Professor, Institute for Culture and Society, Western Sydney University
This submission is a slightly changed version of a presentation to “Taking a rightful place in our own country”: Indigenous self-determination and the Australian people, a collaboration between the Whitlam Institute within Western Sydney University and Nura Gili, University of New South Wales, 21 February 2018, Whitlam Institute, Female Orphan School, Parramatta Campus of Western Sydney University.
Receiving the Final Report of the Referendum Council
In the form of the Final Report of the Referendum Council, which includes as its first page the Uluru Statement from the Heart, Aboriginal Australia has made a fundamental claim on the Australian people as a political entity.
The claim is for recognition of the Aboriginal peoples of Australia as ‘the first sovereign Nations of the Australian continent’, who as the Uluru Statement continues to say, ‘possessed it under our own laws and customs.’ I say this claim has come from Aboriginal Australia because the Uluru Statement and the Final Report were authorised by an historically unprecedented process of dialogue with leading Aboriginal and Torres Strait Islander organisations and individuals.
The first responsibility for those of us who are positioned as non-Aboriginal Australians (either of settler and/or multicultural heritage) is to receive this claim. To receive it means that we listen to and hear it, specifically, that we become familiar with the Final Report of the Referendum Council and how it makes its argument.
To receive this claim means also that we think about why it is made now, its historical context in relation to like claims made by the first peoples of Australia in the past, its re- storying of Australian history, and its new conception of Australian citizenship.
But, neglected so far in the reception of the claim in public discussion and commentary is an adequate appreciation of the formal nature of this claim: it is a claim in political jurisprudence or public law, one that demands a new beginning for the formal construction of the Australian people as a political entity and for this people’s institutions of government.
The claim for recognition
The careful crafting of the Final Report of the Referendum Council invites that we repay such care with our attention. In the Introduction of the Report, it first sets out three parts of ‘the story of Australia’ (p. 1), the first part centring on the ancient ‘first nation’ peoples of the continent and its adjacent islands, the second part on the colonial settlement of Australia and the ensuing settler history, the third part on the multicultural Australia that has been created by ‘generations of migrants from Europe, Asia, the Middle East, the Pacific and the world over (p.1).’
The Introduction then sets out the two recommendations that constitute the Final Report’s formal claim for recognition. These are in turn:
Recommendation 1: ‘[A] referendum be held to provide in the Australian constitution [thus amending the Australian constitution] for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament.’ (p.2)
This should be understood as a claim in political jurisprudence or public law that has two components: (a) recognition by the Australian people and its government of ‘the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia’ . (b) The second component follows from the first: that as ‘a unique’ and irreducible constituent of the Australian people, the voice of the first peoples of Australia is incorporated into the system of Australian government, and, since Parliament is the Australian people’s voice, then the voice of Aboriginal Australia come alongside and inform the conduct of Parliament, both in terms of process and legislative/policy decisions.
Recommendation 2: ‘[A]n extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian parliaments, ideally on the same day, to articulate a symbolic statement of recognition to unify Australians.’ (p. 2)
The full significance of this recommendation is missed if it seems to be ‘merely’ symbolic. It is actually a claim for the re-constitution of the Australian people as a political entity. It suggests that the current understanding in public law of the Australian people is an exclusionary one because it articulates the British colonial-settler view of the Australian people and of its system of government. Recommendation 2 is a claim for a postcolonial reconstruction of the Australian people, one that includes the ancient first nations of Australia, settlers of British heritage, and Australians of ‘immigrant’, multicultural heritage. This is also a claim in public law.
Let me explain what I mean by public law. (I draw on the foundational work on public law by Martin Loughlin). Public law comprises two fundamental and inter-linked formal processes of that underwrite the legal presence of a self-governing society: the first is the 'the constitution of the people as a political body or political society’. The second is the constitution of ‘the office of government’ which has the rightful power and competence to govern on behalf of the people (Loughlin 2016).
Loughlin makes the crucial point that public law is not the same thing as a written constitution. Public law is what he calls ‘political jurisprudence’. It is a schema of intelligibility (Loughlin 2016) that precedes and informs a written constitution. Its role is to offer the guiding framework for positive law, including positive constitutional law: ‘The basic relationships of public law—those establishing the political unity of ‘the people’ (or ‘the state’) and the governing relationship between state and government—are not constituted by modern constitutions; they evolve from more basic political circumstances concerning the ways in which governing authority is continually acknowledged (Loughlin 2013, 23).’
