Referendum to Establish Indigenous Advisory Council Rejected
Wednesday 1 November 2017 @ 10.46 a.m. | Judiciary, Legal Profession & Procedure | Legal Research
In May of this year (24 May 2017) we reported on the "First Nations" convention which saw more than 250 Indigenous leaders meet at Uluru to present the priorities
identified by what are known as the "12 First Nation dialogues" on the question of "constitutional recognition for Indigenous Australians" [see our article Indigenous Recognition: 50 Years Along the Path from 1967].
Last week (26 October 2017), coincidentally around about the same as other constitutional
matters were making news, the Federal Government announced it had rejected one of
the key recommendations of the "First Nations" convention, namely, the establishment
of an Indigenous body of representatives to be consulted by Parliament on matters
affecting indigenous people.
The Uluru Covention - Background
The Uluru Convention saw 12 Indigenous delegations representing the First Nations from across Australia presenting their positions on the question of constitutional recognition and the reforms they wanted associated with constitutional recognition so as to reach a proposal for " . . . a potential referendum to acknowledge Indigenous history in the constitution, and to potentially introduce other reforms".
The delegations were reported to be looking for the middle ground in their final proposals and some of the options for proposed change reported, included:
- Drafting a statement acknowledging Aboriginal and Torres Strait Islander peoples as the First Australians;
- Amending or deleting the "race power" [Constitution, section 51 which allows the Federal Government to make special laws for Indigenous people];
- Inserting a constitutional prohibition against racial discrimination into the constitution;
- Deleting section 25, a redundant clause which says state governments can exclude people from voting in on the basis of their race.
However, it emerged that one of the more supported proposals, put to the Prime Minister and leader of the opposition when they visited the convention was the proposal to establish an Indigenous body of representatives to be consulted by Parliament.
Government's Rationale for Rejection of Referendum
The Government has formally rejected the key recommendation of its own Referendum Council. The Prime Minister (the PM) is reported to have said in a statement last Thursday (26 October 2017) that a new advisory body (the Voice to Parliament) such as the one proposed:
The PM is then reported as saying, an independent assembly, a Voice to Parliament, as proposed would be against such basic principles:
Further, the PM pointed out that, the Government did not believe that such a radical change to the constitution’s representative structure had ". . . any realistic prospect of being supported by a majority of Australians in a majority of States" as required by a referendum. Instead the government according to the PM believes, any proposal for changes to the constitution should follow the principles laid down by the 2012 Expert Panel, namely that any proposal put to a referendum should “. . . be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums”.
What the Government Proposes to do Next
In his statement the PM has indicated that the Government has responded to the Opposition Leader's call for a Joint Select Committee, and asked that the committee considers the recommendations of the existing bodies of work developed by the Expert Panel (2012), the Joint Select Committee on Recognition of Aboriginal and Torres Strait Islander Peoples (2015) and the Referendum Council report (2017). This effectively returns matters to a position where there are no decisions as to what should be submitted to a referendum and where most of what is likely to be accepted by government is likely to be seen as symbolic and not nearly enough reform by Indigenous people and their leaders.
Reaction and Comment
The opposition's assistant shadow minister, Pat Dodson, is reported to have called the governments decision ". . . a real kick in the guts for the Referendum Council and certainly a slap in the face of those proponents, . . ." He is also reported as saying that he hoped the Uluru convention's other main proposal for a treaties commission outside of the constitution was not scrapped as well as other proposals highlighted in other reports earlier this decade that called for racist sections of the constitution to be removed, along with the inclusion of a statement acknowledging First Peoples.
Even though the Government has indicated it would not drop constitutional recognition from the agenda altogether, it is clear from current reports that even if fresh referendum proposals were devised by and agreed to by the Parliament, many Aboriginal leaders are likely to actively campaign against it, having been deterred by what some leaders, like the Referendum Council's Noel Pearson, describe as a ". . . devastating decision for the Indigenous community". Mr Pearson is reported as saying:
While the PM is reported as saying, he would establish a joint parliamentary committee and work with the Opposition to examine alternative proposals for constitutional change to benefit Indigenous people, his statement has only raised more criticism from Indigenous leaders who feel that such, only indicates the government's paternalistic approach which chooses to ignore the counsel it created and to instead return matters to a parliamentary committee.
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