Australian voters now have a clear choice to make in the forthcoming referendum. They can vote ‘yes’ to the inclusion of a new chapter in the Australian Constitution which provides for the establishment of a First Nations Voice which may make representations to Parliament, ministers or public servants on matters relating to Aboriginal and Torres Strait Islander peoples. Or they can vote ‘no’, leaving the Constitution unamended.
Either way, the Constitution will retain two outdated provisions which use the nineteenth century term ‘race’. They are sections 25 and 51(26). The 2018 joint parliamentary committee heard evidence and concluded that ‘there would be broad political support for recognition of Aboriginal and Torres Strait Islander peoples comprising the repeal of section 25; and the rewording of section 51(26) to remove the reference to “race” and insert a reference to “Aboriginal and Torres Strait Islander peoples”.’ But it is not to be. Whichever way the vote goes, we will be left with a Constitution not fit for purpose in the 21st century.
The proposed addition of the Voice was first suggested by Noel Pearson after it became clear that the recommendation of the 2012 expert panel (of which he was a member) for a racial non-discrimination clause would not fly. Constitutional conservatives labelled it a one line bill of rights.
The idea of a Voice was rejected out of hand by three Liberal prime ministers in a row – Tony Abbott, Malcolm Turnbull and Scott Morrison. The present leader of the opposition, Peter Dutton, was a cabinet minister in all three of those governments.
Malcolm Turnbull worked in co-operation with Opposition leader Bill Shorten to finalise the membership and mandate of the Referendum Council which authorised the Uluru Dialogues culminating in the Uluru Statement from the Heart published in May 2017. The gathering at Uluru was preceded by a series of community consultations amongst First Nations Peoples. According to Turnbull, prior to those consultations, Noel Pearson informed Turnbull and Shorten back in November 2016 ‘that he was expecting the Uluru conference to recommend that there be a change to the constitution to establish “a Voice”, which would be a national advisory assembly composed of and elected by Aboriginal and Torres Strait Islander peoples.’ Shorten had previously said the idea had ‘a snowball’s hope in hell’. Turnbull agreed, telling Pearson: ‘Noel, you can recommend whatever you wish – you’re entitled to my honest opinion, not my acquiescence.’
The Uluru Statement from the Heart called for ‘the establishment of a First Nations Voice enshrined in the Constitution’. After Uluru, the Referendum Council recommended ‘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’.
'Regardless of the result, I do hope no future prime minister again makes a series of captain’s picks without a process for public engagement. That’s no way to bring the country together to ‘Yes’. Sadly the country will be divided whatever the outcome of the vote.'
The 2018 joint parliamentary committee set up to consider the way forward was chaired by Patrick Dodson and Julian Leeser. Dodson is now the Special Envoy for Reconciliation and the Implementation of the Uluru Statement from the Heart. Leeser was the Shadow Minister for Indigenous Australians until relinquishing the position so he could campaign for the Voice. The committee included Linda Burney and Malarndirri McCarthy who are now the Minister and Assistant Minister for Indigenous Australians respectively. Also on the committee was Warren Snowdon, a long time member of the House of Representatives for the Northern Territory.
The committee was very aware that only eight out of 44 referendums had succeeded since federation. No doubt the Labor members were painfully aware that 24 of Labor’s 25 attempts had failed, the only success being the 1946 referendum expanding the Commonwealth’s power to grant welfare benefits.
The committee heard from a bevy of constitutional law academics including Professors Anne Twomey, George Williams, Cheryl Saunders, and Megan Davis. They were ad idem that a precondition for a successful referendum was some form of elected constitutional convention or sponsored parliamentary process which could include the general public making submissions about any proposed change to the Constitution. Davis agreed with Williams regarding the ‘important role that a national convention might play in… enabling non-Indigenous Australians to walk through a deliberative decision-making constitutional process that enables them to better understand the exigency of a Voice to Parliament’. Twomey warned: ‘Constitutional commissions or other expert bodies may also be the subject of suspicion because they are invariably appointed by governments. An elected constitutional convention, on the other hand, gives the people a positive role in initiating constitutional reform. On this basis, they [the people] might be more likely to approve, or at least give serious consideration to, the products of its deliberation.’
The committee received 18 very different suggestions for wording to establish a Voice enshrined in the Constitution. For example, Patrick Dodson and Warren Snowdon proposed:
-
-
‘There shall be a First Nations Voice to Parliament;
-
The Voice shall not be a third chamber of the Parliament;
-
The Voice shall be advisory only and its advice will not be justiciable; and
-
Its powers and functions shall be determined by the Parliament of Australia.’
