Senate debates

Thursday, 29 November 2018


Constitutional Recognition of ATSIP; Report

3:37 pm

Photo of Patrick DodsonPatrick Dodson (WA, Australian Labor Party, Shadow Minister for Indigenous Affairs and Aboriginal and Torres Strait Islanders (Senate)) Share this | | Hansard source

I present the report of the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, and I move:

That the Senate take note of the report.

I rise to speak on the report of the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, a committee I co-chaired with the member for Berowra, Mr Julian Leeser, and I offer my thanks and respect to him as the co-chair. Labor welcomes this report. I place on record my thanks to the members and senators on the committee for their thoughtful contributions to this most important challenge to our country. The committee members carried out the primary task of the committee with dutiful care and consideration. They listened to the First Nations peoples in hearings across Australia. They considered what they heard, and they have arrived at some shared understanding on a way forward for the parliament to consider.

The committee was established in March, presented its interim report in July and held 27 hearings in communities around the country. In June and July, the committee had hearings in Kununurra, Halls Creek, Fitzroy Crossing, Broome, Canberra, Dubbo, Sydney, Adelaide and Perth. The committee also attended a meeting of the four Northern Territory land councils at Barunga. Barunga commemorated the 30th anniversary of the promise of a treaty by the then Prime Minister, Mr Hawke. I was there 30 years ago when that promise was made. I was working for the Central Land Council. In September and October, the committee conducted additional public hearings in Canberra, Wodonga, Shepparton, Melbourne, Thursday Island, Townsville, Palm Island, Brisbane and Redfern. The committee received nearly 500 submissions and 47 supplementary submissions, and I acknowledge with gratitude the work and good humour of the secretariat in managing a significant workload and major logistic challenges. Labor recognises that differences exist between the parties on these nationally-significant issues, and we appreciate the efforts of committee members to find common ground, which will enable the parliament to go forward if we are of the will.

In its interim report, the committee considered the proposal coming from the Statement from the Heart for a voice to parliament in detail, and since July the committee has continued to seek the views of Aboriginal and Torres Strait Islanders and others about how best to achieve constitutional recognition. In this report, the committee endorses the proposal for a voice. The committee recommends a process of design between government and Aboriginal and Torres Strait Islander peoples to work through the detail of the voice during the term of the 46th parliament. The committee also recommends that the legal form and role of the voice should be determined through a process of co-design. We see these recommendations as significant steps for the parliament to discuss and consider in the hope of moving towards a more cross-party and agreed approach for constitutional recognition. The committee also makes important recommendations in relation to truth-telling about Australia's history. Seeking a fuller understanding of Australia's history will lead to a more reconciled nation. One important recommendation of the committee is the establishment of a national resting place in Canberra for Aboriginal and Torres Strait Islander unknown remains that cannot be returned to any of our own people. It will be a place of commemoration, healing and reflection.

Unfortunately, while we achieved common ground in support of the recommendations, we ended up with two members taking different views on the options for the way forward. Senator Siewert and the Greens, in their minority report, take the view that a referendum should take place before any co-design process, subject to First Nations peoples' views. Senator Stoker, while agreeing with the recommendations that the majority supports, also supports the establishment of regional entities to get greater outcomes than a national voice or a constitutional amendment can deliver. Those members may, of course, speak to their positions and correct me if I've made a misinterpretation of their views. Their views are important and should be considered and weighed, and, as the co-chairs, we respect their opinions.

As co-chairs, Mr Leeser and myself had to do quite a bit of political shoe shuffling within our own parties as well as within the committee. We took very seriously the concerns and issues raised by all parliamentary parties and the independent member, the member for Indi, Ms Cathy McGowan. We particularly thank her for her efforts to encourage community members from her electorate to participate in the work of the committee.

I'd like to make some remarks from a Labor point of view now, as it seems that public comment has been made already in the press about the report and about Labor. Labor will be guided by this committee's report. As a party we remain committed to using this report as one step towards the future of a reconciled Australia which recognises First Nations people in our Constitution, values the history of the Aboriginal and Torres Strait Islander contribution to modern Australia, and entrenches recognition in our nation's birth certificate, the Constitution. Labour remains committed to all elements arising from the Statement from the Heart and will continue to work with First Nations peoples for a voice to parliament, for constitutional entrenchment of the voice and for a truth-telling and agreement-making process. These are high-order issues for Labor.

There was some quite intense discussion in the committee about what should come first: a referendum, legislation or some co-design form of legislation. In some ways, this is a matter of political judgement, working through all the legal consequences that words bring to constitutional considerations to achieve a successful outcome for First Nations and the community. The challenges of new words in the Constitution have their own tyranny, and we didn't have the time to do all the constitutional checking.

