Constitutional recognition – so what?

Mal Brough, Professor Garth Nettheim and Alison Page , 8 July 2011

In the first years of the US Supreme Court, the Marshall decisions acknowledged Indian title and a degree of Indian sovereignty. US law still recognise the right of internal self-government and a degree of sovereign immunity in Indian nations, especially on Indian lands.

Canada did not follow US jurisprudence recognising a degree of Indigenous sovereignty, but a process of negotiating treaties continues to this day, plus some constitutional and common law recognition of an inherent right to self-government. The Constitution Act 1982 is very important in this regard. Federal government policy has been in those years to negotiate self-government for Indigenous peoples on Indigenous lands with respect to a wide range of matters. Some of the treaties have been very important such as Nunavut, which took a big chunk of what used to be the North-West Territory and made it a self-sustaining territory with an Inuit majority in the Canadian Federation.

As to New Zealand, in the treaty of Waitangi in 1840, Maori ceded authority in return for protection of their exclusive possession of their lands. But over the years Maori rights were read down but it was given a fresh leaf of life in 1975, extended in 1985, though solely on the basis of statute.

In Australia there was no such consent - no treaty, no recognition - but there has been a considerable degree of recognition of Aboriginal and Torres Strait Islanders since the 1960s, as Alison pointed out, particularly with the enactment of land rights legislation together with some constitutional changes - notably the very important referendum of 1967. A further and major breakthrough was the High Court decision in Mabo in 1992. In Mabo, the High Court took into account judicial precedents from other lands to hold that Australia’s inheritance and common law included recognition of Native Title. It also drew on principles of international law. The decision was followed by legislation with the Native Title Act.

The focus has now shifted to constitutional recognition. It’s now 110 years since the commencement of the Commonwealth of Australia Constitution Act, a British Act of 1900. One notable feature of the constitution is the procedure for amendment which makes things very difficult. As Alison pointed out, out of some 44 proposals put to the people in referenda, only eight have succeeded. First of all, the proposal has to be put before the people and has to be passed by an absolute majority in both houses of parliament and then submitted to a referendum. At the referendum it has to be approved not just by a majority of voters overall but also by a majority of voters in a majority of states. Then, if it succeeds, it is presented to the Governor-General for Royal Assent. So that is one feature.

Another feature was the race power as originally enacted. It gave power to the Commonwealth parliament to legislate with respect to section 51 (xxvi): ‘The people of any race, other than the Aboriginal race in any state for whom it is deemed necessary to make special laws.’ In the 1967 referendum, the proposal to delete the words ‘other than the Aboriginal race in any state’ was supported by an unprecedented 91 per cent of the voters. The amendment was motivated by a belief that Indigenous Australians would be better off if not left subject solely to state legislation.

The other proposal accepted by the voters in 1967 was to delete section 127 altogether. Section 127 provided:

These two provisions were the only references in the constitution which specifically refer to Indigenous Australians and had been negative. Section 25 is an important provision, but I won’t go into that now. Other proposals have been put over the years. One of the research brochures put out by Megan Davis and Dylan Lino for the Indigenous Law Centre project for the University of New South Wales has listed some eight previous authors of proposals since 1983, and I won’t go into all those at this stage.

The proposals for further constitutional change have come to a peak over the past couple of years in particular, and a range of bodies have been considering the matter. I will mention a few. First, I note that last year Prime Minister Gillard announced her support for constitutional recognition and her intention to establish an expert panel to identify suitable changes. And on the eve of the 2010 election it became clear there is a strong degree of cross-party support for a referendum in the near future - during the life of this parliament or at least before the next election. The time is ripe. It remains to identify specific proposals and to select those which have a reasonable chance of success. Otherwise failure could set the cause back for another decade or more. A critical element this time around is that Aboriginal and Torres Strait Islanders must be fully engaged in the process and preferably be given the chance to decide for themselves the terms on which particular proposals are to be couched.

I mentioned the Indigenous Law Centre project. They have talked about half a dozen of the most frequently suggested amendments: a non-discrimination provision, a new preamble, amendment or deletion of the race power and deletion of section 25. In addition two others, a provision for agreement making between Indigenous people and the state; and recognition of pre-existing Aboriginal land rights or Native title. They propose the first four from that list.

In April this year, the Law Council of Australia released a 35-page discussion paper called ‘Constitutional recognition of Indigenous Australians’. I strongly recommend that as a highly useful source of information. The Law Council is seeking submissions in response to its discussion paper by 31 August. In the mean time, in two weeks time here in Canberra it will hold a discussion forum at Old Parliament House, which should be quite interesting. The discussion paper identifies five issues and provides excellent background on them: preamble, section 25, section 51 (xxvi), equality and non-discrimination, and constitutional conferences and agreements.

There is an important paper put out earlier this year by Mick Gooda from the Australian Human Rights Commission called ‘Constitutional reform: Creating a nation for all of Australia’. This, too, is an excellent source of information and ideas.

ANTaR, the Australians for Native Title and Reconciliation, has been providing good running commentary plus access to download attachments from various sources. I received a very useful mailing for ANTAR only yesterday.

Lastly, the expert panel released their own discussion paper in May 2011 entitled ‘The national conversation about Aboriginal and Torres Strait Islander constitutional recognition’. That, too, is very well worth looking at. It’s being discussed around the country by Alison and by other members of the expert panel. In the mean time, the world is watching via such processes as the special rapporteur or through the Universal Periodic Review of nation reports, and so on. Let’s hope we get things right this time around. Thank you. [applause]

DAVID SPEERS: Garth, thanks for that. I am sure there will be some who want to explore the background and what sort of question would be likely to get up in this context. Many of you would recognise our next speaker Mal Brough. In the Howard government he was the Minister for Family and Community Services and Indigenous Affairs. He was the architect and certainly the public face of the Northern Territory emergency response, better known as the intervention, the package of measures that was implemented just before the Howard government lost office following the report of high rates of child sexual abuse in particular in Northern Territory remote communities. Mal Brough has now declared this intervention policy a failure under the Gillard government given we have seen escalating levels of violence in some of these communities. He continues to call for a zero tolerance approach on alcohol, drug and welfare dependency. Please make Mal Brough welcome.

