Part Thirteen of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.
In May 2017, 250 Indigenous People from all around Australia travelled to Uluru – in the centre of Sahul, ostensibly to try and reach a consensus on whether a referendum on constitutional recognition was needed, and what it would look like.
The gathering was the culmination of six months of consultations under time pressure from the federal government. The Referendum Council held thirteen regional dialogues, each of which elected ten representatives to attend the Uluru meeting. Other specially invited Indigenous leaders from across Australia joined them, to a total of about 250 people.
Chairing the convention was Aunty Alison Hunt, an Anangu woman on whose country the meeting was held. Her direction and reminder to participants that they were expected both to uphold standards of respectful behaviour and provide an outcome worthy of bearing her country’s name is being credited with keeping the meeting orderly and efficient.
The meeting was presented with five options for change, compiled in a discussion paper produced by the Referendum Council.
The first was to draft a statement acknowledging Indigenous and Torres Strait Islanders as the first Australians, either inside the Constitution as the preamble to a new head of power or as a separate declaration of recognition.
The second proposed amending or deleting the race power and replacing it with a new head of power.
The Referendum Council’s discussion paper included a reworded race power to enable the continuation of “necessary laws” with respect to Indigenous issues, meaning laws for the benefit of Indigenous people but not to their detriment.
It suggested the deletion of section 25 of the Constitution, which contemplates the possibility of a state government excluding some Australians from voting on the basis of their race and threatens punishment in the form of reducing its number of senators in federal Parliament. While at least one state – Queensland – prevented Indigenous People from voting in the 1960s, the punishment has never been enforced.
The discussion paper raised the prospect of inserting an explicit anti- discrimination clause into the Constitution and it provided for an “Indigenous voice” with the right to be consulted on legislation and policy.
The “voice” proposal – the centre-piece coming from Uluru – is the only one of the constitutional reform ideas to have survived.
On 26 May, after three days of deliberation, the attendees outright rejected the proposal of recognition in the Constitution, instead calling for a representative body to be enshrined in that document and a process established working towards treaties.
The result is one that few on the sidelines saw coming – mere symbolic constitutional recognition of Indigenous People was rejected once and for all by the delegation of Indigenous and Torres Strait Islanders People from thirteen regions.
The Referendum Council was officially to recommend to both Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten that a treaty be established with Australia’s First Nations people, and that a permanent ‘voice’ for the First Nations People be constitutionally enshrined by the Australian Parliament.
The co-chair of the Government-appointed Referendum Council, Ms Pat Anderson, said that an acknowledgement in the Constitution was “totally rejected” by all of the meetings and people who had gathered during a previous six-month period.
“This is a long process we’ve set up now … with people putting up their hands up today and were chosen, we’ve got a very large working group that will continue to work on this process for the next while,” she said.
“When the referendum council finishes its work on June 30, we’ve got another team – a whole range of people who will go forward and bring this whole matter forward.”
Cape York leader, and a key member of the Referendum Council, Mr Noel Pearson said that there was no enthusiasm for a statement of acknowledgment of Indigenous People in the Constitution.
He said that the delegates agreed that a parliamentary ‘voice’ would be more “substantive.” “It will have a more practical impact Aboriginal people’s place in the democracy.” he said.
“That’s what they’ve chosen rather than some sort of nice words of acknowledgement.”
The gathering also called for the establishment of a Truth and Justice Commission. The ‘Uluru Statement from the Heart’ was the result of three days of deliberations during the gathering and was also delivered on the 20th anniversary of the Bringing them home report and ‘National Sorry Day’. (Indigenous leaders call for representative body and treaties process after Uluru convention, the ABC).
One can easily detect the influence of Mr Pearson’s powerful, almost lyrical, and well-known style:
“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. [Emphasis in original].
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. [Emphasis in original].
We call for the establishment of a First Nations Voice enshrined in the Constitution.”
“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 Australia people for a better future.”
Sovereignty – the Statement said – “has never been ceded, and co-exists with the sovereignty of the Crown.”
The Statement concluded:
“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. [Emphasis in original].
We seek a Makarrata Commission to supervise a process of agreement -making between governments and First Nations and truth-telling about our history.”
“[The Statement] is what we’ve been trying to tell the rest of Australia … who we are, where we come from, and this is our place.” co-chair of the Government-appointed Referendum Council, Ms. Pat Anderson, said at the closing ceremony at Uluru.
It was a moment Ms Anderson said she had dreamed of, after 13 regional dialogues were held around Australia culminating in the last three days of talks at Uluru.
