Tag: Australia

Secrets and Lies: The Shocking Truth About Recent Australian Aboriginal History, A Memoir, An Excerpt on Indigenous Constitutional Recognition

By Barbara Miller, July 2021 www.barbara-miller-books.com

Constitutional Recognition of Indigenous People 1990s

There is much talk in recent years about the recognition of Indigenous people in the Australian constitution as it basically sets out states’ rights and commonwealth rights, Australia being a federation of sovereign states. Indigenous people were left out of the constitution at federation in 1901. With the centenary of federation coming up in 2001, the last decade of the 1990s, looks at two issues, becoming a republic rather than a constitutional monarchy and inserting a preamble to the constitution that will recognize Indigenous people and have some uplifting statements. For example, statements about hope in God, being a democracy, upholding freedom, tolerance, individual dignity, and the rule of law, recognizing those who fought for Australia’s freedom, and the nation-building contribution of immigrants etc.

Prime Minister Howard does not support a republic but supports a preamble and works on it with poet Les Murray and others but the wording is rejected for a number of reasons. The Aboriginal and Torres Strait Islander Commission (ATSIC), the Council for Aboriginal Reconciliation, the National Multicultural Advisory Council, and the Constitutional Centenary Foundation support a preamble. The Mabo decision of 1992 also brings a focus on recognizing Indigenous Australians in the Constitution.

Constitutional Convention 1998

The 1998 Constitutional Convention votes to support ‘in principle’ Australia becoming a republic and is to discuss what model of a republic would be put to a referendum. Four working groups are set up, one of which includes ATSIC delegates and resolves that a separate referendum question be put on a new preamble at the same time as the referendum on the republic, and that such a preamble recognize ‘Aboriginal peoples and Torres Strait Islanders as the original inhabitants of Australia who enjoy with all other Australians fundamental human rights’.

Indigenous National Constitutional Convention 1998

In March 1998, ATSIC organizes an Indigenous National Constitutional Convention and agrees on a Constitutional preamble recognizing Indigenous Australians and the fact of their original occupation. (1)

Referendum 1999

On 6th November 1999, a referendum is held on the following: whether Australian voters approve the proposal to establish Australia as a republic and the second change is whether they approve the proposal to insert a preamble in the Constitution. Both proposals are defeated. Why? The republican movement is divided on a model and Indigenous people are not properly consulted as to the wording of the preamble. An actual preamble was not put to the vote.

First Nations Australian leaders are vocal about recognition in the constitution but not many favor the preamble as a vehicle.

Expert Panel on the Constitutional Recognition of Indigenous Australians 2010

Time marches on. The political will for constitutional recognition of First Nations Peoples takes a big hit. The push resumes with Prime Minister John Howard promising on 16th October 2007 to hold a referendum on constitutional recognition. Labor Leader, Kevin Rudd agrees to give it bipartisan support.

However, there are still delays and on 8th November 2010, it is Labor Prime Minister Julia Gillard’s turn to plan a referendum during the term of her government or at the next Federal election. On 23rd December 2010, Gillard appoints an Expert Panel to undertake public consultation throughout 2011. Co-chaired by Professor Patrick Dodson and Mark Leibler AC, it includes the Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda, Professor Marcia Langton AM, the Co-Chairs of the National Congress of Australia’s First Peoples, Noel Pearson Founder of Cape York Partnership and MPs including Aboriginal MP Ken Wyatt AM.

The panel delivers its report Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution on 19th January 2012, 45 years on from the landmark 1967 referendum which enabled Indigenous people to be counted in the census and the federal government to make laws for them. It is a surprise to me that there is still racial discrimination in the constitution. The report recommends the removal of Constitution sections 25 and 51(xxvi), and the insertion of new sections 51A, 116A and 127A. The new sections are:

Section 51A Recognition of Aboriginal and Torres Strait Islander peoples

Recognizing that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;
Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;
Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples;
the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

Section 116A Prohibition of racial discrimination

(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, color or ethnic or national origin.
(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting
the cultures, languages or heritage of any group.

Section 127A Recognition of languages

(1) The national language of the Commonwealth of Australia is English.
(2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.

