A parliamentary route through Uluru impasse

Posted 16 October 2018 9:20am
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As Published Eureka Street 16 October 2018

The Uluru Statement from the Heart is the only realistic starting point at this stage in Australian history for constitutional recognition of Aboriginal and Torres Strait Islander peoples. That's because after a series of Indigenous dialogues conducted under the auspices of the Referendum Council, all other options for constitutional recognition were rejected by the Aboriginal and Torres Strait Islander delegates at Uluru.

There is absolutely no point in proceeding with constitutional recognition other than recognition which is sought by those being recognised. It would be a waste of the parliament's time to consider any mode of constitutional recognition other than 'the establishment of a First Nations Voice enshrined in the Constitution'.

A First Nations Voice was rejected by Prime Minister Tony Abbott on 28 August 2015. After Uluru, it was rejected by Prime Minister Malcolm Turnbull on 26 October 2017, when he was joined by his Ministers Brandis and Scullion stating, 'The government does not believe such an addition to our national representative institutions is either desirable or capable of winning acceptance in a referendum.'

It was rejected again by Prime Minister Scott Morrison early in his prime ministership on 26 September 2018, when he said, 'I don't support a third chamber — People can dress it up any way they like but I think two chambers is enough ... But the implications of how this works frankly lead to those same conclusions. I share the view that I don't think that's a workable proposal.'

Despite what Messrs Turnbull and Morrison have said, I reject the classification of the First Nations Voice as a third chamber. Still, given that the proposal has been rejected by three Coalition prime ministers over the last three years (including the two most recent prime ministers since the Uluru statement was published), the question now is: what is the best way to proceed?

All commentators have accepted the four principles of the 2012 Expert Panel which were formulated to guide the assessment of proposals for constitutional recognition, including that each proposal 'must be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums'. With strong prime ministerial opposition backed by the ministry, there is presently no prospect of this proposal being supported by a strong majority 'from across the political and social spectrums'.

To move from Uluru to constitutional recognition, there are six possible routes for consideration by the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples: 

"I am one of those citizens who would still like to see the 'race' provisions removed, but not as part of any reform for Indigenous recognition. Rather such amendments would be part of any modernisation of the Constitution."

  1. The committee could recommend that the parliament proceed with a referendum in the foreseeable future in the knowledge that it does not enjoy the support of the government of the day.
  2. The committee could recommend that the parliament proceed with a referendum but only after a national voice has been designed in consultation with Indigenous leaders with the design having then won bipartisan support in the Parliament.
  3. The committee could recommend that a national voice be designed in consultation with Indigenous leaders with a view to legislating a national voice as a prelude to constitutional recognition.
  4. The committee could recommend that a national voice be designed in consultation with Indigenous leaders, but that any decision about whether (a) to legislate a national voice as a prelude to constitutional recognition; or (b) to proceed with a referendum after a national voice has been designed, be deferred until the design process has concluded.
  5. The committee could recommend against a referendum in the foreseeable future and recommend against the public design and legislation for a national voice, while recommending that resources be allocated for education of the public and of members of parliament about the benefits of a national voice.
  6. The committee could recommend the abandonment of any consideration of a national voice, leaving in place the National Congress of Australia's First Peoples, and leaving open the option of a referendum on a proposal put forward by Indigenous leaders, if and when that proposal enjoys support from both the Government and the Opposition.
At the National Aboriginal and Torres Strait Islander Catholic Council Assembly earlier this month, I urged Indigenous members to consider Option 3, and I commended the Shorten Opposition for espousing Option 3. Not being Indigenous, it's not my call. But as a citizen, I would be strongly opposed to Option 1. In my opinion, a referendum doomed to fail would be a disaster for all Australians.  

Putting aside Option 1, I have urged the parliamentary committee to be attentive to Indigenous voices when considering Options 2, 3, 4, 5 and 6. There may of course be other options proposed to the committee by Indigenous Australians.

I am one of those citizens who would still like to see the 'race' provisions (sections 25 and 51(xxvi)) removed, but not as part of any reform for Indigenous recognition. Rather such amendments would be part of any modernisation of the Constitution. There is no need for the term 'race' to appear in an up to date Australian Constitution. Section 25 should be repealed and section 51(xxvi) replaced with a more contemporary head of power.

  

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

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