Professor Megan Davis, who calls herself a Cobble Cobble from south-east Queensland, and who is of Indigenous, South Pacific Islander and Australian ancestry, read the Statement of the Heart at a sunset ceremony at Uluru. Ms Davis is a professor of law at the University of New South Wales and in addition she directs the Indigenous Law Centre there. She is on the Australian Government’s expert panel on the country’s Indigenous People. She was the first Indigenous person from Australia to sit on a United Nations body and she is now Chair of the United Nations based Permanent Forum on Indigenous Issues.
Ms Davis said that it was a proud and privileged moment. “I think that all of the different regions came together and participated in what was a difficult and structured agenda … it was really inspiring to see the way the mob worked together to get to that common ground at the end of the day,” Professor Davis said.
“When you looked across the 13 dialogues, there was a lot of commonality … so we knew that [the] mob have always wanted treaty … [the] mob have always wanted [a] Parliamentary voice … these are things that they’ve advocated for a long time.”
Working alongside the soon-to-be established Treaty Commission, which was intended to replace the Referendum Council from 30 June, will be the Truth and Justice Commission. Professor Davis said that it was a new concept.
“After 13 dialogues they all said the same thing, which is we haven’t told the truth, so I think that’s really significant,” she said.
“Step one is the truth-telling, and I think that will facilitate a really important step in Australia because in terms of reconciliation … Australia skipped the truth part and went straight to reconciliation.”
The term “reconciliation” implies that the interests of Indigenous People can be squared with the present social order; that in some way, the crimes of the past, as well as those of the present, can be overcome if only the political will exists. What was lacking, claimed its advocates, was a formal apology from the Australian Government. And perhaps the muted suggestion is now that the Indigenous and Torres Strait Island People should keep quiet and enjoy what is given to them.
The attempt to wipe out the Indigenous People was not the result of some racist mindset on the part of unenlightened individuals in positions of authority. It was spawned out of the requirements of establishing private ownership in property, initially in land. Genocide emerged out of the need of the emerging Australian squattocracy “to clear the land”. And the appalling conditions faced by the majority of Indigenous People today similarly derive from the requirements of ‘the market’.
“Reconciliation” would accept the private profit system, which remains utterly incompatible with the rights of the Indigenous population to justice, equality and basic human dignity. Indeed, one of the primary purposes of the “reconciliation” campaign is to help cement relations between mining companies, agricultural combines and some Indigenous entrepreneurs to facilitate planned large-scale mining projects and farming of Indigenous land. Billions of dollars are at stake, with a small share destined for a select few Indigenous leaders, while the living conditions of most Indigenous People deteriorate further. This is an old story.
Mr Sammy ‘Jarma’ Wilson, a local man from the community of Mutijulu, which was still suffering ‘the Intervention of 2007, who had welcomed the delegation to his community, took the opportunity to say that many local people had enjoyed the chance to learn about the concepts of treaty and constitutional reform. “We don’t want to be always at the bottom of Australian society … we don’t want to be oppressed,” he said. “We want to be able to come together with every other Australian citizen and look after this country that we live in together … Government and all the rest of us.”
Mr. Fred Hooper, chairperson of the Murrawarri People’s Council, had travelled to the gathering from New South Wales. He commented: “I thought it was going to be a statement just about recognition and constitutional reform, but when I heard it being read for the first time tonight, it’s changed my thinking, in terms of, O.K., what do we really need to do to get to an end point in this country?” … “We need to settle the issues of the past 200 years … we need to light a new fire, and we need to light it in the bellies of all young Australians … all First Nations people, to take it forward, and to lead with honour, respect, for all.” (Symbolic constitutional recognition off the table after Uluru talks, Indigenous leaders say, the ABC).
Speaking in Melbourne, during the National Reconciliation Week, to mark the 50th anniversary of the 1967 referendum and the 25th anniversary of the Mabo decision Prime Minister Turnbull reminded the attendees that Australians were “constitutionally conservative.”
“This week has seen us look towards another step, with the Referendum Council’s National Convention at Uluru,” he said. Mr Turnbull, who was still to acknowledge the full recommendations of the Uluru statement, said that constitutional change would be “very difficult.”
He noted the “last remotely controversial amendment to be approved was in 1946.” “History would indicate that to succeed not only must there be overwhelming support but minimal, or at least tepid, opposition,” he said. Political unity was needed to persuade the “constitutionally conservative nation” to vote in favour of change. “The nation must be persuaded that the proposed amendments respect the fundamental values of the constitution, and will deliver precise changes, clearly understood, that benefit all Australians.” Hummm.
