NACCHO Aboriginal News Alerts : Download Referendum Council’s Final Report on constitutional recognition


 ” We are pleased to release the Final Report of the Referendum Council, a body established in 2015 to provide guidance on constitutional change to recognise Aboriginal and Torres Strait Islander Australians.

This is an issue of importance to all Australians, and one that deserves careful and thorough consideration.”

Malcolm Turnbull  and Bill Shorten Joint Press Release (see separate comments below part 2 and 3 )

Download Here  Referendum_Council_Final_Report

Today is another important step on the path to constitutional recognition of Aboriginal and Torres Strait Islander Australians.

The Council undertook a significant consultation process, seeking the views of all Australians through hosting a digital engagement platform and conducting regional dialogues with First Australians across the nation.

This historic Aboriginal and Torres Strait Islander consultation process culminated in the landmark First Nations National Constitutional Convention held in Uluru in May, and the adoption of the Uluru Statement from the Heart.

Today we met with the Referendum Council to discuss the recommendations presented in the final report in greater detail. We will now take the time to consider the recommendations and the best way forward.

We wish to thank the Referendum Council, led by Co-Chairs Ms Pat Anderson AO and Mr Mark Leibler AC, for their dedication and commitment.

Image Buzzfeed


Part 2 Remarks to the Indigenous Referendum Council


Thank you very much.

Can I just add to Linda’s remarks before we get on to the business of the meeting, that we are here on Gadigal country as Linda said – and we thank you for that beautiful Acknowledgement of Country.

And of course we have just a few kilometres from us what is now called La Perouse. Continuous

Aboriginal settlement. Extraordinary. The Aboriginal community of La Perouse, resilient in the middle of the biggest city in Australia. Their ancestors saw the ships come, saw Captain Cook, Captain Phillip, and through all of those, the oppression and the injustice, have maintained that extraordinary spirit.

It is I think emblematic of the extraordinary resilience of the First Australians so that is I think a positive note of resilience and optimism that we should bear in mind here, as you acknowledged Linda, on Gadigal country.

Thank you Pat and Mark and all of the Council for the report. We are very pleased to receive it after 18 months of your work.

We’re not here of course to make a decision. The purpose of the meeting is to discuss with you the recommendation that you’ve made.

As you know, it follows a proposal, many proposals – but in particular the most recent lineage, it follows a proposal of Prime Minister Howard in 2007 that we should recognise our first Australians in the Constitution.

This report that you’ve presented us with is the fourth major report on the issue.

There was the 2012 expert panel report that was commissioned by Prime Minister Gillard, the 2014 Act of Recognition Review Panel and of course the 2015 Joint Select Committee Report provided to Prime Minister Abbott.

Of course many of you were on one or more of those panels.

The fact that Bill and I are here today demonstrates the bipartisan spirit with which the Parliament, each Parliament has approached this issue and which I hope will continue as we examine the recommendations.

It is wonderful that we are here together with First Australians who are Members of the Parliament,

Malarndirri and Pat and Ken and Linda of course, who gave the acknowledgement right at the beginning.

You four are of course are indeed powerful voices in the Parliament of Australia and I thank you for the guidance you’ve offered us.

This also shows that the discussion about recognition has been going on for some time and that’s not just because we like talking about these big issues, but because it’s very complex.

We started the process with five options and we note that your advice has not provided a shortlist and it has, in fact, while it has considered the work of the Expert Panel and the Select Committee, very thorough work, it has essentially rejected the recommendations that those two groups and other groups has made.

Its simply recommended one constitutional change which on any view is a relatively new concept in the Australian debate about recognition.

It is a latecomer in that respect.

So what we’re being presented with in your report, and indeed all Australians will be presented with, if this was to go to a referendum, would be one option which is a constitutionally entrenched advisory body – a Aboriginal and Torres Strait Islander voice to the Australian Parliament.

It is clearly, as we know, its Parliament’s duty and Parliament’s duty alone to propose changes to the Constitution but the Constitution cannot be changed by Parliament. Only the Australian people can do that.

There’s no political deal, no cross-party compromise, no leader’s handshake, even between leaders as amicable as Bill and myself, can deliver constitutional change.

To do that a constitutionally conservative nation has to be persuaded that the amendments respect the fundamental values of the Constitution and will deliver precise changes clearly understood that would benefit all Australians.

And we do not want to embark – I’m sure none of us do – in some sort of exercise in heroic failure. I have some considerable experience in trying to change the Constitution and know better than most how hard it is.

We need to ensure that any changes that are proposed are ones that meet both the expectations of First Australians but also will bring together all Australians because this is a vote of all Australians.

We are looking forward to having a frank discussion about that now, and to understand how you’ve reached your conclusions.

In particular, to understand why the recommendations of the previous panels and committees that you were asked to consider where set to one side in favour of the new proposal.

And also I’ll just add finally that we acknowledge the recommendation related to a Declaration of Recognition, which would be enacted by legislation as a symbolic statement bringing together historic recognition of our First Australians, our British institutions on which modem Australia was founded and of course our, today, 21st century multicultural nation.

We look forward to discussing all of that as well.

Thank you very much for your work.

It is very short on detail, couldn’t be shorter on detail in fact, but it is a very big idea. It is a very big new idea, so it’s worthy of considerable discussion here today.

Part 3 Bill Shorten remarks

Thank you, Malcolm and thank you, Linda for welcoming us.

I think that the delegates at Uluru in May said ‘in ’67 we were counted and in 2017, we seek to be heard’.

And that informs the approach that the Labor Party is taking in terms of today’s meeting. I want to thank the Referendum Council members, in particular the Chair but all the members, from Mark Liebler and Pat Anderson and all members of the Council.

It’s been hard work and we appreciate your wise counsel.

Hundreds of people, indeed thousands of people have participated in the Referendum Council’s dialogue and made submissions about what recognition and reconciliation means to them.

It builds upon previous work which has been done, including the work of the expert panel and the Parliamentary Committee.

We took that work seriously and obviously, we take the work of the Referendum Council

very seriously too.

Labor acknowledges the objectives of this report, including a stronger voice to the Parliament for Aboriginal and Torres Strait Islander people, and a process for treaty and agreement making.

These are legitimate aspirations – it is the key recommendation of this report and we can’t shy away from that fact.

They are big changes, as the Prime Minister has said.

I do not believe they are beyond us.

My party is ready to work with all of the political parties, Indigenous leaders and the broader community in terms of final proposals for constitutional change.

As I said at the start, the delegates at Uluru said ‘in ’67 we were counted and now in 2017, we seek to be heard’.

It is a fact that for constitutional change to be successful, there can be no doubt that a bipartisan approach is the best path forward.

Without that, it is a much steeper climb.

Our task is now to hear your message.

Our task is to take the collective wisdom of the Council, turn it into awareness and support for change across the country.

I’ll be meeting this week and subsequent weeks with my Aboriginal and Torres Strait Islander Caucus, and with the broader Caucus, to talk about our next steps.

But I can assure all of you who have worked so hard on this, we are taking this very seriously and we understand the clear, unequivocal message of the Referendum Council that a voice is the option which the Referendum Council has come down with.

There is a lot more work to do.

We want to have a good discussion today.

This is an important milestone; it is not the last stop but it is certainly the next stage towards true reconciliation and recognition.

Thank you very much for the work you have done.



Aboriginal Health #IVoiceUluru Referendum : Federal Government to receive ultimatum on Indigenous ­recog­nition today

 ” Malcolm Turnbull will be delivered an ultimatum today on indigenous constitutional recog­nition, with the Referendum Council report he and Bill Shorten commissioned 18 months ago making clear that nothing less than an advisory body to parliament and a separate treaty process will be ­acceptable.”

