IndigConLaw: Reflecting on 2021, Ready for 2022
Contributors: Gabrielle Appleby, Emma Buxton-Namisnyk, Sean Brennan, Megan Davis, Dani Larkin, Dylan Lino and Ed Synot
23.12.2021
Welcome to the 2021 wrap up for the Indigenous Law Centre and the IndigConLaw blog. At the ILC we celebrate our 40th anniversary and enter our fifth year of legal work post-Uluru Statement from the Heart. We are privileged to work in collaboration with the Uluru Dialogue, the First Nations leadership who carry the mandate of the Uluru Statement from the Heart. This year started with the release of an interim report from the government’s Indigenous Voice co-design process, and ended with the government endorsing the exigency of a Voice after rejecting one in 2017. The Indigenous Voice Co-Design Final Report to the Australian Government bookended the year with a recommendation to the federal government about the overwhelming support of public submissions for a referendum on a constitutionally enshrined Voice. The Uluru Dialogue and the ILC has been successful in animating many Australians and organisations to make a submission to the Co-Design committee. The direct impact of our work in analysing complex reports and disseminating community legal education to the community can be seen in the positive outcome of this report. However, there remains much to be done in 2022. The model on the table does not compel the state to consult us on laws and policies. It does not yet rise to the Uluru reform. As a parliamentary report reminded us just this week, there is also work to be done in updating the referendum rule book if we are going to be ready for the first referendum in more than 20 years.
So, as we come to the end of 2021, and the end of the IndigConLaw blog’s first year, a number of members of the ILC have reflected on the major Indigenous public law events and issues that the year presented. We’ve compiled a list of priorities as head into 2022, and a federal election, in which we want to see all parties commit to support for a constitutionally enshrined First Nations Voice, setting the nation on the path to Makarrata.
Issue 1 The Government’s Indigenous Voice Co-design Process
Issue 2 A Constitutionally Enshrined First Nations Voice – Support and Wording
Issue 3 Amending the Referendum Rule Book
Issue 4 Voice, Treaty, Truth: the importance of sequencing – State, Territory and National Developments
Issue 5 Aboriginal people and the federal ‘aliens’ power
Issue 6 Examples from 2021 of the need for the Voice: Voter ID laws and the Juukan Gorge Inquiry
Issue 1: The Government's Indigenous Voice Co-design Process
The Regional Dialogues and First Nations Constitutional Convention produced the Uluru Statement from the Heart four and a half years ago. It was an historic achievement. Diverse groups of people from all points of the compass who came together in a remarkable act of consensus. They cracked the nut of a complex set of political and policy issues that Canberra had proved incapable of solving over many years.
The solution was simple but powerful, and nation-building. It articulated ideas at the heart of Aboriginal political advocacy for decades: Voice, Treaty, Truth. It started with the right to have a say over the things that affect people in their daily lives, enshrined in Australia’s most fundamental law, the Constitution. The First Nations Voice to the national Parliament was the form of constitutional recognition that people said would be meaningful for them, and would set things on the path to a national Makarrata Commission overseeing a national process of agreement-making and truth-telling.
The Prime Minister at the time, Malcolm Turnbull, said he would not implement the Uluru Statement from the Heart. This was despite the fact that the Referendum Council, which he himself established, had endorsed the First Nations Voice as the proposal for constitutional recognition that should be put to the people. However, the bow-wave of political and community support behind the Uluru Statement from the Heart was already so substantial that, a few months later, when his government established another parliamentary committee on constitutional recognition, the Uluru Statement was at the top of the terms of reference. The Joint Select Committee (JSC) deliberations and its reports in 2018 were completely dominated by discussion of the First Nations Voice idea.
The JSC recommended that before a decision was made on constitutional recognition, the government should initiate a process of co-design with Aboriginal and Torres Strait Islander peoples.
While the role of the Commonwealth Parliament was central to Dialogue deliberations that produced the Voice proposal, the Coalition Government has been less enthusiastic about foregrounding the national Parliament. For instance, back in 2018, the report of the JSC said that the Coalition had ‘concerns over the role and function of a Voice to the Federal Parliament, instead preferring the establishment of local bodies in the first instance’.
Then in October 2019, when Minister Ken Wyatt announced a co-design process and he appointed a Senior Advisory Group to advise and guide the process, he called it a Voice to government, that is to the executive branch and the bureaucracy that organises the delivery of services.