Opposition Leader Bill Shorten told the lunch that there was “a sincere desire for bipartisanship” on the referendum issue.
The Referendum Council was to provide details of the new proposal in its final report due to Mr Turnbull and Mr Shorten on 30 June.
Mr Turnbull and Mr Shorten were tight-lipped, saying they did not want to pre-empt the final recommendations of the Reconciliation Council.
Greens leader Richard Di Natale called on the Prime Minister to take heed of the Uluru outcome: “I’m deeply concerned, the prime minister had an opportunity today to say: ‘I stand with our First Nation people, I’ve heard them and we are going to work towards a treaty and towards a strong Aboriginal voice.’ And instead he appears to have backed away from any significant change,” he said.
Melbourne University Professor Adrienne Stone told Pro Bono News that Australia was lagging behind in terms of Indigenous affairs.
“All the other settlement countries such as United States of America, Canada and New Zealand have some form of constitutional recognition, so they either have a treaty or their constitution explicitly acknowledges or provides rights for Indigenous people,” Stone said. “What constitutional reform offers is an opportunity to remake the basis of the political settlement between Indigenous People and Australia.”
Professor Stone said that although constitutional reform was hard there was still hope. “I think Australian constitutional culture generally preferences practical change over purely symbolic measures.” She added: “It is not at all clear to me that it is impossible, I think there is a chance.”
Ms Pat Anderson said this was just the start of a long journey towards meeting the aspirations of the Uluru statement.
“When the referendum council finishes its work on June 30, we’ve got another team – a whole range of people who will go forward and bring this whole matter forward,” Anderson said. “This is a long process we’ve set up now … with people putting up their hands up today and were chosen, we’ve got a very large working group that will continue to work on this process for the next while.”
Largely misunderstood in structure and purpose, the ‘Voice’ the Indigenous People proposed at Uluru almost immediately found disapproval by the Deputy Prime Minister, Barnaby Joyce. He indicated that he would support ‘constitutional recognition’ – a mere gesture, really, if ever achieved – but that he was wary of the proposal for First Nations having a ‘legislative voice.’
He put it this way: “It just won’t fly.” He told the A.B.C. on 29 May 2017, “If you are asking for a new chamber in the federal parliament, some of the articles I see are heading in that direction, that’s not going to happen. I am going to be fair dinkum with people.” His Nationals colleague George Christensen, M.P. went further, saying that it would be “dangerous to democracy if we start giving one group special privileges.”
Of course, this was not what the Indigenous People were asking, but Mr Joyce could/would not understand and Mr Christensen did not understand the Statement.
Indigenous People are not asking for a new chamber of parliament. A prominent constitutional law expert Laureate Professor Cheryl Saunders cared to explain. She said that the ‘voice’, the body Joyce did not understand, would act in an advisory role and would not have veto power. “I don’t know what on earth you would fear from it?” she told The (Melbourne) New Daily. “It is a body with considerable status that will give Commonwealth parliament someone to consult when it’s making policies specifically for Indigenous people.”
“We know that this has been a real problem for Australian public policy for a really long time. This is a really sensible mechanism for that.” (Indigenous Australians want a new voice, but our politicians are now divided, The New Daily).
Ms Shireen Morris, who is a lawyer, as well as a researcher at Monash University, has been acting as senior policy adviser and constitutional reform research fellow at Noel Pearson’s Cape York Institute. She told The New Daily that the statement represented a rejection of “symbolic and minimalist recognition.” Instead, it endorsed “substantive recognition”, in part by calling for a First Nations’ voice to parliament to be embedded in the Constitution.
Ms Morris co-authored with Damien Freeman the book The Forgotten People, Liberal and conservative approaches to recognising indigenous peoples, which appeared in March 2016.
The work “challenges the assumption that constitutional recognition of indigenous Australians is a project of the left in Australia. It demonstrates that there may be a set of reforms that can achieve the change sought by indigenous leaders, while addressing the critical concerns of constitutional conservatives and classical liberals. More than that, this collection illustrates the genuine goodwill that many Australians, including Major General Michael Jeffery, Cardinal George Pell, Chris Kenny and Malcolm Mackerras, share for achieving indigenous recognition that is practically useful and symbolically powerful.” – from the presentation by Melbourne University Press (The forgotten people, by Damien Freeman and Shireen Morris).
Continued Monday with: The Uluru gathering (Part 2)
Previous instalment: ‘The Westminster System’ at work
Dr. Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. He may be reach at George.Venturini@bigpond.com.au.