What Does 65,000 Years Count for in the Australian Commonwealth After a Mere 250?

Law Council of Australia Annual Gala Dinner

2019 November, 28

What Does 65,000 Years Count for in the Australian Commonwealth After a Mere 250?

Thank you very much Arthur for your kind invitation on behalf of the Council to address your dinner this evening.


I want to acknowledge the Ngunnawal People. I bring warm greetings from Cape York Peninsula.


Honoured guests, I prepared some remarks that, in moments like this I try to make a judgement of whether my preparation might chloroform people into early sleep. So, those remarks are available separately. I’ve been known to make a 15-minute case for the voice to parliament.


I’ve always believed from the very outset that in order to get the majority of voters from the majority of states, as our Constitution requires, we need Nixon to go to China. This requires a conservative Government to lead constitutional reform. That is why I went to John Howard on the eve of the federal election in 2007. And I put to him three propositions, one of which he accepted. Namely, the cause of constitutional recognition of indigenous Australians.


And it was the fact that Howard led that resulted in all of the subsequent developments since that year. The Gillard Government moved with the expert panel. Tony Abbott continued the work, and Malcolm Turnbull set up the Referendum Council. And now, we have the further iteration of that process with Ken Wyatt’s co-design committee which I am a member of. And I have to say that I am an Australian who holds some real optimism that we are going to reach our destination. We’re really going to serve our nation for the future by coming to grips with this issue. There is no better time than now for us to finally come to grips with this issue. All of the political planets are lined up. We have a conservative government. We have Nixon. We have China. We’ve really got a chance. We’ve got a very good chance.


We’re on the eve of the 250th anniversary of Lieutenant Cook’s journey up the east coast of Australia. We’ve got the gurneys out, all of the pigeon excrement is coming off all of the various busks up the east coast. We’re getting ready to think about the meaning of that fateful journey. What does it mean for modern Australia and our future? That Cook came 250 years ago and the indigenes have been here for 60,000 years. The question that is upon us 250 years later is; should that 60,000 count for anything? Or should the last 250 be all that matters? That is the question we will face next year. Does 60,000 years count for nothing? Should it be raised from the memory of the nation or put as some unfortunate footnote in our history?


The Gillard expert panel, of which I was a member, came up with the principal idea of putting the non-discrimination clause into the Constitution. There was widespread support for this according to the polling that was done. Across the political aisle there was a constituency in conservative and progressive circles. Young and old. The level of support for a non-discrimination provision in the Constitution was, in fact, the highest of all the propositions put forward by the panel.


However, it became very clear very quickly that we would not get such a proposition through the government. Constitutional conservations immediately came out and said, ‘that would be a one-clause Bill of Rights. It would empower the High Court to supervise all forms of federal legislation according to the principle of non-discrimination, and that would be unacceptable. It would derogate from the supremacy of the parliament’.


And that response, in the wake of the 2011 report, led me and some colleagues to seriously think about the viability of that proposal. And I took a journey across the Sydney Harbour Bridge to visit a leading constitutional conservative, Professor Craven, Vice-Chancellor of the Australian Catholic University. And I sat down with Greg. And I said, ‘Greg, if you won’t give us non-discrimination provision, what would you give us? You understand the problem that indigenous peoples face, you have a great empathy for those problems, so you can't just say you’re opposed to a one-clause Bill of Rights without proposing an alternative.


And it was that dialogue that resulted in a conservative constituency for the idea of a voice. And there was a consensus, a strange overlapping consensus, between constitutional conservatives, and indigenous advocates. Because from the point of view of the conservatives a voice would mean that there would be no resort to the High Court. Such a provision would not be justiciable. It would give people a democratic voice in the law-making process. It wouldn’t diminish the supremacy of Parliament, it would be a voice that would be heard but not necessarily heeded. But if the Parliament does have a power, as it does under Section 51(26) and under The Territories power, to legislate, only in respect of a specific group in the Australian community, namely its indigenous people, should not those peoples have a voice in relation to the Parliament’s exercise of power? Section 51(26) is exercisable in relation to no other group. And The Territories power largely affects indigenous Australians in the Northern Territory. Should not the people affected by those laws have some say in the law-making process? So that it may produce better laws?


