Moving from Uluru to Recognition

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Regardless of previous discussions about Indigenous constitutional recognition, we all need to accept that the 2017 Uluru Statement from the Heart is the new starting point. Though it has been the prerogative of Indigenous Australians to name this starting point for constitutional recognition, the journey will be one of compromise and shared deliberation, and the destination will need to be one identified and owned by all Australians. That's why we all need to talk and engage respectfully. At the moment, we're all stuck in our corners 'going nowhere, fast' as the poet Bruce Dawe would say.

Frank Brennan, Kristen Hilton of VEOHRC and Professor Megan Davis of UNSW at the Castan Centre Human Rights Conference 2018 in front of the Uluru Statement from the Heart.There is no point in proceeding with a referendum on a question which fails to win the approval of Indigenous Australia. Using the light of the Uluru Statement from the Heart, we need to follow the roadmap of the interim report of the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples which was tabled in Parliament in July 2018.

That committee is being chaired by Senator Patrick Dodson (with great experience in these matters having been the co-chair of the Expert Panel set up by Prime Minister Julia Gillard) and by Julian Leeser, one of the few members of the Coalition parties who has dedicated energy and risked some political skin advocating Indigenous recognition in our Constitution.

Our lodestar must be the Uluru declaration: 'We call for the establishment of a First Nations Voice enshrined in the Constitution.' I make no apology for bluntly stating that nothing will be gained by those who advocate for the immediate insertion of a voice into the Constitution — sight unseen, unheard and untested.

That suggestion has been rejected by the last three Liberal prime ministers — Abbott, Turnbull and Morrison. It doesn't matter where you find your Liberal Prime Minister on the political spectrum in the Liberals' broad church. He or she will not be advocating or supporting a voice being put into the Constitution untried and untested. Those who advocate for that will be proposing a course that has no hope of support from the Coalition parties.

Australians will not vote for a constitutional First Nations voice until they have first heard it and seen it in action. When first hearing about it, I presumed that the First Nations voice would replace the existing National Congress of Australia's First Peoples. That presumption may well be mistaken as the Congress has told the joint parliamentary committee: 'If properly funded and supported, National Congress could function as the voice to Parliament.' Those of us who are not Indigenous need to wait and hear from Indigenous Australians whether they think the National Congress could or should be the voice to Parliament.

When ATSIC was first established in 1989, the number of Australians identifying as Aboriginal and Torres Strait Islander was less than a quarter of a million. At the last census, it was almost 650,000. The aspirations of the self-identifying Indigenous Australians of the 21st century are very diverse. A constitutionally recognised body would have much less flexibility than the present Congress. There is a need for a lot further discussion both within Indigenous communities and within Australian society generally about what such a First Nations Voice might look like, and what it might do.

 

"Shorten is dead right. There is no point in trying to move from Uluru to constitutional recognition except by the long and tortuous path of prior legislative enactment, road testing the model."

 

On 12 February 2018 the Leader of the Opposition, Bill Shorten, in his 'Closing the Gap' remarks told Parliament: 'I ask the government to reconsider their rejection of the Statement from the Heart. But, if we cannot work on this together, the next Labor government will, instead, as a first step, look to legislate the voice to parliament.'

Shorten went on to say: 'If we form a government, we will sensibly move to finalise legislation which establishes the voice and includes a clear pathway to constitutional change, enshrining that basic principle that you don't make decisions about people without talking to them. In fact, I think it will be easier for a referendum to succeed and harder for a scare campaign to be run, if we already have lived legislative experience of such a body.'

Shorten is dead right. There is no point in trying to move from Uluru to constitutional recognition except by the long and tortuous path of prior legislative enactment, road testing the model.

The Labor position has been restated in Parliament in the last month or so. Patrick Dodson told the Senate on 14 August 2018: 'We need to work through the issue of what questions should be put to the people and whether, in order to build support, it would be sensible to legislate first and then, after experience shows the voice to be effective, put the question to the people.'

