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Awaiting the Referendum Council in NAIDOC Week

Frank Brennan |  03 July 2017


A week ago, the Referendum Council presented its final report to Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten with suggestions as how best to proceed with a referendum to amend the Australian Constitution recognising Aborigines and Torres Strait Islanders.

NAIDOC Week 2017 posterPat Anderson, the Aboriginal Co-Chair of the Council said, 'Our consultation with Aboriginal and Torres Strait Islander Peoples culminated in the Uluru Statement from the Heart, which has informed our advice along with all the other input received over the past six months.'

The Uluru Statement discarded the earlier work both of the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution convened by Prime Minister Julia Gillard and of the parliamentary committee chaired by Indigenous members of parliament Ken Wyatt from the Coalition and Nova Peris from the Labor Party.

The expert panel had included Aboriginal lawyers like Noel Pearson and Megan Davis who were key drafters of the Uluru Statement, as well as the two co-chairs of the National Congress of Australia's First Peoples. The Uluru process was the culmination of the consultations convened by the Indigenous members of the Referendum Council appointed by the Turnbull Government.

It was a process conducted independent from the National Congress of Australia's First Peoples which is the only First Nations Voice presently in existence.

At Uluru, the Aboriginal and Torres Strait Islander participants dumped all previous proposals for constitutional recognition and put all their eggs in the representation basket, calling for a First Nations Voice to be included in the Constitution.

In response, the National Congress has said, 'The National Congress of Australia's First Peoples endorses the establishment of a constitutionally mandated representative body for First Peoples, as recommended in the Uluru Statement. Congress is in a unique position to be this Indigenous voice in parliament, as we are the national representative body for Aboriginal and Torres Strait Islander peoples.'

Anderson, Pearson and Davis seem to have in mind a First Nations Voice very different from the Congress. Suffice to say, they have not endorsed the Congress proposal that it be the First Nations Voice.


"Given that Indigenous Australians have spoken strongly through their representatives at Uluru in support of a First Nations Voice, it is now for our parliament to determine a timetable and menu for constitutional change with maximum prospects of a 'Yes' vote."


The dumped proposals from earlier consultations include suggestions that the Australian Constitution be amended to remove the two outdated provisions which refer to 'race', and that there be some acknowledgement of Aboriginal and Torres Strait Islander cultures and heritage, with provision for the Commonwealth Parliament to make laws benignly for the benefit of Aborigines and Torres Strait Islanders. Whether or not an Indigenous body like Congress is to be recognised in the Constitution, there remain the questions of whether the Constitution should be immediately amended to remove the outdated 'race' provisions, to give some acknowledgement of indigenous history and aspirations, and to grant the Commonwealth Parliament power to make laws with respect to issues such as native title and indigenous heritage.

It is no disrespect to those Aborigines and Torres Strait Islanders gathered at Uluru to say that now is the time for the report of the Referendum Council to be scrutinised by our national politicians, and that our elected leaders should pay special heed to the observations of those Indigenous members of the federal parliament who have offered considered reflections on the way forward. In particular, our elected representatives should have regard to the views of Patrick Dodson who is now Bill Shorten's Shadow Assistant Minister for Indigenous Affairs and Aboriginal and Torres Strait Islanders, and who was co-chair of the expert panel convened by Julia Gillard.

After the Uluru meeting, Senator Dodson, when delivering the Mabo Oration commemorating the 25th anniversary of that historic High Court decision, said:

Changing powers in the Constitution and giving clarification around how such powers can be used is not mere symbolism, 'pretty words'.
Having an Indigenous voice enshrined in the Constitution, without amending the Constitution to remove racially entrenched ideologies, is puzzling. It seems to assume that an Indigenous voice in the Constitution could be strong enough to challenge the entrenched structural racism which shapes the policies and laws that affect the lives of Aboriginal people without removing the racist elements of the Constitution.

Our elected representatives should also be listening to Linda Burney who is a member of the House of Representatives, having been a Minister in the New South Wales Government. Speaking prior to the Uluru Meeting, she told an audience at the Australian National University:

We must accept that no matter how just and well-crafted the proposal put forward is, it will mean nought if it is not winnable. If it does we will finally have a national compact which recognises and acknowledges our true history and tells the truth. We have to learn the lessons of the 1967 referendum.

Speaking after the Uluru meeting she told Parliament when reflecting on the 50th anniversary of the 1967 referendum:

That 'yes' vote was the most successful referendum this country has ever seen, and the genius of that campaign is that, whilst the questions that were put into the referendum did not, in many ways, seem ground breaking, the campaigners were able to turn it into a decision for the Australian people about rights for first peoples and the unacceptable position that first peoples were in. That was the genius of the 1967 referendum.

