
Across many of the options for reform,
It is strongly suggested the Council give the
support from online survey participants
online and phone survey results more weight
dropped between sampling waves one to two,
(than the social results) in understanding levels but returned to original levels by wave three.
of support for its options. Using online opinion
as an indicator of what the wider population
Although no research was undertaken into
thinks about an issue is problematic for a
why this may be the case, it should be noted
number of reasons, most significantly because
that by wave three (post consultation period)
of the online disinhibition effect.
the topic of constitutional reform was gaining
strong mainstream media attention and was
This is a tendency for online commentators to
being mentioned more frequently across
act out or be less civil than in ‘real’ life.
multiple media platforms. This could be
Social media tracking was helpful in providing
attributed to a stronger level of support or a
a strong sense of the way people who are
‘return’ of support within both populations.
active online are talking about constitutional
9
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A number of other national debates were also
taking place alongside the digital consultations,
such as the option to change section 18c of
the Racial Discrimination Act. During this
time, numerous negative comments were
made on the Council’s social platforms about
these issues. This demonstrates confusion by
members of the population and the impact of
related national debates on sentiment during
the consultation period.
Complex nature of issues
It should also be noted that throughout the
entire project, many respondents commented
on the complex nature of the material being
discussed and limited access to educational
materials. This may have led to negative
responses from people who may have
misunderstood or not fully understood the
options and their impacts.
Some participants reported the complexity of
the information being a barrier to interest and
engagement.
Through focus testing which occurred prior
to the consultation period, many people
reported having low levels of awareness of the
Constitution, the process of Referendums and
the political system in general.
10
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TOPIC 1
CHANGING THE CONSTITUTION TO HELP STOP RACIAL DISCRIMINATION
Online survey results
Support for a consitutional prohibition of racial
Survey participants, both in the wider
discrimination among survey participants
(at wave three)
community and among Aboriginal and Torres
Strait Islander peoples, were overwhelmingly
S
PORT OR OP IONS F R CONS
in favour of changing the Constitution to help
24%
stop racial discrimination.
Approximately three quarters of people
supported inclusion of a constitutional
con tut
sto
a i cri i t on
prohibition on racial discrimination.
76%
Support w
nt a o
as c
t
onsis
rs t
Pently ar
eo l ound 7
f u r 5%
alia
throughout the process for the wider
community. Support dr
G t ng r opped off slightly (5%)
d o sec on 25
among Aboriginal and Torres Strait Islander
participants between w
Po
av
er t es one and tw
o a e aws
o,
Prepared to support
Not prepared to support
however had returned to 80% by the third wave.
Social media sentiment
l
i
Consitutional prohibition of racial discrimination:
In c
i
ontr
na ast, o
on a verall sentiment acr
ong s vey p t
a osts the social
Facebook and Twitter sentiment
channels was nega
tive in r
)
elation to changing the
Constitution to help stop racial discrimination.
19%
Key issues raised
28%
Social media discussion
The launch of the Council’s website and
12%
educa
%
tional videos on constitutional reform,
generated some social media commentary
on the option to include a constitutional
prohibition of racial discrimination that was
41%
largely negative.
Addres
sing r
acism
Positive
Neutral
Negative
N/A
A popular topic was whether a constitutional
prohibition of racial discrimination would
actually prevent racism. Some people
expressed the view that the option would add
words to the Constitution without resulting in
substantive change. Others argued that simply
adding words to the Constitution will not
change the mentality of those that intimidate
others, and that further education is needed to
stop racism in Australia.
11
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‘Singling out’ particular communities
Bill of Rights
There was some commentary about the
A bill of rights, or human rights clause for all
unfairness of certain groups being singled
Australians, was suggested by some people.
out for ‘special treatment’ and a preference
These suggestions were seen as preferable to
expressed for options that provide benefits to
providing special treatment to certain groups.
all. Many comments accused Aboriginal and
Some suggested the bill of rights should
Torres Strait Islander peoples of also being
guarantee equal opportunity to work, to
the perpetrators of racism in Australia (so
housing, to a living income and legal aid.
called ‘reverse racism’). Other participants
accused the Government of being racist for
Interaction with racial discrimination laws
having certain programs that are exclusive to
Among the other negative viewpoints,
Aboriginal and Torres Strait Islander peoples.
some argued the option is irrelevant and
Broadening the scope of discrimination
unnecessary as Australia already has racial
discrimination laws, while some participants
On the other hand, some expressed frustration were concerned about the potential impact on
that the option did not also include a
sovereignty and treaty.
prohibition on other forms of discrimination,
including on the basis of gender, sexual
orientation, religion and political views.
12
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TOPIC 2
REMOVING SECTION 25
Online survey results
Support for removing section 25
among survey participants
A majority of survey participants, in both
(at wave three)
the wider community and Aboriginal and
Torres Strait Islander communities, expressed
support for removing section 25.
Support for removing section 25 began at 63% for
the wider community and 59% for Aboriginal and
39%
Torres Strait Islander peoples in November 2016,
but decreased by 5% and 9% respectively for wave
two in April 2017. After the consultations ended,
support in wave three had returned to close to the
61%
original levels of support from wave one.
Social media sentiment
Overall, online sentiment was negative in relation
Prepared to support
Not prepared to support
to removing section 25 from the Constitution.
Key Issues raised
Removing section 25:
Social media discus
urvey artic p nts sion
Facebook and Twitter sentiment
Ov
erall, ther
e w
ere some people who
supported the option to delete section
25 on the basis that it refers to race rather
than culture. Others supported the inclusion
34%
of an anti-racism clause provided race is
14%
properly defined.
Section 25 as a ‘Dead Letter’
Section 25 was referred to as a ‘dead letter’
by some who argued there was no need to
10%
remove it because it is now a meaningless
42%
provision, based on the assumption that no
states will ever disqualify certain races from
voting in s
por
tate elections.
Not repa ed o su
Positive
Neutral
Negative
N/A
Prioritising ‘real’ change
Others expressed concern that the referendum
will fail if it includes too many options and
suggested prioritising changes that will result in
real change, unlike the removal of section 25.
13
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TOPIC 3
REMOVING OR AMENDING THE ‘RACE POWER’
Online survey results
Support for removing or amending the
‘race power’ among survey participants
Two thirds of survey participants expressed
(at wave three)
support for the option to remove or amend
references to race, in both the wider
community and among Aboriginal and Torres
Strait Islander peoples.
35%
Support for removing or amending references
to race initially enjoyed support of over 60%
across both waves one and two. While support
remained relatively steady within the wider
65%
community, it dropped significantly among
Aboriginal and Torres Strait Islander peoples
between samples one and two (by 8%), but
returned to original levels of support by wave 3.
Prepared to support
Not prepared to support
Social media sentiment
Online sentiment varied from neutral to
negative across the social channels, with only
1% vie
emo wing the r
ing o a
eform positiv
end
ely.
Removing or amending the ‘race power’:
Facebook and Twitter sentiment
Key issues raised
Social media discussion
27%
24.1%
Concerns about the option to remove or
35%
amend the ‘race power’ in section 51 were
widespread and opinions were divided into
four main areas.
0.9%
48%
Positive
Neutral
Negative
N/A
14
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Impact on laws for the benefit of Aboriginal
Preference for Aboriginal and Torres Strait
and Torres Strait Islander peoples
Islander autonomy
Some objected to the attempt to amend
Others asserted that today’s Government
the ‘race power’ because of fear that
should no longer be making decisions on
any meddling with the power would
behalf of Aboriginal and Torres Strait Islander
ultimately lead to it being removed from the
peoples – they should be able to make their
Constitution. The concern is that without the
own constitutional decisions about laws that
‘race power’ the Government cannot make
impact them. Instead, Aboriginal and Torres
special laws for certain races which might be
Strait Islander peoples’ autonomy should be
necessary to protect or preserve those races.
reflected in the Constitution. The ability of
This would negatively impact laws that protect the Government to make laws for Aboriginal
the rights of Aboriginal and Torres Strait
and Torres Strait Islander peoples was viewed
Islander peoples (such as the Native Title Act) as a way of continuing assimilation via
and prevent the Government legislating for
‘dependency’ and ‘overt control’, which they
programs that provide Aboriginal and Torres
argued will continue to fail and create division.
Strait Islander peoples with education, training
and employment opportunities.
Overlap with an option for a constitutional
prohibition of racial discrimination
There was some overlap between the
suggestions on this option and the option
to insert a constitutional prohibition of racial
discrimination. For example, one respondent
supported deletion of section 51 (XXVI),
subject to both a provision that its deletion
has no impact on Native Title laws or other
funding provisions now in place for Aboriginal
and Torres Strait Islander peoples, and the
insertion of an anti-discrimination clause in the
Constitution. This respondent also suggested
“the word ‘race’ should not appear, as it is an
outdated and erroneous concept”.
Legalised discrimination and ‘special
treatment’
Others expressed concern that the ‘race
power’ constitutes legalised discrimination
and should be removed on principle and a
clause inserted that applies to all people.
Others were worried that singling Aboriginal
and Torres Strait Islander peoples out in this
way would be divisive and lead to further
inequality between Aboriginal and Torres
Strait Islander and other Australians.
15
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TOPIC 4
AN INDIGENOUS VOICE TO PARLIAMENT
Online survey results
Support for an Indigenous voice to
Parliament among survey participants
Over two thirds of people support an
(at wave three)
Indigenous voice to Parliament, in both the
wider community and Aboriginal and Torres
Strait Islander communities.