Labor front bencher Mike Kelly when presenting a petition from the Sapphire Coast on the Uluru statement told the House of Representatives on 16 August 2018: 'This cry from the heart needs to be answered. If we can't get a bipartisan approach to this then Labor will push on. In the absence of cross-party support necessary to achieve that constitutional change in government, Labor will legislate for a voice to honour the aspirations of the Uluru statement, to have that voice to parliament, not in parliament.' The legislative approach is the only realistic way forward.

Just two weeks ago, the National Congress of Australia's First Peoples published a supplementary submission to the joint parliamentary committee. The Congress has now told Parliament: 'National Congress believes that the voice should be initially created via legislation ... This is necessary due to the urgent need for greater input from Aboriginal and Torres Strait Islander communities in the design and delivery of government policy and programs.'

Congress remains unapologetically self-promoting when they say: 'We reiterate our suggestion from our previous submission that National Congress, if properly resourced, could function as the voice.' They may well be right. But this is the issue on which we all now need to hear from the broad spectrum of First Nations opinion.

Commentators like me have seen wisdom in trying to limit the role of a national voice to those legislative and policy issues unique to Indigenous Australians — those matters which you would expect to be listed in any constitutional acknowledgment. But the Congress is insistent that the national voice would need the mandate, capacity and resources to comment on all manner of legislation which impacts in any special way on First Australians. They have submitted: 'National Congress asserts that the national voice must have the ability to review any legislation which it believes may have a tangible impact upon the lives of Aboriginal and Torres Strait Islander peoples.' They give as an example the cashless debit card being trialled as a welfare reform.

It's this sort of submission which fuels the fears of conservative leaders like the present Prime Minister Scott Morrison who see any such voice as a 'third chamber' of the Parliament — having a say on all manner of general legislation in relation to health, education, welfare, and housing, as well as uniquely Indigenous issues such as native title, sacred sites, cultural heritage and languages. As Prime Minister, Morrison has echoed the previous remarks of Malcolm Turnbull and of Nationals Leader Barnaby Joyce, saying, 'I don't support a third chamber ... People can dress it up any way they like, but I think two chambers is enough. The implications of how this works frankly lead to those same conclusions, and I share the view that I don't think that's a workable proposal.'

No one is advocating a third chamber. Urging the cautious approach of legislation and road testing prior to any referendum, I am conscious that some Indigenous leaders, including Noel Pearson, will think I am not helping the cause. I beg to differ. Nothing else is achievable.

 

"It will take both Indigenous and non-Indigenous leaders coming together in trust. Otherwise we will all continue to circle each other around the base camp."

 

It is a very long, difficult and winding road from Uluru to constitutional recognition. On such a journey, we will not find common ground except by compromise, unless of course there is agreement about the principles at stake, and agreement that there is only one way to apply those principles to the challenges at hand in the contemporary context. Even among Indigenous Australians there is no unanimity on that.

To find common ground, we must be committed to trusting conversation. We need to build bridges and forge relationships across differences. We need to be uncompromising in stating our principles — our understanding of what is right and wrong, our understanding of what is optimal and what is not. But then we need to be able to compromise in effecting laws and policies which give due weight to the varying viewpoints agitated in the process of political deliberation. If that goes for laws and policies which can be drawn up today and changed tomorrow, it must go even more for constitutional change which requires the vote of a supermajority, which binds even the elected lawmakers (no matter what their popular mandate) and which is very difficult to change once enacted. The art of leadership is found in the political deliberation able to find the solution to a problem which is appropriately principled, workable and popular.

It will take both Indigenous and non-Indigenous leaders coming together in trust. Otherwise we will all continue to circle each other around the base camp. It's time to start the trek towards constitutional recognition via the path of legislation, road testing the voice. This will require orthodox and unorthodox thinkers and actors able to effect compromise so that in the end a majority of people in a majority of the states will support the constitutional recognition of an Indigenous voice to Parliament which henceforth will always include Indigenous and non-Indigenous members.