Public law concerns both the authority and the competence of government. These go together. It is difficult for a government to be competent if it lacks authority. And government has authority only if it adequately and appropriately articulates the political unity of the people. What the Final Report and the Uluru Statement tell us is that Aboriginal Australia does not consider the current conduct of government to be legitimate or competent because the understanding of ‘the people’ that informs this conduct is exclusionary—it does not include Aboriginal Australia, and therefore it does not follow from or invoke the political unity of the Australian people. As long as Australian governments act in matters that affect First Nations Australians, but do not include these Australians in how such action is designed and executed, fundamental failure of government competence in these areas will continue.
We need to hear the full implications of Recommendation 2. If it is symbolic, then it goes to the heart of our understanding of the Australian people as a political entity, and to how this understanding needs to be incorporated into the structures and conduct of government at all levels. In this context the Final Report’s drawing attention to the Uluru Statement’s call for ‘the establishment of a Makarrata Commission with the function of supervising agreement- making [in a context where treaties are under consideration in several states and where many Aboriginals are calling for a national treaty] and facilitating a [truth and reconciliation] process of local and regional truth telling (p.2)’ is important. If we are to have a ‘more unified and reconciled nation’ (p. 5), then establishing the Makarrata Commission may be just as important as the first two recommendations. The Final Report could not give this proposal such status because it fell outside its formal terms of reference.
The authorization of the claim for recognition
The work and final report of the Council for Recognition were formally authorised in the name of the Prime Minister of Australia (Malcolm Turnbull) and the Leader of the Opposition (Bill Shorten). The terms of reference for the Council required that it anchor its work in a ‘process of national consultations and community engagement about constitutional recognition, including a concurrent series of Indigenous designed and led consultations (p. 3).’ It was also required to inform its work by the Parliamentary Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, and to consider the recommendations of the 2012 Expert Panel on Constitutional Recognition of Indigenous Australians.
This was the process of formal authorization of the work of the Council. However formal authorization is not the same thing as authority or legitimacy. The authority or legitimacy of the Final Report (including the Uluru Statement) resides in how it is anchored in an historically unprecedented dialogue process with the Aboriginal and Torres Strait Islander peoples which culminated in a National Constitutional Convention. We should note here that this dialogue process confirmed the Kirribilli statement by the Aboriginal and Torres Strait Islander attendees at the 2015 meeting between them and the Prime Minister (Turnbull) and Leader of the Opposition (Shorten). For this reason the writers of the Final Report also claim authority for their recommendations and findings through how they build on this statement and its insistence that ‘a minimalist approach, that provides preambular recognition, removes section 25 and moderates the race power [section 51 (xxvi)] does not go far enough and would not be acceptable to Aboriginal and Torres Strait Islander peoples (p. 5).’
The authority of the claim for recognition
The Dialogues with First Nations peoples ‘involved a sample of Aboriginal and Torres Strait Islander peoples from a sample of regions in Australia (Final Report, Appendix I, p. 111).’ These began in December 2016 and were concluded in May 2017. The dialogues were ‘delivered in partnership with a local host organisation with an understanding of the region (p. 111).’ ‘Up to 100 delegates were invited’ to each dialogue and ‘the Council, together with the Australian Institute of Aboriginal and Torres Strait Islander Studies, worked with the host organisation at each location to ensure the local community was appropriately represented, including a reasonable spread across age and gender (pp. 111-12).’ The two and a half-day agenda was structured, involving an ‘intensive civics education on the Australian legal and political system and a history of Aboriginal and Torres Strait Islander advocacy for structural legal and political reform (p. 112).’ The process included ‘discussion of the process to select delegates for the National Constitutional Convention at Uluru (p. 113),’ with selection done mostly by secret ballot (p. 113)’ on the final day (p. 113).
This process by which the Council initiated and developed a process of sustained dialogue with the First Nations peoples of Australia was carefully structured in every respect. Significantly, such care extended to a political education in the challenge that the delegates faced. The thoroughness, inclusiveness, and procedural formality of the process invited the delegates to own the proceedings and their outcomes. It created the groundwork for a consensus that became fully evident at the National Constitutional Convention held at Uluru between 23 and 26 May 2017 out of which the Uluru Statement from the Heart came. In all these ways the Final Report embarked upon a political process that ensured that its recommendations and argument were authoritative because they articulate the voice of contemporary indigenous Australia.
The deliberate creation of a National Constitutional Convention that was fed by the Dialogues is of enormous significance. Australia has not had a national constitutional convention since those that gathered, constituted and articulated the public law that became the basis of the Australian federation. To call the final summative and synthesising gathering a national constitutional convention confirms that this was an exercise in political jurisprudence or public law.1 If we additionally consider that the Dialogues can be understood as articulating the First Nations’ sense of their own law into this jurisprudence, then this jurisprudential exercise is of immense importance.
The First Nations Regional Dialogues was not the only consultation process. There was also a broader community consultation process, both digital, and by submission, the outcomes of which lent further support to the recommendation for the Voice to Parliament option (see Final Report, 33-35).