Report from the Australian

 ” We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish.

They will walk in two worlds and their culture will be a gift to their country.
We call for the establishment of a First Nations Voice enshrined in the Constitution.

Makarrata is the culmination of our agenda: the coming together after a struggle.

It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination “

The Uluru Statement from the heart in full part 2

“In 1988 I came to Sydney to celebrate Aboriginal and Torres Strait Islander survival. We made an impact at the Centenary, and the Government promised a National Treaty with First Nations at Barunga in response to the Barunga Statement.”

“Like many times before and since the Barunga Statement, the promise for National Treaty was broken. The Uluru Statement from the Heart seeks to correct that.”

Press release  from the Uluru Statement Working Group see Part 3

Part 1 The Australian

The Prime Minister and Opposition Leader will have to decide how much political risk they are prepared to take in their own partyrooms on the proposals, after an outbreak of opposition from both sides to last month’s “Uluru statement from the heart” on which the report is based.

Mr Turnbull and Mr Shorten have consistently said any referendum question must have the support of indigenous Australia, and Referendum Council co-chairman Mark Leibler has said he would not support recommending a course of action “unless it’s got good prospects for success”.

Focus will next turn to the annual Garma cultural festival in northeast Arnhem Land, where key players will spend time in Aug­ust thrashing out details.

The council, comprising six indigenous and eight non-indigenous members, has backed the full Uluru Statement, which was the result of 12 nationwide dialogues leading up to a constitutional convention at Uluru.

The statement’s preamble, which includes the call for a “First Nations Voice enshrined in the Constitution” and the establishment of a “Makarrata commission to supervise agreement-making … and truth-telling about our history”, was the only part publicly released after the Uluru convention last month.

However, the Uluru meeting focused in much more detail on how the Aboriginal and Torres Strait Islander place in Australian history should be viewed, how the document’s recommendations were ­arrived at and how they could be implemented.

About 250 participants at the Uluru convention helped craft a narrative tracing a seven-part trajectory under the rubric of “our story”, beginning with an explanation of the pre-European system of law that bound together hundreds of language groups or nations.

They noted that in many indigenous groups these laws remained strong, such as the Meriam people’s “Malo’s law” — one of the features in the High Court’s Mabo judgment that dispelled terra nullius and led to the creation of native title legislation.

Uluru participants discussed a series of “guiding principles” to inform the council’s report, which included the need to involve “substantive, structural reform”, to “tell the truth of history” and to make sure they provided “a mechanism for First Nations agreement-making”.


We, gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky, make this statement from the heart:

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs.

This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors.

This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.

How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?

With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers.

They should be our hope for the future.

These dimensions of our crisis tell plainly the structural nature of our problem.

This is the torment of our powerlessness.

We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish.

They will walk in two worlds and their culture will be a gift to their country.
We call for the establishment of a First Nations Voice enshrined in the Constitution.

Makarrata is the culmination of our agenda: the coming together after a struggle.

It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country.

We invite you to walk with us in a movement of the Australian people for a better future.


Aboriginal and Torres Strait Islander delegates from across Australia travelled to Sydney for the inaugural Uluru Statement working group meeting.

The meeting with representatives from 13 regions across the entirety of the country reaffirmed the determination to see a constitutional voice to parliament for Aboriginal and Torres Strait Islander people.

Over the weekend, they publicly announced that they propose that the proposed voice for Aboriginal and Torres Strait Islanders should be representative, embedded within the Constitution, and such that it provides greater self-determination. They further report that a roadmap will be proposed to the Prime Minister and Opposition Leader that includes the timing for the constitutional process and then legislative development for the body and the Makarrata Commission.

During the historic two day meeting, the group gathered at the site of the 1938 Day of Mourning protest, reflecting on the brave and unrelenting efforts of their Indigenous forebears of the struggle.

Newly elected Co-Chair Josie Crawshaw, one of three Co-Chairs for the 29 strong work group reflected on her lifetime involvement in activism for Aboriginal and Torres Strait Islander rights.

Ms Crawshaw is from the Northern Territory, she reflected that “In 1988 I came to Sydney to celebrate Aboriginal and Torres Strait Islander survival. We made an impact at the Centenary, and the Government promised a National Treaty with First Nations at Barunga in response to the Barunga Statement.”

“Like many times before and since the Barunga Statement, the promise for National Treaty was broken. The Uluru Statement from the Heart seeks to correct that.” Ms Crawshaw said.

Suzanne Thompson, another of the Co-Chairs is from Barcaldine, a place known for early struggles for the great Australian “fair go”. She expressed the need for continuing bi-partisan support and engagement with the proposals in the statement. “We need all organisations, left, right, and indifferent to join us in saying it is time to settle this unfinished business so that our country, with its most ancient and unique culture, can reconcile our past and look to our future.

Ms Crawshaw and Ms Thompson join Thomas Mayor as Co-Chairs. They on behalf of the group are calling for a national movement of all Australians to join the #1VoiceUluru movement.


NACCHO Aboriginal Health :@IPAAACT After 50 years of #Indigenous affairs, ‘We need to do better’


” 50 years on from the referendum that made Indigenous affairs a Commonwealth concern, the Department of the Prime Minister and Cabinet’s new deputy secretary, Professor Ian Anderson, sets out a clear and comprehensive vision of a better way forward.

The 50th anniversary of the referendum that made Indigenous affairs a federal policy concern has prompted a lot of reflection on what governments have done with that role and, more importantly, consideration of how policymakers and public servants can do better.”

From Stephen Easton journalist at The Mandarin 

In the view of Australian Public Service head Martin Parkinson, the 90.77% affirmative vote both “provided opportunities for us to begin to right the wrongs” caused by British colonisation and assured the prime minister that nearly every citizen wanted the national government to try and do so.

“We may have created the opportunity in ’67 but we haven’t actually delivered on it,” Parkinson added on Friday, opening a public administration seminar at Old Parliament House marking half a century of Indigenous policy.

The keynote address came from his new deputy secretary for Indigenous affairs, Ian Anderson, an Aboriginal University of Melbourne professor who became an Officer of the Order of Australia (AO) last week for “distinguished service to the Indigenous community” as a doctor, health researcher and role model.

Ian Anderson

Anderson was brought in to the Department of the Prime Minister and Cabinet in February to lead a “root and branch” review of Closing the Gap targets, replacing Richard Eccles, who quietly moved across to the Department of Communications and the Arts.

“There is a shared sense among Indigenous leaders, governments and the wider community that despite the significant progress in some areas, we need to do better,” said Anderson.

He sees enough progress to prove solutions do exist, but also consistent themes behind the failures: too many “one size fits all” approaches, “chopping and changing” goals, and governments “overreaching” in terms of what is realistic, while failing to “significantly” engage with Indigenous communities.

The highly regarded professor is seen as a brilliant quiet achiever who has led by example rather than taking to the barricades. He acknowledged “the activist generation” who fought for their rights and built a robust Indigenous-led community sector “from the ground up” but also pointed out Aboriginal society had changed.

“We now have an Indigenous middle class, working at all levels of government, the private sector, universities, and of course continuing to lead in the community sector,” said Anderson, who thinks this group will play a key role in the future of their people.

He also sees a role for new joined-up approaches to public administration, but believes “wicked problems” like Indigenous disadvantage can’t be solved by government alone; they require “the active participation of citizens” as well.

“We, as the Australian Public Service, have to do a damn sight better than we’re doing now.”

“We, as the Australian Public Service, have to do a damn sight better than we’re doing now.”