MAL BROUGH: Thank you very much, David. To the elders, thank you very much for the warm welcome to your country. It’s great to be back here in Canberra and to this esteemed location. Tonight is supposed to be a conversation so the last thing I want to do is be seen to be speaking at people. I just want to share with you some of my views and my feelings on this issue and perhaps get people to think a bit about some of the unintended consequences about where we are going.

Let me say at the outset something that is really clear: to me it’s appalling that we are even having this discussion. I said this to my wife on the way down in the plane and she said, ‘This should have been done 110 years ago,’ and it should have been. It shouldn’t even be an issue for us. I think it’s a reflection on us as a people that it is. It’s a reflection that we didn’t count people, that we saw one person lesser than others, that we didn’t let people have a vote and that we thought that that was somehow appropriate. It won’t be long before university students look back and go, ‘I don’t believe that’s the country that I am part of that was just a generation ago even having to have this debate.’ Let me make it very clear and unambiguous - even to the media, David.

DAVID SPEERS: I am taking notes.

MAL BROUGH: Good, he is taking notes. It hasn’t helped in the past.

I don’t know what form this will take. It’s great that we have a constitutional law expert here because I am not a lawyer. I have no legal training. But I know what’s right and right in my heart and I think is right in the heart of most Australians that there needs to be a recognition of the reality - the indisputable fact that Aboriginal and Torres Strait Islanders are the first people of this nation and that they should have a very important part to play in the document that really governs us, which is our constitution.

Alison pointed out only half of the population know what a constitution is - I am surprised it’s that high. I have asked learned people: tell me how big is the constitution - it’s this big. It is about that big if you print it on big sheets there is about four pages. But it’s so important. The fact that it’s hard to change is not a bad thing, it’s a good thing, because it means we are going to have to focus on it.

Let’s talk about focusing on the constitution because I think it will get through. I hope that, through the discussions the expert panel is having right now, it comes back with something that no-one other than a few ratbags will find cause to argue with and we can just move on. If we can just do that, that’s great.

However, here are the issues that I want to have people think about. Most of us are pretty busy in our lives. We are all focused on this carbon tax thing that David talked about, and I promise you I am not talking about a carbon tax. It’s a reflection of wanting to live and wanting to get on with our own lives, and getting our own children, our own parents and our own grandparents to a place where we feel safe and secure. Thinking about the disadvantage that other Australians have, whether it be in the field of disabilities or whether it be in the field of Indigenous affairs, is something that doesn’t exercise many people’s minds on a day-to-day basis. But when it does on a question like this, or the sorry question, or the referendum, for too many people I fear - I don’t know; I fear – that they go: ‘That’s good. We have fixed that now.’ Therefore, they go back to the own important things in their own lives and try to get on with it. That is a problem.

I hear it day to day when people stop me in the street to say, ‘Aren’t you pleased what’s happening with the intervention? Aren’t you pleased that’s all fixed?’ I go, ‘If you think the disadvantage that these people is still suffering today is fixed, yes, it’s bloody great. But it’s not.’ Just because it’s not in the media and it’s been dealt with doesn’t mean that people’s lives have the same right to flourish as yours, mine and our children’s do. I worry that for mainstream Australia they will see ‘job done’. It is important. It is symbolism. It’s very significant symbolism but it’s not job done. I think we have to underpin this discussion with ‘we can walk and chew gum too’ and there is an enormous amount of things that still need to be done to give people hope, aspiration and a chance in life, which are not being done today.

The second group that I want to discuss are the people who this is all about: the Aboriginal and Torres Strait Islander people of this country. The ones that I have unashamedly focused on more than any other are those in the remote parts of this country, the ones who don’t have access and haven’t had access to a decent education, a decent diet, let alone decent health care, and who quite frankly often still live in conditions that people would find appalling if only they could go and see it for themselves but it seems to be somewhere else. Alison, I don’t want to talk about negatives and I share with you your passion for wanting to be positive, but too many people just don’t understand that these things in our country and in our back yard. For those children, this won’t change the circumstances in their life. As important as it is to us and to us as a nation, it won’t change them. I don’t again want too many people to use this as an excuse or as a crutch or as an alternative to taking meaningful action.

The third group I want to discuss is one that I was a breed of - politicians. Yes, I can be quite cynical about people’s motivations because I know it has been a deliberate policy of both the Rudd and the Gillard governments to keep Indigenous affairs out of the media, and I think it’s wrong. I don’t mean they need to be out there harping every day about negativities et cetera but I think we need to have a discourse with the population that engages people in Sydney, Melbourne and Brisbane as much as in the remote parts of the country about the challenges that face people around the nation not in any exclusive locality. Keep saying: ‘We are working on it. We haven’t got it right. There is more to be done. But we need you to be part of that solution.’ We seem to not want to face that. I don’t want to see this become an opportunity for politicians also to put the cue in the rack and say, ‘Haven’t we done a great job?’ because we haven’t. We have done an appalling job and we need to do so much more.

So ladies and gentlemen, as part of my discourse with you and sharing my views, I am unambiguous in saying that, whatever form this take, I trust that the legal fraternity will get it right. I know that’s a big statement but I think there’s a lot of good will. The papers referred to from the Law Council and others are insightful and instructive, and more people need to see them. But let’s not kid ourselves: the average Australian is not going to think about this until the last moment when they will turn up at the polling booths and say, ‘What are we voting for?’ All we need them to do is to have in their heart that this is another positive step forward. But if at the same time we can share and have them thinking that this is not the end of the road for disadvantage, that this is not going to fix those individuals who are racist, those people who deny the past and will deny children a future, simply because it’s too easy for them to close their eyes and their minds to what the reality is.