What does the claim to voice mean?
Perhaps the most substantively important part of the Final Report is ‘the synthesis of the Records of Meetings of the First Nations Regional Dialogues’ produced by the Referendum Council (see Final Report pp. 16 – 28). This synthesis first offers ‘Our Story’, a narrative of sovereignty, invasion and dispossession, mourning, resistance, and activism. It then sets out the guiding principles that ‘provided a framework for the assessment and deliberation for reform proposals (p. 22).’ This enabled the National Constitutional Convention to take these as its point of departure, and ‘to bring together the outcomes from the Dialogues in order to arrive at a consensus (p. 22).
These Guiding Principles, as ‘distilled from the Dialogues’ are represented in the Report as follows:
The principles governing the assessment by the Convention of reform proposals were that an option should only proceed if it:
- Does not diminish Aboriginal sovereignty and Torres Strait Islander sovereignty.
- Involves substantive, structural reform.
- Advances self-determination and the standards established under the United Nations Declaration on the Rights of Indigenous Peoples.
- Recognises the status and rights of First Nations.
- Tells the truth of history.
- Does not foreclose on future advancement.
- Does not waste the opportunity of reform.
- Provides a mechanism for First Nations agreement-making.
- Has the support of First Nations.
- Does not interfere with positive legal arrangements.
These Guiding Principles deserve careful consideration, discussion and debate. Their core premise is the claim that the Aboriginal peoples of Australia never ceded their sovereignty, they were colonised without their consent, they resisted the processes of colonisation, dispossession and forced assimilation, and such institutions and positive law as characterise the historically existent Australian State have developed without ever having being negotiated with the Aboriginal peoples.
Here we find a claim to legal agency of the kind that belongs to a sovereign people or set of peoples. This is why in this section of the Final Report, ‘Our Story’ begins with the proposition: ‘All stories start with our law,’ and the first section of ‘Our Story’ is ‘The Law’. This section begins: ‘We have coexisted as First Nations on this land for at least 60, 000 years. Our sovereignty pre-existed the Australian state and has survived it.’ It continues: ‘The unfinished business of Australia’s nationhood includes recognising the ancient jurisdictions of First Nations law (p. 16).’2
The claim to recognition, then, must be understood as a claim for recognition of the sovereign legal agency of the indigenous peoples of Australia as this formally authorises their right to self-determination. The nature of this claim explains why it is that the existing (British settler) institution of Australian citizenship is unable to extend its conception of equality to the indigenous peoples of Australia. If there is to be equality on terms that they can accept, then Australian citizenship has to be reframed so that it is able to include and encompass the sovereign legal agency of Australia’s indigenous peoples.
Where does this leave us?
The Final Report of the Referendum Council should be accorded the importance of offering the Australia polity or state at this time a new beginning (to borrow the political thinker Hannah Arendt’s view of the creative possibilities of politics). It is a claim for the formal re- constitution of Australian sovereignty so that for the first time it become inclusive of the sovereign legal agency of the First Peoples of this country.
While I understand the pragmatism of the Final Report authors in proposing that their ‘single recommendation for a constitutional amendment’—a referendum on a Voice to Parliament— is ‘modest’, I have to disagree. Amanda Vanstone, a member of the Referendum Council, in her ‘Qualifying Statement’ (attached as Appendix E), properly insists that ‘the outcome of the consultations has... taken us to new territory (p. 65).’
We should embrace this challenge. If we are to do so then all Australians must have the same opportunity the delegates to Dialogues with First Nations peoples had: ‘an intensive civics education on the Australian legal and political system and a history of Aboriginal and Torres Strait Islander advocacy for structural legal and political reform (FR, p. 112).’ Without such education it is unlikely that non-indigenous Australians will understand how to positively respond to the challenge of the Final Report. I therefore urge that the Joint Select Committee in its interim and final reports propose that there be a properly designed process of political education of all Australians in the question of constitutional recognition relating to Aboriginal and Torres Strait Islander Peoples that foregrounds the Uluru Statement and its context in the Recognition Council’s Final Report.
Perhaps the timeliness of this challenge in relation to the wider historical context in which it is made suggests that for all Australians there should be a new series of national constitutional conventions that are fully inclusive and enable the Australian Constitution (the written one) to become a fully contemporary one.
Commonwealth of Australia, 2017. Final Report of the Referendum Council.
Loughlin, M. (2013) ‘The Nature of Public Law,’ in C. Mac Amhlaigh et al eds. After Public Law, Oxford: Oxford University Press, 11-25.
Loughlin, M. (2016) ‘The Erosion of Sovereignty,’ Netherlands Journal of Legal Philosophy, 45:2, 57-81