Response to Referendum Council report suggests a narrow path forward on Indigenous constitutional reform

The Referendum Council’s final report, released on Monday, accepts and supports the calls for constitutional reform made by Indigenous delegates at regional dialogues across Australia, and agreed to at the First Nations Constitutional Convention at Uluru in May.

The report recommends meaningful reform to empower Indigenous people. But initial comments from Australia’s political leaders suggest the path to reform is still narrow.

Background to the report

Malcolm Turnbull and Bill Shorten established the Referendum Council in December 2015. Made up of 14 Indigenous and non-Indigenous members, it was tasked with providing advice on whether, and how best, to “recognise” Indigenous Australians in the Constitution.

Its report is the conclusion of 18 months of consultation and discussion, including six months of regional dialogues with Indigenous people.

The council drew on two previous reports and public submissions from across Australia. Most significantly, it oversaw an innovative process where – for the first time – Indigenous Australians themselves were asked to deliberate collectively and report back on what constitutional recognition meant to them.

This process culminated in the Uluru Statement from the Heart. At Uluru, Indigenous people from “all points of the southern sky” spoke directly to the Australian people, and demanded constitutional reform on three points: voice, truth, and treaty.

They called for:

• a national representative body with the power to advise parliament on laws that affect Indigenous peoples; and

• a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and undertake a public truth-telling process about Australia’s history. Makarrata is a Yolngu word meaning “a coming together after a struggle”.

Only the national representative body would involve a constitutional change. Ordinary legislation could establish the Makarrata Commission.

What does the Referendum Council report say?

The Referendum Council’s report largely endorsed the Uluru Statement.

A majority of the council recommended a referendum be held to change the Constitution to establish an Indigenous “voice to parliament”. One council member, former Liberal senator Amanda Vanstone, did not support a referendum at this time. She argued that further community consultations are necessary before a referendum is held.

The report also recommended that all Australian parliaments pass a “Declaration of Recognition”. This declaration should contain:

… inspiring and unifying words articulating Australia’s shared history, heritage and aspirations.

The council explained:

The declaration should bring together the three parts of our Australian story: our ancient First Peoples’ heritage and culture, our British institutions, and our multicultural unity.

The report also acknowledged the importance of a Makarrata Commission. It identified that treaties were overwhelmingly supported by delegates at the regional dialogues. In Dubbo, for example, a delegate explained that an “honest relationship with government” could only be achieved via respectful negotiations towards a treaty.

The council did not, however, recommend the establishment of a Makarrata Commission. As a legislative measure, it did not fall within its terms of reference.

In any case, treaties continue to progress slowly but surely at the state level.

What next?

In affirming the aspirations recorded in the Uluru Statement, the Referendum Council’s report has shifted the debate on constitutional reform.

Turnbull’s remarks on Monday show it is now highly unlikely that either major party will embark on constitutional reform unless the changes “meet the expectations of the First Australians”. This is positive. But whether changes will be proposed is another matter entirely.

Both leaders struck slightly different tones in their initial comments on the report. Turnbull was non-committal. He described the recommendation for an Indigenous “voice” as a “very big idea”, but one that was “short on detail”.

In contrast, Shorten acknowledged that a “voice” and a Makarrata Commission were legitimate aspirations that should not be pushed aside. Nonetheless, he too considered the recommendation would be a “big change”. But this is only partly true.

Constitutionally enshrining an Indigenous “voice to parliament” would be a structural change to Australia’s governance framework. Seizing on this fact, some political leaders have attacked the idea. For instance, in the days following the Uluru Statement, Deputy Prime Minister Barnaby Joyce incorrectly argued the proposal was a third chamber of parliament, and insisted it “wouldn’t fly”.

Similarly, the Institute of Public Affairs’ Simon Breheny argued that an Indigenous “voice” would be “undemocratic”.

But rather than being incompatible with democracy, an Indigenous “voice to parliament” would rectify a persistent democratic fault in Australian society.

Although Indigenous Australians today enjoy “full equality” in the electoral arena, their position as an extreme minority makes it difficult for them to be heard by government. As the Uluru Statement articulates, Indigenous Australians feel powerless in their own country. A “voice to parliament” would merely empower:

… the First Peoples of Australia to speak to the parliament and to the nation about the laws and policies that affect them.

In this sense, such a body would not challenge Australian democracy. It would instead realise its ideals.

And yet, implicit in Turnbull’s and Shorten’s statements that an Indigenous “voice to parliament” would be a “big change” is the notion that it may be too difficult. It will be, but only if Australians refuse to hear Indigenous people.