I believe the people sitting here in front of us today have just as important a role to play via social media and via conversations to share the conversation that you have heard tonight, to share what is clearly your passion for this but to get the equation right. Let’s let it happen; let’s make it happen; but let’s not do so at the expense of the practical measures we all need to take in our own lives, in our own communities, in our governments and in our nation to ensure that the next generation of Aboriginal and Torres Strait Islanders have more as a group of Australians to look forward to than some of those that many of us have had the despair of seeing over the last 50 years. [applause]

DAVID SPEERS: Mal Brough, thank you very much for that. A lot of food for thought and a lot to pursue so please think about questions you want to ask. I will kick things off: Alison, you said that recognition in the constitution is an opportunity for a big leap forward. What difference is it going to make in the lives of Indigenous Australians?

ALISON PAGE: I think we can throw all the services and all the money at Indigenous disadvantage in communities to try to solve the Aboriginal issue. But really if you are throwing it at people who are broken, who are downtrodden, who have no sense of hope for the future, who feel like they have no control over their own lives – then I think all you are coming up with bandaid measures.

DAVID SPEERS: What does this do?

ALISON PAGE: This is a fundamental shift in the attitude of the whole country towards the whole ‘Aboriginal’ issue in actually saying ‘Let’s just change this from a negative to a positive’, let’s start by recognising your heritage and your culture. The very next day after we have had recognition, I want a young Aboriginal person to spring out of bed and look in the mirror and be proud of who they are. Even though they are going to need a lot of energy to tackle the issues they are facing, their parents are facing, and their brothers and sisters are facing every day, they are going to have at least the energy, the hope, the sense of pride and the determination to be able to pull up their own sleeves and solve their own problems.

DAVID SPEERS: Is it going to do that? I know you have been part of the expert panel. I want you to tease out what is coming up in the consultation process. There has been a lot of consultation around the country and in a lot of remote communities in particular. As you pointed out in your speech, 50 per cent of the Indigenous population is younger than 19, which is pretty staggering for us to think about - we are talking about kids here. How much attention are they going to pay to what’s in the constitution?

ALISON PAGE: Surprisingly - there is a lot of young people in the audience tonight - there has been a lot of young people, Aboriginal and non-Aboriginal people, who have been engaged in this whole debate. From our polling we have learnt that they want to inherit a modern Australia that actually starts to look at things in a different kind of light and in a more positive light.

DAVID SPEERS: Do they see themselves as second-class citizens?

ALISON PAGE: Young Aboriginal people?

DAVID SPEERS: Yes.

ALISON PAGE: I think with all the messages they get - what you don’t hear about in the media are people like me in my age group. Like NAIDOC when I was growing up, Mum used to pull me out of school and we would go marching down the main street of Coffs Harbour as a big protest - it was so embarrassing. But now NAIDOC this week all over the country there are all these amazing celebrations that are happening and I can just see there is an incremental change. But the power of the nation actually turning around and saying, ‘Your culture and your heritage that you are the custodians of has an enormous value to us and to our story.’ It’s very important. It’s part of us and who we are as a nation. Can you imagine the kind of pride they would have? Instead of hearing about the fact that this disadvantage is something they need to overcome; that what it means to be Aboriginal is ‘I am going to probably be on welfare payments’, ‘I am probably going to live on an Aboriginal mission,’ ‘I am probably going to be pregnant by the time I am 16,’ and all of these things, they are hearing the really positive stories of people my age and our colleagues. I am having a great life working in Aboriginal architecture. When I first heard that phrase, I said ‘Aboriginal architecture’, are you kidding me? What a provocative term! These are the things no-one has really heard. I have lived this for 15 years. But that story is not there and that’s what needs to get out there.

DAVID SPEERS: You raise a really interesting issue and I think it’s a fair cop for the media that we don’t focus enough on the positive stories. I agree with that 100 per cent. But your story isn’t typical of a lot of the stories that are real amongst Indigenous Australians -

ALISON PAGE: No,I disagree with that.

MAL BROUGH: It is typical. There is a lot of those stories – there are thousands of those stories.

ALISON PAGE: Exactly. A lot of people may say, ‘You’ve probably been brought up with access to education.’ I was brought up in a family of six girls with a single mother, and the starting point of my story is the starting point of the story of every Aboriginal person.

DAVID SPEERS: Tell me about it.

ALISON PAGE: It’s single mother, six kids, food parcels from St Vinnies - all of the other stats were stacked up against me.

DAVID SPEERS: You mentioned a turning point where you went from being ashamed to being so proud of your aboriginality. What was it?

ALISON PAGE: It was when I met some other Aboriginal people my age that were just starting to feel a sense of pride in themselves as well. I think the camaraderie that we felt as group where we were like ‘this is good.’ It doesn’t have to be us out there shouting in the streets or shouting protest kind of messages. We could engage with other people around us and our non-Aboriginal friends around us and engage in: what are the Aboriginal cultural values? We are really starting at that point. I didn’t have the wise old grandmother that took me away and told me all of the cultural values. They are things that have unfolded to me throughout my story.

DAVID SPEERS: Over time. I could keep asking you questions all night but I want to bring in the other panellists as well. Mal Brough, you were seeming to suggest – in fact, your words were that this shouldn’t be a crutch for inaction. Are you saying there is a danger that we focus too much on inclusion in the constitution and we take our eye off the ball of closing the gap on disadvantage?

MAL BROUGH: There was a time when, if I had been asked to be in this forum, I would have been opposed to this simply because I think it would have been a distraction because that is what politicians do. Politicians love distractions. As I said, I am cynical and I think what was the motivation here? But I don’t care. You take it on face value or not. This is important. It needs to happen.