Minister Wyatt appointed people to three groups: a Senior Advisory Group, National Co-Design Group and a Local and Regional Co-Design Group. There was also a significant role in the process for Commonwealth, State and Territory officials who met many times during the process. Its work in 2020 was done essentially behind closed doors during the first year of the COVID pandemic.
The terms of reference excluded all three design groups from making recommendations about constitutional recognition, implying that there could be a separation between a Voice design and the answer to constitutional recognition delivered in the Uluru Statement from the Heart.
An Interim Report from the government’s co-design process was released on a Saturday afternoon in the first week of January this year.
The government invited submissions on proposals for a National Voice and Local and Regional Voices contained in the Interim Report. Originally there was less than three months for people to respond to its 240 pages. That was later extended by a month. Despite the challenges of coming to grips with such a lengthy report in a short period of time, 2978 public submissions were made.
Despite the terms of reference for the co-design, an expert analysis of the public consultations, published by the Indigenous Law Centre in July this year, found that 90 per cent of the public submissions demonstrated support for the constitutional enshrinement of a First Nations Voice. The report authors (Appleby, Buxton-Namisnyk and Larkin) also emphasised expert submissions urging that design of a First Nations Voice not be divorced from the question of constitutional enshrinement. Fundamental objections were made to an approach of ‘legislate first’, warning it would be highly unlikely that constitutional enshrinement would in that event be pursued.
As we near the end of 2021, the government has just released the Final Report of its Co-Design Process (even though it was completed in July). The overwhelming public support for a Voice referendum was evidently impossible to ignore. Recommendation 6 of the report said the government must register ‘the support for the enshrinement of the Indigenous Voice in the Constitution that was expressed particularly through the submissions received as part of the consultation process’. The report recommended that the government progress the implementation of its Local and Regional Voices and National Voice proposals. But in apparent recognition that not enough consultation with First Nations communities has occurred, Recommendations 4 and 5 called for ‘further conversations and co-design to ensure the effectiveness and legitimacy of the Indigenous Voice’ and a communications strategy to improve community understanding of its proposals.
We enter 2022, an election year, with the same reality that we have been facing for nearly five years. It is time for Australia to hold a referendum on a First Nations Voice. The historical act of political consensus achieved at Uluru in May 2017 continues to point the way, as we look to re-set the relationship between First Nations people and the Australian state. The government’s co-design process has done work on developing design ideas, as the JSC recommended. More importantly the process has confirmed the support in the Australian community for a constitutionally enshrined First Nations Voice. The Uluru Statement from the Heart was an invitation to the Australian people. For the countless individuals and organisations who have responded to that invitation and expressed their heartfelt support for the Statement, the focus in 2022 is to compel MPs and Senators, through meetings in their office and personal letters, to implement a referendum on a First Nations Voice in the next parliamentary term.
Issue 2: A Constitutionally Enshrined Voice - Support and Wording
(a) Support for a constitutionally enshrined First Nations Voice:
As researcher Dr Jacob Deem explained on IndigConLaw, the 2021 Constitutional Values Survey, conducted in February 2021, reveals substantial public support for a First Nations Voice that is constitutionally established (over 60 per cent). In contrast, just over a quarter of survey respondents said they would be in favour of a Voice that was only legislated, with no constitutional recognition. As Deem explains, Constitutional Values Survey – a longitudinal survey - has, since the delivery of the Uluru Statement from the Heart in 2017, shown consistent, strong support for the reforms: “This strong initial response countered claims and concerns by some political leaders and members of the commentariat that the reform was too bold, too ambitious, that First Nations people had ‘over-reached’.”
In 2021, the survey – previously conducted in 2008, 2011, 2014 and 2017 – was conducted again. The 2021 survey showed continuing support for the First Nations Voice: “over 60 per cent of Australians support the establishment of a Voice in some form. Only one in eight respondents (12 per cent) were opposed to the idea of a First Nations Voice. This left a quarter of respondents undecided - and most of those who were undecided had not heard of the Voice proposal before.” The reasons for support were focused on the political and symbolic importance of recognising First Nations in the Constitution, but there was also recognition of the role that the Voice would play in improving policies and making a practical difference.
The Australian Constitutional Values Survey reveals that there remains a large group of undecided voters – approximately a quarter of Australians. Generally, this was because they wanted more details about the Voice, and specifically more information about how representatives would be chosen, what benefits the Voice would bring for First Nations peoples, and whether the proposal had the endorsement of First Nations peoples.