“The key to Indigenous disadvantage is not just what governments do, but what Indigenous people and communities do,” Anderson said, arguing public servants must create “an environment that helps solutions be found by a much wider range of actors”.

Regional planning in healthcare and the Empowered Communities initiative supported by PM&C were both good examples, he said. Government agencies would need to keep working collaboratively with Indigenous Australia “at a scale and depth we haven’t seen before” — and learn to share leadership and accountability in new ways that might be uncomfortable at first.

A new joined-up vision

Invoking the principle of subsidiarity, Anderson displayed his deep knowledge of the challenges of Indigenous affairs and set out a clear and comprehensive vision for how the federal and state governments could improve outcomes.

“The current approach to building the public sector Indigenous workforce is well past its use-by date,” he added later.

“It’s focusing only on entry-level programs and assumes a sort of trickle-up model that looks increasingly constrained, given the growing numbers of skilled and experienced Indigenous professionals working across … many sectors outside government.”

Martin Parkinson

The newly recruited deputy secretary, who will have a hand in a $10 million per year evaluation program, also spoke for the importance of rigorous evidence-based policy, using “high quality, granular data” to empower better regional and governmental decision-making.

“In the past, we have tended to rely too heavily on gut-feel and ideas that sound good but don’t have anything to back them up beyond their ability to generate enthusiasm,” said Anderson.

He thinks Australia has “one of the best Indigenous data collection systems in the world” but said data quality issues were common, especially for areas where Indigenous people are a tiny minority. Much of this is “not collated transparently, burying important information about Indigenous outcomes in population-wide trends and averages”.

In his admittedly “ambitious” vision for the future, the operating model is a “collaborative partnership” with Indigenous Australia, “founded on robust, accountable and professional working relationships” that feature shared decision-making and mutual accountability as core principles.

“At the same time, higher quality and more transparent data platforms will give us better tools for understanding the problems in our communities and Indigenous cohorts, measuring our successes and our failures and keeping ourselves accountable,” Anderson said.

“And on these foundations and the new capabilities and insight that will give, we will build an Indigenous policy system that is much more dynamic, much more responsive to diversity and innovation, and much better able to negotiate a place-based context, and create solutions with authority and with buy-in.”

‘Fire in the belly’

Anderson was followed by National Aboriginal Controlled Community Health Organisation CEO Patricia Turner, who in some ways represented the activist generation.

Pat Turner

Having worked in senior APS roles herself, she believes Aboriginal public servants still need a bit of “fire in the belly” and should constantly advocate for their people within the administration — because support for Closing the Gap within mainstream Australia is not guaranteed.

Indigenous affairs is not a top-order political issue among the general population, judging by its absence from recent debates. Turner reminded the audience that the Redfern Statement she helped launch during the last election was a direct response to this.

Turner argued for more targeted public service recruitment and mentoring to increase Indigenous representation at senior level, better engagement with Indigenous-led groups like NACCHO, and more collaboration between departments. She criticised the lack of progress towards Closing the Gap targets, questioning why they are not an explicit concern of every cabinet submission and calling on individual public servants to think about how they personally could contribute to achieving them.

Turner was followed by the architect of the Close the Gap targets, University of Canberra professor Tom Calma, who spent 45 years in the APS. Calma said the media often obscured the role of governments in Indigenous policy failures and suggested they were the fault of communities themselves.

Tom Calma

“Now this is not the case, and we need a better understanding of the role and effectiveness of the APS in Australian Indigenous affairs, and their consistent contribution to failure,” he said.

Calma also pointed to the financial and opportunity costs of machinery of government changes, pointing out there have been 21 different ministers for the portfolio in the past 50 years and 10 different administrative structures — nine of those within the past 30 years.

This had led to the same old ideas being recycled with little learning from the mistakes of the past, he said, fuelling a destructive cynicism and lethargy among those who had watched the government spin its bureaucratic wheels through several policy and MOG changes.

The full speeches — and the panel’s responses to pre-written questions asked by Department of Human Services secretary Kathryn Campbell, ACT Public Service head Kathy Leigh and Threatened Species Commissioner Gregory Andrews — are all worth listening to in the full video of the two-hour event.

A flurry of discussion, but where will it lead?

Held in partnership with the Institute of Public Administration Australia (ACT Division), the event was just one of many ways PM&C, as the current home of Indigenous affairs, is actively encouraging a discussion about the way forward. The department’s Indigenous affairs group has also partnered with the Australia New Zealand School of Government (ANZSOG) to deliver several more academic forums and publications this year.

The first, a discussion paper that also came out on Friday, considers “two constant underlying problems” that have persisted ever since the Commonwealth first set up an Indigenous affairs bureaucracy in 1967.

“They had to ask what government structure or instrument would be best suited to this effort,” Parkinson explained. “And they had to ask how best to bring Aboriginal and Torres Strait Islander people into the national decision-making process.”

“They” were the original Council for Aboriginal Affairs set up shortly after the referendum, comprising inaugural Reserve Bank governor Herbert Cole “Nugget” Coombs, senior diplomat Barrie Dexter and the famous anthropologist William Stanner.

“50 years after Coombs’ original questions, I think those questions are as salient today as they were then,” said the PM&C secretary.

The event was also a moment to admit that in many ways, federal policymakers have struggled to work out what to do and where to stand with regard to Indigenous Australians for most of that 50 years.

“We, as PM&C, have to do better. But we, as the Australian Public Service, have to do a damn sight better than we’re doing now,” said Parkinson.

While the IA group in his department plays a leading a role, he said it only spends about 7% of funding for services directed to Indigenous Australians.

“The vast bulk of monies spent in this country actually rest in your hands and the hands of states and territories,” Parkinson said, with a line of federal secretaries seated front and centre.

“And ask yourself a question: do you pay enough attention to the impact of the policies that you design and you implement and you deliver on Indigenous Australians?

“And I think if you ask that question and you’re honest with yourself, the answer is pretty clear.”

Going back to first principles

Much of the progress that has occurred has come through protest, grass-roots activism and community organisations built by Indigenous people, as Turner reminded the audience. The years before the referendum were much darker times for Aborigines and, she recalled, the outcome of the vote was a joyous occasion.

“However, we have always had to fight for our basic rights as Aboriginal people, the original owners and occupiers of this land for some 60,000 years,” she added.

Turner had high praise for some of the past “giants of the APS” whose frank, impartial advice led to big nation-building projects and successful responses to national crises — and for the “bold vision of the future” set out by Coombs, Dexter and Stanner.

“Those three wise, white men did so much for my people in a short space of time,” she said, suggesting there might be value in revisiting some of the CAA”s “seminal” report.

“Today we can bear witness to the fact that very few professional public servants seek an entire career at the coal-face of Indigenous policy advice.”

It is up to all public servants, she said, to make sure their ministers hear “frank and fearless” advice on the “political hot potato” of Indigenous affairs that reflects the views of Aboriginal people “about the decisions made in government for them” and comes through their own representative organisations.

“In the past, we have tended to rely too heavily on gut-feel.”

“In the past, we have tended to rely too heavily on gut-feel.”

Turner believes in Indigenous self-determination and public servants using their positions to advocate for their people, in line with cultural expectations. She said doing this made her an “unusual” public servant who often challenged her superiors — but encouraged current public servants with an Indigenous background to do more or less the same.

Current policy targets a certain level of Indigenous representation in the APS generally, as a sign of fairness and diversity reflecting the population, while initiatives like special mentoring networks are being revived, but it’s not clear if or how public service leaders expect this to translate into more consideration of Indigenous perspectives, in a practical sense.