DAVID SPEERS: Walk and chew gum, you said.

MAL BROUGH: Yes, walk and chew gum. I don’t think there is a government in the country doing enough - and closing gap is not a policy, it’s a slogan. There is no policy there. It could even called an aspiration, if you want to be generous. But I am not here to be political. It’s not a policy so let’s get over that.

I love Alison’s enthusiasm and passion for what you want to see happen. It’s not the reality of what kids will wake up with, unfortunately, and what I am saying is that’s our aspiration of what we want to see them do, feel and be - but that won’t be their experience. This isn’t going to change that but it doesn’t mean it shouldn’t happen.

My whole argument, David, is: don’t sit there and say, ‘Aren’t we great us whitefellas? Look what we have done, we have given those blackfellas some recognition and the world is great.’ No, the world is not great. The world is actually damn terrible for a lot of people and a lot more needs to be done as well as giving them recognition that should have been there from day one. And as was pointed out it was taken in such a way by good Captain Cook not even to have followed orders - as a former Army officer, for not following orders, it’s a wonder he wasn’t hung, drawn and quartered – but he didn’t. We can’t fix those things. But we can deal with something today to get the balance; that is, show the positive stories but not the expense of closing your eyes to the pain and deprivation that is there.

DAVID SPEERS: Garth, you spoke about the history of dealing with these treaty issues, and of course there is a history on this question as well. In 1999 there was a referendum, which everyone remembers as the republic referendum. But there was also a question put up that few people seem to recall now on Indigenous recognition in the constitution, and it was defeated. Why did it fail?

GARTH NETTHEIM: I think it failed partly because of the republic issue.

DAVID SPEERS: It was conflated too much?

GARTH NETTHEIM: Which divided those who favoured the republic into two categories depending on how they saw it being achieved. So that looked like a failure and was a failure. Also the problem with the preamble recognition was that the wording had not been carried through and consulted about to everybody’s satisfaction. The critical thing, which has to be addressed in any further attempt to change the constitution, is that it’s critically important that Aboriginal and Torres Strait Islander people should be fully engaged in the development of a proposal, and particularly in the wording of it. It should be apparent that the wording proposed has the support of major Aboriginal and Torres Strait Islander peoples as well as principal organisations like the new congress which is taking shape at the present time. So certainly this time around I would hope that any ideas which are being floated and developed on the basis of the proposals which I talked about, the wording or the concepts at least have to be put before Aboriginal people so that they can have the opportunity to come to conclusions about it. The work of the expert panel in particular is very important.

DAVID SPEERS: A big part of that consultation. I want to get to the wording shortly and what words are important.

MAL BROUGH: What is the bigger question is: what happens if the Aboriginal community, which is as diverse as everyone else, can’t agree on either the format, the words or the process?

DAVID SPEERS: Alison, it may be a question for you there.

ALISON PAGE: We are having a national conversation now around how best to recognise Aboriginal and Torres Strait Islander people in the constitution. One of the things that the panel is focusing very heavily on is consultation with the Aboriginal and Torres Strait Islander community. The conversation is varied. The opinions are broad, but one thing that everyone agrees on is that it is a positive step forward.

DAVID SPEERS: But if there can’t be agreement on the words, what do you do?

ALISON PAGE: I think the consultation process has to look at testing out these things and testing out some words. But ultimately what I love about the conversation and what is really engaging about the conversation is - it’s engaging not only Aboriginal and Torres Strait Islander people but the broader community as well - what do we hope to achieve out of it? Actually the conversation is about what is going to happen in 20 or 25 years time and what kind of effect this will have. If it’s seen in the context of a whole range of other steps that will happen and will follow as a consequence of that. I think that goes back to what you are saying that it can’t be seen as the silver bullet. It’s not a step unto itself; it’s part of a continuum.

DAVID SPEERS: Another tricky question for you guys: what if you get to the end of this process and you fear that a referendum question would be lost, do you still go ahead with it or do you pull back?

ALISON PAGE: No. What is so fantastic about the opportunity to have this national conversation is that we are planting a seed here and we suspect that the weather is good for that seed to take root.

DAVID SPEERS: To make it happen and Garth back to you -

ALISON PAGE: But if the weather is not good, and we can only predict it as well as any other weatherman, now is not the time.

DAVID SPEERS: Don’t do it. And as we know with the republic question, if a referendum goes down, it’s a long time before the question comes back again. It’s 12 years now -

ALISON PAGE: Yes, but we have been waiting for over 200 years. We can wait a bit longer - get it right.

DAVID SPEERS: As you point out though, one of the reasons it was lost in 1999 is that it was tied up with the republic question. The government also wants to include local government in the constitution and that would be a referendum question as well. There is the question about whether you put this up in an election or whether you have a separate referendum to deal with this. What do you think, Garth? Does this need to be on its own not tied up with any questions about changing the constitution; and does it need to be separate from a federal election?

GARTH NETTHEIM: I think probably it does - a lot depends on how you go about developing a particular proposal and set of proposals. If you take this consultation process and follow it through widely, particularly on these issues, if you get the Aboriginal and Torres Strait Islander people’s actually and principally involved, then once you know you have something which has general support, I would think it’s possible to combine a few issues together.

DAVID SPEERS: Would the local government one, for example, be a problem in this issue?

GARTH NETTHEIM: It could be. It just depends on how the preparation goes.

DAVID SPEERS: What do you think, Mal?

MAL BROUGH: I think that a Noel Pearson, Pat Dodson or Lowitja O’Donoghue – I’m not saying for one moment they would; don’t get me wrong; don’t read anything in this - people that are big personalities that people listen to could potentially derail it because they went in a different direction. If you then wrap that up with other proposals, and you don’t know those things – if you go back to the referendum on becoming a republic, well the general public wanted to become a republic but some people said it was very interesting politics by somebody that made a question -

DAVID SPEERS: Who may or may not have been your boss at the time.