32%
Support for an Indigenous voice remained
fairly steady for waves one and two, across
both the wider community and Aboriginal and
Torres Strait Islander communities. There is
significantly more support for an Indigenous
68%
voice to Parliament among Aboriginal and
Torres Strait Islander peoples (over 75%).
While support among Aboriginal and Torres
Strait Islander peoples dropped slightly
between waves one and two, it had returned
to original levels in wave three.
Prepared to support
Not prepared to support
Social media sentiment
Online sentiment t
r n Indigenou o
vwar
ic ds an Indigenous v
e t
oice
Indigenous voice to Parliament:
to P
t
arliament v
mong s v aried acr
y ar c oss the social channels
pant
Facebook and Twitter sentiment
betw
(a een nega
t wav thr tiv
ee e
) , neutral and positive.
Website sentiment was largely positive
(66.7%), contrasted with the largely negative
or neutral sentiment on Facebook and Twitter.
42.65%
Key issues raised
24.7%
Social media discussion
This issue generated broader commentary
about the need to listen to Aboriginal and
Torres Strait Islander voices in general.
24.3%
8.35%
Positive
Neutral
Negative
N/A
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Consultation with Aboriginal and Torres Strait
Islander peoples
Some pro-treaty participants argued that it is
now incumbent on the Australian Government to
ask Aboriginal and Torres Strait Islander peoples
if they would like to be specifically included,
especially since they were excluded from the
Constitution when it was established. For
example, one participant observed, “We cannot
force our Constitution onto them, especially after
they were excluded by us from the beginning.”
Past Aboriginal and Torres Strait Islander
representative bodies
Other people referred to past representative
bodies that they believe failed due to difficulty
implementing cohesive plans. There was also
a view that implementation of Aboriginal and
Torres Strait Islander peoples’ aspirations for a
voice to Parliament is not realistic and may be
politically untenable.
Indigenous Productivity Commission
Some participants suggested a different
approach, such as an Indigenous Productivity
Commission, established in the Constitution
to analyse and direct Government spending to
the best programs and services to effectively
‘Close the Gap’.
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TOPIC 5
A STATEMENT ABOUT THE FIRST PEOPLES OF AUSTRALIA
Online survey results
Support for a statement about the First Peoples
of Australia among survey participants
Survey participants expressed a high level of
(at wave three)
support for inserting a statement about the
First Peoples of Australia, including in the
wider community and Aboriginal and Torres
Strait Islander populations, with two in three
63%
37%
people in favour.
Support for drafting a Statement of
Acknowledgement has remained very steady
among the wider community (at 63%), but
it has seen a decrease in support among
Aboriginal and Torres Strait Islander peoples
(from 73% to 67%).
Social media sentiment
Prepared to support
Not prepared to support
Sentiment on social channels was again
different between the website and social
media The website showed 38.5% positive
a s at
n ab t t e F rst eo l s
Support for a statement about the First Peoples
sentiment and 30
tra i m g s v 8% nega
y a
tive sentiment,
ticipants
of Australia: Facebook and Twitter sentiment
while the a
(at wa verage sentiment on F
e three)
acebook
and Twitter was 37.7% negative, with a much
smaller proportion of positive views (16.4%).
16.4%
Key issues raised
34.9%
Social media discussion
11%
Commentary about the option to insert a
statement about the First Peoples of Australia
centred on four main themes.
37.7%
Inherent ‘whiteness’
Positive
Neutral
Negative
N/A
Participants voiced concerns that the existing
Constitution is inherently ‘white’ being formed,
as it was, in an environment where Aboriginal
and Torres Strait Islander peoples were treated
as if they had never existed in the claimed
territory of the Commonwealth of Australia.
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Recognition and sovereignty
Some participants were of the view that (a)
since Aboriginal and Torres Strait Islander
peoples are excluded from the Constitution and
(b) Aboriginal and Torres Strait Islander peoples
never consented to being part of the Australian
nation, there is an argument that Aboriginal
and Torres Strait Islander peoples are not in
fact ‘Australians’ but ‘people living pursuant to
their continuing pre-1770 laws and customs.’
As such, there was concern that the option to
now acknowledge them in the Constitution,
is an attempt to formally bring them into
the Australian nation, thereby undermining
sovereignty and future treaty negotiations.
‘Special’ rights
Some participants expressed the view that
adding a statement about the First Peoples of
Australia is elevating a specific ethnic group
above others by giving them special rights. It is
believed that adding such a statement will not
advance the cause of ‘Reconciliation’, but calcify
differences in the structure of the Constitution.
An entirely new Constitution
Many participants felt the underlying
exclusionary intention of the Constitution
cannot be changed by simply adding in
clauses. It was described as a ‘flawed legal
document’, that needs to be entirely rewritten
so that it is inclusive of all people and includes
reference to the rich Aboriginal and Torres
Strait Islander heritage of Australia. In support
of this argument, some participants referred
to statements from current and previous Prime
Ministers that there were ‘mistakes’ in the
Constitution.
19
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APPENDIX 1: ONLINE SURVEY QUESTIONS
The online survey questions were designed to measure and identify whether the representative
sample of Australians know or have heard about an option to amend the constitution to
recognise Aboriginal and Torres Strait Islander peoples, how they feel about any proposed
changes and if they have heard of the website / digital consultations. The questions were
measured and aligned to activity specifically related to the development and implementation of
the website and associated digital consultations.
Survey Questions:
1. Have you heard about an option to amend the constitution to recognise Aboriginal and
Torres Strait Islander peoples?
a. Yes
b. No
2. What in your own words do you think constitutional recognition means?
[OPEN TEXT BOX with a Don’t know / No idea check box]
3. Have you heard about the Referendum Council, which has been established to lead a
national consultation process on constitutional recognition?
a. Yes
b. No
4. Do you support Aboriginal and Torres Strait Islander peoples being recognised in the
constitution as the First Australians?
a. Strongly support
b. Somewhat support
c. Somewhat oppose
d. Strongly oppose
e. Not sure, will need more information
[OPEN TEXT BOX – please explain why]
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5. How prepared are you to support the following changes to the constitution (scaled
response, including a ‘don’t know’ option):
• Drafting a statement acknowledging Aboriginal and Torres Strait Islander peoples as the First
Australians and inserting it either inside the constitution or outside the constitution
• Removing or amending references to race
• Prohibiting racial discrimination
• Providing for an Indigenous voice to be heard in Parliament
Deleting section 25, which contemplates the possibility of a State government excluding some
Australians from voting in State elections on the basis of their race.
a. Strongly prepared
b. Somewhat prepared
c. Somewhat unprepared
d. Very unprepared
e. Don’t know
6. Do you feel you have had enough access to information in order to make an educated
decision on constitutional recognition?
a. Sufficient access to information
b. Somewhat sufficient access to information
c. Somewhat insufficient access to information
d. Insufficient access to information
e. Not sure, have not searched for information
21
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APPENDIX 1: ONLINE SURVEY QUESTIONS
7. Where have you received most of the information about the recognition of Aboriginal and
Torres Strait Islander peoples from?
a. Online news channels
b. Print media - Newspapers, Magazines
c. TV
d. Word of mouth / conversations with friends/family/ colleagues
e. Social media
f. Community event
g. Other
h. (Referendum Council website – this option to be added in wave #2 and wave #3)
8. If you can remember, where was the last place you saw a reference to constitutional
recognition?
a. yes
b. no
OPEN TEXT BOX [please insert where you saw the reference last]
9. How much do you understand about the constitution?
a) I have strong understanding of the constitution
b) I have some understanding of the constitution
c) I don’t know very much about the constitution
d) I don’t know anything about the constitution
22
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Contact:
Cox Inall Ridgeway
Level 2, 44 Mountain St
Ultimo NSW 2007
E: xxxxxxxx.xxxxx@xxxxxxxxxxxxxxxx.xxx.xx
ABN: 12 606 836 462
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TABLE OF CONTENTS
1.
Introduction ........................................................................................................................................... 1
2.
Overview of respondents ...................................................................................................................... 5
3.
Support for constitutional recognition ................................................................................................... 6
4.
Preferred proposals for recognition ...................................................................................................... 8
5.
Prerequisities for recognition .............................................................................................................. 10
6.
A statement acknowledging the First Peoples of Australia................................................................. 12
7.
The ‘race power’ ................................................................................................................................. 15
8.
A guarantee against racial discrimination ........................................................................................... 18
9.
An Indigenous voice............................................................................................................................ 21
10.
Section 25 ........................................................................................................................................... 25
11.
Alternative options for recognition ...................................................................................................... 27
12.
Summary............................................................................................................................................. 30
FIGURES:
Figure 1 – Preferred proposals for recognition................................................................................................... ii
Figure 2 – Summary of methodology .................................................................................................................2
Figure 3 – Overview of respondents...................................................................................................................5
Figure 4 – Preferred proposals for recognition...................................................................................................8
Figure 5 – Should we have a statement that acknowledges the First Peoples of Australia?...........................12
Figure 6 – Should the word ‘race’ be taken out of the Constitution?................................................................15
Figure 7 – Should the Australian Parliament keep the power to make special laws for Aboriginal and Torres
Strait Islander peoples?..................................................................................................................16
Figure 8 – Do you think that a guarantee against racial discrimination should go in the Constitution?...........18
Figure 9 – Should the guarantee protect al Australians against racial discrimination, or only Indigenous
Australians? ....................................................................................................................................19
Figure 10 – Do you think Indigenous people should have a say when Parliament and government make laws
and policies about Indigenous affairs? ...........................................................................................21
Figure 11 – Should a new Indigenous group be set up under the Constitution to give advice and make sure
Indigenous people have a voice in political decisions that affect them? ........................................22
Figure 12 – Is it worth creating the new group if it can only give advice and does not have the power to block
new laws? .......................................................................................................................................23
Figure 13 – Should we delete section 25? .......................................................................................................25
TABLES:
Table 1 – Summary of available demographic data ...........................................................................................3
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EXECUTIVE SUMMARY
In May 2017, Urbis was commissioned by the Referendum Council (the Council) to undertake an analysis of
public submissions on constitutional recognition of Aboriginal and Torres Strait Islander peoples. A total of
1,111 submissions were received, including 1,057 submissions via a structured online survey (structured
submissions) and 54 submissions taking the form of an email, letter or other document (free form
submissions).
