In this post, McKenzie Postdoctoral Fellow and Senior Adviser to Cape York Institute, Dr Shireen Morris, discusses the proposal for Indigenous constitutional recognition through a constitutionally guaranteed ‘First Nations voice to Parliament’.
Indigenous constitutional recognition is not just a symbolic endeavour. It has a practical purpose. Constitutional recognition aims to reform the constitutional relationship between Indigenous peoples and the Australian state, to ensure it is fairer than in the past.
Addressing an unfair power relationship
Settler democracies like Australia tend to use four main structural mechanisms to address reset and rebalance historical power relationships with Indigenous peoples, to ensure they are fairer than in the past:
- Bills of rights that protect minority interests, including equality guarantees or Indigenous rights protections.
- Representative and consultative mechanisms to ensure Indigenous peoples have a voice in political decisions about their rights.
- Agreement-making and treaties to manage relationships between Indigenous peoples and the state.
- Cultural and language recognition to help Indigenous heritage to survive.
Australia currently has none of these mechanisms. Under Australia’s constitutional system, Parliament has largely unfettered constitutional power over Indigenous affairs and Indigenous rights are extremely vulnerable. This has resulted in many decades of laws and policies which discriminate against Indigenous people and disregard Indigenous rights.
Legislative recognition of rights, while important, is vulnerable to amendment or repeal. Legislated recognition of rights can be legislated away. For example, the Racial Discrimination Act 1975 has been suspended three times in recent decades – each time in relation only to Indigenous people. The Native Title Act 1993 provides crucial recognition of Indigenous property rights, but former Prime Minister John Howard’s ‘Wik Ten Point Plan’ watered down native title rights.
This vulnerability has led to the sustained call from Indigenous activists for constitutionally guaranteed protection and recognition of Indigenous rights. Australia’s entrenched Constitution can offer protection that is more stable and enduring than mere legislation. As Yolngu elder Galarrwuy Yunupingu explained, “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…”
The Uluru Statement from the Heart
For many decades, Indigenous advocates have called for a stronger voice in political decisions made about their distinct rights and interests. In May 2017, this advocacy culminated in a historic Indigenous consensus expressed in the Uluru Statement from the Heart. It asked for a constitutionally guaranteed voice in their affairs – a First Nations body to be empowered with a say in laws and policies made about them. The constitutionally guarantee is important, as legislated bodies of the past, like the Aboriginal and Torres Strait Islander Commission (ATSIC), have been easily abolished. The Uluru Statement also asked for a legislated Makarrata Commission to facilitate agreement-making and truth-telling about history. Both these measures – an Indigenous voice and agreement-making – are common in settler democracies like Australia.
In October 2017, Prime Minister Malcolm Turnbull unfairly rejected the Uluru Statement’s call for a First Nations constitutional voice, claiming the proposal was contrary to Australia’s equal civic rights. This claim is incorrect: in fact, the a constitutionally guaranteed Indigenous voice in Indigenous affairs is deeply aligned with Australia’s constitutional culture and design.
An Indigenous voice would include no veto and would not be a “third chamber of Parliament”, as has been incorrectly claimed. The proposal is for a constitutionally guaranteed advisory body, external to Parliament, to enable Indigenous people to have more effective input into laws and policies made with respect to Indigenous affairs.
This is a sensible proposal: genuine engagement and dialogue with Indigenous peoples in policy-making would help prevent discrimination, and improve policies and outcomes. Such a reform is urgently needed to address the persisting Indigenous inequality and disadvantage.
Australia’s Constitution is all about voices
The Prime Minister’s misguided claim that an Indigenous constitutional voice in their affairs would be contrary to Australia’s equal civic rights echoed arguments of the Institute of Public Affairs. This ‘false equality’ objection misrepresents Australia’s constitutional reality.
Australia is not America. The is no equality before the law guarantee in Australia’s Constitution. There is the opposite: clauses indicating discrimination is allowed. The High Court has declined to find any implied right of equality, because the text and history shows this was not an intent of the founders. The result has been decades of discrimination against Indigenous Australians. This is the very problem constitutional recognition seeks to fix.
A First Nations constitutional voice is a nuanced and intelligent solution that fits with Australia’s constitutional culture, history and design. Australia’s Constitution does not enshrine equality, but it does guarantee that the diverse historical voices are heard.
Australia’s Constitution is a power-sharing compact. The compact recognizes, represents and gives voice to the pre-existing political communities, the former colonies (now the States), who united to create Australia’s federal political community – the Commonwealth of Australia – in 1901. Australia’s Constitution recognizes these historical communities, and guarantees their voices, ensuring minority and regional voices are always heard by central powers. The Constitution protects citizens’ rights, by guaranteeing the pre-existing political communities a fair say. Even the very small historical communities are constitutionally recognised. Tasmania is constitutionally guaranteed an equal voice in the Senate, so Tasmanians get a proportionally greater democratic say than Victorians – an accepted fact of our constitutional system. There are more Indigenous Australians than Tasmanians.
The First Nations are also a pre-existing political community, or communities, that pre-dated the colonial communities by thousands of years. Indigenous peoples were not included as negotiating parties to power-sharing deal of 1901, giving rise to the “torment of powerlessness” the Uluru Statement poetically describes, and which persists today.
This historical omission can be corrected by constitutionally guaranteeing the First Nations a fair voice in laws and policies made about them. The Constitution provides Parliament with a special and necessary power (the race power) to legislate with respect to Indigenous affairs. Since the 1967 referendum, this power is used exclusively to legislate with respect to Indigenous rights – Native Title, Indigenous heritage and so on. It makes sense that the Constitution should also guarantee Indigenous peoples a fair say in laws made about them.
If Indigenous people were empowered with a voice in their affairs, they would be better placed to engage in mutually respectful dialogue with the state, which would help prevent the repeat of past discriminatory laws. This would enhance equality, not diminish it.
Correcting the wrongs of the past
Current Joint Select Committee co-chair and constitutional conservative, Julian Leeser, has argued that a constitutionally guaranteed Indigenous voice is the kind of clause “[the Constitution’s founders] Griffith, Barton and their colleagues might have drafted, had they turned their minds to it.”
Imagine if First Nations leaders had sat around with Griffith, Barton and other Founding Fathers in the 1800s, to discuss how power would be shared out in the new nation, and to insist on their fair share. Imagine if Indigenous people had been treated as equal and empowered human beings, rather than as an inferior ‘dying race’, and thus granted a seat at the negotiating table? I think it’s likely they might have negotiated themselves a voice. The Australian Constitution is all about voices.
Giving voice to the pre-existing Indigenous political community would not divide Australia – it would bring Australians closer together through stronger partnerships and more respectful communication. It would not create inequality – it would belatedly include and embrace that which has for so long been excluded, suppressed and silenced. A constitutionally recognized First Nations voice in their affairs would help correct the inequality of the past and present.
Dr Shireen Morris is a McKenzie Postdoctoral Fellow at Melbourne University Law School and a senior adviser to Cape York Institute, whose proposal was adopted in the Uluru Statement from the Heart. Her new book, Radical Heart (MUP) will be published in July.