In May this year Francis Markham and Will Sanders updated their 2017-2020 analysis to provide an updated analysis of public attitudes to a First Nations Voice. Their analysis, now incorporating the Australian Constitutional Values Survey and the 2020 Australian Reconciliation Barometer, found that there remained high levels of support for a Voice amongst those who were decided on the issue. But they concluded that across the majority of polling to date, around third of voters are still looking for more information.
Their conclusions were that the numbers seem to be relatively stable – both in terms of support and those unwilling to offer an opinion. They concluded:
“Support for a constitutionally enshrined First Nations Voice to Parliament remains patterned strongly along party lines. As such, a Coalition-led Referendum on the matter would almost certainly succeed. That is to say, a First Nations Voice to Parliament appears very capable of winning acceptance in a referendum if backed by the Coalition. The fate of a Labor-led referendum would be less clear, depending in part on how the Coalition positioned itself as neutral or opposed.”
In December 2021, another overview of polling to date was published, by Associate Professor Ron Levy and Professor Ian McAllister. Their analysis reinforced what we are hearing: that support for a First Nations Voice among the Australian public is high. But interestingly, they found support “is not only high, it’s also durable. Public attitudes have shifted to such an extent in the last 40 years, there is little reason to think a constitutionally enshrined Voice wouldn’t pass a referendum if it was held today.” This flies in the face of statements made by Prime Minister Scott Morrison, that there is no consensus view that has emerged on the form of constitutional enshrinement. Levy and McAllister say “The government’s pessimism here is belied by recent polls suggesting very high support for Indigenous recognition.” Their analysis shows growing, long-term support, regardless of which party is in government and the policies they promote. They conclude that this support can largely be attributed to increased education – not just in relation to Indigenous issues, but to engage in critical thinking. They conclude that the answer to referendum success might therefore lie in more education, including specific referendum education programs.
It is necessary to mention to additional polls reported in 2021: by IPA and TAPRI. Both purport to show lower levels of support for a First Nations Voice. The highly partisan framing and methodology of both polls serve as a reminder that referendums are political. As we move closer to a referendum on constitutional recognition we are likely to see increasing numbers of partisan polls being conducted in this space, particularly by those organisations and groups who oppose recognition. Caution must be urged in seeing the results of partisan polls as instructive, as leading language and partial questions will feed undue pessimism on the likely success of a referendum. Rather, as the analyses above demonstrate, high levels of support for the Voice and the high probability of a successful referendum on this issue continues to be re-affirmed by reputable polls conducted in 2021.
(b) Amending the Constitution
One persistent question that arises in relation to the constitutional enshrinement of a First Nations Voice is, what would the amendment look like? As Associate Professor Sean Brennan wrote in July, ‘The Wording is Not the Problem’. Despite what you might hear from the Government, there is little controversy over what the amendment would look like. As Brennan explained:
“The most important thing is clarity: a well-defined purpose, and clear and simple words that give effect to that purpose. The work here is largely done.”
The Uluru Statement from the Heart provides a clarity of purpose: a representative, authoritative and stable, representative institution for First Nations that would give them a Voice to the nation’s chief law-making body, the national Parliament. There is also clarity around what the purpose is not: it is the enshrinement of the Voice in the Constitution, not the inclusion of every detail in the constitutional text. Indeed, the Regional Dialogues and the First Nations National Convention explicitly referred to the need for the Voice to be flexible in the detail of its design to adapt to changing circumstances.
In terms of the wording itself, there is substantial consensus about what implementing the Voice as called for in the Uluru Statement requires. Brennan explains that the constitutional amendment needs to:
establish the First Nations Voice, as an enduring form of recognition for Aboriginal and Torres Strait Islander peoples, protected by the Australian Constitution
describe its primary function of conveying the views of Aboriginal and Torres Strait Islander people to the national institutions of law-making and government, and
ensure that Parliament can legislate the detailed design of the First Nations Voice and make necessary amendments over time, to adapt to changing circumstances.
The Uluru Dialogues, working with the Indigenous Law Centre and the Gilbert + Tobin Centre of Public Law has been developing one proposal that meets these criteria. The proposal draws from initial wording submitted to the Joint Select Committee in 2018, and has received the benefit of input from constitutional experts from across the country. The proposal is to add a new chapter, and a new section 129 to the Australian Constitution, that would provide:
Section 129 The First Nations Voice
(1) There shall be a body, to be called the First Nations Voice.