MAL BROUGH: That split the people. So you could have Aboriginal Australians on two sides of the argument. Then people get confused because they won’t invest the time. I am talking about the great populace: ‘If he says or she says, maybe I shouldn’t.’ The arguments are it costs too much. I think your point is absolutely right. After all this time, give me a break, it deserves to stand alone on its own; it deserves to be the centre of attention; it deserves to get the media and public’s attention and to be dealt with; and in my view it should be done outside of an election campaign when you are going to get all of the noise of the 24-hour news cycle and this just gets lost. Then they turn up and they go, ‘I have given you a third bit of paper.’ ‘What do you mean?’ ‘You know, you have this thing,’ and I think that’s too big a risk. I hope that the issues can be overcome. I think it would be a real slight on us as a nation if we get to the end of the process that the expert panel is part of and we go ‘No, we are not actually mature and ready enough to put this to the people.’

DAVID SPEERS: It all comes down in the end to the words. I want to read you quickly what was in the 1999 proposed amendment to the preamble of the constitution – and that’s another question: does it go in the preamble or does it go in the body of the constitution? The words then that were suggested:

There was debate about the work ‘kinship’. There were suggestions it should be ownership. People were worried about lawsuits following it, and claims for compensation and so on, so it was changed to ‘kinship’. What sort of words do you think need to be in whatever is included? Alison, I am not sure if you can talk about this as part of the panel, can you?

ALISON PAGE: Look, there are a lot of ideas being talked about as part of the consultations. Words like the ‘acknowledgment of the world’s oldest living culture’, ‘acknowledging Aboriginal and Torres Strait Islanders continued custodianship of the land’, ‘respect’ - these sorts of words I think are things that people agree on.

I personally think that, given we have only ever had eight out of 44, it’s really important when you put a question to the Australian public when it comes to the constitution that it just needs to be quite simple. We know that from past referenda. It’s not just about Aboriginal issues; it’s about every issue. I don’t think you can dovetail it with a whole range of other things like the local government thing - that’s my personal opinion - because I think this is a big issue and an important issue. What recognition is actually doing is that it’s framing this topic for the Australian public in a way that it has never been framed before - in a different, positive way. It’s not going to right the wrongs of the past because, heavens, I don’t know if this nation is really ready to deal with how truly painful the wrongs of the past actually are. I think that’s something that will be revealed in decades following. But it is an important, open invitation from the Aboriginal and Torres Strait Islander people and for the rest of the nation for us to engage with each other for the first time in a positive way and for that relationship to blossom really into the future.

DAVID SPEERS: Getting back to the words, Garth, any suggestions of what should or should not be included in this?

GARTH NETTHEIM: In some of the discussion papers I talked about there is discussion there, which is worth looking at. I don’t have any firm views at the moment but I think it’s very important that we spend whatever time it takes to get the wording right before we proceed.

MAL BROUGH: I agree with the two before me. It’s not my position to be able to do that. They are good words - oldest living culture, custodianship. These are just statements of fact. That’s why I think it’s important to elevate this to the prominence that it deserves as an issue to our nation by standing alone. And also you run out of excuses because just like the 1999, ‘that’s because it was put with something else’ and ‘if people vote one ‘no’, they vote all ‘no’’ - that’s all probably true. So if it’s only there alone, we as a nation don’t have an excuse.

DAVID SPEERS: As I said earlier, preamble of the constitution or in the body of the constitution - does that matter?

MAL BROUGH: If there is a legal perspective, I don’t know it. My perspective is I don’t have any issue with it being in the body of the constitution and having a prominent role.

DAVID SPEERS: Garth, what is the difference here?

GARTH NETTHEIM: There are complications in terms of the legality, because the current preamble to the constitution is the preamble to a British Act, not an Australian Act and the constitution follows the preamble. It is giving the history to the development of the Australian Commonwealth, the constitution. The substantive portions of the constitution, once it starts being enacted, has no preamble whatsoever. So there is a debate as to whether to change the preamble in the British Act, which is extremely complicated. There are processes now under the Statute of Westminster of 1932 and Australia Act of 1986 whereby you would have to develop something through state parliaments, take it to the Commonwealth parliament and then get it enacted by the British parliament, which I don’t think people would particularly appreciate.

So if you go into the constitution itself and put in a new preamble where there is no preamble at the moment to the constitution, if you are dealing with a standalone provision relating to Indigenous peoples, then yes that could be done. But whether non-Aboriginal people would support the idea of a preamble which talks only about Indigenous peoples is another question. You can go beyond that - it’s a recital of the background to Australia’s non-European settlement. There are options then.

Last Friday the Indigenous Law Centre ran a workshop of constitutional law experts to look at some of these issues. The papers are going to be published fairly shortly in the Australian Indigenous Law Review but one paper in particular by Anne Toomey of the University of Sydney Law School spent some time lucidly discussing some of the issues about a preamble. Where the preamble fits still has to be resolved and there is still some debate about whether the preamble needs to be standing alone on these issues or whether there also needs to be a statement of values relevant to the broader Australian community.

ALISON PAGE: And part of the national conversation is whether a statement of values should also be included. It’s one of the options being talked about.

DAVID SPEERS: As I mentioned earlier, a number of questions have come in on the website and one of them relates to this issue. This question is from Nick Parmeter:

Tell us what those sections are, Garth: help us out.

MAL BROUGH: Show everyone the constitution.

ALISON PAGE: Can I talk about section 25?

GARTH NETTHEIM: Yes.

DAVID SPEERS: Please explain what it is.

ALISON PAGE: Only because I am one of the people who knew we had a written constitution but I didn’t know anything about it, and section 25 is one of those sections in the constitution that absolutely shocked me. I couldn’t believe that in this day and age there is a section in there that says that any state government can decide to not count the vote of any race that it wanted to in an election. Hello - I don’t think that would sit comfortably with anyone in this country.