It proposes that the referendum be preceded by a well-resourced public education and awareness program and have all-party support and that of a majority of state governments. However, the Gillard government drops the ball on a referendum and opts to pass a recognition act instead. Insufficient community awareness and lack of bipartisan support are two reasons they give for deferring the referendum

On 12th March 2013, the federal parliament passes the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 which recognizes the Indigenous peoples of Australia and requires the establishment of a committee to advise on a suitable date for a referendum on these proposals. The process is given two years but provision is made to make it self-repealing on the 28th March 2018 when it winds up, no significant action having been taken.

Miller Boomerang Petition 2012-2016

Munganbana Norman Miller frames a petition around the recommendations of the Expert Panel and calls it the Miller Boomerang Petition, reminiscent of the Yirrkala Bark Petition. He travels Australia, with me accompanying him, and gathers, at his own expense, over 5,100 signatures from Indigenous and non-Indigenous people. As well as getting the signatures of the Mayors for Cape York Aboriginal communities, he gathers signatures at the Yabun Festival and Redfern in Sydney, NAIDOC events in Adelaide and Perth, street corners in Cairns and Sydney, and events in Canberra, Brisbane, and the Gold and Sunshine coasts.

Norman also makes a giant boomerang with the words “No Discrimination in the Constitution” and gains 360 signatures on the back of it. He presents it to then-Speaker Bronwyn Bishop on 27th November 2013. On 12th December 2013, the Hon Mr. Entsch MP presents Miller’s on- paper petition with 2115 signatures to Parliament.

Norman continues to gather signatures until over 5,100 have been collected and presents them to the Speaker Hon Tony Smith MP in the presence of the Clerk of the House and the Hon Warren Entsch MP on 8th February 2016. Mr. Entsch then presents the petition to the Parliament. (2)

Norman receives a lot of press. He tells The Cairns Post on 8th January 2014,

“Miller said the purpose of his campaign, which he will continue, is to prepare people for a yes vote in a referendum to be held on these issues in the term of the current parliament.

My aim has been one of public education, raising community awareness and support, and keeping the issue before government, bolstering its political will in this matter.

While getting signatures for this petition I have met people from all walks of life, Indigenous and non-Indigenous, and found that there is little knowledge of this issue on the street and I have been able to discuss the issues and gain broad support.

“I am encouraged,” said Mr. Miller “that this nation has come to the maturity to enable it to make changes to the constitution that will benefit the whole nation. It will also be an act of reconciliation. I have a strong desire to see justice done and I believe that the Australian people, at core, have a belief in a fair go for all.”

I am pleased to assist Norman with research, press releases, and administration in relation to this project to have First Nations people recognized in our constitution and have racial discrimination removed from it.

Recognise Campaign 2012-2017

Also, in response to the Expert Panel, the Gillard government funds Recognise in 2012 which is set up under Reconciliation Australia. Recognise is successful in raising awareness, but as there was no model for it to promote, the government closes Recognise in August 2017.

Reconciliation Australia website notes that in the five years of the Recognise campaign, awareness levels rose from 30% to over 75% of the population. These levels were higher amongst Aboriginal and Torres Strait Islander respondents from 60% to 84%. Reconciliation Australia says,

“More than 160 community and corporate organizations partnered with Recognise to support change, and more than 18,000 Australians took part in the Journey to Recognition around the country. The Journey covered more than 38,000 km over a three-year period and held 386 community meetings as it toured across the country.” (3)

Norman and I attend the launch of the Journey to Recognition in Melbourne in Reconciliation Week in 2013. Michael Long, famous AFL footballer, leads the walk from Melbourne which tours the nation. I am pictured walking with Michael Long and talking to Prime Minister Tony Abbott in separate photos. I am asking PM Abbott to sign a replica of William Cooper’s 1930’s petition which he does.

Along with Uncle Boydie, Abe Schwarz and David Jack, we present the petition, on the 2014 anniversary of the 1967 referendum, to Governor General Sir Peter Cosgrove who presents it to the Queen. It was originally intended for the Queen’s grandfather but the Australian government would not forward it because Australian Aborigines were not legally citizens of Australia.

A Joint Select Committee 2013

A Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples is established in 2013 to consider the recommendations of the Expert Panel report and delivers its report in June 2015.

Referendum Council 2015

The Referendum Council is jointly appointed by Prime Minister Malcolm Turnbull and Leader of the Opposition Bill Shorten on 7th December 2015. Its job is to advise on the next steps towards a successful referendum to recognize Aboriginal and Torres Strait Islander peoples in the constitution. Co-Chairs are Pat Anderson and Mr. Mark Leibler AC.