We await the publication of the report of the Referendum Council which was commissioned to 'advise the Prime Minister and the Leader of the Opposition on progress and next steps towards a successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution'. We know that the Deputy Prime Minister Barnaby Joyce is opposed to any First Nations Voice being embodied now in the Constitution. We also know that Tony Abbott is opposed. He told us that in August 2015 in his final days as Prime Minister and at the conclusion of his annual visit to remote Aboriginal communities, that time in Cape York when he was accompanying Noel Pearson. Back then, Abbott warned advocates of strong constitutional recognition for Indigenous Australians that they would 'probably end up with a proposal that won't pass' if they pursued everything they would like in the referendum question. He told the respected Michael Gordon from The Age that he did not support Noel Pearson's proposal for an Indigenous advisory body to be enshrined in the Constitution, saying 'the Parliament could establish such a body if it was deemed necessary.' Abbott said, 'I don't want to pre-empt the outcome of the community conferences but I suppose I would encourage people to realise that if you go for everything you'd like, you'll probably end up with a proposal that won't pass.'

In the midst of this complex uncertainty, let's hope that the Referendum Council and our elected politicians follow the same principles which guided the 2012 expert panel, 'namely that each proposal must:

• contribute to a more unified and reconciled nation;

• be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples;

• be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and

• be technically and legally sound.

There is no point in proceeding with a referendum on a question which fails to win the approval of the First Australians. Neither is there any point in proceeding with a referendum which is unlikely to win the approval of the overwhelming majority of the voting public, regardless of when they or their ancestors first arrived in Australia. Given that Indigenous Australians have spoken strongly through their representatives at Uluru in support of a First Nations Voice, it is now for our parliament to determine a timetable and menu for constitutional change with maximum prospects of a 'Yes' vote.

How do we best guarantee the establishment of a First Nations Voice so that it is heard and listened to whenever laws and policies affecting Indigenous heritage and aspirations are affected? Even if change to our Constitution remains some distance in the future, it is important for us all to commit ourselves to designing and implementing a First Nations Voice here and now, deciding whether it be different from the existing National Congress of Australia's First Peoples. And it's important for all our elected politicians to be attentive to those Aboriginal members of parliament who have both political experience and skin in the game, seeking recognition of their mob in the Australian Constitution, while rightly demanding that the outdated 'race' provisions be deleted.

Patrick Dodson is surely right when he says, 'To formulate a successful referendum outcome, especially in the next year, a bipartisan, indeed, cross party consensus will need to be carefully shaped.' That will take something more than the Uluru Statement. Also, Malcolm Turnbull was right when he said on the 50th anniversary of the 1967 referendum: 'No political deal, no cross party compromise, no leaders' handshake can deliver constitutional change. To do that a constitutionally conservative 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.' Like all earlier proposals for constitutional change, the Uluru Statement now needs to be assessed by our political leaders and scrutinised by all comers. That's no disrespect to those Indigenous representatives who gathered at Uluru; it's the inevitable politics of democratic constitutional change.


Frank BrennanFrank Brennan SJ is the CEO of Catholic Social Services Australia.



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Submitted comments

as per usual frank brennan writes an excellent and thoughtful article which certainly puts thing into perspective

maryellen flynn 06 July 2017

It is important to have regard to the Terms of Reference of the Referendum Council. It was not set up simply to channel to government whatever might result from consultations with Aborigines and Torres Strait Islanders. That was only one part of its role. It’s purpose was to ‘advise the Prime Minister and the Leader of the Opposition on progress and next steps towards a successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution, as set out in these terms of reference’. The Council was commissioned to ‘build upon the extensive work of the Expert Panel on Constitutional Recognition of Indigenous Australians and the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples’. The terms of reference set out four roles for the council. It was to ‘lead the process for national consultations and community engagement about constitutional recognition, including a concurrent series of Indigenous-designed and led consultations’. It was to ‘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.’ ‘The Council and consultations it leads’ were ‘also consider the recommendations of the 2012 Expert Panel on Constitutional Recognition of Indigenous Australians’. It was then to ‘report to the Prime Minister and the Leader of the Opposition by 30 June 2017 on: outcomes of national consultations and community engagement about constitutional recognition, including indigenous-led consultations; options for a referendum proposal, steps for finalising a proposal, and possible timing for a referendum; and constitutional issues.’

Frank Brennan SJ 09 July 2017

I'm confused Frank, and I suspect that I'm not alone. Perhaps the paucity of the comments is in inverse proportion to the length of your article plus your post script. You seem to be saying that the Uluru statement is not everything that needs to be considered, that one important other voice is that of Pat Dodson, and that if an Amendment is to be put to the people it needs to be drafted carefully and promoted vigorously - but what's new in all that? I think we all understand that this whole process is inevitably political from the inputs through the considerations to the outputs and the decisions. In the long run, though, what matters most is whether the proposal to be put to the people is acceptable to our indigenous people. Anything less than that is a waste of time.

