Podcast Transcript
Megan Davis and George Williams “Everything You Need to Know About the Uluru Statement From the Heart”
SPEAKERS
Nicole Abadee, Prof. Megan Davis, Prof. George Williams
Nicole Abadee 00:05
HHello, I'm Nicole Abadee and I write about books for good weekend. Welcome to the Books, Books, Books podcast in which I interview the best writers from Australia and overseas about their latest book. Thank you for joining me. Before we begin, I would like to acknowledge the country where I live and work and from where I'm joining this conversation, the lands of the Gadigal people of the Eora nation. I pay my respects to their elders past and present to the elders of all communities and cultures across Australia, and to leaders of the future. You can listen to this podcast all of the episodes at nicoleabadee.com.au or subscribe wherever you get your podcasts. Today, I'm delighted to welcome Professor Megan Davis and Professor George Williams, AO, two of Australia's leading constitutional law experts from the New South Wales University of New South Wales Faculty of Law, to Books, Books, Books. To talk about their book, "Everything You Need to Know About the Uluru Statement from the Heart", published in May this year by Newsouth Publishing. This book is a combination of two decades of collaboration between Professor Williams and Professor Davis, who both joined the University of New South Wales law faculty in the early 2000s. Patricia Anderson AO, who was the co chair of the referendum Council, which we will be talking about later today, has described this book as a must read for all Australians as the nation prepares for a referendum. It is a vitally important book written for all Australians who have accepted the Uluru invitation and are walking with us in a journey of the Australian people for a better future. I'll start now by introducing Professor Megan Davis. Professor Davis is the Bal naves chair in constitutional law, and the director of the indigenous Law Center at the Faculty of Law University of New South Wales. She's also the Pro Vice Chancellor. She is the chair of the United Nations Expert Mechanism on the rights of indigenous people. She was a member of the Prime Minister's referendum Council whose work led to the Uluru Statement of the Heart which is the subject of this book. In November 2021 Professor Davis will, with other members of the council be accepting the Sydney Peace Prize for the Uluru Statement from the Heart? She is a Cobble Cobble woman from the Barrungam nation in south west Queensland. Megan, Welcome to Books, Books, Books.
Prof. Megan Davis 02:28
Hi thank you for having me.
Nicole Abadee 02:30
Now to Professor George Williams AO. Professor Williams is the Anthony Mason Professor and a Scientia Professor at the University of New South Wales. He's also the Deputy Vice Chancellor. He has written and edited 37 books on a broad range of topics, including on the High Court, The Australian Constitution and Human Rights in Australia. He has advised widely on constitutional law matters, including the making of treaties and constitutional recognition to parliament's and to organisations such as the Council for Aboriginal reconciliation. He has participated in many debates about constitutional change in Australia and he has been a columnist for The Sydney Morning Herald and the Canberra Times and on air analyst for ABC TV, and is currently a columnist for the Australian. George, welcome to Books, Books, Books.
Prof. George Williams 03:21
Pleasure.
Nicole Abadee 03:22
So we're going to start with an introduction just to explain to listeners a little bit about the Uluru statement and a First Nations voice. In your book, you provide an excellent history of attempts by Aboriginal and Torres Strait Islander peoples to achieve constitutional recognition. Those efforts culminated in the Uluru statement from the heart on the 26th of May 21 2017. Now, it's my sense that a lot of listeners will have heard about the Uluru Statement and it's called for a First Nations voice without really understanding much about them and that is very much due to the fact that there's been a lot of misinformation and muddying of the water, by politicians and by the media. So we're going to start this conversation today with my asking you to just explain a little bit to our listeners, what the Uluru statement is, and what a First Nations voice to Parliament means. Megan, I'll start with you. What is the Uluru statement from the Heart? How did it come about?