The Referendum Council holds twelve Dialogues with Indigenous Australians around Australia between December 2016 and May 2017. They are by invitation only and capped at 100 persons to try to reach consensus. Feedback from these dialogues is given to a First Nations National Constitutional Convention at Uluru in May 2017.

Uluru Statement from the Heart at First Nations National Constitutional Convention 2017

Uluru, the large red rock in the center of Australia is an iconic image that often symbolizes Indigenous Australia and is a favorite spot for tourists. To the traditional owners, the Anangu, it is a sacred site. Many say it is the sacred heart of Australia. It is to Uluru, in the shadow of the rock, that the Referendum Council takes the First Nations Convention.

While there are sometimes heated discussions over whether sovereignty should be part of the outcome, they reach a consensus, and the lead constitutional lawyer for the process, Professor Megan Davis, reads out what becomes the Uluru Statement from the Heart on 26th May at the end of the Convention. The 250 Aboriginal and Torres Strait Islander delegates adopt it. Megan Davis is the first Indigenous Australian to sit on a United Nations (UN) body as Chair of the Permanent Forum on Indigenous Peoples, a significant achievement. Here is an excerpt from the Uluru Statement:

“… we call for the establishment of a First Nations Voice enshrined in the constitution.

Makarrata (4) 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 …” (5)

So, the Indigenous cry from the heart of Australia is VOICE TREATY TRUTH. Opposition leader Bill Shorten is supportive and commits to implementing it if he wins government.

Norman and I attend a treaty conference in Sydney around Australia Day 2018 and Norman signs the large canvas with the Uluru Statement on it. Thomas Mayor and others travel Australia raising awareness of it and getting the signatures of First Nations people. We also attend the 80th anniversary of the Day of Mourning on Australia Day 2018 at Australia Hall Sydney where the original Day of Mourning was held in 1938 on the 150th anniversary of white settlement.

Referendum Council Final Report 2017

The Referendum Council releases its Final Report on 30th June 2017 and is supportive of the Uluru Statement recommending:

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 recognize
the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.

The second recommendation of the report is a Declaration of Recognition to unify Australians that sit outside the Constitution. This would be enacted by legislation passed by all Australian Parliaments. (6)

The establishment of a Makarrata Commission is outside its terms of reference.

On 26th October 2017, the Turnbull government rejects the voice as a third chamber of Parliament which is a misunderstanding of the proposal. So, the ball which has been kicked along for a number of years without reaching its goal is kicked along again to another Joint Select Committee.

The debate is continuing. Eminent former High Court Chief Justice, Murray Gleeson, who was on the Referendum Council, gives an address at a symposium and The Australian reports his views on 19th July 2019. He declares the voice is advisory and not a third chamber to Parliament and can be created through legislation. Its structure, function and composition can be determined through legislation with the possibility of change. At the same time, there can be minimal change to the constitution to ensure the Voice’s continued existence and essential features.

Joint Select Committee 2018

Senator Pat Dodson and Julian Leeser MP co-chair the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples appointed in March 2018. It presents its final report on 29th November 2018. The first two recommendations are:

1. In order to achieve a design for The Voice that best suits the needs and aspirations of Aboriginal and Torres Strait Islander peoples, the Committee recommends that the Australian Government initiate a process of co-design with Aboriginal and Torres Strait Islander peoples.
2. The Committee recommends that, following a process of co-design, the Australian Government consider, in a deliberate and timely manner, legislative, executive and constitutional options to establish The Voice.

Indigenous Voice Co-design Process 2019

The Voice proposal languishes until the 18th May 2019 federal election when Prime Minister Scott Morrison says his government will support the Voice but it would be achieved through legislation rather be enshrined in the constitution. Ken Wyatt, elevated to Minister for Indigenous Australians in the Morrison government, the first Aboriginal to hold this position, sets up a Senior Advisory Group (SAG) to progress the co-design of the Voice and hopes to put it to a referendum in this term of Parliament if consensus can be achieved. Many Indigenous proponents of the Voice want it enshrined in the constitution however, so the government can’t abolish it as they did ATSIC, the former national body.