DAVID SPEERS: Let me just test that: who knew that that was in the constitution? [audience indication]

MAL BROUGH: Can I tell you something: when I used to do public meetings and some bloke started quoting from the constitution, I knew -

DAVID SPEERS: You were in trouble.

MAL BROUGH: No, I knew the meeting was in trouble.

ALISON PAGE: But to me that’s a shocker.

DAVID SPEERS: That has to go.

MAL BROUGH: Do we know why it’s there? Do we understand the history of that section?

GARTH NETTHEIM: In effect section 25 penalised a state that had not accorded voting rights to Indigenous peoples and at the time of Federation I think only South Australia had gone down that path. It penalises a state that has not accorded those rights in consecrating that people might be deprived of electoral representation on the basis of race. This provision remains offensive to Indigenous Australians even though they are no longer disqualified from voting on the basis of race. There is a question of whether it should be repealed and a lot of people are saying, ‘Yes it should go.’

MAL BROUGH: Isn’t this about money? Maybe I have read this incorrectly, but what I understand from what you just said there is that, if you as a state government decide ‘I am not going to count that bunch of people’ for whatever reason, therefore when it comes to the Commonwealth Grants Commission, the Commonwealth then penalises you for taking such a bloody-minded attitude therefore you won’t disqualify them, whoever they are. That is the way I just read that in my ‘legal’ manner. Am I totally off the planet?

ALISON PAGE: I think you are reading that in a political manner.

GARTH NETTHEIM: It penalises a state in particular in terms of the number of seats they have in the house of Representatives.

MAL BROUGH: But it’s really a positive thing - is it sort of a safeguard?

GARTH NETTHEIM: It was meant to be a positive to discourage the states from discriminating.

MAL BROUGH: From having a bloody-minded attitude.

DAVID SPEERS: On that we will open up the floor for questions. Please give us your first name and tell us who you are directing the question to.

QUESTION: My name is Rajah and I would like to direct my question to Alison Page. The states and territories seem to have a better record of making innovations than does the centre for example with bills of rights. Would it be a wise strategy to take forward this kind of recognition first through states and territories before seeking to do it in the federal constitution?

ALISON PAGE: Queensland, New South Wales and Victoria have taken this step and they all have a preambular statement of recognition. In talking with people in South Australia, they think these two things could happen concurrently - that we could be talking about federal recognition as well as state recognition at the same time. But I don’t think that one has to precede the other. I welcome every state and territory doing exactly the same thing and using the debate and the national conversation as a momentum to make changes at their state level.

QUESTION: My name is Ian and I am a … from Sydney but I have been in the Kimberleys for 20-odd years. From what I have found out, it seems that to get something through the Australian population it has to be such a watered down view that Aboriginal people have that it’s going to be meaningless. I say that because it’s not about the window dressing that is going to be applied to the preamble that is of a concern to me. My issue is about the functionalness of the constitution and the way in which it was created by the states to enrich and to empower the states as much as they could. The states, as far as I know, were established as the instruments of colonisation and they have not been prepared to relinquish that role as colonisers, as we are experiencing in Western Australia now in James Price Point north of Broome where the Australian government is oppressing Aboriginal people as we speak.

How do we start to look at the changes that have come through Native Title that prescribe body corporates as agencies to deliver a whole range of change to specific tribal groups in Australia; how do we change the way in which the Federal Government has a relationship for resourcing Aboriginal people so that rather than putting our federal dollars through the states who cream off a lot and misspend a lot of money, how do we get that directly into Aboriginal hands through the PBC process?

DAVID SPEERS: Who wants to tackle that?

MAL BROUGH: I will give you two seconds on it. The Commonwealth Grants Commission distributes money to each of the states on a bunch of relativities including disadvantage, Indigenous, remoteness, et cetera. But there is no requirement upon any state or territory to use that money for that purpose. In the area of Indigenous housing specifically, again it didn’t matter. Part of what I learnt as the minister was: how do you pan that back and how do you make people accountable for it - even if they do it badly – but at least spend that much money? It was incredible: some of the best accounting I have ever seen came out of the territory. So if you were a policeman in a police house, that was out of Indigenous affairs because somewhere along the line you are going to come across an Aboriginal - that’s not bad. I think you have hit the nail on the head. There’s a big issue there.

It has nothing to do with this constitutional issue. That’s to do with governance. You don’t need a change to the constitution to make that happen. That’s about good governance. Just very quickly, because we don’t have a lot of time, no-one could ever get to the bottom of why the Federal Government was paying for diesel for power stations in remote communities, and the best we could come up with was that somewhere along the line no-one would pay, so therefore it kept defaulting - and I am sure the current government has followed this through so it’s bipartisan. The question is: how do we get the appropriate level of government to do that and pay them compensation to do it? It was like pulling hens teeth because it’s too hard. I don’t think your issue has any connection directly with the constitutional change, although I agree with your first point about let’s not water it down, but it’s a fundamental issue about how we don’t just talk about headline dollars but look at how they get there and who siphons them off in between, and what else you can add into the equation to make it look good without getting an outcome.

ALISON PAGE: I would like to add a little quote I heard at the Newcastle conversations from an elder. There are a whole range of problems and you have pointed out one of the problems that needs to be solved, and he sort of talked about it in terms of managing expectations of what this constitution is going to do and he said, ‘We’ve got a long journey to walk but at least we are going to be facing in the right direction.’ In terms of what we expect to gain out of this, I think that is really insightful. We are still at the beginning of the road. We still have a lot of big issues and detailed issues that need to be ironed out but at least we are tackling it from the right point of view, which is a positive point of view.

DAVID SPEERS: Thanks for the question.