Prof. Megan Davis 04:23
The Statement from the Heart was a statement that was released by First Nations delegates to a First Nations constitutional convention in 2017, May 20, 2017. And the statement was the combination of a process that was led by the referendum council a mechanism set up by Prime Minister Malcolm Turnbull to try and bring to fruition this kind of almost decade long, at the time, commitment of the major parties and the minor parties to the contract. Traditional recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution. And so the referendum council process was a process in which in some ways, consultation with indigenous communities was being retrofitted. So, ideally it should have come at the beginning. But instead, this kind of deliberative process was conducted through the referendum council, with communities right across Australia led by the land councils, to elicit from communities themselves, what meaningful constitutional recognition might mean. The the result of those constitutional dialogues and there were 13 of them was a meeting out at Mutitjulu at Uluru, where the work or the decision making by the region's was endorsed, to determine what what is the priority in terms of constitutional recognition. And that was what the Uluru statement I suppose encapsulated. It was a framework that we decided to adopt to convey to the Australian people the exigency of constitutional recognition, because of course, 2017 is a lot, was a long way down the track from where constitutional recognition kind of initially kicked off, Nicole. It's been around for decades and decades, this idea of what constitutional recognition might look like for Aboriginal and Torres Strait Islander peoples. And there was a little bit of it discussed around the 1999 referendum, because there was a singular mention of Aboriginal and Torres Strait Islander people in the preamble put up by Howard. And then four days before Howard's election in 2007, against Kevin Rudd, he announced that he would be running a referendum to recognize Aboriginal and Torres Strait Islander peoples in the Australian Constitution. So it really took that kind of 10 year, you know, period until the Uluru Statement where we finally heard from the First Nations peoples through these multiple government processes, of what constitutional recognition looks like to them. And the Uluru Statement says that it looks like this. It's a constitutionally enshrined voice to Parliament. It is then the creation via that constitutional voice, a Makarrata Commission to settle agreement making and truth telling across the continent. And we decided that, like in 67, we would not, you know, we would work, we would fight really hard to get politicians to support this, because they don't think about indigenous policy much and they certainly don't think about big picture nation building things anymore. And so we decided out at the rock, or at least, traditional owners and the people there that we would rather than hand a Bach petition to Malcolm Turnbull with the Uluru Statement written on it, we decided we would read out a very simple statement to the Australian people, explaining why we need, why we want to do this, why we need their help. And we issued it as an invitation to the Australian people to walk with us in a journey of all Australians for what we call a better future. And so, that really is what the Uluru Statement from the Heart is.
Nicole Abadee 08:57
The main point isn't it that is that the idea for the referendum council was for indigenous people to consider various forms of constitutional recognition and to decide on what their preferred one was. And the preferred one was, unanimously as we will come to see a First Nations voice to Parliament. George, what does that actually mean? What would its role be? And who would make up that voice? What would its structure be?
Prof. George Williams 09:23
Well, when we talk about a voice, we were talking about a mechanism for being heard. I mean, it's as simple as that. But what the glory statement identifies is a failure to be heard and the consequences of that. And of course, that is the record of many, many years of failed policymaking in Australian laws being made for Aboriginal people without their voice being part of that conversation. And the Uluru statement identifies as the first priority rectifying that. So the idea is that you would have a body and advisory body that would sit alongside parliament, like many other bodies that we have; we have productivity commissions, we have, have an order form conditions. There are many examples of this, this will be one, though that would be special in that it would enable the voice of First Nations to be heard. And people would be chosen for that body, we don't yet know the process for that. That's something we need, again, indigenous people to tell us what the right process is for that. But once they're chosen, they would look at laws that are coming into parliament, you might take a good example of the laws that dealt with the problem of sexual abuse in the Northern Territory many years ago. And you would have a voice in that case that would provide advice from the indigenous perspective, what's the right response? How do we deal with this complex social problem that is so intertwined with the long history of indigenous peoples in the Northern Territory in their interaction with government, the voice will also provide an opportunity to be sent issues, maybe forthcoming policies and laws to get advice. So even before those things are drafted, that government has a vehicle for listening, and making sure Indigenous peoples have a say. So essentially, it's all of those things. But at base, it's just the opportunity to have a say when too often that is not available.