The SAG is co-chaired by Professor Tom Calma AO, Chancellor of the University of Canberra, and Professor Marcia Langton of the University of Melbourne, both Indigenous. There is a subtle change in calling it a ‘voice to government’ rather than a ‘voice to parliament’ “.

The models for the Voice are planned to be developed in two stages: (7)

1. First, two groups, one local and regional and the other national, will create models aimed at improving local and regional decision-making and identifying how best federal government can record Indigenous peoples’ views and ideas. The groups consist mainly of Indigenous members.
2. Consultations will be held with Indigenous leaders, communities and stakeholders to refine the models developed in the first stage.

The National Co-design Group is announced on 15th January 2020, to be co-chaired by Dr Donna Odegaard AM and Ray Griggs AO CSC. On 4th March 2020 the Local and Regional Co-Design Group is announced. To be co-chaired by Peter Buckskin and National Indigenous Agency senior official Letitia Hope. The group meet for the first time in Sydney on 19th March 2020.

From the Heart is a group increasing awareness of the Uluru Statement From the Heart. They commission research which is conducted by the CIT Group in June 2020 and shows a majority of Australians support a Voice to Parliament that is constitutionally enshrined and that this support has increased.

Co-design Interim Report 2021

An interim report by the Senior Advisory Group on 9th January 2021 proposes that the government would be obliged to consult the Indigenous Voice to parliament re new legislation relating to race, native title or racial discrimination where it would affect Indigenous Australians. The Voice would not be able to veto the enactment of such laws, or change government policies, however. The Voice would be made up of 16 or 18 members, who would either be elected directly or come from the regional and local Voice bodies. On 9th January 2021 Minister Wyatt announces a second stage of co-design meetings lasting four months with more consultation with Indigenous people. The final report will be ready between June and August 2021. (8)

The University of New South Wales Indigenous Law Centre’s analysis of 1435 public submissions to the co-design found that 82% supported the constitutional enshrinement of a Voice to parliament, while an additional 5% gave in-principle support.

Norman and I are able to attend the Cairns consultation of the co-design team of Marcia Langton, Donna Odegaard, and Mayor of Yarrabah, Ross Andrews, in April 2021 where discussions are robust. Concerns are raised re the Voice being legislated not enshrined in the constitution and Marcia makes the point that generally the feedback around Australia is get what is politically achievable now and build on it later.

State Government Voice and Treaties

However, the state governments are not waiting for the federal government which has been very slow to act. In 2016, Victoria sets up an Aboriginal Treaty Working Group to lead two rounds of community consultations, which leads to the creation of a First Peoples’ Assembly. The role of the assembly will not be to negotiate treaties but will work with the state to develop a treaty framework for negotiations. Victoria also establishes aTreaty Advancement Commission to raise awareness among Victorians and promote a treaty.

In June 2018, the Northern Territory signs a memorandum of understanding with delegates of the four Indigenous land councils to work towards a treaty Mick Dodson AM, the former director of the National Centre for Indigenous Studies at the Australian National University, is appointed NT treaty commissioner and he is currently leading consultations with the Indigenous community.

On 16th July 2019, the Queensland government announces it will begin discussions with Indigenous people about a treaty called Tracks to Treaty. An independent Eminent Panel and Treaty Working Group, including Aboriginal and Torres Strait Islander and non-Indigenous representatives, spearheads the process with 22 consultation meetings across the state. Norman and I attend the one in Cairns and meet up with my old friend Cheryl Buchanan who is involved with consultations. Norman’s sister Joanne Radke is involved with consultations in SE Queensland.

The Treaty Working Group leads the formal public consultation process and provides a report to the Eminent Panel. There is significant support for a treaty. The recommendations to government in February 2020 are:

• The establishment of the First Nations Treaty Institute as an independent body to lead the Path to Treaty process
• The facilitation of a process of truth-telling and healing
• The building of capacity for First Nations to actively participate in the treaty process
• Deepening the understanding and engagement of the wider Queensland community in the Path to Treaty
• The adequate resourcing of these actions through the establishment of a First Nations Treaty Future Fund
• The placing before Parliament in the first half of 2020 a Bill to further the Path to Treaty, establish the First Nations Treaty Institute and the First Nations Treaty Future Fund.

