Indigenous constitutional recognition and representation

James Haughton and Apolline Kohen, Social Policy

Key issue
The issues of Aboriginal and Torres Strait Islander people’s inclusion in law, governance and the Australian Constitution have a long history. Where do matters currently stand and what are the current issues to be considered at the federal level?

Constitutional recognition—a brief history

Australia has seen more than a century of debate over how to best recognise prior occupation of Australia by Aboriginal and Torres Strait Islander peoples. Recent attempts to progress constitutional recognition include:

As stated in the final report of the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, the Uluru Statement from the Heart largely defines the parameters of the current debate.

Uluru Statement from the Heart

In May 2017, the First Nations National Constitutional Convention (convened by the bipartisan-appointed Referendum Council) met to develop an approach to constitutional reform to recognise Aboriginal and Torres Strait Islander peoples. The majority resolved in the Uluru Statement from the Heart (Uluru Statement), to call for ‘constitutional reforms to empower our people and take a rightful place in our own country’.’

The Uluru Statement called for a ‘First Nations Voice enshrined in the Constitution’ to enable Aboriginal and Torres Strait Islander peoples to be formally consulted on policy and legislation affecting their communities. It suggested that the establishment of a Voice to advise the Australian Parliament would address structural disempowerment. The Statement did not define the form such a body would take.

The Uluru Statement also proposed that a Makarrata Commission be established to supervise a process of agreement making and ‘truth-telling’. Makarrata is a Yolngu word which means ‘a coming together after a struggle’ . A Makarrata Commission would be tasked with seeking agreements (such as treaties) between governments and Aboriginal and Torres Strait Islanders.

Truth-telling draws on the view expressed in dialogues leading to the Uluru Statement that recognition requires an understanding that ‘the true history of colonisation must be told: the genocides, the massacres, the wars and the ongoing injustices and discrimination.’ The 2018 Joint Select Committee saw truth-telling as ‘an opportunity for Aboriginal and Torres Strait Islander peoples to record evidence about past actions and share their culture, heritage and history with the broader community.’

Responses to the Uluru Statement

The Referendum Council Final Report

In June 2017, the Referendum Council recommended that ‘a referendum be held to provide in the Australian Constitution for a representative body’ to give Aboriginal and Torres Strait Islander peoples ‘a Voice to the Commonwealth Parliament', and that:

One of the specific functions of such a body, to be set out in separate legislation, should include the function of monitoring the use of the heads of power in section 51(xxvi) and section 122 of the Constitution.

The Council also recommended that ‘an 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.’

In October 2017, the Government responded to the report and expressed the view that establishing an additional representative body to Parliament was not ‘desirable or capable of winning acceptance in a referendum’.

2018 Joint Select Committee

The terms of reference of the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander peoples included consideration of the work of the 2012 Expert Panel, the previous Joint Select Committee, the Uluru Statement, and the Referendum Council.

The Committee acknowledged the broad stakeholder support for the concept of a Voice enshrined in the Constitution, though noted ‘a lack of consensus’ on its precise form and function. Such detail ‘should be determined by Aboriginal and Torres Strait Islander people, the Australian Government, and the Parliament’ in a ‘co-design process’ to achieve a model that best suits the needs and aspirations of Aboriginal and Torres Strait Islander peoples. While leaving the Government to determine how the process might work, the Committee recommended the co-design process ‘report to the Government within the term of the 46th Parliament with sufficient time to give The Voice legal form’, which might involve legislative, executive and constitutional options. The Committee also supported the process of truth-telling.

Finally, the Committee recommended the Government consider the establishment of a National Resting Place for Aboriginal and Torres Strait Islander remains, ‘which could be a place of commemoration, healing and reflection’. The Committee noted it did not have time to ‘deeply consider issues raised by Makarrata and agreement making’. However, the Committee did note that agreement making was occurring at local and regional levels.

The Government is yet to respond to the recommendations made by the Committee.

2019 election platforms

The 2019 election policy platforms of the Coalition, ALP and Australian Greens all offered support to constitutional recognition and some form of Voice to Parliament, and a truth-telling process. Whilst the ALP and the Australian Greens campaigned for a referendum on a Voice to be held during the 46th Parliament, the Government has said that the process to constitutional recognition should take ‘as long as needed’ rather than being rushed and risking failure.