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Why the Law Council backs an Indigenous voice to Parliament


It’s time to end the cycle of treating Aboriginal and Torres Strait Islander representative bodies as political footballs, writes Morry Bailes.

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In the shadow of Uluru they gathered, more than 300 Aboriginal and Torrens Strait Islander First Nations people, delivering a plea for recognition and reconciliation, asking their voices be heard so they may play a role in shaping the policies that affect their people. At the Uluru Statement’s core was the desire for a constitutionally-enshrined “voice to Parliament”.

It was a landmark call for a different method of communication and dialogue between Aboriginal and Torres Strait Islander peoples and government – a means of engaging with the Commonwealth Parliament in a way not yet seen or realised in this country. It is a call which ought to be answered.

Yet the fact remains that since that significant day on May 26 last year, the Australian Government has rejected the idea of a referendum to constitutionally enshrine a voice to Parliament, despite the Referendum Council backing such a move.

The decision was disappointing, to say the least. Not only was it disappointing from the perspective of halting progress toward a more unified nation and healing some of the trauma of the past, but it was also a major blow to the very sentiment on which the Uluru Statement was based – mutual co-operation and respect.

It’s time to consider the next steps in the process toward a constitutionally-enshrined voice to Parliament. That was the message recently delivered to the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples 2018 on behalf of the Law Council of Australia.

The committee is currently in the throes of producing an interim report, having been tasked with recommending options for constitutional change and examining potential complementary legislative measures to advance self-determination for Aboriginal and Torres Strait Islander peoples.

Aboriginal and Torres Strait Islander representative bodies have been a political football kicked back and forth for the better part of 30 years.

It is an unenviable position – determining the “how” behind what will undoubtedly be the most significant step toward the self-determination of Aboriginal and Torres Strait Islander peoples in Australia since voting rights were instilled in 1962 and the 1967 referendum, which sought to recognise Aboriginal Australians in the nation’s census and population count.

The Law Council has consistently supported the capacity of Aboriginal and Torres Strait Islander peoples to determine their own political future and a constitutionally-enshrined voice to Parliament is an essential part of that process.

There is no legal impediment to making such a provision through the Australian Constitution.

The proposal put forward by the Referendum Council is consistent with parliamentary sovereignty and seeks to give Aboriginal and Torres Strait Islander peoples a voice to the Australian Parliament, not in the Australian Parliament.

It does not call for decision-making power to be afforded to the representative body and the proposal would not affect the structure or operation of a bi-cameral parliament.

Throughout this process, the Law Council has been reluctant to provide evidence about matters which should be essentially the subject of dialogue between a duly mandated Aboriginal and Torres Strait Islander body or bodies and the Australian Government.

However, the Law Council’s primary position remains that respecting the principle of self-determination, and its manifestation in practice by empowering communities and individuals, is a critical issue in any discussion on constitutional recognition. As such, there is a positive role for the legal profession to play in assisting to realise the aspirations and wishes of Aboriginal and Torres Strait Islander peoples.

While it is possible for a representative body to be legislatively introduced, a constitutionally-enshrined voice to Parliament would acknowledge the significance of the will of the Aboriginal and Torres Strait Islander peoples as determined by the Uluru Statement and later adopted by the Referendum Council.

Constitutionally enshrining a voice to Parliament also offers greater protection against future political or legislative change.

Aboriginal and Torres Strait Islander representative bodies have been a political football kicked back and forth for the better part of 30 years. It is little wonder there is an appetite to have any such body constitutionally enshrined to protect it from the political cycle of the day.

It began with the National Aboriginal Consultative Committee, established by the ALP in 1973, which was disbanded in 1977. This was replaced with the National Aboriginal Conference – disbanded in 1985. In 1990, the government replaced the National Aboriginal Conference with the Aboriginal and Torres Strait Islander Commission – ATSIC was subsequently disbanded in 2004.

Of course, it is highly probable there will be challenges with ensuring that any voice to Parliament is a body that is able to represent the diverse local and regional views on a national level in an efficient and timely manner. These challenges, however, are not insurmountable and legal experts, parliamentarians and, most importantly, Aboriginal and Torres Strait Islander peoples, have a strong willingness to make this a reality.

Aboriginal and Torres Strait Islander peoples’ empowerment benefits the whole of the country.

A constitutionally enshrined voice, shielded from the whims of political mores, serves the purpose of providing a formal and consistent notion of independence and self-determination.

Wiradjuri/Wailwan woman and lawyer Teela Reid recently surmised this position brilliantly, when she wrote:

The Uluru Statement’s call for a constitutionally guaranteed voice is not just a “nice idea” that can be easily given up. It was a historic First Nations consensus.

We will not settle for anything less than a constitutionally enshrined voice in our affairs. The First Nations have made our position clear. It is a modest and achievable request. It is now up to parliament to show leadership – both left and right.

 The future of our nation depends on it.

Ms Reid is correct – the First Nations have made their position clear.

It is time to enact their will as expounded at Uluru and documented so clearly in the Statement from the Heart.

It is a modest and achievable request, which does require leadership at all levels.

As a community, we ought to do all that we can to constructively engage with the committee and the process of supporting the advancement of those objectives expressed in the Uluru Statement, the recommendations of the Referendum Council, and the views of those bodies that have preceded it.

The future of our nation would be better for it.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, president of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.

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