This report outlines Urbis’ findings on the level of support for constitutional recognition, the level of support
for key proposals for recognition as outlined in the Council’s Discussion Paper, other key concerns and
considerations for recognition, the profile of submission respondents and an exploration of alternative
options for recognition suggested.
Al submissions received were analysed according to an analytical frame, which ensured the levels of
support, the various themes and other suggestions raised in the submissions were captured and categorised
in a structured and methodically robust manner.
LEVELS OF SUPPORT FOR CONSTITUTIONAL
RECOGNITION
A very strong level of support for constitutional recognition of Aboriginal and Torres Strait Islander peoples
was found, with nine out of ten submissions in favour. Only 8% indicated they did not support the move,
while 2% of submissions were unsure of their position.
The strong support for recognition was based on a desire to see Aboriginal and Torres Strait Islander
peoples acknowledged as Australia’s First Peoples, with an ongoing set of rights based on that legacy. In
addition to recognising Aboriginal and Torres Strait Islander peoples in the Constitution, there was also hope
the recognition process would meet a broader need for modernising the Constitution – to remove outdated
and prejudicial concepts, to stop racial discrimination and to remove redundant sections.
The highest level of support was for amendment of the existing Constitution, rather than a new constitution
or recognition in normal law. Regarding the nature of the change, a wide range of responses were received,
from the symbolic to the substantive. The strongest call was for substantive over symbolic change.
Two key reasons for opposition to recognition arose. Firstly, some argued constitutional recognition is a
mistake in an environment where sovereignty remains unceded. This view was most common among those
who demanded substantive change in the lives and rights of Aboriginal and Torres Strait Islander peoples,
not just in relation to their treatment in the Constitution. Secondly, the singling out of Aboriginal and Torres
Strait Islander peoples in the Constitution was seen by others as undermining efforts to achieve equality in
Australia.
SUPPORT FOR THE COUNCIL’S KEY PROPOSALS
The Council’s Discussion Paper outlined five key proposals for constitutional reform, and all submissions
were invited to express their support for or opposition to these measures.
The key proposals included:
inserting a statement acknowledging Aboriginal and Torres Strait Islander peoples as the First
Australians, either inside or outside the Constitution
amending or deleting the ‘race power’, section 51 (xxvi), and replacing it with a new head of power
inserting a constitutional prohibition against racial discrimination
providing for an Indigenous voice to be heard by Parliament, and for the voice to be consulted on
legislation and policy that affects Aboriginal and Torres Strait Islander peoples
deleting section 25.
A large majority of submissions supported all five of these key proposals. With strongest support, more than
nine in ten (93%) backed the inclusion of an Indigenous voice when Parliament and government make laws
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EXECUTIVE SUMMARY i
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and policies about Indigenous affairs. A total of 77% supported the creation of a group providing this voice
under the Constitution.
A statement of acknowledgement of Aboriginal and Torres Strait Islander peoples as the First Peoples of
Australia also received significant backing, with 91% supporting this measure – 86% in favour of a statement
within the Constitution and 5% in favour of a statement in normal Australian law.
Changes to the ‘race provisions’, section 25 and section 51 (xxvi), also received strong support with 85% of
submissions supporting the removal of section 25 and more than two in three (67%) supporting removal of
the word ‘race’ from the Constitution. A further 78% supported the insertion of a constitutional prohibition
against racial discrimination.
Figure 1 – Preferred proposals for recognition
Indigenous voice*
93%
Statement of acknowledgement
91%
Removal of section 25
85%
Prohibition against racial discrimination
78%
Removal of word 'race'
67%
*Indicative of support for an Indigeous voice in general, rather than creation of a
group under the Constitution
ALTERNATIVE OPTIONS FOR RECOGNITION
The proposal for a Treaty or an agreement-making power was not put forward as a specific reform proposal
for comment. Nonetheless, calls for a Treaty, Treaties, or an agreement-making power frequently emerged
as a preferred option for reform. There was strong support for a Treaty to provide certainty for Aboriginal and
Torres Strait Islander peoples moving forward, and for a Treaty to acknowledge past injustices.
Few submissions provided specific comment on what a Treaty would look like or what form it would take.
However, several referenced international jurisdictions with existing Treaty arrangements with their
Indigenous populations, such as New Zealand, Canada and the United States of America as models for
Australia to emulate.
There was also some support for constitutional change to reflect Australia’s commitments under international
law. The United Nations Declaration on the Rights of Indigenous Peoples (the UN Declaration) was the
international instrument referenced most frequently. Some proposed the principles of the UN Declaration
should underpin the process of constitutional recognition. Others called for the specific rights afforded to
Indigenous persons within the UN Declaration to be incorporated into the Australian Constitution.
PREREQUISITES FOR RECOGNITION
Final y, submissions also outlined some overal considerations regarding the process for achieving
constitutional recognition. These included:
the critical importance of consultation with Aboriginal and Torres Strait Islander peoples
a strong desire to see substantive rather than symbolic change
consideration of the chances of success at referendum
accommodating the diversity of Aboriginal and Torres Strait Islander peoples
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prioritising fairness and equality, including acknowledging Aboriginal and Torres Strait Islander peoples.
We thank the Referendum Council for the opportunity of working on this important project, and look forward
to the Council’s full report.
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EXECUTIVE SUMMARY iii
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1. INTRODUCTION
In May 2017, Urbis was commissioned by the Referendum Council (the Council) to undertake an analysis
of public submissions on constitutional recognition of Aboriginal and Torres Strait Islander peoples. This
section provides background information, an outline of the project and a description of the methodology
used.
1.1. BACKGROUND
The Australian Government has made a commitment to holding a referendum on constitutional
recognition of Aboriginal and Torres Strait Islander peoples. Significant work has been completed to
understand what form constitutional recognition may take, including:
in 2011 – appointment of the Expert Panel on Recognising Aboriginal and Torres Strait Islander
peoples in the Constitution (the Expert Panel) to consult throughout Australia (with the submission of
its final report and recommendations in 2012)
in 2013 – appointment of the Parliamentary Joint Select Committee on Constitutional Recognition of
Aboriginal and Torres Strait Islander Peoples (the Joint Select Committee) to review work undertaken
by the Expert Panel, to undertake consultation with key organisations and to review the Aboriginal
and Torres Strait Islander Peoples Recognition Bil 2012 (with the submissions of its final report and
recommendations in 2015)
in December 2015 – appointment of a 16-member Referendum Council by the Prime Minister and the
Leader of the Opposition to consult widely throughout Australia and advise on next steps.
Consultation has included 12 First Nations Regional Dialogues, culminating in a National Indigenous
Constitutional Convention in May 2017; as well as an invitation for public submissions based on the
Council’s Discussion Paper.
1.2. THIS PROJECT
Urbis was commissioned to undertake an analysis of public submissions to the Referendum Council on
Constitutional Recognition. Submissions were received during the period December 2016 to May 2017. A
total of 1,111 submissions were received, including 1,057 submissions via a structured online survey
(structured submissions) and 54 submissions taking the form of an email, letter or other document (free
form submissions).
This report outlines Urbis’ findings on:
the level of support for constitutional recognition
the level of support for key proposals for recognition
key considerations for recognition
the profile of submission respondents.
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INTRODUCTION 1
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1.3. METHODOLOGY
Our methodological approach has involved a three step process as outlined below.
Figure 2 – Summary of methodology
1.3.1. Development of analytical frame
An analytical frame creates a structure around which to group key concepts and themes across large
volumes of qualitative data. In developing the analytical frame for this project, Urbis undertook a review of
background documentation (including the Referendum Council’s Discussion Paper) and a high level
review of a sample of submissions. The analytical frame took the form of a hierarchy of themes and sub-
themes grouped under each question of the structured online survey. This was first built in Excel, then
piloted and refined, and built in the software NVivo. A number of overarching themes were created (e.g.
‘other relevant content’) to allow analysis of concepts which did not fit within a specific theme.
1.3.2. Analysis of submissions
Qualitative analysis
The qualitative analysis of submissions involved categorising phrases and concepts from the n=1,111
submissions against relevant themes in the analytical frame. This process was undertaken in NVivo and
is referred to as ‘coding’. Consistency in the coding process across the Urbis research team was ensured
via the development of a coding dictionary (defining a consistent interpretation of the theme labels).
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Once the coding process was complete, reports for each theme and sub-theme were generated in NVivo
to allow collated content to be reviewed in detail. Urbis research team members then met for a workshop
to consider the findings – focusing the discussion around the overal level of support for constitutional
recognition, the level of support for key proposals for recognition, as well as key considerations for
recognition overal .
Quantitative analysis
The quantitative analysis of submissions involved analysing descriptive statistics of on the demographic
data from both the structured and free form submissions to develop an overal profile of respondents; as
well as on the closed (yes/no) question data (from the structured submissions only) to understand support
for key proposals for recognition. Cross-tabulations were also performed on the closed responses to
understand differences in respondent profiles between those who were supportive and unsupportive of
the different proposals. Table 1 below outlines which demographic characteristics were available for
analysis by submission type.
