Late last week, the Turnbull government officially rejected the Referendum Council’s proposal to change the constitution to create an Indigenous representative body, which would advise Parliament on decisions relating to Indigenous affairs.
The Referendum Council’s recommendation followed on from the Uluru Statement from the Heart, made at the Uluru National Convention earlier this year.
The government said in a statement that the “radical” change to the constitution was undesirable and would be unlikely to return a ‘yes’ vote in a referendum.
“Our democracy is built on the foundation of all Australian citizens having equal civic rights – all being able to vote for, stand for and serve in either of the two chambers of our national Parliament – the House of Representatives and the Senate,” the government said.
“A constitutionally enshrined additional representative assembly for which only Indigenous Australians could vote for or serve in is inconsistent with this fundamental principle.
“It would inevitably become seen as a third chamber of Parliament. The Referendum Council noted the concerns that the proposed body would have insufficient power if its constitutional function was advisory only.”
However, Gilbert + Tobin managing partner Danny Gilbert AM, who has been an outspoken advocate for Indigenous constitutional recognition, told Lawyers Weekly the proposal was not about establishing a third chamber of Parliament.
“It is not a third chamber,” he said.
“It is, in my view, misleading to suggest that this is a third chamber. It’s never been put forward as one, it’s been put forward as an advisory body only.”
Professor Adrienne Stone, the director of the Centre for Comparative Constitutional Studies at the University of Melbourne, said the proposed advisory body was consistent with the Australian constitutional tradition.
“I think you could describe the Australian constitutional tradition as tending to prefer procedures over either symbolism or strong statements of rights,” she said.
“This proposal didn’t, for example, include a new symbolic preamble or special rights for Aboriginal and Torres Strait Islander people, or even a prohibition against racial discrimination, which had been, of course, proposed at one earlier point by an expert panel that prime minister Gillard had set up.
“What it actually proposed was for a consultative body, and that seems to me to be consistent with what I take to be our general preference in Australia not to proceed by way of symbolism and rights, but rather to trust our processes.
“So I actually don’t understand why the press release from the Prime Minister’s office … took this proposal somehow to be a violation of the principle of ‘one vote, one value’.
“The proposed consultative body was not a body that would have had the powers to make laws or the power to demand anything in particular of the Parliament, except that it be consulted. It was just a constitutionally enshrined process that would ensure that Aboriginal and Torres Strait Islander people were properly included in the law-making process.”
To the government’s assertion that a referendum would not be supported by the majority of Australians, both Professor Stone and Mr Gilbert said this was the time for strong political leadership.
“If we keep jumping to the conclusion that referenda will not succeed, we will never have constitutional change,” Professor Stone said.
“Given that we have this extraordinary act of self-determination by this broad-ranging process [the Uluru Statement from the Heart], what’s incumbent upon Australia’s political leaders is to make it happen.
“It would be one thing if this was a highly unrealistic, radical proposal, but it wasn’t. So I think what we need is for governments to seize the day and show some leadership.”
Mr Gilbert said both sides of politics could unite to promote a ‘yes’ vote in a referendum.
“If the Prime Minister and his government, in unison with the leader of the Opposition, were to speak to the people … and took people with them and took them on the journey, and did the normal things that politicians do to bring people on side – they’re used to it, this is their job. They do it every time they go to the election,” he said.
“The fact is that it would appear that they don’t think it’s important enough to put the effort in.
“I think it’s a problem for the Prime Minister and the issues of does he have the political capital to do it, etc, but nonetheless, this was a moment in history when it should have happened.
“I think it’s a very poor outcome for the nation. As Noel Pearson said, it’s broken the heart of Indigenous people.”
In an address at the Sydney Institute last week, before the government made its formal announcement, Mr Gilbert also addressed the idea that an advisory body could be created without changing the constitution.
“Some say a preferred approach would be to establish the body by statute, and if it works well, then make the constitutional change,” he said.
“What I say to this is that institutional change takes time to work well. There will be ups and downs for sure. But for God’s sake, our own parliamentary democracy hardly works well after more than 300 years of effort.
“What’s more, this approach tells Indigenous people that they are not worthy of our trust and confidence to make it work, even if it takes time. A further defect of this statutory-first approach, or statutory-only approach, is that such a body could be abolished by the Parliament. It would give no guarantee of the stability of the body itself.”
Mr Gilbert told Lawyers Weekly the government’s decision was a “terrible outcome”.
“In every state and territory there is a minister for Aboriginal affairs, there is a bureaucracy controlling and directing the lives of Indigenous people, and they are a minority,” he said.
“No other group in Australia has suffered their history and in their position. They are the original inhabitants of this land. They deserve better.
“They deserve recognition in the national landscape in the form of our constitution and they deserve to have a voice in the decisions that are made about them.”