Meanwhile, the PM&C discussion paper reminds us that conservative views remain and, across the whole population, not everyone agrees that there should even be Indigenous-specific arms of government — or affirmative action to reverse “the lack of Aboriginal and Torres Strait Islander voices in the government executive and administration” for that matter.

Going all the way back to the questions Coombs wrestled with in 1967, the paper explains the other view is that governments should demand better outcomes for Indigenous Australians from all mainstream agencies as part of their normal work — not cast Indigenous people as a special class of citizens with special policies and special public servants to administer them.

“We may have created the opportunity in ’67 but we haven’t actually delivered on it.”

“We may have created the opportunity in ’67 but we haven’t actually delivered on it.”

As wise as those white men of the CAA were, it was also their view that Indigenous people should call the tune through their own organisations as soon as practical. 50 years later, it is still up to APS to figure out “the structural challenge that Nugget Coombs outlined” decades ago, according to Parkinson.

“One thing I am absolutely sure of is that setting the agenda for how we approach the second 50 years of Commonwealth public administration in Indigenous affairs is going to test our values,” he added.

“It’s going to test our technical expertise, and it’s going to test, importantly, our leadership — both our capacity to lead but more importantly, our willingness to lead. There’s no question; we have to do things differently.”

Parkinson’s closing comments reflect the current policy mantra to do things “with” Aboriginal people, not “to” them. But it is much easier to put this principle into words than into practice, although in Anderson, the department seems to have found someone who truly understands the challenges and can plot a realistic path forward.

“We will be asking Indigenous communities to step up, to take on leadership and to hold themselves accountable, but we, as public servants, also then have to let go,” Parkinson said.

Top image: Department of the Environment and Energy secretary and IPAA ACT president Gordon De Brouwer with the panellists and Martin Parkinson. All images by RLDI.

From #Mabo25 to #UluruStatement and #Treaty : Mabo Commemoration Oration : Senator Patrick Dodson

 ” Aboriginal and Torres Strait Islander people will continue to call for a treaty and a strong Indigenous voice if nothing is done.

These calls only highlight the need for constitutional reform.

Australia cannot move forward while our founding document, our birth certificate, embodies our racist past. The stubborn stains in our racist Constitution must be erased.

  • Eddie Koiki Mabo would expect nothing less.
  • Eddie Koiki Mabo was a great Australian.

We can find the Mabo spirit within each of us, and work together to build a great Australia, free from racism, honorable and just.”

Part 2

 “Last month at Uluru, in the spirit of constitutional conventions from which we had previously been excluded, many Aboriginal and Torres Strait Islander people gathered.

Their one page document, Uluru Statement from the Heart, issues a series of challenges to the Parliament and the people of Australia.

  • It calls for constitutional reforms to empower our people and take a rightful place in our own country.
  • It calls for the establishment of a First Nations Voice enshrined in the Constitution.
  • It calls for a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

A treaty or agreement, whether one or many, would be an acknowledgment flowing from the Mabo decision that terra nullius is a discredited, outmoded legal fiction and that this land was taken from Aboriginal people.”

Senator Patrick Dodson on June 16 delivered  this year’s 2017 ANU Mabo Commemoration Oration at University House. The Mabo Commemoration Oration was held to recognise the 25th anniversary of the Mabo ruling.

In June 1992, the High Court of Australia recognised that a group of Torres Strait Islanders, led by Eddie Mabo, held ownership of Mer (Murray Island). In acknowledging the traditional rights of the Meriam people to their land, the Court also held that native title existed for all Indigenous people. This landmark decision gave rise to important native title legislation the following year and rendered terra nullius a legal fiction.

Senator Patrick Dodson is a Yawuru man from Broome in Western Australia. He has dedicated his life work to being an advocate for constructive relationships between Indigenous and non-Indigenous peoples based on mutual respect, understanding and dialogue. He is a recipient of the Sydney International Peace prize

Image above : On display at Parliament House Canberra in a careful hand with coloured pencils, Eddie Mabo drew this map in the shape of the Island of Mer, noting the family names associated with tracts of the Island, including his own family name.

Full Oration

Thank you very much Vice-Chancellor Professor Brian Schmidt and thank you for the Welcome to Country. I too join in the appreciation of the Ngunnawal and Ngambri people for their welcome to their lands.

It is a great honour for me to be here at the Australian National University tonight to deliver a speech in honour of the late Eddie Koiki Mabo.

  • Mr Mabo was a man of history.
  • He celebrated his Mer and Torres Strait Islander history.
  • He made Australian history.

So it is to history that I will turn to start my remarks.

On 26 January 1788, the British flag was raised at Botany Bay.

The land, now part of the City of Sydney, was the territorial property of the Gadigal and Bidigal people of the Eora nation. It was held and looked after by them, for countless generations.

With a cheer and a tot of rum, to the sounds of fife and drums, the colony of New South Wales was proclaimed.

Over time, other colonies were established in other parts of Australia or by separation of their territory from New South Wales.

• Queensland was one of those.

Over time, the boundaries of the Queensland colony were stretched to include offshore northern islands around 1859.

The lines on the map between Papua New Guinea and Australia included the Murray Islands, the largest of which is Murray Island or Mer.

  • In 1912, the Island of Mer was declared a Reserve under the Land Act 1910 (Qld).
  • In 1936, Eddie Mabo was born in Mer.
  • In 1982, Eddie Koiki Mabo and four other Murray Islanders commenced proceedings against the State of Queensland.

They claimed ownership of parcels of land on Mer as the holders of native title under their customary law.

This litigation, bearing the name of the man we commemorate tonight, transformed the modern Australian common law.

• The case changed our History.

• For the good. On the first floor of our Parliament, I walk past a display of foundation documents of  Australia’s law and society.

This week I watched a group of school children walk through the area on their tours of Parliament House, under a banner that reads, “Parliament is the law-making body which determines the rules of the society by which people live.”

A couple of young boys were looking at a case where a page out of an old-school notebook was on display.

In a careful hand with coloured pencils, Eddie Mabo had drawn the shape of the Island of Mer, noting the family names associated with tracts of the Island, including his own family name.

On the same floor, there are other important documents and paintings on display: The Yirrkala bark petition, the Barunga petition, the Kevin Rudd apology.

Each of these artefacts talks to our most significant national historical challenge.

How can we recognise and acknowledge the fact of Aboriginal and Torres Strait Islander prior ownership of this land we now call Australia?

Mr Mabo’s map and the petitions call for all of us to recognise and acknowledge the fact  of occupation.

• to re-think the received colonial settler narrative. They remind us of the exertion of force by and on behalf of the British authorities.

  • The fact is: the British did not ask permission to settle.
  • The fact is: no-one consented, no-one ceded.
  • The fact is: the judiciary and the legislature have become less generous since The Mabo ruling.
  • The fact is: we need an agreement or treaty to settle not only the ongoing legacy of terra nullius but also the legacy of its existence.

The first peoples were in this land as owners and governors of their respective countries before and when the colonists ‘arrived’ and began to gradually occupy their territories and rule over them. Today those native title holders under the Native Title Act are evidence of their descent from their ancestors and are the living testimony of their prior occupation of their lands and waters.

They and their people proclaim continuing occupation. This land was not, and is not, terra nullius.

The only thing that threatens this is the application of extinguishment written into the Native Title Act. It is more sinister than its existence as a legal mechanism, because in most cases it requires the consent of the very people that hold the Native Title.

This is neither honourable, nor generous.

This is treachery and brings shame to the Mabo name. It belittles the vision and motives of Mr Mabo and the other families who fought and won a seminal victory in the High Court.