 

 

Frank BrennanFrank Brennan SJ is the CEO of Catholic Social Services Australia. This is an extract from his keynote address to the National Aboriginal and Torres Strait Islander Catholic Council Assembly in Perth entitled: 'Strong Faith. Strong Youth. Strong Future — Walking Together in a movement of the Australian people for a better future'. Read or listen in full.

 

Main image: Frank Brennan, Kristen Hilton of VEOHRC and Professor Megan Davis of UNSW at the Castan Centre Human Rights Conference 2018 in front of the Uluru Statement from the Heart.

Topic tags: Frank Brennan, Uluru Statement, Constitutional Recognition, Aboriginal Australians

 

 

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When people are locked into their 'corners, going nowhere fast' of course that is a sign that lack of trust is predominant. Constitutional recognition needs bipartisan support in parliament and it needs the Australian people to galvanise. With so many competing demands on voters this particular agenda is fighting for recognition as an essential part of who we are. Aboriginal and Torres Strait Islanders are already at the heart of Australia and that position can not be erased. Improving outcomes depends on a sensibility that is actively aware of the tension between singularity and oneness that is at the heart of being.
Pam | 01 October 2018


Yesterday when addressing the NATSICC Conference, I said, ‘The art of leadership is found in the political deliberation able to find the solution to a problem which is appropriately principled, workable and popular. It will take both Indigenous and non-Indigenous leaders coming together in trust. Otherwise we will all continue to circle each other around the base camp. It's time to start the trek towards constitutional recognition via the path of legislation, road testing the voice. This will require orthodox and unorthodox thinkers and actors able to effect compromise so that in the end a majority of people in a majority of the states will support the constitutional recognition of an Indigenous voice to Parliament which henceforth will always include Indigenous and non-Indigenous members.’ Professor Megan Davis, Pro-Vice Chancellor at UNSW, has labelled these sentiments as ‘hypocrisy’. And now Voice Treaty Truth, ‘the official campaign to see the aspirations of First Nations People contained in the Uluru Statement from the Heart become a reality’ has tweeted: ‘If the Voice is legislated before it’s put to referendum: there will never be constitutional enshrinement. Political half-heartedness doesn’t need your advocacy. It has already destroyed too many of us.’ I have responded: ‘So you are telling the voting public: “Put this in the Constitution sight unseen, because if you ever saw it, you would never vote for it.” I think that is a gross abuse of democratic process, and an insult to the Australian community.’ Let’s have a respectful, informed and intelligent discussion about this complex matter. I have the highest regard for Indigenous leaders, but let’s all admit that there will be nothing put into the Australian Constitution unless it wins overwhelming public support, and that is going to require some respectful and intelligent discussion about complex legal, political and constitutional issues.
Frank Brennan SJ | 02 October 2018


Even though engagement can sometimes be disheartening, keep speaking about this issue that you have been so involved with, Frank. Aboriginal and Torres Strait Islander peoples have a tremendously difficult past (and present) to deal with and need people of courage and forthrightness to journey with them.
Pam | 03 October 2018


"To find common ground, we must be committed to trusting conversation. We need to build bridges and forge relationships across differences." Agreed. Earlier you also noted that "when ATSIC was first established in 1989, the number of Australians identifying as Aboriginal and Torres Strait Islander was less than a quarter of a million. At the last census, it was almost 650,000. The aspirations of the self-identifying Indigenous Australians of the 21st century are very diverse." Much of the increased self-identifying, and diverse, Indigenous population will be more and more enmeshed in the total multicultural population, so that I can see a possibility of Indigenous leaders becoming an organising, not to say manipulative, group in relation to the increased Indigenous numbers whose values will continue to evolve. Better, it seems to me, to recognise native title where possible, and for the rest, on this issue of 'voice', forge relationships across cultures between Indigenous and non-Indigenous people; thence the task would be to seek to inform their parliamentary reps to do just that, represent them as integral to the social mix which is Australia today.
Noel McMaster | 03 October 2018


