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.
LETTER OF TRANSMITTAL
The Hon Malcolm Turnbull MP
CANBERRA ACT 2600
The Hon Bill Shorten MP
Leader of the Opposition
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.
Pat Anderson AO
Co-Chair, Referendum Council
Mark Leibler AC
Co-Chair, Referendum Council
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.
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 AO
Co-Chair, Referendum Council
Mark Leibler AC
Co-Chair, Referendum Council
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.
The Council recommends:
- 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 finalizing 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:
- 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.
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:
- Lead the process for national consultations and community engagement about constitutional recognition, including a concurrent series of Indigenous designed and led consultations.
- 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.
- Consider the recommendations of the 2012 Expert Panel on Constitutional Recognition of Indigenous Australians.
- 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.
|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.
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.
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.
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.
1.5 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.
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).
- 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).
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).
2.1 First Nations Regional Dialogues
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
- 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:
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 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.
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.
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.6
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.
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 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.
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.
|Statement of Acknowledgement||Head of Power||Prohibition on Racial Discrimination||A Voice to Parliament||Agreement-Making|
2.2 National Constitutional Convention
The National Constitutional Convention was held at Uluru between 23 and 26 May 2017.
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 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.
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
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.
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)
Invasion was met with 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
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 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
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
‘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.
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 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
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
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:
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:
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.
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 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 Strait and71 Canberra.72
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 Strait and87 Canberra.88
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 Strait and100 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: Melbourne,103 Broome,104 Darwin,105 Perth,106 Sydney,107 Cairns,108 Ross River,109 Adelaide,110 Brisbane,111 Torres Strait.112
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 Strait and123 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 Islander peoples. Dialogues emphasising that reform needed to be more than a minimalist position include:Melbourne,125Hobart,126Broome,127Dubbo,128Darwin,129Perth,130Sydney,131Cairns,132Adelaide,133Torres Strait134and 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 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
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.
|Statement of Acknowledgement||Head of Power||Prohibition on Racial Discrimination||A Voice to Parliament||Agreement-Making|
|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|
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.
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 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
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.
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
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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.’
- 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.‘
- 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.’
- 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.
- 49. Melbourne ROM, 17-19 March 2017, pp3,5-6.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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’.
- 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.
- 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.
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:
|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 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.
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.
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.
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.
- 181. Final Report of the Act of Recognition Review Panel, September 2014, p. 17.
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.
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 ,  and . In particular, paragraph 43 states,
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].
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:
- An extra-constitutional statement of recognition
- The establishment of a Makarrata Commission
- 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.
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.
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.
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.
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.
© Commonwealth of Australia 2017
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Copyright in extracts from the Uluru Statement from the Heart reproduced in this report vests with the
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‘Rom Watangu: The law of the land’ (Appendix D) is reproduced with the kind permission of
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This document should be attributed as Final Report of the Referendum Council.
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
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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 (see above):
… a spiritual notion … of sovereignty: International Court of Justice in its Advisory Opinion on Western Sahara (62)
(1975) ICJ Rep, –, quoted in Mabo v Queensland [No 2] (1992) 175 CLR 1 .
… 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.