The Chief Justice of Australia who heard the Mabo case, Justice Sir Gerard Brennan made this determination on 3rd June 1992 :

  • The common law of Australia rejects the notion that, when the Crown acquired sovereignty over territory which is now part of Australia it thereby acquired the absolute beneficial ownership of the land therein, and
  • accepts that the antecedent rights and interests in land possessed by the indigenous inhabitants of the territory survived the change in sovereignty.
  • Those antecedent rights and interests thus constitute a burden on the radical title of the Crown.

His decision in the Mabo case ruled that:

• the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the island of Mer.

Rejecting the notion of “terra nullius”, native title was found to have survived the acquisition of sovereignty.

Of course the High Court as an instrument of our Constitution cannot rule on the issue of sovereignty.

It took ten long years to resolve the Mabo claim. It is a poignant tragedy that Koiki Mabo did not live long enough to hear the decision of the High Court.

  • To celebrate the recognition of what he knew in his heart and mind to be the truth
  • His country was in Mer.

From our viewpoint in history, we see the Case that bears his name as a major landmark, a signpost for our future. But the road is long and at times the travelling is hard going.

The Mabo decision led to an eruption of controversy and alarm, in much of mainstream Australia.

Mabo was an affront to the security provided by the lie of terra nullius.

The Commonwealth Parliament, in 1993, under the Labor Government of Paul Keating, enacted the Native Title Act.

The Act sought to build on the common law as defined in the Mabo case.The integrity around this today raises serious questions.

In my own State of Western Australia, in which more than half of the land was legally unalienated and mineral rich, the Government objected. The State Parliament in Perth passed a law to extinguish native title from the moment of colonisation and challenged the Commonwealth Act.

The High Court upheld the validity of the Native Title Act and found the Western Australian law to be invalid.

On a personal note, that decision enabled the Yawuru people to pursue our own native title interests and reclaim our country. My brother Mick and I have good reason to be forever grateful to Koiki Mabo and his pioneering vision and courage.

Another major milestone took place in 1996. The High Court in the Wik case found that Native Title and pastoral leases could co-exist.

The pastoral leases were a feature of the colonial period, trying to reign in the peacocking of the best lands by squatters.

  • There was at least some consideration by the Colonial authorities of the rights of Aboriginal people to travel over the leases.
  • Such rights themselves became caveats on the pastoral lease until gradually modified.

The Wik case was a simple matter of concurrent and co-existing rights but with the Native Title rights yielding to the leaseholder if there is a conflict. The public reaction by some sectors was ill informed and disgraceful.

So the generosity of the Court already had begun to harden somewhat in the qualification they put on the notion of “concurrent and coexistent” rights.

The Government of Prime Minister John Howard, could have used this decision as a positive step, as an opportunity for advancing reconciliation.

The Howard “Ten Point Plan” led to the 1996 amendments to the Native Title Act, and in the words of his Deputy Tim Fischer, delivered ‘bucket-loads of extinguishment’.

That legislation was in my view intended to reinstate terra nullius or to remove what Justice Brennan called the ‘burden on the radical title of the Crown’.

As a sweetener they also delivered opportunity previously denied except under a statutory land rights Act.

They opened the opportunity for Agreement Making, which unfortunately is too often structurally tied to extinguishment. Indigenous Land Use Agreements could be negotiated under the Act whereby Native Title Holders and other parties could agree on the use of Native Title lands, for mutual benefit and economic development.

Far too often, the price of that opportunity has been too high, in my view, leading to the extinguishment of Native Title, forever and a day, leaving a lingering burden on the shoulders of the native title holders.

Nevertheless, hundreds of agreements have been negotiated and signed across the nation, especially in Queensland, but also in my state of Western Australia, where an ILUA Agreement for the Noongar people, had been hailed as a major landmark, a Treaty in all but name for the people of the South West.

In the Senate this week, the validation of Indigenous Land Use Agreements has been under debate. There is a tension between law-making in the Parliament, the decisions of the Courts and the aspirations of Aboriginal people to negotiate agreements that retain their rights.

The concept of separation of powers is not always empathetic to the sense of justice held by Aboriginal people.

The Noongar agreement came unstuck with the McGlade decision. With the recent amendments in the Parliament this Agreement will go back to the process of registration, for the Noongars to settle.

At every step, the Labor Party has pushed for consultation on these Bills, through a Senate Committee, through submissions and through consultations with representatives of the Native Title Representative bodies.

At every step, we have remembered the legacy of Koiki Mabo and understand the fact that Native Title rights, now recognised in the common law, should not be changed, extinguished or modified at the whim of Government.

They do not exist as a gift of the Parliament, or an act of largesse by the Government of the day.

Native Title rights are ongoing rights, with deep roots into our common law held exclusively by Native Title holders. Amending legislation should always require the ‘free, prior and informed consent of Native Title holders.

The Native Title Act, much amended over time, has evolved in complexity and function. Koiki Mabo would probably have some difficulty understanding how his vision has become brutalised by Parliament.

The Australian Law Reform Commission, in its 2015 review, Connection to Country, has identified key areas of reform that are yet to be implemented by the Government. Indeed, we still await a formal response from the Government to its recommendations.

From my own perspective, as a native title holder, and now as a legislator, I see five key areas where the functioning of the Act requires rework, not least to better align it to the vision of Eddie Koiki Mabo. These are, in summary:

  • The need to rethink the presumption that an Agreement for alternative uses of native title land requires extinguishment of native title rights;
  • The need to rethink the decision-making process required under the Act;
  • The need to improve the fungibility for native title land without needing extinguishment or loss of communal title;
  • The need to address the rights of compensation for the loss of enjoyment, access and use of Native Title lands.
  • The need to change the onus of proof burden from native title applicants to the Crown
  • The Native Title Act can be refashioned to shift the point of balance towards the ongoing rights, interest, needs and concerns of Indigenous Australians. Doing so would restore the Act to its fundamental purpose: to recognise and protect native title, in the interests of Indigenous Australians, and our shared national future.

Last month at Uluru, in the spirit of constitutional conventions from which we had previously been excluded, many Aboriginal and Torres Strait Islander people gathered.

They set out to deliberate and report back to the Prime Minister and the Leader of the Opposition, through the Referendum Council, on Constitutional recognition.

Their one page document, Uluru Statement from the Heart, issues a series of challenges to the Parliament and the people of Australia.

  • It calls for constitutional reforms to empower our people and take a rightful place in our own country.
  • It calls for the establishment of a First Nations Voice enshrined in the Constitution.
  • It calls for a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

From a Parliamentary perspective, we look forward to the report on those consultations from the Referendum Council at the end of the month. Hopefully working through these issues in the Parliament, in the time ahead, will take place in the spirit of constructive optimism.

To formulate a successful referendum outcome, especially in the next year a bipartisan, indeed, cross party consensus will need to be carefully shaped.

In my personal view, Constitutional reform, a treaty and a strong Indigenous voice have never been mutually exclusive—one does not come at the expense of the others.

• Of course I support an Agreement making process

A treaty or agreement, whether one or many, would be an acknowledgment flowing from the Mabo decision that terra nullius is a discredited, outmoded legal fiction and that this land was taken from Aboriginal people.

It would also pick up the opportunity that was lost when the Native Title negotiations focused solely upon land tenure.

I have never held the view that Mabo was only about land tenure. In fact when my views clashed with the then negotiators I was asked to discontinue any involvement in the process and dutifully left it to those who settled the issues with Prime Minister Keating.

There was no treaty when this land was colonized. In the future a treaty will be a strong step for a mature and harmonious nation. The work of Labor Governments in our States of Victoria and South Australia show it can be done.

Of course we need a strong Indigenous voice.