(2) The First Nations Voice
(a) shall present its views to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples; and
(b) may perform such additional functions as the Parliament provides.(3) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the First Nations Voice.
There may well be additional changes needed to the finer technical details of this proposed wording. But this proposal demonstrates that there is a form of wording that is consistent with the purpose of the Uluru Statement, and articulates it in a clear, simple and direct way. Unlike another recent suggestion, it doesn’t give too much too much discretion to the Parliament to determine how First Nations will be represented.
As Brennan said back in July:
There are still challenges in the path to a referendum that enshrines a First Nations Voice in the Australian Constitution. Chief amongst those are building a sufficient groundswell of community support in the cities, towns, rural and remote areas of Australia, and persuading the politicians in Canberra to put the referendum question to the Australian people. For that, we need political will. The wording of the constitutional amendment is not the problem.
Issue 3: Amending the referendum rule book
One of the most common questions we receive when we talk to people about constitutional enshrinement of the First Nations Voice is “what will the referendum question be?” The answer to this question is largely dictated by the “rule book” for conducting constitutional referendums, the Referendum (Machinery Provisions) Act 1984 (Cth). This lays out the rules for setting the question for a referendum, and it also sets out how the Australian government is allowed to engage with voters in the lead-up to a referendum.
This year, a parliamentary committee has conducted a review of these rules, and this week released its report. A group of constitutional law experts at the ILC pressed the Committee to make a set of much-needed changes and updates to these rules to ensure a future referendum on the Voice is free, fair and objective.
The Committee’s recommendations included allowing the Australian Electoral Commissioner to distribute the YES/NO pamphlet through additional means (including, for instance, through social media), and to allow the Australian Government to fund more extensive referendum education campaigns, and the promotion of the arguments for and against the referendum proposal. It recommended restrictions on foreign donations and donation disclosure requirements for referendum campaign organisations.
Consistently with the arguments put forward by the ILC, it also recommended the creation of an Independent Expert Panel, to provide advice to a joint parliamentary committee in the lead up to each referendum on aspects of the referendum process, including:
the form of the wording of the referendum question;
the inclusion of neutral information in the yes/no pamphlet
other neutral information and education activities
establishment of yes/no committees.
The Committee recommended that the Panel should be appointed by the Prime Minister after consulting with other parliamentary leaders, and include experts in constitutional law, public communication, representatives from the Australian Electoral Commission and/or other relevant government entities, and community representatives. The ILC supported the creation of such a body, so that there is an objective source of information for the public across the referendum process – from setting the question, to providing information to voters on the proposal.
The Committee didn’t go so far as to make specific recommendations about more general changes to the referendum process. Rather, the Committee identified these as ‘aspects of the referendum process with scope for improvement’, noting there would be a benefit in a more comprehensive review of the Referendum (Machinery Provisions) Act 1984 (Cth). It noted that it might be that these issues should be resolved on a case-by-case basis for each referendum.
In its submission, the ILC supported specific changes to setting the referendum question, to make sure the question that is put on the ballot paper is easily understood and captures the essential nature of the reform. The Act currently requires the referendum question to state the long title of the proposed law, followed by the question: ‘Do you approve this proposed alteration?’. The long title of the proposed law is determined by the Parliament and must be sufficiently accurate to cover the scope of all clauses in the Bill. We suggested that the form of the question should be changed to be more understandable to voters:
‘Are you in favour of [short description of proposed reform], as provided in the [short title of Act]?’
This short description should be developed by a joint parliamentary committee assisted by the Independent Referendum Panel, providing the parliament with advice on the clarity and neutrality of proposed descriptions.
We also recommended amendments to the information provided to voters by the government. Currently, there is a ‘YES/NO pamphlet’, containing arguments for and against the constitutional amendment, authorised by a majority of those parliamentarians who voted in favour, or against, the proposed change. We argued that this pamphlet was in need of major reforms, included that it should include:
not just the text of the proposed amendments but a clear and neutral explanation of the parts of the Constitution affected by the amendments, and the anticipated effect of the amendment, as far as this is agreed between constitutional experts;
a brief, objective summary of the arguments that have been made for and against the proposal;
a ‘citizens’ statement’ section: this is an explanation of the proposal and the arguments for and against it that have been generated through a small, formalised citizens deliberative process;
a list of the members of parliament who voted for and against the proposed bill.