A couple of months after the close off date for submissions, three of the leaders of the Uluru Dialogues (Noel Pearson, Megan Davis and Pat Anderson) submitted a more expansive proposal. The committee was unanimous in the view that ‘neither the principle nor the specific wording of provisions to be included in the Constitution are settled. More work needs to be undertaken to build consensus on the principles, purpose and the text of any constitutional amendments.’
The Morrison government did nothing to progress constitutional recognition. But it did establish the Calma/Langton committee to co-design a model for the Voice regardless of whether it be legislated or included in the Constitution.
The Labor Party in opposition committed itself to full implementation of the Uluru Statement. On election, Prime Minister Anthony Albanese made three captain’s picks. First he went to the Garma Festival and announced the Pearson/Davis/Anderson proposal as the preferred model of words for inclusion in the Constitution. He said it could be used ‘as the basis for further consultation. Not as a final decision but as the basis for dialogue, something to give the conversation shape and form. I ask all Australians of goodwill to engage on this.’
Second, he abandoned any idea of a constitutional convention or parliament sponsored process for public involvement in the design of the constitutional provision. Instead he handpicked a Referendum Working Group of 21 Aboriginal and Torres Strait Islander persons with whom the government would negotiate in confidence.
Third, he appointed an 8-member Constitutional Expert Group including Twomey, Saunders, Williams and Davis, all of whom had previously recommended some form of public cross-party process, but who now were locked into confidential government negotiations with the handpicked group of Aboriginal and Torres Strait Islander representatives.
After three months of these confidential negotiations which had excluded all public involvement, I wrote to the Prime Minister on 9 November 2022 saying: ‘As a non-Indigenous Australian with a longtime commitment to constitutional recognition, could I put two suggestions: (1) Now is the time to set up a parliamentary committee process allowing anyone and everyone to have their ‘say’ on the proposed words of amendment to place in the Constitution; (2) Now is the time to return to formal bipartisan co-operation between the Prime Minister and the Leader of the Opposition so as to maximise the prospect of Coalition support for the referendum.’
No parliamentary committee process was set up until 4 April 2023. By that time, both the National and Liberal Parties had committed themselves to a ‘No’ vote. And by that time, the proposed wording of the constitutional amendment was set in stone. The Referendum Working Group, the government and the opposition had all committed themselves to a ‘crash or crash through’ strategy.
This has left the voters with an invidious choice.
Like a number of other lawyers, I thought the wording could be improved to enhance the prospects of a ‘Yes’ vote. Once parliament declined to change the wording, I unequivocally committed myself to ‘Yes’, and did so within hours. The government’s continued attempts to limit the practical scope of the wording demonstrate the problem I and other lawyers were addressing. The wording is not perfect. But we all now have a stark choice: ‘Yes’ to an imperfect constitutional formula, or ‘No’, thereby placing on hold for another generation any form of constitutional recognition of First Australians. I’m for ‘Yes’. I appreciate that some rusted on ‘Yes’ voters thought there should be no attempt to participate constructively in the parliamentary committee process even though there had been no previous constitutional convention or parliamentary process for public participation. When it comes to amending the Australian Constitution, I respectfully disagree. Let’s hope we can get the country to ‘Yes’ despite the failings of process.
Many voters who will vote ‘Yes’ will be convinced that the constitutional amendment is perfect, or they won’t much care. But for the referendum to succeed, there will need to be a whole other cohort of ‘Yes’ voters – those who are not convinced that the wording is perfect but who nonetheless think it better for the nation and better for First Nations peoples that the change be made. I am one of those voters, and I would be happy if my example were to assist other voters who might be undecided to take a similar course. Regardless of the result, I do hope no future prime minister again makes a series of captain’s picks without a process for public engagement. That’s no way to bring the country together to ‘Yes’. Sadly the country will be divided whatever the outcome of the vote on 14 October 2023.
This article first appeared in Engage, Australian Centre for Christianity and Culture.
Frank Brennan is the author of An Indigenous Voice to Parliament: Considering a Constitutional Bridge, Garratt Publishing, 3rd edition. Frank is the Rector of Newman College and the Australian Jesuit Province’s Bookends Project Officer for Aboriginal and Torres Strait Islander Peoples. He was a member of the Calma/Langton Committee on the Co-Design of the Voice. On 15 September 2023, he will speak at Our Lady of the Way Parish North Sydney putting his case for ‘YES’. He will be joined by Warren Mundine putting his case for ‘NO’. See http://www.trybooking.com/CKTJD
Main image: Prime Minister Anthony Albanese announces date for Indigenous Voice to Parliament Referendum date, August 30, 2023 in Adelaide, Australia. (James Elsby / Getty Images)