For too long Aboriginal and Torres Strait Islander people have been denied a voice, excluded from decision making processes about their own lives.

Indigenous people want to reset our relationship with government.

  • We want to be heard.
  • We have been calling for this for a long time.

Working to make a Voice effective within the processes of Parliament and capable of support from the whole Australian population in a referendum is a key challenge. A challenge Labor will consider carefully.

We look forward to more information on how the idea of an entrenched Voice can become a systemic, secure and successful legislative reality.

• We need to address the systemic racism that exists in our nation’s founding document, Australia’s Constitution.

We want our past to be acknowledged and we want to be involved in decisions about our future.

The Uluru Statement called for a First Nations Voice enshrined in the Constitution and a Makarrata Commission to supervise a process of agreement-making between governments and First nations and truth-telling about our history.

Many rejected the  idea of any ‘symbolic’ acknowledgement in what they saw as a racist document, the  Constitution.

This may well have been a statement from the heart.

It is time we acknowledged that Indigenous people were not included in the Constitutional Conventions that were held all over Australia in the lead up to Federation.

The Australian Constitution was written by people who thought Indigenous people were lesser beings; a dying race with no sense of land use and development.

  • The dynamic of racism in Australia is institutional and it is structural.
  • The foundations of racism are entrenched, persistent, in this nation’s founding  document.

The question we need to work through is not about choosing between a treaty, a voice or constitutional recognition.

The question is whether Australia is able to move forward towards reconciliation —be that in the form of a Treaty, or an Indigenous voice enshrined in the Constitution —while the nation’s foundation document remains, in its DNA, a flawed and racist document.

I understand this because I was a member of the Expert Panel on Constitutional Recognition of Indigenous Australians, which was tasked to report to the Government on possible options for constitutional change to give effect to indigenous constitutional recognition and to assess any legal consequence that might flow.

In 2012, the Expert Panel delivered our report , which made a series of recommendations including:

  • a statement of acknowledgment in the Constitution, relevant to the lawmaking power in indigenous affairs (new Section 51 A);
  • a modification to the wording of the Commonwealth’s lawmaking power in

Indigenous affairs (s 51 (26);

  • a constitutional prohibition on racial discrimination (new S 116A); and
  • the removal of a provision that contemplates states disqualifying people from voting based on their race (s 25).

These recommendations recognise that the Government has the power to make laws about Indigenous people, but the laws must be beneficial and give the Parliament guidance.

It would be a mistake to consider this constitutional reform as merely ‘symbolic’.

Nothing about our Constitution is symbolic. There is not even a preamble that could point us to something symbolic.

The words in the Constitution reference powers that the Parliament uses to make laws.

They are words with real power. They are words that guide the Parliament in making laws and the Courts when they judge the validity of those laws.

Changing powers in the Constitution and giving clarification around how such powers can be used is not mere symbolism, “pretty words”.

Having an Indigenous voice enshrined in the Constitution, without amending the Constitution to remove racially entrenched ideologies, is puzzling.

It seems to assume that an Indigenous voice in the Constitution could be strong enough to challenge the entrenched structural racism which shapes the policies and laws that affect the lives of Aboriginal people without removing the racist elements of the Constitution.

We know these policies and laws. They are the policies of assimilation, of forced social and cultural change. These are the policies that continue to remove Aboriginal people from their families, country and culture.

These are the policies that have caused Aboriginal and Torres Strait Islander people to  make up approximately one quarter of Australia’s prison population, despite making up  just 3 per cent of the total population.

These are the policies which have led to Indigenous Australians dying a decade earlier than non-Indigenous Australians.

  • Policies that repeatedly fail Aboriginal people.
  • Policies that Koiki Mabo challenged with his life and would do so today if he were alive.

It is no coincidence that these policies exist alongside a constitution that is the legacy of a colonial settler narrative, a narrative that saw Aboriginal and Torres Strait islander people as lesser beings and Australia as a land belonging to nobody. If we are going to clean up the mess that racism has made in Australia, in the hope that we might one day achieve reconciliation, we have to do it properly and honorably.

The report of the Referendum Council at the end of this month deserves and requires weighty consideration. If the Referendum Council’s recommendations do not get broad parliamentary support it will fail and there will be no referendum.

If there is broad support then, it requires careful consideration of a Bill and Explanatory Memorandum that can pass through this challenging and complicated parliament.

It requires a question that can be put to the Australian people that will pass the high bar of a referendum.

Aboriginal and Torres Strait Islander people will continue to call for a treaty and a strong Indigenous voice if nothing is done.

These calls only highlight the need for constitutional reform.

Australia cannot move forward while our founding document, our birth certificate, embodies our racist past. The stubborn stains in our racist Constitution must be erased.

  • Eddie Koiki Mabo would expect nothing less.
  • Eddie Koiki Mabo was a great Australian.

We can find the Mabo spirit within each of us, and work together to build a great Australia, free from racism, honorable and just.

Kaliya. Thank you.


Aboriginal Health #Referendum debate : At this weeks #Uluru Convention Do #wehavethesolutions ?

” More than 300 delegates will attend the #Uluru Australian First Nations Constitutional Conventioncon against the backdrop of the three big milestones in Indigenous history:

50 years since the #1967referendum

25 years since the High Court’s Mabo decision #Mabo25

and 20 years since the #BTH20 Bringing Them Home report on the forced removal of Aboriginal children.

Finding middle ground:

Twelve delegations from across the country will make their way to Central Australia this week to try to find middle ground on a proposal. Options for change include:

  • Drafting a statement acknowledging Aboriginal and Torres Strait Islander peoples as the First Australians
  • Amending or deleting the “race power” — section 51 — which allows the Federal Government to make special laws for Indigenous people
  • Inserting a constitutional prohibition against racial discrimination into the constitution
  • Establishing an Indigenous body of representatives to be consulted by Parliament
  • Deleting section 25, a redundant clause which says state governments can exclude people from voting in on the basis of their race.

Both leaders will address Parliament on the significance of the anniversaries on Wednesday, take part in the Long Walk to the MCG, and address a lunch before the Indigenous Round game between Essendon and Richmond on May 27, the anniversary of the referendum.

The Uluru Convention promises to be an historic moment in what is a continuing journey for both Aboriginal and Torres Strait Islander peoples and the wider Australian community. ”

This Month see NACCHO Save a Dates for more info

23 May : #BTH20 event is about marking the 20th anniversary of the tabling of the Bringing Them Home report.

 May 23-26 Conference Aboriginal People with Disability

26 May :National Sorry day 2017

27 May : Dreamtime at the G /The Long Walk MCG Melbourne

27 May to June 3 National Reconciliation Week

31 May World No Tobacco Day

 ” Aboriginal people will not accept a feel-good, symbolic stamp on a fundamentally unfair system. The system needs to be improved.

We need to change the way we do business in Aboriginal affairs. Constitutional recognition must mean real reform.

It must create a genuine paradigm shift, or Aboriginal people will reject it

Jeremy Clark and Jill Gallagher, the co-convenors of the Melbourne dialogue.

The long road to recognition

Over the past six months, from Hobart to Broome and Adelaide to Thursday Island, Aboriginal and Torres Strait Islander peoples have reclaimed the movement towards constitutional recognition at twelve historic First Nation Regional Dialogues.

On 23–26 May, on the fiftieth anniversary of the 1967 constitutional referendum, representatives from each dialogue will meet at Uluru for the first Australian First Nations Constitutional Convention. There, they aim to agree on whether and how Aboriginal and Torres Strait Islander peoples might be “recognised” in the Australian Constitution.

Each dialogue has reflected the priorities of the communities involved, but the calls for substantive, structural reform have been consistent.