The Committee’s final recommendation (Recommendation 10) was that these modernisations are made ‘well in advance of any referendum on the question of constitutional recognition of Indigenous Australians, which is expected to occur in the next term of Parliament, or any other future referendum.’ The ILC strongly endorses this recommendation, and in 2022 will continue to work with the government and the Parliament to see amendments to the referendum rule book so that it is ready for its first referendum in more than 20 years: a referendum on the First Nations Voice.
Issue 4: Voice, Treaty, Truth: the importance of sequencing – State/Territory and federal developments
As Associate Professor Sana Nakata has written on this blog (On Voice, and finding a place to start), the sequencing of the Uluru Statement from the Heart is deliberate: Voice, followed by Makarrata, to be achieved through agreement-making (Treaty), and truth. Nakata explains two important dimensions of this sequencing. The first is that Voice – that is, political empowerment – precedes Treaty so that:
“Treaties, negotiated not at first contact but centuries later, have every chance to be strong, enforceable and transformative. We cannot risk Treaties that will become further artifacts of an already-history. Symbolic. Unenforceable. If our continued screams are silenced by bureaucracies, then for what will our truth matter except for the continued performance of our rage and grief for a third century and longer. To make our Truth count, we must have Treaty. And to have Treaty, we must have Voice.”
The second is that the First Nations Voice must have authority, legitimacy, and political power to achieve these objectives. That is: “if our Voice is not to be silenced when it becomes too hard to listen to, it must be constitutionally enshrined.” Yet, despite the care – and critical importance – of this sequencing, there are a number of developments this year at the State/Territory, as well as the federal level, that have raised concerns that governments and communities are rushing towards Treaty and Truth.
(a) State/Territory Developments
At the State and Territory level, there were a number of developments in 2021. The most advanced towards treaty negotiations is Victoria. December 2019 saw the establishment of the First Peoples’ Assembly of Victoria, made up of elected members from Traditional Owners and Aboriginal Victorians. In 2021 the Assembly continued negotiations with the State over the elements that are needed to be in place for treaty negotiations to start. Major developments this year included the establishment of the Yoo-rrook Justice Commission as a Royal Commission under the Inquiries Act 2014 (Vic) in May 2021. The Commission must deliver an interim report in June 2022, and a final report in June 2024. The Commission’s terms of reference are extensive, and it will look at historical and ongoing injustices, establish an official record of the impact of colonisation on Traditional Owners and First Peoples in Victoria, develop a shared understanding among all Victorians of the impact of colonisation, as well as the diversity, strength and resilience of First Peoples’ cultures, and make recommendations for healing, system reform and practical changes to laws, policy, education, as well as to matters to be included in future treaties.
In October 2021, the First Peoples’ Assembly of Victoria agreed in principle to a Treaty Negotiation Framework – with further development with community to come. Key elements of this framework include the negotiation of a State-wide Treaty, as well as local Treaties, the establishment of a permanent political Voice in the State, whether through seats in the Victorian Parliament for the Aboriginal and Torres Strait Islander community, or a permanent representative body with meaningful decision-making powers, or both. Also agreed was the need to establish an independent Treaty Authority as an independent “umpire” to oversee future negotiations, and the establishment of a Self-Determination Fund to redress the power and political imbalances between the State and First Nations communities as they come to negotiate Treaty.
Other States and Territories that have announced Treaty ambitions are significantly less progressed:
In the Northern Territory, Tony McEvoy SC has been announced as the Acting Treaty Commissioner following the departure of Mick Dodson. The Commission’s work in 2021 included taking public submissions on a Treaty Discussion Paper, and a Towards Truth Telling Paper that proposes the urgent establishment of an independent Truth Commission.
In Queensland, the Path to Treaty process, that began back in 2019, continues slowly. The Treaty Advancement Committee was announced in February 2021, and has conducted consultations throughout the year, with a report due to government at the end of the year on options for establishing an independent body to take the State towards Treaty.
In Tasmania, the Government appointed two Commissioners, Kate Warner AC and Tim McCormack, in July, and they reported four months later. Their report, Pathway to Truth Telling and Treaty was tabled in the Tasmanian Parliament by the Premier in November. The Report makes recommendations that the State establish a Truth Telling Commission, as well as a framework through which Treaty might be negotiated. The Report makes a number of substantive recommendations in relation to determining Aboriginality, Land, Sea and Water rights, Heritage, Language, and Education and Capacity Building. The Government has indicated it will respond to the recommendations in the new year.