Please note – where quantitative data is used throughout the report this references data from the
structured submissions only, with the exception of reporting on Aboriginal and Torres Strait
Islander status and individual/organisation status (as shown below).
Table 1 – Summary of available demographic data
Demographic characteristic
Submission type
Structured
Free form
submissions
submissions
Individual or organisation
X
X
Aboriginal and Torres Strait Islander status
X
X
Location – state/territory
X
Location – remoteness
X
Gender
X
Age
X
Finally, analysis was performed on the closed (yes/no) question data (from the structured submissions
only) to understand whether there were common levels of support across different combinations of
proposals for recognition. This was undertaken in an attempt to understand patterns of support across the
spectrum of symbolic (e.g. a statement of acknowledgment) to substantive (e.g. an Indigenous voice in
parliament) change.
1.3.3. Reporting
Following the analysis phase, a Summary Report was produced and presented to the Referendum
Council. The Summary Report provided a snapshot of the respondent profile, and an outline of key
themes from the submissions. This report (the Final Report) accompanies the Summary Report and
provides greater detail.
A note on terminology
Both this Final Report and the Summary Report adopt the terminology ‘strong voice’, ‘weak voice’ etc. to
indicate the level of support for each concept when discussing qualitative findings. In line with the
methodological approach taken, these are qualitative terminologies used to provide an indication of the
level of support across all n=1,111 submissions only. On the other hand, quantitative findings are
expressed using numbers and proportions (%) throughout the reports, with charts and infographics
applied to visualise results.
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1.3.4. Limitations
There are a number of limitations associated with this analysis of submissions. They include:
Submissions processes generally attract those who are keenly fol owing an issue and respondents
are therefore likely to hold either a strongly supportive or a strongly opposed view. The views
expressed in the submissions can therefore not be considered to be representative of the Australian
public as a whole.
The proposals for constitutional change required some knowledge of legal concepts to be ful y
grasped. It was evident in the quality of the content that many respondents did not have an adequate
understanding of legal concepts to respond meaningfully to many of the questions. While the
Referendum Council’s Discussion Paper simplified the legal concepts wel , there was no guarantee
people had read the Paper, and there was no introductory text provided in the form itself to remind
respondents of the legal concepts or issue behind each question.
The structured online submission form asked respondents to indicate their support for each proposal
for constitutional recognition separately, rather than asking people to consider combinations of reform
options. This means there is a lack of insight into reasons for support or lack of support in the
qualitative data.
The structured online submission form didn’t explicitly invite considerations of the potential risks
associated with each proposal for recognition. This is likely to have led to a bias in favour of
supportive views.
The structured online submission form focussed questions around specific proposals for constitutional
change, rather than inviting respondents to consider other options. For example, the Indigenous voice
topic was largely framed around a specific proposal for an Indigenous group to be set up under the
Constitution to advise Parliament or block laws. This narrow focus has limited the opportunity for
respondents to comment on alternative mechanisms, such as, in the example of the Indigenous
voice, dedicated seats in Parliament.
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2. OVERVIEW OF RESPONDENTS
The following provides an overview of the demographic characteristics of respondents who provided a
submission to the Referendum Council.1 This profile of submissions represents an overrepresentation of
Aboriginal and Torres Strait Islander peoples, females, people aged 36+ and people living in New South
Wales compared to the total Australian population.
Figure 3 – Overview of respondents
1 Please note demographic figures relate to structured submissions only, with the exception of Aboriginal
and Torres Strait Islander status. Where free form submissions from organisations identified themselves
as Aboriginal and Torres Strait Islander, they have been included in the quantitative analysis.
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OVERVIEW OF RESPONDENTS 5
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3. SUPPORT FOR CONSTITUTIONAL
RECOGNITION
Before providing feedback on the five specific proposals for reform, all respondents were asked their
general level of support for “some form” of constitutional recognition, and what form that recognition
should take.
A very strong level of support for constitutional recognition of Aboriginal and Torres Strait Islander
peoples was found, with nine out of ten submissions in favour. Only 8% indicated they did not support the
move, while 2% of submissions were unsure of their position.
The strong support for recognition was based on a desire to see Aboriginal and Torres Strait Islander
peoples acknowledged as Australia’s First Peoples, with an ongoing set of rights based on that legacy. In
addition to recognising Aboriginal and Torres Strait Islander peoples in the Constitution, there was also
hope the recognition process would meet a broader need for modernising the Constitution – to remove
outdated and prejudicial concepts, to stop racial discrimination and to remove redundant sections.
We have no acknowledgement of the first peoples of this land in our Constitution…it’s the symbolic
thing that should happen. It’s a very important step on the long road to reconciliation. It’s a change
that on one level is symbolic, in seeking to address historic elements of our Constitution which reflect
racism. Symbols are important in politics. (Casse Australia)
The Constitution must be changed, deleting any section that is racist or prejudiced against any
people, specifically the First Peoples. (Individual)
There were no demographic differences of note when considering overall support for recognition.
The highest level of support was for amendment of the existing Constitution, rather than a new
constitution or recognition in normal law. Regarding the nature of the change, a wide range of responses
were received, from the symbolic to the substantive. The strongest call was for substantive over symbolic
change.
The powerful symbolism of recognising Aboriginal and Torres Strait Islander peoples in the
Constitution must be accompanied by substantive changes to the legislative power of the
Commonwealth to prohibit discrimination and make laws for the benefit of Aboriginal and Torres
Strait Islander peoples… Without these factors constitutional recognition risks being perceived as an
empty gesture and falling short of its potential to effect genuine and positive change. (Royal
Australian and New Zealand Col ege of Psychiatrists)
[Recognition] must be substantially significant that it shakes up the way law and policy making is
made in this country, in other words a radical change need a radical solution. (Individual)
Three key suggestions for substantive reform emerged when investigating overall preferences for
change, before reviewing the specific proposals put forward by the Council. The most significant call was
for a Treaty/Treaties or an agreement-making power, which may sit in and/or outside of the Constitution.
In advocating for a Treaty or similar, both legal and moral dimensions were raised. Specifically, there was
strong support for a Treaty to set the legal framework for Aboriginal and Torres Strait Islander peoples
moving forward, and for a Treaty to acknowledge past injustices thereby creating an enabling
environment for self-determination.
Properly concluded Treaties reflecting the past, settling the past, securing the future, writing a new
future, a roadmap forward is the only answer. (Individual)
A Treaty between the Commonwealth of Australia and the numerous Indigenous Nations is the only
legally and moral y recognisable way of containing the free, prior and informed consent required for a
long-lasting agreement by all peoples on this great continent. (Individual)
There was also a clear desire for Aboriginal and Torres Strait Islander peoples to have a stronger voice
on Indigenous affairs. However, when exploring general preferences for change, little detail regarding the
nature of this voice (including membership or powers) was provided.
Such an amendment could ensure that the views of First Peoples are heard by lawmakers and could
help Parliament to enact better and more effective laws. (Individual)
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Reform via a Declaration of Recognition also received some support. This view noted a Declaration is an
appropriate place for potentially emotive language, and argued this option carried a greater chance of
successful implementation compared to a referendum to amend the Constitution.
Recognition demands a powerful and poetic statement that captures the imagination. An Australian
Declaration of Recognition would have the kind of cultural significance for Australians that the
Declaration of Independence has for Americans – even though it is not part of the Constitution of the
United States. (Australian Catholic University)
Two key reasons for opposition to recognition arose. Firstly, some argued constitutional recognition is a
mistake in an environment where sovereignty remains unceded. This view was most common among
those who demanded substantive change in the lives and rights of Aboriginal and Torres Strait Islander
peoples, not just in relation to their treatment in the Constitution. Secondly, the singling out of Aboriginal
and Torres Strait Islander peoples in the Constitution was seen by others as undermining efforts to
achieve equality in Australia.
Whilst recognising that our Sovereignty has never been ceded, do we put this constitutional reform
debate on pause until we deal with that question? (Individual)
My [opposition] is based on the clear principle of opposition to racism in all forms. That includes
purported positive discrimination as well as negative discrimination. (Liberal Democratic Party)
When considering the appropriate placement for recognition overall, the strongest support was for
inclusion in a Preamble. A Preamble was considered to be the place of highest visibility and importance,
and therefore appropriate for a reform of such significance as recognition.
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4. PREFERRED PROPOSALS FOR
RECOGNITION
The Council’s Discussion Paper outlined five key proposals for constitutional reform, and all submissions
were invited to express their support for or opposition to these measures.
The key proposals included:
inserting a statement acknowledging Aboriginal and Torres Strait Islander peoples as the First
Australians, either inside or outside the Constitution
amending or deleting the ‘race power’, section 51 (xxvi), and replacing it with a new head of power
inserting a constitutional prohibition against racial discrimination
providing for an Indigenous voice to be heard by Parliament, and for the voice to be consulted on
legislation and policy that affects Aboriginal and Torres Strait Islander peoples
deleting section 25.
A large majority of submissions supported all five of these key proposals. With strongest support, more
than nine in ten (93%) backed the inclusion of an Indigenous voice when Parliament and government
make laws and policies about Indigenous affairs. A total of 77% supported the creation of a group
providing this voice under the Constitution.
A statement of acknowledgement of Aboriginal and Torres Strait Islander peoples as the First Peoples of
Australia also received significant backing, with 91% supporting this measure – 86% in favour of a
statement within the Constitution and 5% in favour of a statement in normal Australian law.