As a matter not covered in this report, the matter of the republic, has arisen in the pre-press before the tabling of this report, I want to make some comments about that. Labor is also keen to hold an important conversation with the Australian people on the issue of the republic and holding a plebiscite. The republic will be an important conversation, but I make it clear that we have committed to a constitutional change for the First Nations voice as our priority and our clear focus. If Labor were ever returned to government, clearly we are committed to working with First Nations leaders in the development of a national voice to the parliament and at the regional levels, as well as other elements of the report and the Uluru Statement from the Heart.

Labor will take up the challenge of enabling regional and local voices in this process of establishing a voice to the national parliament. Labor will begin the co-design process with legislation to set up the voice early in the first term of a Shorten government. Labor will also consult nationally and regionally on the appropriate words for the voice to be included in the Constitution, an issue on which the committee received some 19 different, competing suggestions and on which there were different and diverse views from First Nations leaders themselves.

Simultaneously, Labor will be consulting with Australian people in the broader community about the referendum and the way to entrench the voice. Labor understands the general desire to get on and to get things done quickly but thoroughly and to push forward for an early referendum. It will take the government of the day passing a law to make possible any constitutional change. Then it will take the opposition of the day and the parties of the crossbenches to support the question and the process for any referendum. Then it will take a majority of the voters nationally and in the majority of the states in favour of the question that has to be put to the nation. This is where we, as politicians and our parties, come in, and an interest of the parliament of the whole— (Time expired)

3:48 pm

Photo of Malarndirri McCarthyMalarndirri McCarthy (NT, Australian Labor Party) Share this | | Hansard source

I wish to stand in support of Senator Dodson's statements and the tabling of this report. I would like to just remind the Senate that, this time 12 months ago, the issue of a voice to the parliament was an issue that was almost destroyed when the then Prime Minister, Malcolm Turnbull, said no. He said no to the First Nations people of Australia. He said no to the people who'd gathered at Uluru and recommended, through the referendum council, a voice to this parliament.

I would like to commend in particular the work of both the co-chairs on this committee. Julian Leeser MP, a coalition member, despite the movement of his own leadership and the opposition of his own party, has navigated a very respectful, considered journey with this committee, along with Senator Patrick Dodson, as co-chairs.

It's very important to put on the record the work of this parliamentary committee.

People may say that there are so many parliamentary committees—maybe too many parliamentary committees—but I have to put on the record that the work of the Greens, the work of Independent Cathy McGowan and the work of other members, along with Julian Leeser, in the coalition has been important work. It is important work for this parliament. It is important work for democracy in this country. We may all come from different viewpoints but the real challenge here has been about staying together on this journey. Where I come from, as a Yanyuwa woman, we call that journey 'kujika'. It is our songline, when we travel and walk together. That's what happened over these past six to eight months, where people who come from different ideologies and backgrounds firmly believed in the importance of what was said at Uluru and wanted to make sure it was revived and kept alive in the Parliament of Australia.

Many people who read this report being tabled today will reach different opinions—and that's okay; that's what a democracy is about. As Senator Dodson says, the Greens will have something to say and Senator Stoker will have something to say, but that is our democracy. The challenge here for every single politician in this place and the other place is to find the one common thing that we have to hold onto to bring us to what I firmly believe is the voice to the Australian parliament for First Nations people. That is what we have to hold onto. We have to hold onto it in a way that respects the cultural differences of every single person in this place but rises above those differences to acknowledge the importance of First Nations people in this country and the lack of their voice to this place.

In moving forward from here, I say to all members and all senators that moving forward means that we do so with respect. We are not going to agree on everything. We are going to come from different geographic spaces and different philosophical ideas. But I call on you to believe in the fundamental importance of First Nations people needing a voice to this parliament—and needing it in the right way. We want constitutional recognition. We want to have the First Nations voice enshrined in the Australian Constitution. I believe that there are enough people in this country who will make that happen. I believe that our country will be swept up in the goodwill, the good hearts and the graciousness of so many Australians who see way too much injustice, compounded by the lack of empowerment, compounded by the lack of sincere consultation and dialogue over policies and compounded by poverty and extreme disadvantage, whether by geography or just due to financial situations.

I want every senator and every member of parliament to know that this is what the First Nations people want. We want a voice to the Australian parliament, in an advisory capacity. I challenge you, as you go on your Christmas break and you look to your New Year's resolutions, to rise above your fears of the First Nations people in this country. I challenge you to be unafraid. I challenge you to allow our country to be the best that it can be. The only way we can do that, Senators, is when we allow First Nations people to take our rightful place in democracy in this country.

