” In the Indigenous recognition debate, constitutional symbolism would become the common enemy of indigenous advocates, who have consistently pushed for substantive and empowering constitutional reform over symbolism, and constitutional conservatives, who seek to uphold the Constitution and protect it from legal uncertainty.
Ken Wyatt should understand, however, that with the right proposal, these two groups can become proponents of sensible constitutional reform that empowers indigenous voices and upholds the Constitution.
Indigenous people would oppose a merely symbolic amendment because, as the Uluru Statement makes clear, they seek empowering structural reform to improve practical outcomes.
They seek a constitutionally guaranteed voice in Indigenous affairs, because this will make for better, fairer policies and help close the gap. “
Dr Shireen Morris is a constitutional lawyer, McKenzie Postdoctoral Fellow at Melbourne Law School and senior adviser to the Cape York Institute. Her book, A First Nations Voice in the Australian Constitution (Hart), is out in July.
The Minister for Indigenous Australians should recall the lessons of the failed republic referendum of 1999, lest he inadvertently steer indigenous recognition towards similar doom. Australians vote ‘‘yes’’ for practical reform, not token symbolism.
The lessons of 1999 are twofold. The republic debate showed how habitual opponents can become unexpected allies to defeat a referendum proposal. During that campaign, the direct electionists joined forces with the monarchists to successfully oppose a republic. People who might ordinarily disagree can unite against a common enemy in a referendum campaign.
The Prime Minister has said he wants to address indigenous suicide, indicating a preference for the practical. On this he will find common ground with indigenous Australians. As the Uluru Statement indicates, indigenous people want better outcomes in incarceration, child removal and the economic and cultural futures of their children. They seek a constitutionally guaranteed voice because they want to work in permanent partnership with government to improve practical outcomes in indigenous affairs.
If Wyatt hopes that indigenous people may be appeased by a legislated voice and will therefore accept a symbolic amendment of no operational effect — this is unlikely. Indigenous people have had legislated bodies in the past. ATSIC was short-lived and many remember the lessons of this history. Legislation alone cannot create a permanent partnership.
Constitutional conservatives will also oppose the insertion of symbolic words because they view the Constitution as a rule book — a practical and pragmatic charter of government and an inappropriate place for poetic statements, which may be interpreted in unexpected ways by the High Court. Constitutional conservatives have run many well organised ‘‘no’’ campaigns in the past and would do so again to uphold the Constitution and prevent uncertainty.
Australians, too, will likely reject a merely symbolic insertion. They have before. History demonstrates that voters favour practical reform over symbolic words. Of the eight (out of 44) referendums that have succeeded, none has been merely symbolic. All have fixed practical problems.
Why would Australians support a recognition proposal that indigenous people have rejected, which constitutional conservatives warn against, and which does nothing to practically improve indigenous policy?
Government should heed the second lesson on 1999: the failed preamble, which incorporated some lines of indigenous recognition. A purely symbolic proposal. Many indigenous people opposed it and only 39.34 per cent of Australians voted ‘‘yes’’.
It was an abysmal failure. By steering the nation towards a merely symbolic change, government is veering towards a repeat of 1999. The proposal would be pincered by indigenous opposition on the one hand and constitutionally conservative opposition on the other.
Both parties would be right: the Constitution is not the place for symbolic words. It is the place for practical reform and enduring guarantees. It is the place for a modest constitutional guarantee that indigenous people will always be heard in decisions made about them.
Properly executed, it would turn united opposition of indigenous people and constitutional conservatives into united support. Let us not forget, the concept of an indigenous constitutional voice was devised by indigenous leaders in collaboration with constitutional conservatives.
The conservative organisation Uphold & Recognise was born from the collaboration.
Indigenous people have clearly stated they want a constitutional voice in their affairs. Constitutional conservatives like former Chief Justice Murray Gleeson, federal MP Julian Leeser, senator Andrew Bragg, and professors Greg Craven and Anne Twomey have shown how this could be achieved in a way that upholds the Constitution.
Right-leaning commentators like Jeff Kennett, Chris Kenny and Alan Jones have backed the concept. Former Labor prime minister Kevin Rudd declared a ‘‘unity ticket’’ with Jones.
The continued pursuit of the balanced, radical centre is the way to win a referendum, not the pursuit of symbolism. Success will come through careful listening and negotiation between black and white, across left and right.
There is a need to heed government’s concerns, but government must equally heed indigenous aspirations for substantive constitutional change.