Some proposals have attracted strong support across the dialogues: structural reforms that provide Aboriginal and Torres Strait Islander people with an enhanced role in Australian democracy such as a representative body with a voice to Parliament and treaty negotiations, and a prohibition on racial discrimination. Also emerging have been calls for a truth and justice commission. Most importantly, the dialogues have agreed that the conversation must not stop at Uluru, and that the First Nation peoples must be involved in negotiating the model of recognition.

The dialogues and the convention are being facilitated by the Referendum Council, a body established with bipartisan support by the Turnbull government. The council’s job is to advise the prime minister and the opposition leader on “progress and next steps towards a successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution.” This is a landmark moment: Aboriginal and Torres Strait Islander peoples are being asked whether they want constitutional reform that purports to “recognise” them, and what shape it should take.

As Patrick Dodson wrote when he was co-chair of the Referendum Council, “Strong support by Aboriginal and Torres Strait Islander peoples for the referendum proposal is absolutely essential. If Aboriginal and Torres Strait Islander peoples do not support the referendum proposal, there is little incentive to proceed to a referendum.”

These dialogues – designed and led by Aboriginal and Torres Strait Islander people themselves – break the pattern of past constitutional deliberations. Aboriginal and Torres Strait Islander peoples weren’t involved in the conventions that drafted the Australian Constitution in the 1890s. In the document itself, they were excluded not only from the national law-making power of the new federal government, but also from the population count that determined the number of seats for each state in the House of Representatives.

The 1967 referendum removed both of those exclusions. But while that vote brought essential reforms, including a national role for the Commonwealth in Aboriginal affairs, it fell far short of achieving substantive equality. Nor did it recognise Aboriginal and Torres Strait Islanders as First Peoples or guarantee them a meaningful role in decisions about Indigenous affairs. The regional dialogue process puts Indigenous people back at the centre of the debate about constitutional change and practical reform.

The process is important for another reason. The concept of “recognition” is far from straightforward, and the failure to acknowledge this fact has led to concerns about the government-funded RECOGNISE campaign. The message of RECOGNISE, which is part of Reconciliation Australia, is expressed in general terms, emphasising explicit recognition in the Constitution and pointing to the possibility of racial discrimination under existing provisions. But it hasn’t been in a position to articulate the form that recognition might take, and what differences it might make to people’s daily lives. In the absence of a clear model, many people in Aboriginal and Torres Strait Islander communities fear that advocating “recognition” will simply build public support for a “minimalist” solution.

A minimalist package would consist of three amendments to the Constitution. The first is the repeal of section 25, which anticipated that states might pass discriminatory laws disqualifying people from voting at state elections on the basis of race, though it penalises any state that does so. Its deletion has multi-party support, as it has had for more than fifty years. It is a “dead letter” in legal and practical terms: no state would now contemplate taking the vote away from Aboriginal people. (In any event, there is a strong argument that to do so would breach the federal Racial Discrimination Act 1975.)

Breaking the pattern: participants in the Ross River Regional Dialogue early last month. Referendum Council

The second minimalist element is a change to the wording of what is known as the “races power” in section 51(xxvi) of the Constitution. This gives federal parliament the power to make laws for the people of any race for which special laws are deemed necessary. When it was introduced in 1901, the power expressly excluded Aboriginal people. The 1967 referendum changed that, for the first time giving federal parliament power to make positive laws for Aboriginal and Torres Strait Islander peoples. A decision by the High Court in 1998 strongly suggested that the power could also authorise laws that are detrimental to Aboriginal and Torres Strait Islander peoples. The minimalist change would not address that possibility; rather, it would remove the word “race” from the Constitution and replace it with a power with respect to “Aboriginal and Torres Strait Islander people.”

The third element is the insertion of a constitutional “statement of acknowledgement.” This would be a statement of facts – for instance, that Aboriginal and Torres Strait Islander peoples were the original occupiers of the continent, that they have a continuing relationship with their land and waters, and that they possess distinctive cultures, languages and heritage.

In the past, there have been calls for such a statement to be included as a preamble to the Constitution – indeed, prime minister John Howard put forward a controversial preamble proposal containing some words of recognition at a 1999 referendum, which was soundly defeated. Today, it is envisioned that such a statement could sit inside a new chapter of the Constitution, or as a preamble to the section giving the Commonwealth power to make laws with respect to Aboriginal and Torres Strait Islander peoples. Such a statement is unlikely to have any significant legal effect, although it might be used to help interpret the scope of that Commonwealth power regarding Aboriginal and Torres Strait Islander peoples.

A minimalist model stands at one end of a spectrum of what recognition might look like. It was emphatically rejected in the Kirribilli Statement, which was presented by forty Aboriginal and Torres Strait Islander leaders to the prime minister and the leader of the opposition on 6 July 2015. That statement read:

[A]ny reform must involve substantive changes to the Australian Constitution. It must lay the foundation for the fair treatment of Aboriginal and Torres Strait Islander peoples into the future.

A minimalist approach, that provides preambular recognition, removes section 25 and moderates the races power, does not go far enough and would not be acceptable to Aboriginal and Torres Strait Islander peoples.

The Kirribilli Statement called on the government to establish a mechanism for negotiations between Aboriginal and Torres Strait Islander people and the government and parliament in relation to more extensive constitutional reforms. It also urged the government to engage with Aboriginal and Torres Strait Islander people over an acceptable referendum process. Soon after, Aboriginal leaders went back to the prime minister to stress the necessity of an engagement process initiated and led by Indigenous people. The government eventually relented, paving the way for the current dialogues.


Further along the spectrum of recognition sit models that provide First Nations peoples with guarantees of political participation, and recognise self-determination and other inherent rights, prohibit racial discrimination and support agreement-making to deal with past wrongs and future empowerment.

The United Nations Declaration on the Rights of Indigenous Peoples, to which Australia is a party, contains two key articles to guide states in their relationships with Indigenous peoples. (Indeed, many Aboriginal and Torres Strait Islander people were involved in the declaration negotiations.) Article 18 reads:

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

Under Article 19, governments must “consult and cooperate in good faith” with Indigenous peoples “to obtain their free, prior and informed consent” about policies and decisions that might affect them.

The welcome ceremony at the First Nations regional dialogue in Hobart. Referendum Council

Countries across the world have recognised First Nations peoples through new structures that promote political participation and self-determination in different ways. In New Zealand, the Treaty of Waitangi, a foundational document acknowledging Māori authority and ownership, influences modern-day legislation, policy and practice and forms the basis for regional agreement-making or settlements; other structural recognition has been achieved through reserved Māori seats in the NZ parliament. In Norway, Sweden and Finland, the Sámi people were granted political representation through the Sámi parliaments, which facilitate consultation between the government and the Sámi on policies and decisions that affect them.

Recognition can take other forms too. Australia, with no constitutional bill of rights, could insert a constitutional prohibition against racial discrimination. This would extend the protections offered by the Racial Discrimination Act 1975 and be binding on federal parliament. Governments could negotiate agreements or treaties with Aboriginal and Torres Strait Islander peoples, recognising their status as First Peoples, providing reparations for past injustices, settling outstanding land issues, transferring decision-making authority, and facilitating economic development in Indigenous communities. No constitutional reform would be required to enter into and legislate for such treaties, although their status could be enhanced by constitutional reform.

The Referendum Council isn’t starting from scratch in considering these issues. It has been directed to build on work undertaken by two inquiries, one conducted by a panel of experts and the other by federal parliamentarians.