Indigenous advocates said that we would be better off with the sword of the voice, rather than the shield of the High Court. And of course, the conservatives, the constitutional conservatives, were principally concerned about the question of justiciability. They had no problem with people having a voice and expressing their views to the Parliament. So there was a strange coalescence between constitutional conservatives and indigenous advocates. It should have been a pathway through the thicket. An alliance between constitutional conservatives and indigenous advocates. There was a way through. Essentially, the argument was that we could uphold the Constitution and recognise indigenous Australians. That was the common ground.


However, political circumstances that prevailed in those years of Abbott and Turnbull meant that we could never have a clear champion for the idea. And we lost an opportunity. The instability of that time and the difficulty for any political leader to make indigenous recognition an agenda in such a circumstance, defeated us.


There have been two arguments raised against the idea of the voice that I want to address. Firstly, the argument of equality. That it would introduce an inequality that is anathema to our constitution. Well, former Chief Justice Mr Murray Gleeson put paid to that argument. I would say that Chief Justice Gleeson’s speech in the middle of this year is the one indispensable speech all Australians concerned with this question should read. It is the most erudite of any discussion of the law and policy relating to constitutional recognition. And of course, he makes patently clear that the inequality argument is absurd in a federation such as ours. There are more indigenous Australians in this country than there are Tasmanians who have 12 senators representing them. That is the nature of the inequality sanctioned by our Constitution. Pointed out very clearly by the former Chief Justice.


There is the argument of race, that a voice to Parliament would reinsert the concept, or compound the concept, of race in the Constitution. However, this is the argument that the Institute of Public Affairs, and Andrew Bolt consistently advance, obscurant to the truth that this is a question not of race but of indigeneity. It is a question of whether the Aboriginal and Torres Strait Islander tribes of Australia are indigenous to this land. Not whether they have black skins. If we were blonde and blue-eyed like the Saami of the Arctic Circle, you would understand that this a question of indigeneity rather than race. The only remaining question is whether you accept that there should be recognition of the peoples who are indigenous to the land.


The Uluru Statement of the Heart represented a statement of faith in the country. A statement of faith in the idea of Australia. It was an appeal from indigenous Australia to the rest of the country to settle the grievance. To include the people who had been precluded from the Australian compact in 1901. It was an appeal. It was an act of faith in the country and the idea that Australia is big enough to include the original peoples.


Let me finish with a reiteration of that question about whether 60,000 years should count for anything. Not just as a perspective on the past but something that we might carry into the future. Should it be at all something we aim for, for the Yolngu to live long on the earth? Should it be an aspiration of ours that the Wik people should speak their beautiful languages long into the Australian future? Is this the heritage of the Australia you want as Australians?


The Referendum Council actually proposed two ideas. One was a Constitutional amendment that would enshrine the voice to Parliament. And perhaps the way through on this question of enshrinement - and by the way I do not accept that we have precluded on this question by the Morrison Government. And the question might hinge on the meaning of enshrinement. No indigenous advocate is talking about enshrining the voice in the manor of the High Court in the Constitution. We’re talking about sufficient status in the Constitution to empower the Parliament to legislate the creation of the voice that will not impede the parliamentary process, that will respect parliamentary supremacy in a way that will provide the necessary status that would define recognition.


There was a second proposition, and that was that there be consideration given to the idea of a Declaration of Australia. An extra constitutional document that we as Australians would agree to as a statement of what it means to be Australians and what is our idea of Australia. It would have the legal import of the United States Declaration of Independence. It would not form part of the constitutional law of the country, but it would form part of the moral life of our community. And the Referendum Council recommended that this declaration should grapple with the three parts of Australia that define who we are.


Firstly, that we have an indigenous heritage. The foundation of this country is its indigenous heritage. The second part, we have built upon that heritage, British institutions. We have inherited from Britain some very fine institutions and we have nailed that in the ancient soil of indigenous Australia. So, our British heritage is a second important part of who we are. And within those institutions and upon those lands there has been a massively successful multicultural migration. This fantastic achievement of multicultural Australia. Those are the three parts the Referendum Council anticipated that a recognition might deal with, by putting a mirror up to the Australian people to say: this is who we are.


So, perhaps at some stage, consideration will be given to this concept of the Declaration of Australia that shows us that indigenous recognition is but one part of who we are. It’s a crucial missing part. But in order to define the future, in order to make young Australians understand who we are, then I submit the concept of the indigenous foundations of this country upon which the institutions of Britain have been constructed and that opened its doors to an extraordinary multicultural migration.


Thank you.