VoiceTreatyTruth have now posted this Tweet: ‘Frank, really, another straw man argument. It sounds like you have no faith in Indigenous people, nor the intelligence and progressiveness of the Australian People. Please, listen to Indigenous leaders in this space, have faith, back us to win a First Nations Voice Referendum.’ I have replied: ‘I do; I do; and I do. Please read and listen to what I actually said to a largely Indigenous audience some of whom I’ve known for 30 years. We won’t amend the Constitution by trading insults on Twitter.’ Neither will we amend it by putting up something sight unseen. I do not accept that there is anything ‘hypocritical’ in what I’ve said or written in this address. It was a profound honour for me to address the NATSICC Assembly on this most important issue.
Frank Brennan SJ | 03 October 2018


A constitution contains things that are meant to exist in perpetuity. While constitutional recognition of the fact that people were living here at the time of British colonisation is possible because that fact existed then, exists now and will exist forever, it does not hold that a ‘voice’ should be so recognised because it is not a given that the First Peoples are destined forever to remain a disadvantaged minority in the continent first occupied by their ancestors. In the desired or normative scheme of things, the empirical situation in the future should be that individual aborigines and Torres Strait islanders will have back pockets and political voices equal to those of other Australians due to the organic process of national and individual economic prospering. There are no ‘voices’ for Africans or Arabs: it is expected that over time, increasing enrolment in the economic process will engender an equality that requires only the usual institutions of the two houses of federal parliament and a system of states, each of which impliedly possesses a parliamentary system, characteristics that are meant to exist in perpetuity, to manage such political conversations as may, from time to time, arise.
roy chen yee | 04 October 2018


Three years on and with three prime ministers now ruling out a constitutional ‘Voice’ (see for example http://www.abc.net.au/am/content/2015/s4302446.htm), I thought it necessary when meeting with NATSICC to try and set down some practical parameters for a way forward.
Frank Brennan SJ | 04 October 2018


This is what I said in my address to the Australian Institute of Judicial Administration on 16 October 2015, more than two years before Uluru, and two months after Tony Abbott as Prime Minister had clearly rejected Noel Pearson’s novel suggestion of the Voice to Parliament: ‘The novel addition of an Indigenous Council to our constitutional architecture would first need to be road tested by setting it up by legislation, refining it, and then if it works, proposing it for inclusion in the Constitution at a later date. The voters will not decide to put such a council in the Constitution untested, sight unseen. Prime Minister Tony Abbott at the conclusion of his week spent in Indigenous communities in the Torres Strait and Cape York in August made it clear that he would not support the immediate inclusion of an Indigenous Council in the Constitution. Neither will Prime Minister Turnbull.’ Abbott’s rejection of the proposal had been reported by the very respected now deceased Michael Gordon at The Age on 29 August 2015. Noel Pearson was then interviewed on ABC AM.

The ABC’s Elizabeth Jackson asked Noel Pearson about Gordon’s report in The Age:

‘[Abbott] says that he won't support your idea of an Indigenous advisory body to be enshrined in the constitution. What's your reaction to that decision?

NOEL PEARSON: Yeah, I found that very strange, Elizabeth, because only last week we agreed on a process of Indigenous conferences and consultations with Australians, a proper process over 12 months where nothing was to be ruled in and out. And then I find this puzzling commentary from the Prime Minister, ruling some models out even before we've started the consultation.

ELIZABETH JACKSON: So you're suggesting that he's told you one thing and told the journalist something else?

NOEL PEARSON: Well, that's the way I read it. And I think Michael Gordon's piece in The Age makes very clear where he stands on the issue.’