Changes to the ‘race provisions’, section 25 and section 51 (xxvi), also received strong support with 85%
of submissions supporting the removal of section 25 and more than two in three (67%) supporting
removal of the word ‘race’ from the Constitution. A further 78% supported the insertion of a constitutional
prohibition against racial discrimination.
Figure 4 – Preferred proposals for recognition
Indigenous voice*
93%
Statement of acknowledgement
91%
Removal of section 25
85%
Prohibition against racial discrimination
78%
Removal of word 'race'
67%
*Indicative of support for an Indigeous voice in general, rather than creation of a
group under the Constitution
Quantitative analysis revealed that no respondents supported only a statement of acknowledgement, only
an Indigenous voice in parliament, only the deletion of section 25 or only the insertion of a prohibition
against racial discrimination. This reveals the extent of support for a broader package of reforms to
achieve recognition for Aboriginal and Torres Strait Islander peoples.
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It should be noted that respondents were asked to consider each proposal individually, rather than in
bundles, and without consideration of the potential risks associated with each proposal. This may have
created a bias towards support for the proposed measures.
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5. PREREQUISITIES FOR RECOGNITION
The submissions raised a number of key considerations for the Referendum Council on the journey
towards constitutional recognition.
Consultation with Aboriginal and Torres Strait Islander peoples
The critical importance of consultation with Aboriginal and Torres Strait Islander peoples was strongly
stated. There was significant deference to the opinion of Aboriginal and Torres Strait Islander peoples
throughout the submissions. Many of the submissions, while supportive of one or more of the key
proposals, declined to provide more detail, noting the model and its specifics should be the preserve of
Aboriginal and Torres Strait Islander peoples themselves.
The model must come from the people, it must not be imposed by politicians. The model must arise
out of a genuine negotiated agreement between Indigenous peoples and the Australian government.
(Individual)
Indigenous views must be paramount in determining what forms of constitutional recognition to
adopt. (The University of Western Australia)
I would prefer Aboriginal and Torres Strait Islander people to say what the change should look like.
(Individual)
Substantive rather than symbolic change
The desire to see this process lead to substantive rather than symbolic only change was also clear. While
many were supportive of one or several mechanisms for constitutional recognition, much of the detailed
feedback noted these changes must be placed within a wider agenda of substantive change to be
acceptable.
NSWALC’s position on reform to the Australian Constitution [is that it] should be meaningful and not
result merely in symbolic recognition. (NSW Aboriginal Land Council)
It must involve substantive change which wil prevent First Nations’ rights being eroded without their
prior, free and informed consent. (Individual)
A move beyond mere symbolism and tokenism. (Individual)
Consideration of the chances of success
The conservative track record of Australia in relation to constitutional change was a key concern,
particularly throughout organisational submissions. Many emphasised the need to develop a pathway for
change with a strong likelihood of success, bi-partisan support and an accompanying plan for engaging
the Australian population to support a successful outcome. Concern was expressed regarding the
potential damage wrought by an unsuccessful attempt at constitutional recognition – for Aboriginal and
Torres Strait Islander peoples specifically, and equality generally.
Given the political difficulties involved in amending the Australian Constitution, it is vital to consider
possibilities for recognising Aboriginal and Torres Strait Islander peoples by way of small-c
constitutional change. (Individual)
The diversity of Aboriginal and Torres Strait Islander peoples
The submission questions were phrased in relation to Aboriginal and Torres Strait Islander peoples as a
collective group. However, the diversity of Aboriginal and Torres Strait Islander peoples was considered
by many as both fundamental to success (to reach agreement on the model across the many and varied
nations), as well as in achieving a right and just outcome.
Acknowledge them as First Nation peoples, represented by many nations. (Individual)
Do Aboriginal people want to be classified as one entity or recognition for each different nation? This
should be decided by their selected representatives. (Individual)
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Fairness and equality, including acknowledging Aboriginal and Torres
Strait Islander peoples
The importance of the Constitution reflecting the values of fairness and equality was broadly emphasised.
Singling out the specific experience and value of Aboriginal and Torres Strait Islander peoples was
considered key by most to achieving an acceptable level of equality in Australia.
Changes should include reference to Aboriginal and Torres Strait Islander peoples as traditional
owners of the land, having equal rights and access to same opportunities as other races. (Individual)
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6. A STATEMENT ACKNOWLEDGING
THE FIRST PEOPLES OF AUSTRALIA
According to the Council’s Discussion Paper, a statement of acknowledgement is a statement of facts,
and several suggestions for the statement’s content were provided. The Discussion Paper also referred
to the Expert Panel’s recommendation that a statement of acknowledgement be included as an
introduction (preamble) to a proposed new law-making power. Another suggestion was that a statement
of acknowledgement could be enshrined in a Declaration outside the Constitution, perhaps in legislation
enacted by al parliaments – federal, State and Territory – at the same time to create a national defining
moment of reconciliation. This path would not require a referendum.
The great majority of submissions (86%) supported a statement of recognition within the Constitution,
with 5% preferring a statement in normal Australian law. Only 3% were in opposition to a statement at all,
with 6% unsure. Those aged 35 or under were slightly more likely to support a statement of
acknowledgement in the Constitution.
Figure 5 – Should we have a statement that acknowledges the First Peoples of Australia?
3%
6%
5%
Yes-Constitution
Yes-Normal law
No
I don't know
86%
n=1,042
Those in favour of a statement cautioned that a statement on its own falls short of the recognition
required. This prominent voice wanted any statement of acknowledgement to be framed as one step on
the recognition pathway, that must be accompanied by more substantive changes.
The acknowledgement in no way should undermine future Treaty negotiations. (Caritas Australia)
We believe a statement of acknowledgement in the Constitution falls short of what is required for
meaningful and purposeful change. (Individual)
A small number of key legal organisational submissions raised concerns related to introducing symbolic,
potentially legal y ambiguous language into the Constitution. They argued a Declaration of Recognition in
normal law is a more appropriate approach to achieving the outcomes a statement of acknowledgement
in the Constitution may deliver.
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Any statement that is rich enough to capture the deep and profound significance of these issues wil
invariably contain the kind of language that is susceptible to legal uncertainty. (Australian Catholic
University)
A small minority were opposed to any form of statement, believing singling out Aboriginal and Torres
Strait Islander peoples undermines the goal of equality for all Australians, regardless of their race or
ethnicity.
The views related to the statement’s content were consistent regardless of the preferred placement – in
the Constitution or in normal law. The majority emphasised the urgent need to correct the facts – clearly
acknowledging Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia. There was
also some support for recognising the complexity and highly successful nature of Aboriginal and Torres
Strait Islander societies at the point of occupation (as evidenced by the 60,000-year history of the various
nations).
This change should acknowledge [Aboriginal and Torres Strait Islander peoples] as First Peoples
and it should convey the continuity of Aboriginal and Torres Strait Islander cultures as a significant
part of our nation’s identity. (Individual)
We should acknowledge the long and rich history of our First Nations people. (Individual)
We must eradicate the idea that Aboriginal society was unsophisticated and primitive. (Individual)
There was also a clear desire to acknowledge the importance of enduring languages, cultures, and
connection to land and country among Aboriginal and Torres Strait Islander peoples today – and the
contribution of these to contemporary Australian society. For example, many noted the significant cultural
contribution of the First Peoples of Australia to our current national identity, and the important role
Aboriginal and Torres Strait Islander peoples have played and continue to play in caring for country.
Acknowledge the continuing relationship of Aboriginal and Torres Strait Islander peoples with their
traditional lands and waters. Respect the continuing cultures, languages and heritage of Aboriginal
and Torres Strait Islander peoples. (Individual)
Acknowledge that Aboriginal and Torres Strait Islander people occupied and looked after this land for
mil ennia before white Australians arrived. (Individual)
They lived in harmony with the land for over sixty thousand years, and never dramatical y altered its
natural state. (Individual)
Correcting the record regarding occupation had strong support and implies an acknowledgement of past
wrongs. However, there was broad support for more explicitly outlining these past, and contemporary,
harms experienced by Aboriginal and Torres Strait Islander peoples. This view primarily emphasised past
wrongs, namely the process of occupation as invasion or dispossession, although there was also a strong
focus on acknowledging the more recent history of injustice, including the Stolen Generations, rates of
incarceration of Aboriginal and Torres Strait Islander peoples and ongoing systemic discrimination. This
commonly held view was also tempered by some caution regarding the use of highly emotive and
potentially ‘deal-breaking’ language regardless of being factually correct.
We have to acknowledge this country was taken over by invasion and the treatment of the legitimate
inhabitants was, and to some extent stil is, disgraceful. (Individual)
Acknowledge the First Nations people were subjected to colonisation, resulted in genocide and racist
government policies, experience intergenerational trauma, which affects their physical psychological
and spiritual wel being… (Individual)
The statement should be a statement of redress, avoiding what are seen as deal breaking and
emotive terms, like massacre and invasion (which are factually correct but not particularly
strategical y useful) by acknowledging the loss incurred by First Australians as a consequence of
colonisation. (Individual)
Final y, a theme emerged regarding Aboriginal and Torres Strait Islander land rights. Most suggestions for
the statement used legally ambiguous concepts such as custodianship, guardianship and Traditional
Ownership. A small number contained specific suggestions with legal effect for formalising ownership
arrangements, for example based on unceded sovereignty or native title law.