We stand in this place each day and we talk about the Westminster system of governance and we talk about procedural matters, and then we ask every February, when Close the Gap comes in the statement to the parliament, why are we not making a difference to the lives of First Nations people? Every year for nearly 10 years we have been asking that question in the parliament of Australia every February. Well, as you go away, as you reflect on this year and as you prepare for next year, I urge you, senators and members of parliament, to think about First Nations people. We've been here for over 60,000 years, and guess what? We ain't going away.

3:56 pm

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

I also rise to make a contribution to the discussion on the report of the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples. I was a member of the committee, and, as Senator Dodson pointed out, the Greens tabled a minority report. There were a number of reasons for that, but, first off, I want to make a few introductory comments.

I very strongly concur with Senator Dodson and Senator McCarthy that through this committee process we heard very, very strong—in fact, I would say overwhelming—support for the voice. There was support for a voice to parliament that is advisory, not a third chamber, and I think the report comprehensively deals with that issue. But we heard comprehensive support for the voice. What I also heard was that people wanted it in the Constitution. They've seen their institutions that were set up before taken away with virtually the stroke of a pen, and they don't want that. That was one of the reasons I felt compelled, after much thinking, to table a minority report.

A number of us in this place have been involved in the debate around constitutional recognition for Aboriginal and Torres Strait Islander peoples, our First Nations peoples, for a long time. Some have been involved a lot longer than I have. But in the time that I have been involved—when there's been a formal process through this place and also as a member of the expert panel with not Senator Dodson but Professor Dodson at the time—we've been on a journey of learning about constitutional recognition.

The Referendum Council were asked to consider constitutional recognition. They went through an extensive consultation process and came back and said: 'We actually don't want what you've been talking about. This is what's important: the voice.' It was the most comprehensive process of consultation that had been undertaken with our First Nations peoples in a very, very long time, and that's what they said. I have urged members of this place many times to read it. I urge you again to read it. It so eloquently describes what the aspirations of First Nations peoples are. Every time I read it, honestly, it brings tears to my eyes because it is so powerful. That was another reason I felt compelled to do a minority report. It was because we have been on this journey, because we have been trying to reach a consensus on an approach.

Every report that I've signed onto I have agreed with, even though I might have wanted to go further, even though it might not have exactly represented the Greens' views or my personal views. I come from a political party that prides itself on consensus, particularly the Greens Western Australia. That's what we were founded on, and we continue to try and practise that at all times. I can't say we're perfect at it. But that's why it took me a great deal of heart searching to come to this decision, in that I couldn't honestly sign up to this report knowing that many members of First Nations communities actually don't support the approach—the fact that the design should come first—and that we in this place still cannot come to a mutual agreement that the voice and constitutional recognition should be enshrined in our Constitution. And I thought it was time that we acknowledged that, that we acknowledged that we're not there yet. Signing up to the majority report signals that we are still on the journey to get there, when some of us are already there. I thought that it was more honest for me to articulate that I think there are these differences that we still need to address.

That's not to say that the recommendations—in particular recommendation 3, on truth-telling, and recommendation 4, on a national resting place—are not extremely important. Senator Dodson made a point about the national resting place. Of course we support a national resting place. We strongly support the concept of the voice at the local, regional and national levels, or however that then looks.

I put a lot of weight on hearing from everybody, all members of our community, but in particular I paid a lot of attention to the very late submission, I will acknowledge, from the First Nations members of the former Referendum Council. They outlined putting in place a process—they suggested a legislative process—that would lead to the design of the body. The argument they make is that other institutions that are enshrined in our Constitution, such as the High Court, were not designed before they were in the Constitution, and I take that very much to heart. They articulated and in fact drafted some legislation. They also have some very simple words that could go into the Constitution in terms of enshrining the body. A lot of Aboriginal and Torres Strait Islander peoples are concerned that constitutional recognition could undermine sovereignty and treaty, and I think the words that we could put in the Constitution, as outlined in that submission particularly, are very simple and I don't believe they would do that. The majority report outlines, I think, 19 different options for what the body could look like and how you could word the Constitution. The committee, in its interim report, actually asked people to give us their suggestions, so of course people are going to come forward with different views and potentially different models. It's not beyond the wit of this place to come up with a way forward through those particular models and suggestions.

We strongly support the voice being enshrined in the Constitution. We are deeply concerned about moving to a legislative model articulating the body for the voice, for a number of reasons. One is that I heard very strongly that people wanted the voice to be in the Constitution. We are deeply concerned that there will be a lot of expectations put on a body set up through legislation. Of course, bodies take quite a long time to get going. Any institutions take a while to get going. We are deeply concerned that that would then be reflected on many years down the track before we got to then enshrining the voice in the Constitution. A lot of people questioned whether we would in fact ever get there.