Indeed it did. I wrote to Gordon on 16 October 2015 before delivering the AIJA address saying, ‘Your report of August 29 that Abbott would not endorse the inclusion of Noel's body in the Constitution was in my opinion a game changer.’ And it was. More than three years on, we all need to deal with the reality that this proposal of a ‘Voice’ placed in the constitution sight unseen was never going to win support from a Liberal Prime Minister no matter what endorsement it later received at Uluru in May 2017. It’s now been rejected out of hand by three of them – Abbott, Turnbull and Morrison. So let’s start the constructive conversation of where to now. Or else, let’s all leave it well alone for quite some years to come.


Frank Brennan SJ | 04 October 2018


Am I the only one sensing more than a little condescension in yet another attempt by Frank to tell our First Peoples what's best for them and how to pursue their objectives? I would have thought that they have had a gut-full of preaching from white-fellas by now. Sure, there is an impasse, but why does Frank think that it's stubborn unreasonable black-fellas rather than his fellow arrogant white-fellas in Canberra that need to give way? I wonder if he would have given similar advice to Martin Luther King, Nelson Mandella, Ghandi, the women's suffrage movement or, for the matter, the Marriage Equality movement? Methinks his energy would be more appropriately directed toward persuading non-indigenous Australians to stand up to our conservative so-called leaders and demand a positive response from them to the Uluru statement. Or for something a little easier, how about demanding that the report to which he contributed on 'religious freedom' be made available NOW, before the Wentworth by-election?
Ginger Meggs | 04 October 2018


If 'a constitution contains things that are meant to exist in perpetuity' Roy how then do you explain away the clauses in it that provide for its amendment? Unlike the ten commandments, the Australian constitution was not handed down from a cloud-covered mountain engraved in stone. Rather, it was the compromise arrived at over 100 years ago after a lot of political wrangling aimed at achieving a handful of agreed objectives whilst protecting the property and privileges of those in power at the time. That said, it did include some innovative provisions to accommodate the often conflicting views of those involved not the least being the notion of a federal commonwealth of sovereign states all under the one crown. Many of those initial provisions now seem quaint anachronisms, and some have been done away with. There is no definitional or constitutional reason why the Uluru proposal could not be implemented. Indeed the only reason for rejection that has been advanced by the government is that it would threaten the powers of parliament (think instead privileges of politicians) which is patently incorrect anyway.
Ginger Meggs | 05 October 2018


When asked at a NAIDOC week event to write a comment/quote upon a canvas I simply asked a first nation's woman for the name of the creator spirit in these parts and then wrote after this "will be done" for that is my prayer (before Uluru gathering leading to statement from the heart and it will take efforts to have the Uluru Statement accepted with the respect it deserves but reaching this point will do us all good.
Gordana Martinovich | 05 October 2018


Precisely Gordana ! Why should the 'Canberra Statement' (Knee-jerk no way!) be allowed to prevail over the Uluru Statement (a carefully considered and deliberated proposal)? Frank says that three Tory PMs in a row have rejected the proposal? So what, two of them have already been deposed and the third is highly likely to be gone in six months or so.
Ginger Meggs | 05 October 2018


There’s some ongoing fun and games on Twitter about my recent NATSICC Address on the way forward towards constitutional recognition of the Indigenous ‘Voice’. There’s no point in answering the ‘ad hominem’ stuff. For everyone’s good and for civil discourse, let’s consider the arguments.

I understand the arguments about postponing design and implementation until after a referendum. But we need to look at the necessary preconditions for a referendum. They are (1) support of the major political parties, especially the government of the day and (2) sufficient public education and engagement to ensure public participation and support.

Re 1: Three Liberal Prime Ministers in succession have opposed this proposal.

Re 2: The Referendum Council made the decision to put all its eggs in the Indigenous consultation basket. That’s fine. But you cannot proceed to a referendum until you have put before the general public a proposal which has sufficient meat on the bones for them to understand what they are voting for. When in doubt or when left in the dark, they will vote NO.