The Expert Panel on Constitutional Recognition of Indigenous Australians consulted widely and made five recommendations for constitutional reform in early 2012. While a statement of acknowledgement was among the recommended proposals, the panel stressed the importance of a package that also included substantive legal change: a constitutional prohibition on racial discrimination that would bind all governments across Australia. Its report also considered forms of recognition that would have given greater political participation to Aboriginal and Torres Strait Islander peoples or would have prioritised treaty negotiations. The federal government has never formally responded to the panel’s report and recommendations.

The parliamentary Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, led by Ken Wyatt MP and Senator Nova Peris, looked at the issue in 2014 and 2015. Its final report contained a number of options, each of which would have restricted the power of the Commonwealth to pass racially discriminatory laws against Aboriginal and Torres Strait Islander people. The report considered the recommendations in the Expert Panel report, and referred to alternative models that had subsequently emerged. One of these was a proposal for a constitutionally enshrined body to advise parliament on proposed laws that affect Aboriginal and Torres Strait Islander peoples; others included measures to promote self-governance, structural reform incorporating a Council of Elders, reserved seats in the Senate, and progressing a treaty through constitutional change. Again, there has been no formal response to this report.

It’s important to remember that well-developed plans for recognition pre-dated these two bodies by more than a decade. For example, the 1988 Barunga Statement, presented to prime minister Bob Hawke by Aboriginal people from Central Australia and the Top End of the Northern Territory, demanded the recognition of Aboriginal rights, including the right to self-determination and self-management, to land and compensation and to basic rights enshrined in international law. The statement called on the Commonwealth to pass laws to create a nationally elected Aboriginal and Islander organisation to oversee Aboriginal and Islander affairs, a national system of land rights, and reforms to the policy and justice system.

The Barunga Statement also called on parliament “to negotiate with us a Treaty recognising our prior ownership, continued occupation and sovereignty and affirming our human rights and freedom.” Advocacy for greater empowerment in the 1980s led to the creation of the Aboriginal and Torres Strait Islander Commission, or ATSIC, in 1990, but the Hawke government backed down on its promises of national land rights and a treaty.

Following the High Court’s watershed 1992 decision in the Mabo case, prime minister Paul Keating delivered the Native Title Act 1993 and a national land fund, and promised a social justice package. In 1995, in response to that third limb of the response to Mabo, an ATSIC report, Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures, reported “overwhelming support for the reform of the Constitution especially in relation to recognition of indigenous peoples.” It recommended that government fund a constitutional reform process canvassing the opinion of Indigenous communities, and facilitate local conventions and negotiations at which Aboriginal and Torres Strait Islander people were adequately represented. ATSIC also urged the Commonwealth to investigate reserved seats in parliament. The Keating government didn’t proceed with many of these ideas before it lost government soon after, in 1996, and the proposals were dropped by the incoming Howard government.

Fresh calls for constitutional reform came when the Council for Aboriginal Reconciliation issued its final report, Reconciliation: Australia’s Challenge, in 2000. As part of its roadmap to reconciliation, the council recommended that parliament prepare legislation for a referendum to recognise Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia, including the introduction of a constitutional clause prohibiting adverse racial discrimination. The council also called for governments across Australia, including the Commonwealth, to advance reconciliation through an agreement or treaty process. Almost two years later, the Howard government rejected the treaty process and the push to include a non-discrimination clause in the Constitution.

The 2007 federal election provided new impetus for constitutional recognition. On the eve of that election, John Howard announced that, if he were re-elected, he would move within eighteen months “to formally recognise Indigenous Australians in our Constitution, their history as the first inhabitants of our country, their unique heritage of culture and languages, and their special (though not separate) place within a reconciled, indivisible nation.” His proposal was for a minimalist model of acknowledgement contained in a preamble, though he also used more ambitious language when he described this as the cornerstone of a “new settlement.”

After Labor’s election victory in 2007, prime minister Kevin Rudd made a formal apology on behalf of the government and the parliament to the Stolen Generations and for other past wrongs. But it was not until Julia Gillard’s election victory in 2010 that the Expert Panel on Constitutional Recognition of Indigenous Australians was established to advance the cause of constitutional change.

Today’s calls for constitutional reform to recognise Aboriginal and Torres Strait Islander peoples are made in a changed political and legal environment. The Howard government abolished ATSIC in 2005, leaving Aboriginal and Torres Strait Islander peoples with no national representative body. As Indigenous writer Natalie Cromb has observed, “ATSIC was not without its problems, but to see the governmental power in stripping all representative and legislative rights and powers from Indigenous people in one fell swoop demonstrated just how Indigenous people are at the mercy of the government.”

Today, the National Congress of Australia’s First Peoples strives to be a voice for First Nations Peoples in Australia, but its work has been hampered by lack of adequate funding. The prime minister’s Indigenous Advisory Council operates as an advisory panel rather than as a representative body. Across Australia, state constitutions have been amended to include statements of acknowledgement of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia. Many of these contain a “no legal effect” clause – a “give with one hand and take away with the other” approach that, for many, undermines even the symbolic significance of the language. The Commonwealth parliament has passed legislation acknowledging Aboriginal and Torres Strait Islander peoples as the first occupiers of Australia, and their continuing relationship to their land and waters, and their continuing cultures, languages and heritage.

There are also signs of more ambitious plans. In Victoria, the state government has been working with Aboriginal communities since 2016 on how a treaty might be negotiated. The South Australian government has appointed an independent treaty commissioner to draft a framework for treaty negotiations. The Northern Territory has established a cabinet sub-committee to promote public discussion of a treaty.

Meanwhile, the dramatic loss of funding and jobs in Indigenous organisations following the federal government’s Indigenous Advancement Strategy, community distress at alarmingly high rates of youth suicide and incarceration, the threatened closure of remote communities and other intensely experienced local issues add to the complex contemporary political environment in which the regional dialogues have taken place.

The First Nation Dialogues took their present shape after a series of meetings with Aboriginal and Torres Strait Islander leaders across the country. A leadership forum followed, and the dialogue methodology and agenda were finalised at a trial dialogue.

In each location, the Referendum Council partnered with a land council or another local host organisation. The host organisation and convenors selected around one hundred participants according to a formula of 60 per cent representation of the land owner base (traditional owner groups, native title bodies and so on), 20 per cent representation for local community organisations, and 20 per cent representation for key individuals. Gender and demographic balance, and representation for the Stolen Generations was also a focus.

Each of the dialogues took place over three days. They were facilitated by two local convenors assisted by five local working group leaders, who led and reported back from breakout groups throughout the dialogue. The carefully planned agenda included opportunities for the Referendum Council to provide delegates with information about the history of constitutional reform in Australia, as well as the different forms that constitutional reform might take. Civics education and foundational legal and political information were provided to assist in the discussion of options for reform, during which delegates had an opportunity to tell the Referendum Council what substantive and meaningful recognition would mean to them and their communities.

Small group discussions provided delegates with an opportunity to understand the different reform options, to consider their possible benefits and disadvantages, and to look at alternative proposals. The delegates were asked what their preferred form of recognition would look like. At the end of each dialogue, the delegates confirmed a statement of record of their discussion, and selected ten people to represent the dialogue at Uluru.

The proposals that attracted strong support – treaty negotiations, an enhanced role and voice for Aboriginal and Torres Strait Islander people in Australia’s democratic system, a prohibition on racial discrimination, a truth and justice commission – all build on decades of consultations and inquiries. They embody the political advocacy of Aboriginal and Torres Strait Islander campaigners stretching back into the nineteenth century. They reflect Australia’s international obligations, and they mirror structural reforms that have been achieved in other countries.

The Uluru Convention promises to be an historic moment in what is a continuing journey for both Aboriginal and Torres Strait Islander peoples and the wider Australian community. •