In South Australia, after stopping the treaty negotiations in 2018, the Marshall Government announced in May 2021 that it would consider the establishment of a State-based Indigenous consultative body.
The State and Territory experiences in 2021 demonstrate that there is a durability to the commitments in these jurisdictions to treaty, and that they are likely to continue to progress towards these negotiations even in the absence of the National Voice and the national agreement framework that were envisaged by the Uluru Statement. State and Territory based treaties, in the absence of a federal agreement, carry a number of challenges. First Nations boundaries are not necessarily reflected in State borders. State promises – even if enacted in legislation – are subject to override by inconsistent federal legislation. The States are jurisdictionally and financially limited in what they can provide to First Nations. In short, without a federal government at the table, State and Territory Treaty processes can only achieve a limited, and vulnerable settlement.
The state processes also reveal how much time even getting to the stage of negotiating takes (which no State or Territory has arrived at yet). The Victorian process highlights how fraught establishing the negotiations are in the absence of stable political power. The State and Territory experiences have also revealed a desire to pursue a state-sanctioned truth process – before, or alongside – a Treaty process. This has also emerged at the federal level.
(b) Federal Developments
At the federal level, the Coalition Government remains formally uncommitted to the Uluru Statement from the Heart, but it is politically and financially committed to a referendum to change the Constitution for recognition of Aboriginal and Torres Strait Islander peoples. As we have explained above, we await whether this will be in the form of a First Nations Voice, constitutionally enshrined.
Since the last election, the ALP has been committed to implementing the Uluru Statement from the Heart “in full”. However, the ALP’s latest policy platform on Closing the Gap and Reconciliation indicates that it will also pursue a national process of Treaty and Truth-telling overseen by a Makarrata Commission, “as a matter of priority”, “along with a constitutionally enshrined voice to the parliament.” Any desire to push forward with Treaty and Truth must be tempered by the warnings issued by Nakata that we set out above. She warns: “Voice precedes Treaty not because of what it does, but because of what it makes possible: a new start.” Without Voice, any processes that the ALP might embark upon are unlikely to result in strong, enforceable, transformative Treaties. Or a Truth that is heard on the terms of First Nations people. It will not result in Makarrata.
The Greens, previously strong and vocal supporters of the Uluru Statement and the delegates involved with the Regional Dialogues and the First Nations Constitutional Convention, have most problematically explicitly rejected the sequencing of the Statement. Dr Dani Larkin and Associate Professor Amy Maguire have written in direct response to this policy change, that the sequencing of the Uluru Statement must be respected. It is the only way to respect ‘the cultural authority of the reform process. And diverging from a consensus outcome undermines the integrity of the consultative process that led to it. It can also devalue the standing of those elders who together designed the proposed reforms.’
2021 saw a number of significant developments at the state and national level, with governments indicating they wanted to move forward with treaty and truth-telling, possibly before establishing a strong, authoritative and stable First Nations political voice at a national level. But the sequencing of the Uluru Statement that places the structural reform of political Voice first is critical. As Professor Megan Davis wrote in her piece for The Monthly, The Truth About Truth-telling:
“If we as a nation cannot be brave and demand structural change now, we will have allowed the co-opting of First Peoples’ trauma by the state in order to marginalise our political and legal claims.”
Issue 5: Aboriginal people and the federal ‘aliens’ power
In 2021, we saw the Australian government argue before the High Court of Australia that it should overturn a decision relating to the status of Aboriginal people that was decided less than two years before. In early 2020, the Australian High Court in Love and Thoms v Commonwealth, held that Aboriginal people, born overseas and who had never been granted the statutory status of citizenship but had citizenship in another country, were not ‘aliens’ for the purpose of the Constitution. They could therefore not be detained and deported under the provisions of the Migration Act 1958 (Cth). The High Court split 4:3. The majority judges emphasised the unique status of Aboriginal people and their connection to the Country of Australia – as recognised under common law native title – to explain why they must be considered to belong to Australia, even if they are not citizens. The three dissenting judges – Chief Justice Kiefel and Justices Keane and Gageler – disagreed that Aboriginality had any relevance to determining the constitutional status of being an ‘alien’. They were strident in their criticism of the majority judges.