Ginger Meggs 10 July 2017

The key remarks by Prime Minister Malcolm Turnbull (in company with Bill Shorten) on receipt of the report from the Referendum Council: This report that you’ve presented us with is the fourth major report on the issue. There was the 2012 expert panel report that was commissioned by Prime Minister Gillard, the 2014 Act of Recognition Review Panel and of course the 2015 Joint Select Committee Report provided to Prime Minister Abbott. Of course many of you were on one or more of those panels. The fact that Bill and I are here today demonstrates the bipartisan spirit with which the Parliament, each Parliament has approached this issue and which I hope will continue as we examine the recommendations. It is wonderful that we are here together with First Australians who are Members of the Parliament, Malarndirri and Pat and Ken and Linda of course, who gave the acknowledgement right at the beginning. You four are of course are indeed powerful voices in the Parliament of Australia and I thank you for the guidance you’ve offered us. This also shows that the discussion about recognition has been going on for some time and that’s not just because we like talking about these big issues, but because it’s very complex. We started the process with five options and we note that your advice has not provided a shortlist and it has, in fact, while it has considered the work of the Expert Panel and the Select Committee, very thorough work, it has essentially rejected the recommendations that those two groups and other groups has made. Its simply recommended one constitutional change which on any view is a relatively new concept in the Australian debate about recognition. It is a latecomer in that respect. So what we’re being presented with in your report, and indeed all Australians will be presented with, if this was to go to a referendum, would be one option which is a constitutionally entrenched advisory body - a Aboriginal and Torres Strait Islander voice to the Australian Parliament. It is clearly, as we know, its Parliament’s duty and Parliament’s duty alone to propose changes to the Constitution but the Constitution cannot be changed by Parliament. Only the Australian people can do that. There’s no political deal, no cross-party compromise, no leader’s handshake, even between leaders as amicable as Bill and myself, can deliver constitutional change. To do that a constitutionally conservative nation has to be persuaded that the amendments respect the fundamental values of the Constitution and will deliver precise changes clearly understood that would benefit all Australians. And we do not want to embark – I’m sure none of us do – in some sort of exercise in heroic failure. I have some considerable experience in trying to change the Constitution and know better than most how hard it is. We need to ensure that any changes that are proposed are ones that meet both the expectations of First Australians but also will bring together all Australians because this is a vote of all Australians. We are looking forward to having a frank discussion about that now, and to understand how you’ve reached your conclusions. In particular, to understand why the recommendations of the previous panels and committees that you were asked to consider where set to one side in favour of the new proposal. … Thank you very much for your work. It is very short on detail, couldn’t be shorter on detail in fact, but it is a very big idea. It is a very big new idea, so it’s worthy of considerable discussion here today.

Frank Brennan SJ 17 July 2017

Ginger, I would hope that your confusion might be cleared by the clear interviews given after the publication of the Referendum Council report by Senator Patrick Dodson at http://www.abc.net.au/7.30/content/2017/s4703437.htm and by Ms Linda Burney MP at https://radio.abc.net.au/programitem/pgE7JgRknG?play=true.

Frank Brennan SJ 18 July 2017

When considering whether a ‘proposal to be put to the people is acceptable to our indigenous people’, we will need to pay attention to a range of Indigenous viewpoints. Given that the new proposal is focused on a national indigenous voice, I think the National Congress of Australia’s First Peoples needs to be in the mix. Today, The Guardian reports: ‘Rod Little, co-chair of the National Congress of Australia’s First Peoples, said his organisation was already providing a voice for Indigenous people to government, and could become the constitutionally enshrined Voice to parliament. “There’s no doubt it already exists and I can’t understand for the life of me why that fact is overlooked,” Little said. “We give advice with confidence and the hope that government would listen to the advice. We know if it’s either followed or not followed through.” But Little also expressed concern about the freedom of operations for a body which sat within government. “If it’s a placement [of a voice] in the constitution, then that will be significant, but at the end of the day I believe it is still under the control of government.” He said the congress was formed in response to the removal of the Aboriginal and Torres Strait Islander Commission. “Congress came about exactly because our people didn’t want our government to remove a body which was elected by the peoples for the peoples to inform the government and progress matters for the Aboriginal and Torres Strait Islander peoples,” he said.’ See https://www.theguardian.com/australia-news/2017/jul/18/linda-burney-calls-for-end-to-archaic-race-powers-alongside-indigenous-voice-to-parliament

Frank Brennan SJ 18 July 2017

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