On 14th February 2021, the Qld government announces a Treaty Advancement Committee with Dr. Jackie Huggins AM and Mick Gooda as co-chairs. They were co-chairs of the Treaty Working Group. They consult with the Cairns community on 29th April. The government’s August 2020 response to the Path to Treaty report includes initiatives in a number of areas towards reconciliation, healing from the wounds of the past, and having a more just relationship. It notes that in 2010, they made an addition to the preamble to the Queensland Constitution to honor Aboriginal and Torres Strait Islander peoples as the First Australians.

SA to Adopt First Indigenous Voice

On 7th May 2021, South Australia’s Premier Steven Marshall announces plans for his state to be the first cab off the rank for an Indigenous Voice to parliament. It will be chaired by the state’s Aboriginal engagement commissioner Roger Thomas. He will be joined by 12 other Aboriginal members. First Nations South Australians will be able to vote for six of the committee members, with the government to appoint the remaining six. After three years of operation, the SA Electoral Commission will hold a statewide ballot to elect the 12 Voice members. Legislation to establish the Voice is to be introduced into parliament in 2021.

Agreement Making

A number of Indigenous Land Use Agreements (ILUAs) are negotiated between First Nations, government, and corporations under the native title legislation. These can be used as a basis for treaty-making. The most impressive of these is the Noongar agreement in WA. The South West Native Title Settlement, with six Noongar groups, involves around 30,000 Noongar people and covers approximately 200,000 square kilometers. The full details of the South West Native Title Settlement are recorded in six ILUAs.

Impetus to Remove Racial Discrimination from the Constitution Lost

Norman and I are surprised and concerned that recommendations from a number of bodies re removing racial discrimination from the constitution seem to have lost momentum as the debate has moved on to Voice, Treaty and Truth. The Expert Panel, the Boomerang Petition, and the Joint Select Committee agree with the 1988 Constitutional Commission recommendation that s25 be repealed “because it is no longer appropriate to include in the Constitution a provision which contemplates the disqualification of members of a race from voting.” (9)

The 1967 Referendum amends s51 by deleting the words “other than the Aboriginal race in any State,” thereby giving the Commonwealth Government power to make special laws relating to First Nations people. This was a desired outcome by First Nations people at the time because of racist state legislation and policy. This power now underpins much legislation including the Native Title Act 1993. What is problematic is that s51 could be used to support a law that discriminates against First Nations people. There is now general agreement by the 1988 Constitutional Commission, the Expert Panel, the Boomerang Petition, and the Joint Select Committee that it should be amended or repealed and replaced. The Expert Panel recommends the repeal of s51(xxvi) and the inclusion of a new s51A, with this new section outlined earlier.

Martin Hinton, QC, Solicitor-General of South Australia 2008-2016 writes, “The racist taint that ss 25 and 51(xxvi) bring to our Constitution is inextricably linked to our treatment of the First Australians.” (10)

We are still waiting. It is a long haul. Momentum to deal with these issues of racial discrimination in our constitution needs to gather pace.

1. Aboriginal and Torres Strait Islander Commission (1998) ATSIC News, May 1998
2. Consultations will be held with Indigenous leaders, communities and
   stakeholders to refine the models developed in the first stage. Warren Entsch MP Presents the Boomerang Petition to Parliament on Behalf of Cairns Indigenous Leader Norman Miller https://www.youtube.com/watch?v=4LSEErGV1rI&feature=youtu.be
3. Reconciliation Australia https://www.reconciliation.org.au/
4. Yolgnu Aboriginal word for treaty or peace after conflict
5. Uluru Statement From the Heart (2017) https://fromtheheart.com.au/explore-the-uluru-statement/
6. Referendum Council (2017) A Voice To Parliament Key Recommendation Of Referendum Council’s Final Report 17th July 2017 https://www.referendumcouncil.org.au/node/1000.html
7. Grattan, Michelle (2019) “Proposed Indigenous ‘voice’ will be to government rather than to Parliament” The Conversation, 29^th October 2019
8.  SBS (2021) “Indigenous Voice to Parliament will get no veto power under interim proposal” SBS News 9^th January 2021 https://www.sbs.com.au/news/indigenous-voice-to-parliament-will-get-no-veto-power-under-interim-proposal
9.  Hinton, Martin QC “Is Australia’s Constitution Racist?” in the Law Society of South Australia Bulletin March https://www.lawsocietysa.asn.au/LSSA/Lawyers/Publications/Articles/Is_Australias_Constitution_Racist.aspx
10.  Ibid.