First Nations ‘Exchanging Ideas’ Symposium

Acknowledgements

I’d like to begin by acknowledging the traditional owners of the land on which we meet today – the Gadigal people of the Eora nation – and I pay my respect to their elders past and present. I also acknowledge the Aboriginal and Torres Strait Islander people with us here today.

I would like to acknowledge the other panellists and presenters here today, particularly Professor Gabrielle Appleby, Teela Reid and could I particularly acknowledge Professor Megan Davis’ role as a leader of the Uluru dialogues for the Referendum Council. 

And thank you to Chief Justice McCallum for facilitating this discussion about constitutional change today.

I would also like to acknowledge the many distinguished members of the legal profession here today. If I were to name all of you I would have little time left to share my thoughts. So I thank you for your work in your very important roles in our community.  I am so pleased to be here with you all today for this special event.

Introduction

We’ve seen plenty of public discussion and debate about the Government’s commitment to constitutionally enshrine a Voice to Parliament and Government for Aboriginal and Torres Strait Islander Australians.

Curiously, given we are talking about amending the Constitution, very little of the public discussion and debate has focused on the proposed change to the Constitution and the related processes we’ve put in place to secure it. This is despite the Prime Minister announcing the draft wording more than six months ago at the Garma festival.

I’m hoping that this year we will see a lot more attention paid to that process. And I would like Australians to understand that a Voice for Aboriginal and Torres Strait Islander people is not just the end goal of the referendum. Listening to Aboriginal and Torres Strait Islander people is also a core commitment informing our preparations for the referendum.

I will later outline those preparations and some of the ways in which Aboriginal and Torres Strait Islander people are providing guidance and leadership.

Debunking the ‘no’ campaign’s preamble proposal

Before I do that, though, I’d like to address a counter-proposal that has emerged this week from some prominent opponents of the Voice, who are campaigning against the Voice under the banner of ‘Recognise a Better Way’.

This group have unveiled their own, rival, referendum proposal. Their proposal would extend constitutional recognition to migrants, as well as Aboriginal and Torres Strait Islander peoples.

The ‘Recognise a Better Way’ group have said this week that they will be leading the No case against the Voice referendum. The group says it supports what it calls ‘symbolic’ constitutional recognition for Aboriginal and Torres Strait Islander peoples, but opposes recognition in the form of an advisory body like the Voice.

Part of this rival proposal for constitutional amendment involves a new preamble for our Constitution, to recognise what its sponsors term the ‘prior occupation’ of this land by Aboriginal and Torres Strait Islander peoples.

The history of the debate around constitutional recognition points to two significant problems with this rival proposal.

First, recognition in the form of a preamble was rejected conclusively by Australians on 6 November 1999. The preamble that was proposed on that occasion would have recognised the special place of First Nations people for (and I quote) ‘their deep kinship with their lands and for their ancient and continuing cultures’.

The 1999 preamble proposal also acknowledged ‘the nation-building contribution of generations of immigrants’, alongside veterans, the environment, and supposedly core values. But fewer than 40% of voters nationwide said ‘Yes’ to it – and in not one single state or territory did it achieve majority support.

So, in short, the proposal by the ‘Recognise a Better Way’ group has already gone to a referendum – and has been comprehensively rejected by a majority of Australians in all states and territories.

The second problem with the proposal by the ‘Recognise a Better Way’ group is that recognition in the form of a preamble was clearly rejected, as a central pillar of reconciliation, during the consultation processes that culminated in the Uluru Statement from the Heart. That is to say, it has also been clearly rejected by Aboriginal and Torres Strait Islander people.

The statement presented to then Prime Minister Tony Abbott and Opposition Leader Bill Shorten in 2015 by 40 Indigenous Leaders – a catalyst for the Referendum Council and its consultations – was explicit in saying that an approach to recognition centred on a preamble would not be acceptable to Aboriginal and Torres Strait Islander people.

The same view emerged from the First Nations Regional Dialogues held in 12 locations around the country, over six months, from late 2016. The purpose of the Dialogues was to try to distil – by means of an unhurried, inclusive, deliberative process – broad agreement among First Nations people as to whether and how they would like to see themselves recognised in the Australian Constitution.