We are deeply committed to continuing the national dialogue. Our minority report does not mean, 'We are out of here; we don't want to discuss it anymore.' We are very keen to see an ongoing discussion of the voice. We are deeply committed to its enshrinement in the Constitution and we want to be part of the national, respectful conversation.

Photo of Sue LinesSue Lines (WA, Deputy-President) Share this | | Hansard source

I remind senators that we have a 4.30 hard marker today. I am aware that a number of senators may wish to speak on reports.

4:05 pm

Photo of Jonathon DuniamJonathon Duniam (Tasmania, Liberal Party) Share this | | Hansard source

I will be brief. I too would like to place on record my thanks and appreciation to the co-chairs, Senator Dodson and Mr Leeser, who I'm pretty sure, through this process, developed a special affection for one another, herding the cats as they did. It was a huge process with a great many hearings. Many of these I couldn't attend myself, but it did mean there was a lot of reading to do. Both Senator Siewert and Senator McCarthy, also members of the committee, have already alluded to the notion of respect. Given the process that was gone through, taking into account the very different and divergent views about where we should end up, I think we did get a fairly reasonable outcome with regard to the road map forward from here. The fact that we were able to sit around a table many times over and go through our differences, working out where we could meet and mapping out the way forward, was a good thing to do.

I think all of us who participated in the work of this inquiry did take note—and I think I heard Senator Siewert refer to this as well—of the differences of view from different witnesses and submitters to this inquiry as to how best to structure things with regard to what we were setting out to achieve, and that is the notion of constitutional recognition. There were very many different views about how best to do it—from the bottom up, from the top down, different models, different proposals. I will turn a little later on to the submission from Mr Michael Mansell of the Tasmanian Aboriginal Centre, the only submission from Tasmania, just to highlight the differences of view that came into the inquiry, which is why I think where we landed is exactly where we wanted to go.

I don't think anyone who was a member of, or participated in the work of, the inquiry wouldn't have a passion for getting the best outcome for our Indigenous people, including on this particular issue. Having been a former member of the community affairs committee with Senator Siewert, and having worked with both Senator Dodson and Senator McCarthy as well, this is something we have spent a bit of time talking about. It is a very deep and complex issue, and dealing with this particular issue is only a part of it—an important part, but, as Senator McCarthy pointed out in her contribution, it is one of a great many issues that, as a country, we do need to properly take on and get to the bottom of. Of course, my background, my context, as a Tasmanian senator means I have a very limited perspective on these things, and that's why it's valuable working with colleagues like the ones I've already mentioned.

Turning to the points of difference, my colleague Senator Amanda Stoker provided some additional comments which I think provide a good explanation of why, from a coalition point of view, it was important to reach consensus as best as possible and provide that road map for future members of parliament—future governments, oppositions and crossbench members as well. The one thing that I really want to highlight is the notion of parliamentary inquiries engaging only a very narrow audience. The issue we're talking about here, of changes to the Australian Constitution, is a very important one and one that impacts on every Australian. While it is focused on addressing and supporting a particular part of our community, removing some discrimination and providing better recognition, it is something that relates to every Australian, and we need to take everyone on that journey. That's why the final report does set out a road map which, I think, gives us a chance of actually doing that.

Going finally to those points of difference from witnesses and submitters, I refer to the comments of Mr Michael Mansell, who leads the Tasmanian Aboriginal Centre. He was the only submitter from Tasmania, which I think is regrettable on such an important issue. Homing in on comments that have been made by previous contributors, no doubt there will be people disappointed in this report in that it doesn't recommend specific, hard-and-fast actions, which they were calling for in their submissions, but we went as far as we can. As Mr Mansell said in his contribution:

The biggest weakness in the race relations debate in Australia is the absence of a roughly agreed goal. The Committee cannot be expected to impose its own agenda but it can take note of stated indigenous sentiments ... and declared aspirations.

Mr Mansell went on to say:

Symbolic gestures such as constitutional recognition have had plenty of time to make a difference. Recognition has been going on since 2004 with no visible benefit Aboriginal people.

That's a point that many submitters would not agree with, but it does paint the picture that there are individuals in our Indigenous communities across the country who have a different view compared with many others.

I conclude where I started. I again want to put on record my thanks to the co-chairs, to my colleagues on the committee and to all those submitted. I commend the report to the Senate. I seek leave to continue my remarks.

Leave granted.