However, the majority position only went so far. As Ed Synot has explained elsewhere, the Court in Love and Thoms was clear that what they were recognising was an extension of the common law recognition of native title: it did not amount to recognition of the sovereignty of First Nations in the Australian community. He refers to a ‘vulnerable recognition of Aboriginal and Torres Strait Islander peoples within Australia’s constitutional system’. As Professor Megan Davis has explained:
… it’s very hard to see how judicial intervention alone could satisfy Indigenous demands for constitutional recognition. As the Uluru Statement makes clear, Aboriginal and Torres Strait Islander peoples are seeking collective control over all aspects of their lives through a constitutionally enshrined Voice to Parliament. The courts cannot create such an institution. Nor can the courts negotiate treaties, another constitutional demand in the Uluru Statement. These are only matters that can be resolved through concerted political action outside the courts.
The case itself gave rise to political attacks that the Court was engaging in ‘judicial activism’, and illegitimate constitutional decision-making. Assistant Attorney-General Amanda Stoker said in 2020 that the case was ‘truly disturbing’, and that it ‘strays completely from the written text of the Constitution into matters of values and policy, dividing the community along racial lines’. She argued that the Government should seek to challenge the decision when the judges on the Bench would change at the end of the year.
In December 2020, and March 2021, two new judges were appointed – Justices Steward and Gleeson – by the Coalition Government. They replaced two retiring judges who had been in the majority in Love and Thoms. In October 2021, it was revealed that the Australian Government was seeking to overturn the Love and Thoms decision in a new case, that of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Montgomery. The case will be heard in early 2022. If these two new judges vote with the dissenting judges, the case will be overturned. The Government’s move has been met with consternation.
The attempt to overturn Love and Thoms raises obvious concerns in terms of the consequences for those immediately affected by the decision – Aboriginal people who might otherwise be subject to detention and deportation because they are not citizens. It raises concerns for the stability of the law. It also raises concerns for the politicisation of the Australian judiciary. This rare Government response – to seek to overturn a decision so quickly after it has been delivered – has occurred in relation to the unique status, but fairly limited recognition and protection of, Aboriginal people. Just like the decision in Love and Thoms, the Government’s attempt to overturn it demonstrates the limited extent to which judicial intervention can achieve the meaningful structural recognition and political empowerment that First Nations are seeking as part of a new constitutional settlement. As Professor Davis said, that change must come through concerted political action outside the courts.
Issue 6: Examples from 2021 of the need for the Voice: Voter ID laws and the Juukan Gorge Inquiry
In 2021, we saw a number of examples that highlighted the urgent need for an independent and authoritative, that is, a constitutionally entrenched First Nations Voice in the development of policy and laws. These included the introduction of amendments to the federal electoral legislation to require voter identification, and the responses of the federal and Western Australian governments in the wake of a federal parliamentary committee’s reporting into the destruction of 46,000 year old caves at Juukan Gorge in the Pilbara region.
(a) Federal attempts to change the Electoral Act to require Voter ID
On Tuesday 26 October, the Morrison government publicly announced its intention to make further changes to Commonwealth electoral legislation.
The proposed changes required registered voters to show ID prior to casting their vote at the polling booth on election day. Such forms of ID the bill requires registered voters to show included a driver’s licence, a passport, a Medicare card, a power bill, a debit or credit card, an enrolment letter from the Australian Electoral Commission (AEC) or a document from a Land Council or similar agency.
If, however, a voter is unable to produce ID on election day, the Bill included an option for a fellow voter (who has their own ID) to vouch for them. In the alternative, potential voters could also sign a declaration for their ID, which is then attached to their ballot.
The Morrison government stated such proposed voter ID requirements within the Bill were necessary to reduce risks associated with electoral fraud and multiple voting. Late in 2021, the Morrison government changed its position and stated it will not proceed with the ID changes prior to the upcoming 2022 Commonwealth election. However, the government’s change of position in not proceeding with this bill does not guarantee the government will not try to proceed again with such amendments after the next Commonwealth election.
Importantly, previous Australian elections have not required voters to produce ID on election day, given electoral fraud has rarely been an issue in Australian elections. In fact, the Australian Electoral Commission estimates the rate of multiple voting at the 2019 Federal election was 0.03%.
Yet, the people who would suffer most from this proposed bill are Australia’s most vulnerable voters who lack access to obtaining such proposed required forms of identification. They include those living in financial poverty, living in remote communities with minimal access to support services and homeless people. Indigenous people occupy each of those vulnerable positions in society, at alarming rates. Accordingly, whilst the Bill remains neutral as to race, it would disproportionately disenfranchise Indigenous people at Commonwealth elections.