Much is being said now about the benefits of design post-referendum and the disadvantages of design pre-referendum. Some are using the example of the High Court at the time of federation. It was put in the Constitution before it was designed and before it was up and running. But it was put in the Constitution when all the founding fathers (and not just the lawyers) were given some understanding of what the court would do and when all the founding fathers (and not just the lawyers) owned the proposal and sold it to the public who then had enough information to satisfy themselves that it was a good idea.

Given that the Referendum Council left the general public AND the general body of politicians in parliament out of the last processes, there is no point in proceeding with a referendum until there has been a process to include the general public and the general body of politicians who can then satisfy themselves that ‘we know what we are voting for; we own it; and we want it.’

At the moment, it’s like a group of lawyers saying, ‘Let’s have a referendum to put a High Court in the Constitution. Don’t worry about the design or implementation at this stage. We lawyers have decided it’s a good idea. Three prime ministers in succession have said it’s a very bad idea – but they’re partisan, just playing to the crowd who don’t understand these things. And what would they know. They’re not lawyers. Get aboard and just vote for it. Trust us because we’re lawyers. And you’ll see that it’s a good thing. And by the way, don’t press us to design it and set it up first because that would take a long time and if it works, you’d wonder what’s the point of putting it in the Constitution, and if it doesn’t work then we will have lost the opportunity to perpetuate the mistake which we still think is a good idea.’

Even though this proposal relates to an Indigenous Voice, to get it up at referendum you still have to fulfil preconditions 1 and 2. By all means take all the self-determining steps for Aborigines to arrive at their own conclusions and recommendations, but before you put anything to the people, ensure that both sides of politics are on board and that there is sufficient information and genuinely inclusive public process for all citizens to own the proposal, entrenching it in the Constitution so it then might be voted up, rather than down – which would be a tragedy for everyone.

This is particularly essential when we are starting to hear a diversity of Aboriginal voices about the existing national ‘Voice’ – the National Congress of Australia’s First Peoples. While the Congress is telling the parliamentary committee that they could be the ‘Voice’, others are telling the committee, ‘There was no existing body mentioned in any single dialogue or at the national convention that was regarded as constituting a voice to parliament or even a voice. There was no current body mentioned in any single dialogue that emerged as a suitable fit for the voice as perceived.’ The voters will need to hear a clearer message than this, especially with three Prime Ministers in a row having canned the idea. So let’s get on with the hard work.


Frank Brennan SJ | 06 October 2018


I have no idea Frank of what is being tweeted on Twitter nor am I interested. Such a medium seems singularly inappropriate for addressing this issue. Nor am I concerned that 'three Liberal Prime Ministers in succession have opposed this proposal'. The problem is not with recent PMs but with the deep-seated antipathy of the hard right within the conservative parties toward our Indigenous peoples. These people will not countenance any meaningful recognition of the identity or aspirations of the descendants of those from whom this land was forcibly taken. A 'legislated Voice' as you propose will be no more acceptable to that group than would a constitutionally enshrined one be. So we have an impasse. If the impasse is to be broken it will not be achieved by appealing (or grovelling) to this recalcitrant hard right core but rather by developing a grass roots movement whose demand for change will eventually succeed in shifting the politicians. That will take time and effort and sacrifice, just as it did in India and South Africa, just as it did with electoral equality and marriage equality. The Church and the churches could, if they committed their considerable resources to the cause, make a significant contribution to this movement although, given their form in being so inwardly focused and resistant to change, and so timid in standing up to the hard right, I won't be holding my breath waiting. I'd be more impressed if your missives were directed toward the rest of us rather than to our Indigenous leaders.
Ginger Meggs | 07 October 2018


I appeared today before the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples which asked me to come and answer questions in the light of my recent NATSICC address. You can read the substance of my opening statement to the committee here: https://www.eurekastreet.com.au/article.aspx?aeid=56839
Frank Brennan SJ | 16 October 2018


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