The outcomes of those Dialogues and the National Convention are clear in the language of the Uluru Statement from the Heart. It doesn’t ask for symbolic recognition alone. Rather, it respectfully requests (and I quote) ‘substantive constitutional change and structural reform’ – a process to alleviate ‘the torment of powerlessness’ that is felt by Aboriginal and Torres Strait Islander people, by offering them a means of influencing their own destiny.

The language is powerful, but so too was the process through which it was generated – the Regional Dialogues and the Uluru Convention. So, I think, the credibility of the request for a Voice – as the considered wish of a consensus of Aboriginal and Torres Strait Islander people when it comes to their recognition – is just unassailable. And the Referendum Council agreed, concluding in its Final Report, that a preamble alone could not give adequate recognition to Aboriginal and Torres Strait Islander people. A Voice offers recognition that would, the Council said, have ‘both substantive and symbolic value’.

To put it another way, a preamble would offer only static recognition. A Voice to Parliament promises dynamic recognition – a form of recognition that empowers and evolves.

First Nations working and engagement groups

At the Garma Festival on 30 July 2022 the Prime Minister proposed that the following words be added to the Constitution.

In recognition of Aboriginal and Torres Strait Islander People as the First Peoples of Australia:

• There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice
• The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples
• The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice

As the Prime Minister made clear, these words were a starting point. He said:

These draft provisions can be seen as the next step in the discussion about constitutional change. This may not be the final form of words – but I think it’s how we can get to a final form of words.

And soon we will have the final form of words, when the Constitution Alteration Bill passes both Houses of the Parliament later this year.

After the Prime Minister’s speech at Garma, the Government established two groups to advise us on how to take forward the ambition to constitutionally enshrine a requirement for a Voice.

The first of these groups is the First Nations Referendum Working Group, and it has been advising us on what we need to do to succeed.  The Working Group is considering all of the key questions that we need to resolve over the next few months. These include:

• the timing of a referendum, to maximise its chances of success;
• options for the text of the constitutional amendment and the question that will be put to voters on the ballot paper; and
• the key principles that will underpin the creation of an Aboriginal and Torres Strait Islander Voice.

The Working Group has 21 First Nations leaders, including Professor Megan Davis. You can find the membership list published on the official Voice website, hosted by the National Indigenous Australians Agency. The Group has had five meetings to date, and the most recent was two days ago at Parliament House in Canberra. 

The success that this Group has had, in generating consensus through deliberation, can be seen in the public communiques released after each meeting which reveal the breadth of its discussions and the agreed outcomes and decisions.

At its first meeting, the Working Group settled a set of principles that will inform the creation of a Voice. They call for a Voice that is, among other things:

• ‘empowering, community led, inclusive, respectful, culturally informed and gender balanced’, in a way that also ‘includes youth’; and
• a body that ‘works alongside existing organisations and traditional structures’.

The work done by the Working Group is already informing the deliberations of the second First Nations forum we’ve placed at the centre of our plan for the Voice referendum. That second forum, the Referendum Engagement Group, is advising the Government and working with First Nations people and the broader community to build understanding and awareness for the referendum.

The Engagement Group had its third meeting in Canberra yesterday.

This is a larger group of 60 First Nations leaders, including all members of the Working Group. Its membership is drawn from communities right across Australia, including many members who are the nominees of land councils, local governments and community-controlled service organisations.

The Working Group is also being advised on legal issues by a Constitutional Expert Group, which consists of a number of the country’s pre-eminent constitutional experts – former High Court Justice Kenneth Hayne, Professor Greg Craven, Noel Pearson, Professor Cheryl Saunders, Professor Anne Twomey, Professor George Williams, Professor Asmi Wood and, of course, Professor Megan Davis.

I will shortly be joining a panel with members of these advisory groups, so we may return to their role as part of that discussion.

We are now not far away from introducing of the Constitution Alteration Bill, and we will hold the referendum in the second half of this year.

There is no better time to write this next chapter in Australia’s history. It’s an historic moment in our nation’s journey of recognition and reconciliation. I am confident that Australians will embrace this opportunity and I thank you for being part of this very important conversation.

I’m looking forward to the panel discussion.