It should say that First Peoples are the rightful guardians of this land. (Individual)
A STATEMENT ACKNOWLEDGING THE FIRST PEOPLES OF AUSTRALIA
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That they are the custodians of land and water in Australia. (Individual)
There was overwhelming support for placing any constitutional statement of acknowledgement within a
Preamble. This was based on the view a Preamble sets the spirit and aspiration for the document, and/or
that placement in a Preamble implies very high significance of the content.
At the very beginning so it is loudly proclaimed. (Individual)
At the very start, as it is the most important thing. (Individual)
Those in opposition to the placement in a Preamble argued a statement should be inserted into a revised
head of power, providing a guide to the purpose of the provision. Others feared placement in a Preamble
rather than the body of the Constitution could be construed as tokenistic.
The Law Council supports the insertion of new preambular paragraphs as part of a new head of
power to make laws with respect to Aboriginal and Torres Strait Islander peoples. The Law Council
is of the view that this has the advantage of avoiding the political difficulties of seeking to insert a
new preamble to the Constitution which addressed only the historical experiences and aspirations of
Aboriginal and Torres Strait Islander peoples. Additionally, it avoids the challenges of developing a
values statement in the preamble which may give rise to divisive debate. (The Law Council of
Australia)
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7. THE ‘RACE POWER’
Known as the ‘race power’, section 51 (xxvi) is the head of power that allows the Commonwealth
government to make laws regarding Aboriginal and Torres Strait Islander peoples on issues such as
native title and heritage protection. The Expert Panel and Joint Select Committee both made the
recommendation to repeal section 51(xxvi), yet retain a power to enable the Commonwealth government
to legislate for Aboriginal and Torres Strait Islander peoples.
Two in three submissions (67%) supported removing the word ‘race’ from the Constitution. Around one in
five (21%) were unsure, and only 12% were in opposition to the proposed changes to section 51 (xxvi).
Older respondents (those aged 66 and over) were more likely to support the removal of the word ‘race’.
Figure 6 – Should the word ‘race’ be taken out of the Constitution?
21%
Yes
12%
No
I don't know
67%
n=1,032
When asked to provide further comment, the majority described the ‘race power’ as outdated,
discriminatory and having no place in modern Australian society.
Section 25 and 51 should be completely removed as they allude to race, a non-existent ideology
which stands against the inclusiveness of all peoples. (Individual)
Race should be removed where it has powers that discriminate in a negative way. (Individual)
Rationale for retaining ‘race power’ provisions (12% of submissions) included concern about the potential
legal ramifications of amending this section.
My suggestion is that the text of the Constitution be left as is and no changes made to section 51…
These broad powers al ow Parliament to respond flexibly to changing circumstances, for all
minorities and all citizens, and should be left as is. (Individual)
Opinion was divided regarding whether government should retain the power to make special laws for
Aboriginal and Torres Strait Islander peoples, with half indicating they were not supportive.
Only 29% indicated support for an amended power and 21% were unsure. However, this division may
reflect the question construction, sequencing and the complex nature of legal implications associated with
removing or amending the ‘race power’.
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I am not sure how to answer this one. While there should be no place for laws based on race in the
Constitution, powers for special laws to ensure fair and just treatment of our first peoples should be
retained (e.g. regarding native title and Indigenous heritage). (Individual)
Figure 7 – Should the Australian Parliament keep the power to make special laws for Aboriginal and
Torres Strait Islander peoples?
21%
29%
Yes
No
I don't know
50%
n=1,021
7.1. SUGGESTIONS FOR AMENDMENTS TO THE ‘RACE
POWER’
Three primary suggestions for amendment or removal of the ‘race power’ were made:
remove the word ‘race’ but retain power
include a prohibition to stop racial discrimination
remove the ‘race power’ entirely.
Each of these is explored in further detail below.
7.1.1. Remove ‘race’ but retain power
The most significant support was for replacing the word ‘race’ with ‘Aboriginal and Torres Strait Islander
peoples’. This was most commonly contingent upon adding a limit to the power to legislate only for the
benefit or advancement of the Aboriginal and Torres Strait Islander peoples. Many referenced the
recommendations of the Expert Panel and the Joint Select Committee in support of this position.
There should be a provision to make laws for Aboriginal and Torres Strait Islander peoples – the
discussion paper makes the case wel . However, any such laws need to be accompanied with
safeguards to stop racial discrimination. (Individual)
Consultation with Aboriginal and Torres Strait Islander peoples underpinned support for this view, given
Parliament’s definition of what is beneficial may differ from that of Aboriginal and Torres Strait Islander
communities.
I can see that special laws may need to be made for issues such as native title, but I only support
keeping this power if there are very strong protections to prevent this from being used against the
interest of Indigenous people and this needs to be assessed by Indigenous people themselves, not
imposed from outside. (Individual)
Key legal and Aboriginal and Torres Strait Islander organisations also cautioned amendments to the ‘race
power’ would need to be carefully considered – to minimise risk of invalidating current, or future,
Commonwealth laws with respect to Aboriginal and Torres Strait Islander peoples, including
advancements made under the Native Title Act 1993 (Cth).
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Whilst it does not appear that there are any serious suggestions that the race power should be
removed altogether (as this would affect laws around Native Title and may hamper Commonwealth’s
ability to work for the advancement of indigenous peoples). ACL recommends caution with respect to
proposing any change whatsoever to section 51(xxvi). (Australian Christian Lobby)
The Native Title Act and the Racial Discrimination Act were enacted by the Commonwealth pursuant
to that power... if the constitutional power to make laws for any race was removed, thought would
need to be given to how to retain the rights afforded in the Native Title Act without further
derogation… (Individual)
There was strong backing for amending section 51 (xxvi) to include a non-discrimination clause. For
many, support for amending the ‘race power’ was again contingent on limiting Parliament’s power to
ensure new laws do not adversely affect Aboriginal and Torres Strait Islander peoples, by including a
constitutional prohibition against racial discrimination. The insertion of a new ‘section 116A’, as proposed
by the Joint Select Committee, was often referenced.
The Australian Constitution in its current form retains discriminatory clauses which are sources of
concern to Australian people and inconsistent with international human rights principles. The
Australian Constitution must enshrine the rights of al Australian citizens... The repeal of problematic
“race” provisions from the Constitution and the inclusion of a new section expressly prohibiting
discrimination on the basis of race would ensure the universal human right. (Amnesty International)
7.1.2. Remove the ‘race power’
Some submissions called for the ‘race power’ to be removed from the Constitution altogether, to avoid
further discrimination or racial segregation. The 2007 Northern Territory National Emergency Response
was cited by some as an example of why this power should be removed.
While there is some scope for community laws within Aboriginal and Torres Strait Islander
communities (or other communities) these laws should not contravene overal governing laws of
Australia. There shouldn't be discriminating laws that apply only to Aboriginal or Torres Strait
Islander people such as in the [Norther Territory] Intervention. (Individual)
As discussed, while some urged for removal to be accompanied by the inclusion of a prohibition against
discrimination, many provided no suggestion as to appropriate replacement powers.
A minority called for the removal of section 51(xxvi) on the grounds that Australian law is based on the
principle of fairness and equity. They argued al Australian citizens should be equal under the law, with no
individual race or group receiving special consideration in the Constitution.
Al Australians should be governed equally, subject to the same laws regardless of race. (Individual)
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8. A GUARANTEE AGAINST RACIAL
DISCRIMINATION
In 2012, the Expert Panel recommended the following ‘Prohibition of racial discrimination’ clause be
inserted into the Constitution as ‘section 116A’:
“(1) The Commonwealth, a State or a Territory shal not discriminate on the grounds of race, colour
or ethnic or national origin.
(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming
disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or
heritage of any group.”
The Referendum Council asked Australians to consider the proposal to insert a guarantee into the
Constitution, to prevent the Federal Parliament from discriminating against people of any race or cultural
background.
The inclusion of a constitutional guarantee against racial discrimination was supported by nearly four in
five (78%). Only 13% were opposed to the proposal and a further 9% were unsure. Women, and those
aged 35 or under were more likely to be supportive of the insertion of a guarantee.
Among those supportive of a guarantee, 96% supported extending the guaranteed protection to al
Australians. Only 3% favoured the introduction of a guarantee against racial discrimination for Aboriginal
and Torres Strait Islander people only. Support for the guarantee was always coupled with support for at
least one other proposed reform, indicating the guarantee is seen as part of a package of reforms for
recognition.
Figure 8 – Do you think that a guarantee against racial discrimination should go in the Constitution?
9%
13%
Yes
No
I don't know
78%
n=1,043
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Figure 9 – Should the guarantee protect al Australians against racial discrimination, or only Indigenous
Australians?
1%
3%
All Australians
Indigenous
Australians only
I don't know
96%
n=806
The complexity of issues related to the ‘race power’ extended into ideas about a guarantee, including its
wording and placement. The potential y contradictory relationship between changes to the ‘race power’
and a guarantee against racial discrimination, depending on how ‘race’ is interpreted, were most clearly
addressed by key organisations including the Law Society of New South Wales, the Law Council of
Australia, the Royal Australian and New Zealand Col ege of Psychiatrists (RANZCP), and Amnesty
International.
The RANZCP support the removal of section 51(xxvi) … and the insertion of a new clause allowing
the Parliament to make laws for the benefit of Aboriginal and Torres Strait Islander peoples. This is
conditional on the inclusion of a constitutional prohibition against racial discrimination. (Royal
Australian and New Zealand Col ege of Psychiatrists)
These groups supported the introduction of ‘section 116A’ as proposed by both the Expert Panel and
Joint Select Committee – to not only protect the rights of Aboriginal and Torres Strait Islander peoples,
but also increase broader human rights protections for all Australians. They emphasised any changes to
the ‘race power’ must be accompanied by such a clause. Some submissions reflected on the complexity
inherent in supporting the removal of ‘race’, while simultaneously being in favour of protection against
racial discrimination.