QUESTION: My name is Peter. I will try to keep this brief. I am concerned - and there is general agreement amongst you that one of the first things we need to do before we proceed with this is get broad, solid agreement amongst Aboriginal people about the content. I am concerned that you are setting that up to fail if we believe there isn’t going to be a Noel Pearson or a Warren Mundine or a Lowitja O’Donoghue, there will be inevitably disagreement and inevitably large, negative, ugly sections of the media will dance on that disagreement. Are you wedded to the idea that we should try to get very broad, very solid Aboriginal agreement before we go to the rest of us? Are there ways in which we can pre-empt that horrible propensity that we have to forgive ourselves by saying ‘They can’t agree amongst themselves,’ because we do it all the time?

ALISON PAGE: I would like to jump in there and just say for the record that Pat, Noel, Warren and Lowitja are all in support of constitutional recognition. We are having conversations with a lot of the Aboriginal and Torres Strait Islander leaders with national profiles and with local profiles because they are incredibly influential. But one thing they all do agree on, and the conversation is varied but they do say to us ‘But don’t fail’. They have kids, grand-kids and great-grand kids; they know there is too much at stake for this to fail. Without pre-empting what will happen in the future, the flavour of the conversations so far have been in support of what we are trying to do here as a nation.

DAVID SPEERS: How do you shield against that, Mal Brough?

MAL BROUGH: I don’t think you do. If I can take you back to 1996, or whenever it was, with the intervention -

DAVID SPEERS: It was 2006.

ALISON PAGE: It’s been 20 years.

MAL BROUGH: It’s a long, long time ago. If you take it back say 10 years before and exactly the same set of circumstances - I am not asking anyone to agree or disagree; I am just trying to give you a point of time - there would have been literally protests in the street, marches and all the rest of it. Sure, I had a little bit of that but not much. It was a sign there is a change in the general populace and the way in which Aboriginal and Torres Strait Islander people also display and articulate their opinions, a bit like Coffs Harbour and marching on NAIDOC day as a celebration - that’s a good thing. I think we are in a far more positive environment for people who would use it as an opportunity to push another barrow. That’s your biggest issue. They are not against this, but we will go down here, we will make a name for ourselves and we will push it - I don’t think we are in such an adversarial environment in that regard so I think we have a much greater chance. I wasn’t using those names earlier for any reason other than it’s a reality that if someone like Noel with his personality was to come out, you and the media, David, have to focus on him. You have to hear his opinion.

ALISON PAGE: For a referendum to be successful - and what was amazing about the condition of the 1967 was that every CWA and every group within every town in Australia was mobilised to say yes. It was a grass roots movement that actually can’t be derailed by any one voice it’s such a momentum of people. That’s really what it makes to get it across the line and that’s what it’s going to take for us.

DAVID SPEERS: Will the bipartisanship on this hold, do you think, regardless of what the final wording ends up being?

ALISON PAGE: I think so because I think the intent of the political spectrum is good.

DAVID SPEERS: We hear a lot about Tony Abbott being ‘Mr No’ opposing anything, negative -

MAL BROUGH: Don’t listen to what the media has to say. You listen to Sky News too much.

ALISON PAGE: Actually he could latch onto this  and he could be the face of the yes campaign.

DAVID SPEERS: Is this something he will support to the hilt?

MAL BROUGH: I don’t know. I don’t think anyone that knows Tony would say anything less than he is a passionate, committed individual in Indigenous affairs and lives it. That’s a statement that cannot be rebuked. He has lived in community and worked in them. Does it mean that he will support the ultimate goal? I can’t speak for Tony.

ALISON PAGE: He does agree in principle.

DAVID SPEERS: But is he supporting it only in the preamble?

ALISON PAGE: As did John Howard. I think it would be wise for them to wait and see with all of the conversations that come out of it, because what’s come out of the national conversation is that a preambular statement could have more legal effect - because it’s at the beginning of the constitution it could have more effect on the whole constitution legally than a statement within the body of the constitution. Interestingly enough, people thought that a preambular statement is the minimum but it actually could end up having more legal effect. I think it would be wise for all of us to take a step back and get engaged in this conversation and to learn more about it, because I can tell you I have learnt a lot. It’s most unwise to go in with preconceived ideas.

DAVID SPEERS: Let’s get another question from the floor. Let’s keep them quick because we probably only have 10 minutes.

QUESTION: This is for Mal. You talked about how in hindsight some of the interventions weren’t correct or weren’t right. At the time of those interventions, my friends and I were talking about how we felt there were some human rights abuses with those and if they were white Australians the powers that be wouldn’t have dared to impose them. What do you think about that?

MAL BROUGH: Sorry, your name?

QUESTION: Julie.

MAL BROUGH: Thanks Julie. The human rights abuses happen today; the human rights abuses happened then; and the human rights that I took away were nothing in comparison to the deprivation that children had to live with every day. If I had to do it again, I would. The only reason I had to was because a popularly elected government of our people decided that these children didn’t count as much as other children. If they were white kids, they would never have been in that position because society would never have allowed it. So there are two sides to that coin.

QUESTION: My name is Alita and I have a comment for the expert panel. But before I give the comment, I would like to acknowledge Auntie Agnes and the Ngunnawal people on whose land we walk on today.

When I thought about this week with NAIDOC and the theme of change and the next step is ours I thought: what does that mean to me and how does that impact on me as an Aboriginal and Torres Strait Islander person and also our predecessors of those leaders that were in the past, and what does that mean to me as a young person and being a leader of my community? I thought about people like William Ferguson and Les Patton who were champions, our leaders, in the 1920s. Then I was thinking about the conversations around the next step is ours, which is the second part around change. The importance of the constitution for Aboriginal and Torres Strait Islander people is really about what we share in our communities - and that’s families, individuals and having those conversations particularly around the kinship structures - who we are, where we are from, who is our mob, where do we fit? These are the conversations that we have every day, particularly in the workplace. That’s where they mainly start. We talk about our families, we talk about who we are, sometimes it’s a bit of an over-share and sometimes it’s not.