Statistically, the Indigenous enrolment rate of 79.3% still lags behind the enrolment rate for all eligible non-Indigenous voters of 96.3%. Those figures are also not inclusive of Indigenous voter turnout rates, Indigenous votes cast and the rates at which those votes are actually counted as formal votes.
While Indigenous people and communities must rely on the limited resources of the AEC, which coordinates educational outreach programs to engage and assist Indigenous voters, such measures are reliant on government funding which has been limited.
Ultimately, there should be as few barriers to Australian citizens casting their vote as possible. It is thus in that context, that the Morrison government’s proposed electoral voter ID requirements are precisely why Indigenous people need a constitutionally protected Voice to Parliament, given their means of representation within it is so limited.
A First Nations constitutionally enshrined Voice to Parliament, would provide Indigenous people and communities with guaranteed institutional representation to respond to such proposals outlined in this post, rather than relying on the lobbying of the Opposition, Independents and others in civil society. If established and constitutionally enshrined, the Voice would act as an Indigenous institutional vehicle through which they could express directly to the Parliament, their concerns on the government’s proposed voter ID bill and its disproportionate effects on Indigenous voters. With necessary cultural authority and political legitimacy, the Voice would not simply rest on mobilisation efforts – rather, there would be a mechanism there, representative, and hopefully properly resourced with a secretariat and access to experts – to guarantee a response every time a government tries something like this.
Further, if a Voice was established and had a constructive relationship with the Government in the development of legislation, it could have been engaged early in the development of these possible amendments, expressing the concerns so that they might never have been introduced – and then pulled – in the Parliament.
(b) Juukan Gorge Inquiry
In October 2021, the Joint Standing Committee on Northern Australia’s Inquiry into the destruction of Indigenous heritage sites at Juukan Gorge reported. The report called for the creation of a new national framework for Aboriginal heritage protection, as well as amendments to the Native Title Act 1993 (Cth) to address inequalities in the negotiating position of Aboriginal and Torres Strait Islander peoples.
Noel Pearson has criticised the report for not focussing on the actions and responsibility of Rio Tinto. Professor Lucas Lixinski has warned that even its focus on the national regime needs to be viewed with caution, as it relies heavily on an international law treaty for the protection of ‘intangible cultural heritage’, which gives significant scope to governments to implement the treaty. As Professor Lixinski explains, for instance, it does not ‘make explicit how state authorities should deal with potential conflicts between heritage interests and economic development, which are at the root of the Juukan Gorge debacle.’ Further, while the treaty ‘makes the inclusion of communities central to the processes of identifying and safeguarding intangible heritage … there is no strict guidance on what community involvement means’. He argues that while the Report promises to reinvent cultural heritage protection in Australia, there is a lot of implementation to happen, and the government must ‘do it with eyes wide open and keeping Indigenous voice and truth very much at the centre of the process.’
Late in 2021, Dr Hannah McGlade wrote about the actions of the Western Australian Parliament just weeks after the federal parliamentary committee issued its final report on Juukan Gorge. The enactment of the Aboriginal Heritage Act 2021 (WA) was opposed by Aboriginal groups, and was the subject of an emergency request to the UN Committee on the Elimination of Race Discrimination, on the basis it entrenches systemic racial discrimination against Aboriginal traditional owners, and favours mining interests. The UN Committee has responded, expressing its concerns about the allegations and calling on Australia to respond to them. But, as Dr McGlade argues, the system is such that Aboriginal communities in Western Australia, in the face of legislation entrenching racial discrimination, had to go to the UN to seek redress.
The federal Minister for Indigenous Australians, Ken Wyatt, has agreed to work with the First Nations Heritage Protection Alliance (representing Aboriginal Land Councils, Native Title Representative Bodies and Aboriginal and Torres Strait Islander Community Controlled Organisations) to move on a number of the recommendations of the federal parliamentary committee report, including developing national principles to protect Aboriginal heritage. But the Commonwealth has not been swift enough, or flexed its full constitutional powers, to ensure Aboriginal people’s protection of heritage sites in Western Australia. As Dr McGlade argues:
The lessons that Western Australia tell us – so soon, so clearly – is that we need the Commonwealth Parliament to move with urgency on the reforms of the Committee, but they also, once again, underscore the pressing need for constitutionally protected structural change, as called for in the Uluru Statement from the Heart.