… Amnesty International supports a new section 116A as recommended by the Expert Panel and
the progress report of the Joint Select Committee…The inclusion of a section which prohibits
discrimination would further strengthen Australia’s commitment to realising the principles of the
UDHR [United Nations Declaration on Human Rights], international human rights treaties and the
Declaration on the Rights of Indigenous Peoples. The inclusion of new section 116A would not only
represent a demonstrated commitment to Indigenous Peoples’ rights in Australia, but would increase
broader human rights protections for all Australian citizens in line with Australia’s international human
rights commitments. (Amnesty International)
Individuals also strongly supported a racial non-discrimination provision, with most in favour of the
principle of racial equality for all Australians. A minority of supporters proposed the new constitutional
guarantee should focus only on Aboriginal and Torres Strait Islander peoples. Others proposed that
further measures, such as a Bil of Rights, were required to move forward from past wrongs and ensure
all citizens are treated fairly by the Australian Government.
I believe that Australia requires a constitutional Bil of Rights. The intervention into Aboriginal
communities in the Northern Territory was effected only by legislating an exception to the Racial
Discrimination Act. Clearly legislative measures are insufficient protection against a Commonwealth
inclined to intervene in such a way. (Individual)
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A high level declaration, similar to that used in the Universal Declaration of Human Rights would be a
holistic way to introduce the topic, and then dril down to indigenous rights. (Individual)
Organisations, including the Law Council of Australia, proposed a national charter or Bil of Rights would
provide an appropriate legal framework to ensure laws for Australian citizens are consistent with human
rights.
The Law Council supports the development of a charter or bil of rights at the federal level… In
particular…a 'dialogue' model of a Charter of Rights or a Human Rights Act. This Charter would
facilitate a constructive dialogue between the courts and the parliament about whether Australian
laws are consistent with human rights, and if not, whether they remain appropriate for the Australian
community. (The Law Council of Australia)
A guarantee against racial discrimination should form part of a Bil of Rights for Australia. CLA
believes the question of 'not enough support' does not arise - al consultations at state and federal
levels have shown overwhelming support for such an instrument … such a Bil of Rights need not
form part of the Constitution. CLA remains open to other models for enshrining a Bill of Rights in
Australia. (Civil Liberties Australia)
Among those opposed to a guarantee, some argued existing laws are sufficient, or suggested
strengthening existing laws, while others expressed concern that a legal guarantee is not enforceable.
No law will stop racial discrimination. (Individual)
A government cannot guarantee a stop to racial discrimination. (Individual)
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9. AN INDIGENOUS VOICE
The Discussion Paper notes establishing an Indigenous voice is about ensuring better political
representation for, and consultation with Aboriginal and Torres Strait Islander peoples, especial y when
government and Parliament make decisions about Indigenous affairs. Although Australia has acceded to
the UN Declaration on the Rights of Indigenous Peoples, which “emphasises the importance of genuine
participation…in political decisions”2, no formal processes have yet been implemented to facilitate this
voice. Aboriginal and Torres Strait Islander peoples have long advocated for a stronger voice, especial y
in the Australian system of representative democracy, where the voice of minority populations cannot
always be heard.
A large majority of structured submissions (93%) supported Aboriginal and Torres Strait Islander peoples
having a say when Parliament and government make laws and policies about Indigenous affairs.
Figure 10 – Do you think Indigenous people should have a say when Parliament and government make
laws and policies about Indigenous affairs?
2%
5%
Yes
No
I don't know
93%
n=1,048
One submission reflected on a number of reasons for supporting this change:
Parliament does not listen to our concerns and aspirations. This is true at al levels of government.
This is why Indigenous people should be guaranteed a say in Parliament’s laws and policies that
affect us…It’s not just about what’s fair, it is also about making good policy and achieving good
outcomes. Ensuring First Nations voices are heard would help ensure that laws and policies for
Indigenous affairs are more effective and better accepted by communities. (Individual)
No respondents supported the establishment of an Indigenous voice only (to the exclusion of all other
proposals for change). This again reinforces the overall preference for a package of reforms to be made
to the Constitution.
Of the submissions not in support of an Indigenous voice to be set up under the Constitution, a primary
reason included concern the establishment of special provisions for Aboriginal and Torres Strait Islander
peoples may contribute to racial segregation (as reflected throughout the submissions). There was also a
2 p. 11, Referendum Council,
Discussion Paper on Constitutional Recognition of Aboriginal and Torres
Strait Islander Peoples, October 2016
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concern that if a mechanism established under the Constitution to achieve an Indigenous voice were to
be unsuccessful – with some submissions reflecting on issues associated with the Aboriginal and Torres
Strait Islander Commission (ATSIC) – there would be no flexibility to make changes to the mechanism or
to adopt an alternative mechanism.
9.1. SUGGESTIONS FOR THE INDIGENOUS VOICE
There are a number of ways a stronger Indigenous voice could be achieved via constitutional change.
The structured survey asked respondents to comment on a specific proposal for a new Indigenous group
to be set up under the Constitution, and there were also other mechanisms suggested.
9.1.1. An Indigenous group
The specific proposal for a new Indigenous group to be set up under the Constitution was supported by a
majority (77%) of structured submissions. Those aged 35 or under were more likely to support the
creation of a group under the Constitution.
Figure 11 – Should a new Indigenous group be set up under the Constitution to give advice and make
sure Indigenous people have a voice in political decisions that affect them?
10%
13%
Yes
No
I don't know
77%
n=1,031
Those respondents in support of the specific proposal (n=789) were asked if it was worth creating a group
that could give advice only, and not have the power to block new laws. Over half of all submissions (54%)
agreed that it was worth it, while nearly a third (32%) disagreed. While those aged 35 and under were
more likely to be supportive of a constitutional y created group, they were also more likely to be in favour
of a group even with advisory only powers.
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Figure 12 – Is it worth creating the new group if it can only give advice and does not have the power to
block new laws?
14%
Yes
No
54%
I don't know
32%
n=761
When asked what the new group should look like, respondents commented on a number of aspects
including membership composition, governance arrangements, and the purpose and powers of the group.
Purpose
Supporters called for the group to elevate the voice of Aboriginal and Torres Strait Islander peoples in
Parliament, in particular around Indigenous affairs. There was strong support for the principle of self-
determination. This was consistent regardless of views on the group’s powers (i.e. having an advisory
role versus the ability to block laws).
We need to elevate Indigenous Australians to the rightful place. (Individual)
Regardless of whether or not Aboriginal and Torres Strait Islanders [sic] are given the power to block
new laws, it’s a starting point for their voice to be heard and to represent the needs of their
communities. (Individual)
Membership
There was strong support for the group to comprise Aboriginal and Torres Strait Islander peoples only
(again, in line with the principle of self-determination). The Importance of demographic diversity –
including by gender, age, state/territory, metropolitan/rural/remote location, and the various Aboriginal
and Torres Strait Islander Nations – was clearly emphasised. Many respondents wanted to see a mix of
Elders, leaders, prominent people and influencers in Indigenous affairs; while at the same time
maintaining genuine community representation, with members acting as a conduit between their local
communities and government.
The risk with any advisory group is that one voice can dominate and not be representative of broader
and divergent views. (Individual)
[The group should be made up of] people from al walks of life. (Individual)
It should in some way represent the many countries that make up Indigenous Australia. (Individual)
Powers
Over half (54%) of all supporters thought it was worth creating a group with an advisory role only. Some
argued this facilitated a greater Indigenous voice, while also balancing the need to maintain the
sovereignty of the Australian Parliament.
“The constitutional establishment of an Indigenous advisory body would require Parliament to
consider whether Indigenous people themselves believe that a proposed law discriminates against
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them. In this way, Indigenous people become incorporated into the process…without undermining
the sovereignty of Parliament. (Australian Catholic University)
Among supporters who only backed the creation of a group with the power to block laws, there was a
view that an advice only role risked being tokenistic. There was also support for the group to exist
independently of political motivations.
Not advice [only]. We need to get serious about this and work with Aboriginal people. They must be
a very real part of any decisions made about them. (Individual)
Some argued the group should have an even greater role in facilitating change and embedding self-
determination, including the power to create (not just block) new laws.
The group must have the power to make change. (Individual)
Governance
There was a strong preference for members to be elected at the local level by Aboriginal and Torres Strait
Islander communities, rather than being appointed by communities or government. This was, again, about
ensuring genuine community representation.
Representatives…who...tap into local Aboriginal networks. (Individual)
Having the body be democratical y elected would present significant benefits to ensuring the broader
Aboriginal and Torres Strait Islander population have input. (Royal Australian and New Zealand
College of Psychiatrists)
9.1.2. Other mechanisms
Feedback on other mechanisms for achieving an Indigenous voice was not explicitly invited in the
structured online survey. Alternative mechanisms were therefore primarily suggested by those in
opposition to the specific proposal for a new Indigenous group to be set up under the Constitution, or as
part of free form submissions.
Suggestions for alternative mechanisms included a third (Indigenous) House of Parliament or a dedicated
number of seats in existing Houses of Parliament. Those in favour of an Indigenous House of Parliament
occasional y referenced the Sami Parliaments in Sweden and Norway which are publicly elected and
have responsibility for decisions made in relation to Sami (Indigenous) affairs. Those in favour of a
dedicated number of seats in existing Houses of Parliament occasionally referenced the approach taken
in New Zealand where Maori people can choose to enrol in either Maori or main electorates, and the
number of people enrolling in Maori electorates determines the number of dedicated Maori seats in
Parliament (currently 7 seats).