But that’s where we as individuals come together as Australians and we celebrate who we are when we sing our national anthem and we look at our flags - the Aboriginal flag, the Torres Strait Islander flag and the Australian flag - and what does that mean to us? So the question that I will ask is: when we think about the constitution, think about what impact that has for Aboriginal and Torres Strait Islander peoples when we think about our flags and who we are. Thank you. [applause]

DAVID SPEERS: Was there a question in there? That was a beautiful statement, I think we will all agree, but was it a question about the flag in particular? Were you suggesting that is something that should also be debated?

QUESTION: It was mainly around the consideration of when we thinking about ‘so what’ and if Aboriginal and Torres Strait Islander should be included in the constitution, when we look at our flags, it’s not just a flag, it’s about our identities, it’s who we are and how we connect to this beautiful country of Australia. That’s around what we need to be thinking about when we have these conversations. The questions will always be there. It’s listening to those answers and being leaders in our community. Thanks.

DAVID SPEERS: Does anyone want to respond to that?

ALISON PAGE: I just think it’s a beautiful statement and it just echos the fact it’s every human’s right to know their sense of belonging, to know their own story and to have their story heard - and in government speak that means social inclusion. I absolutely agree that Aboriginal and Torres Strait Islander people for the first time have a right to have their story heard and have a right to feel a sense of belonging in their own country and also have the right to a job. We don’t have to look at all three of those things in isolation, I think all three of those things can be looked at together - and the glue is culture.

QUESTION: Good evening, I have travelled 4000 kilometres from the Kimberley. My name is Anne Polina. I am a traditional owner and I am also a scientist and an academic. I don’t know if fellow Australians sitting here tonight are aware that in the Kimberleys this week in NAIDOC week, we have riot police on country abusing and locking up old people, traditional owners and other community people. My question is not so much to the panel, my question is to fellow Australians: I am a little bit over having to re-define myself. What I am saying I want to challenge fellow Australians about: how do you re-define yourself in modernity? How do you redefine yourself in the context of what we are talking about here today? I truly believe that, unless you can engage with Aboriginal people and unless you can engage with the cultural landscape, you cannot be truly Australian.

In 2011 my people back in country are being locked up and are being abused by riot police in NAIDOC week. I have come with a petition for the parliament for the politicians to say that it’s time to slow down, it’s time to appreciate what we have as a nation. My challenge and my question to fellow Australians sitting here: this is no longer a black and white issue; this is a human issue. My challenge to you is: how do you re-define yourselves as Australian? It doesn’t matter about constitutional reform. In the legislation in this country remains the fact that colonisation is not over. The instruments of oppression are in all the laws. My appeal to you is to seriously consider: how do you see yourselves as an Australian in modernity? Thank you. [applause]

DAVID SPEERS: Thank you for that contribution too. We have time for perhaps one more question.

QUESTION: I would like to direct this question to Garth. Garth, you mentioned before about Cook’s instructions and that these because of Cook’s deliberate disobeyance of his orders are invalid. Couldn’t you say that the claiming of the east coast of Australia, if we can go retrospectively back and give it retroactive effect in legal terms, was invalid? Because of that invalidity, colonies became states, states then formed the Commonwealth. Now because informed consent has never been given by Aboriginal people of the land, can it be regarded contemporarily as illegal occupation? And any state or human conditions that Aboriginal people are in this country can amount to universal illegalities such as under the genocide convention and illegal occupation. These are universal crimes. Therefore, if we want to talk about constitutional recognition, we have to talk about the validity of the Commonwealth first. Thank you.

GARTH NETTHEIM: I think the lack of consent at the origins of the colonisation of the eastern part of Australia was an historical issue. I can’t find any basis in modern times for making it a basis for invalidity. But it does raise the question of the legitimacy of what was done and the illegitimacy of what was done, and that needs to be at least acknowledged. I think that’s about the best we can try to achieve but it’s at least worth trying to achieve that now. It was long before the genocide convention was even in force, let alone if it applied retrospectively. But I think it is critical to acknowledge the need for consent and the need for recognising the traditional rights in Australia then and continuing to the present day. It’s one of the most critical things we can hope to try to achieve to move a step towards reconciliation.

DAVID SPEERS: We will have to wrap things up there. I know some of you still had questions that you wanted to ask and I apologise that we haven’t had time to get to them. Do make sure all of you register on the National Museum website and take part in the online poll in this question.

It’s been a very interesting nearly two hours covering this topic, and I think we have established from all of our expert panellists a better understanding of why this needs to happen, what it needs to involve, particularly the consultation and the importance of that, and then also how we go about posing a question in what context and perhaps in what context it shouldn’t be posed as well. So perhaps this has in a small way expressed the issue as well. I know the expert panel will continue doing great work around the country and progressing this too.

Thank you all for coming. It’s been wonderful having you here and asking some great questions tonight. The fact you are here does show how genuine the interest is in this significant national issue. Please do thank our panellists Mal Brough, Garth Nettheim and Alison Page. [applause]

I should point out the next platform conversation - this has been the inaugural one, I hope it’s been a success and the start of a great new format here at the National Museum - will be this time next week on Friday, 15 July at 6 o’clock right here when Peter Singer and Jenny Brockie will be along. You will have to register and book to get a seat here so you might want to get onto that as soon as you can. Thanks again for coming tonight. [applause]

Further information

Expert Panel http://www.youmeunity.org.au/

Indigenous Law Centre http://www.ilc.unsw.edu.au/

Law Council of Australia http://www.lawcouncil.asn.au

Australian Human Rights Commission http://www.hreoc.gov.au/constitution/about.html

ANTaR, the Australians for Native Title and Reconciliation http://www.antar.org.au/

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Date published: 01 January 2018