Our nations are all different and limited representation wil be tokenistic…the only real way to solve
this would be a third house of Parliament. (Individual)
Al ocated seats for Aboriginal and Torres Strait Islander people in the Federal Parliament would
provide, as per the New Zealand model, a legitimate Indigenous voice. (Individual)
Ultimately, there was strong support for Aboriginal and Torres Strait Islander peoples to be consulted in
the establishment of an Indigenous voice in parliament – to ensure the mechanism was appropriate and
achieved its intended objectives.
Ask the Indigenous community what they want. (Individual)
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10. SECTION 25
Section 25 of the Constitution “contemplates that States might pass a law banning people from voting at a
State election, on the basis of their race”.3 Practically speaking, section 25 is considered a ‘dead letter’,
as the Racial Discrimination Act takes care of State voting laws and the section itself provides a
disincentive to race-based voting legislation by ensuring a reduction in representation at the Federal level
if this legislation were to be enacted. However, cal s for the removal of section 25 have consistently been
made as its existence means the Constitution contemplates race-based voting, which is broadly
considered an outdated concept.
The broad support for the removal of section 25 was confirmed in the structured submissions, with a large
majority (85%) supporting its removal. Only 8% did not support its removal and 7% indicated they were
unsure. Women, respondents aged 35 or under and those who did not identify as Aboriginal and Torres
Strait Islander were more likely to support this proposal.
Figure 13 – Should we delete section 25?
7%
8%
Yes
No
I don't know
85%
n=1,042
Reasons for support strongly reflected a desire to modernise the Constitution – to create a document in
line with the values of contemporary Australian society. Removing a discriminatory power was also seen
as a symbolic gesture to address the wrongs of the past, and as a protection against the discriminatory
power being used in the future. Overall, there was a good understanding that the provision had no current
legal effect, but nonetheless there was a desire to ‘tidy up’ the Constitution.
This section is a legacy from the era of the White Australia Policy and it should be removed as part
of the package of changes necessary to final y eliminate racial y discriminatory provisions from the
Constitution. (Caritas Australia)
This section is outdated. In the words of one witness at the Committee hearings in September 2015:
section 25 is a “vestige of racial concepts and practices that have no place in contemporary
Australia”. (Australian Christian Lobby)
3 p. 11, Referendum Council,
Discussion Paper on Constitutional Recognition of Aboriginal and Torres
Strait Islander Peoples, October 2016
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Removing [section 25] sends a clear message that Australia is moving forward. (Individual)
When asked whether there was any point keeping section 25, no clear arguments were presented for
maintaining the section.
No respondents supported the deletion of section 25 only (to the exclusion of all other proposals for
change). Once more, this reinforced the overal preference for a package of reforms to be made to the
Constitution.
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11. ALTERNATIVE OPTIONS FOR
RECOGNITION
Several other options for substantive reform emerged when investigating overal preferences for change,
beyond the specific proposals put forward by the Referendum Council. The strongest level of support was
for a Treaty/Treaties, or to strengthen the Constitution to better reflect Australia’s commitments under
international law.
11.1. SUPPORT FOR A TREATY
In the context of constitutional reform, reference to a Treaty, or Treaties, generally relates to an
agreement between Indigenous people and government that has legal effect. In the United States, New
Zealand and Canada, Treaties form the basis for relationships between governments and First Peoples.
Both the Expert Panel and Joint Select Committee acknowledged strong support for a treaty, while noting
that such substantial reform may require a longer timeline and more national discussion.4
The proposal for a Treaty or an agreement-making power was not put forward as a specific reform
proposal for comment. Nonetheless, calls for a Treaty, Treaties, or an agreement-making power
frequently emerged as a preferred option for reform. There was strong support for a Treaty to provide
legal certainty for Aboriginal and Torres Strait Islander peoples moving forward, and for a Treaty to
acknowledge past injustices.
It should state that it is now the intention to invite the members of the pre-1770 Indigenous societies
to unite with Australians under the Australian Constitution, that is part of the treaty process. They
were excluded from the start and that intention cannot be changed just by adding some little clause
into an exclusionary legal foundation. (Individual)
Many were also of the view that a Treaty process should be the precursor to any constitutional reform, or
at the very least occur simultaneously to constitutional recognition.
A Treaty recognising Aboriginal and Torres Strait Islander peoples and then constitutional reform.
(Individual)
Recognition in the Constitution is important but should not be presented as the only legal change
needed. It would be good if the Recognise team could place constitutional change in relation to
Treaty. Both are necessary… (Individual)
A minority called for a Treaty as the only legitimate option for constitutional reform. Those of this view
were unsupportive of all other proposals put forward.
Treaty. There is nothing other than a Treaty with First Nations People that wil right the wrongs of the
past and prove to everyone that respect is returned to the original inhabitants and caretakers of this
wonderful country. (Individual)
Some who favoured a Treaty also acknowledged such reform is inherently complex and proposed an
agreement-making power as an interim step. Treaty between the Commonwealth and Aboriginal and
Torres Strait Islander peoples remained the goal of constitutional reform for this group.
Few submissions provided specific comment on what a Treaty would like or what form it would take.
However, several referenced international jurisdictions with existing Treaty arrangements with their
4 Referendum Council,
Discussion Paper on Constitutional Recognition of Aboriginal and Torres Strait
Islander Peoples, October 2016
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Indigenous populations, such as New Zealand, Canada and the United States of America as models for
Australia to emulate.
Our First Nations peoples should have powers to make certain laws pertaining to them alone, like the
Maori and the people of the Canadian First Nations. (Individual)
Treaties … are accepted around the world as the means of reaching a settlement between
indigenous peoples and those who have settled their lands. Treaties can be found in countries such
as the US, Canada and New Zealand… Australia is the exception. We are now the only
Commonwealth nation that does not have a treaty with its indigenous peoples. (Individual)
11.2. DECLARATION ON THE RIGHTS OF INDIGENOUS
PEOPLES
There was also some support for constitutional change to reflect Australia’s commitments under
international law. The United Nations Declaration on the Rights of Indigenous Peoples (the UN
Declaration) was the international instrument referenced most frequently.
In their 2012 report, the Expert Panel note that Articles 18 and 19 of the Declaration provide important
procedural guarantees: “Article 18 of the Declaration recognises the right of indigenous peoples to
participate in decision-making in matters affecting 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. Article 19 requires states to consult and cooperate in good faith
with the indigenous peoples concerned through their own representative institutions before adopting and
implementing legislative or administrative measures that may affect them.” 5
The UN Declaration was mentioned in several different contexts. Some proposed the principles of the UN
Declaration should underpin the process of constitutional recognition. Others called for the specific rights
afforded to Indigenous persons within the UN Declaration to be incorporated into the Australian
Constitution.
If framed correctly… prohibiting discrimination in the Constitution is entirely in keeping with
Australia’s national identity, with its emphasis on egalitarianism and fairness, and is also a natural
progression from Australia’s ratification of international legal conventions like the United Nations
Declaration on the Rights of Indigenous Peoples. (Royal Australian and New Zealand College of
Psychiatrists)
While few individuals referred to specific articles of the UN Declaration, many drew on the ‘general
principles’ of the instrument to provide further support the view that Aboriginal and Torres Strait Islander
peoples should be properly consulted on any form of constitutional recognition.
The most comprehensive proposals relating to the incorporation of international commitments into
constitutional reform were again put forward by organisations, including the Law Council of Australia and
Amnesty International.
… Amnesty International calls on the Australian government to draw upon the principles encoded in
these international instruments to ensure the Australian Constitution reflects a language of
rights…With specific reference to Indigenous rights, Amnesty International calls on the Australian
Government to ensure that Article 2 of the Declaration on the Rights of Indigenous Peoples is ful y
realised in any amendments made to the Australian Constitution: “Indigenous peoples and
individuals are free and equal to al other peoples and individuals and have the right to be free from
5 p. 60, Expert Panel,
Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution:
Report of the Expert Panel, 2012
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any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous
origin or identity. (Amnesty International)
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12. SUMMARY
A large majority (90%) of submissions supported the constitutional recognition of Aboriginal and Torres
Strait Islander peoples, although there were differing views on what proposals would constitute the most
appropriate mechanisms for recognition. This report has outlined the levels of support for the various
reform proposals and relevant details regarding reasons for and against these options.
This report has also outlined the reasons provided for supporting overall constitutional recognition of
Aboriginal and Torres Strait Islander peoples. The majority of submissions supported a package of
constitutional reforms, and support substantive rather than symbolic only change. In addition to arguing
the importance of recognising Aboriginal and Torres Strait Islander peoples as the First Australians, and
for recognising and protecting their unique heritage, cultures and languages, there was also broad
support for modernising the Constitution, to enshrine the principles of equality and non-discrimination
within the document.
Submissions also outlined some overal considerations regarding the process for achieving constitutional
recognition. This report has summarised what submissions suggest are the prerequisites for referendum
success. These include:
consultation with Aboriginal and Torres Strait Islander peoples
substantive rather than symbolic change
consideration of the chances of success at referendum
accommodating the diversity of Aboriginal and Torres Strait Islander peoples
prioritising fairness and equality, including acknowledging Aboriginal and Torres Strait Islander
peoples.
We thank the Referendum Council for the opportunity of working on this important project, and look
forward to the Council’s full report.
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DISCLAIMER
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