Nicole Abadee 11:03
George, would the advice be binding on parliament?
Prof. George Williams 11:06
No, there's never been any suggestion that it would be binding. And that's because the voice in many ways is very traditional. It actually respects parliamentary sovereignty. It recognizes that Parliament makes the laws, elected representatives have the final say, this would be another particularly important point of advice. But Parliament would have open to it the ability to ignore that advice if it wanted to. Come with a cost you would say, to ignore the voice of indigenous peoples on an important matter affecting them but that's a political decision. And this would not have any power to make binding decisions or in any way to undermine the existing institutions.
Nicole Abadee 11:45
Let's talk now in a little bit more detail about what you've talked about Megan, how the Uluru Statement came about. So in December 2015, the then Prime Minister Malcolm Turnbull, together with the then leader of the opposition, Bill Shorten, established the referendum council. Could you tell me a little bit about what its role was? And who were some of the members? I know that there were indigenous as well as non Indigenous members.
Prof. Megan Davis 12:09
Yeah. So I suppose the first thing to say about the ref council is that, you know, we're sitting here in what is it? I forget where we are with all of our lockdowns, we're in 2021. And in, and since 2010, we've had 10 years of constitutional recognition. So 10 years of government processes, so processes set up by the state, so there's been seven processes and nine reports established, I mean, done in that time. So just just by way of background, that's what we're looking back at when we think about the work of the referendum council. So the referendum council came, I suppose, after three other mechanisms before on constitutional recognition. So the first being Gilad Prime Minister's expert panel on the recognition of Aboriginal and Torres Strait Islander peoples in the Constitution. And they handed down a report where they made a number of recommendations, which actually came to form the basis of what the referendum council took out to Aboriginal communities in the dialogues. And then after the expert panel, kind of report and process, there was a review panel, which was led by John Anderson, the former leader of the National Party. And he he he did a whole consultation process and wrote a final report in 2014. So, you know, two years after the expert panels report, and then across the top of all of these, we have a Joint Select Committee on Constitutional Recognition as well and that ran from 2013 to 2015, led by Nova Paris and Ken Wyatt. They produced three reports and an interim report in 2014, July 2014, I think it was and then a progress report in October 2014. And then a final report in January 2015. So the referendum Council kind of comes after all of that. And so by mid 2015, it was apparent to us that we had a lot of people in the community that were not interested in constitutional recognition, at least the opportunity of it. So, myself and Patrick Dodson, and no Pearson and Kirsty Parker, who was at the time the chair of the National Congress of Australia's first peoples, the kind of national peak body that had been set up by Labour and Macklin under Rudd. We went to see Abbott to say, I mean, Abbott was very interested in constitutional recognition, but in a kind of minimalist, symbolic way and he was working closely with, you know, the recognised campaign in Labor about, you know, where they were heading on constitutional recognition. And it was quite clear to Noel, Patrick and myself and Kirsty that, that we're talking about a symbolic form of recognition. So it's important for your listeners to keep in mind that the word recognition is is it just means acknowledgement in the dictionary. But, but in legal and political terms, it's a very complex notion recognition. And it can mean symbolic statements in a constitution, something very poetic, something that is just symbolic. But there's a spectrum. So at one end, is the symbolism and at the other end, there's substantive reforms, something like Nunavut in Canada, like a new territory, for example, or, or a new provision in the Constitution like, again, Canada, section 35. But but the the important point for your listeners to keep in mind is that symbolic is the what we call the weak end of the spectrum. So it's, it's called weak recognition, because it doesn't actually require the state to do anything. And it doesn't stop the state from doing anything. And that the strong end of the recognition, kind of spectrum are things that, you know, compel the state to do things or stop the state from doing things, but they, they have the force of law. And that's the really important point is they compel the state in a way that symbolism can achieve. And so that's where it made 2015. That's where Aboriginal and Torres Strait Islander minds are at right in terms of substantive changes that will make a difference to our people's life. Not dissimilar to what we heard on the expert panel with Gilad expert panel. Australians were saying at the time, then, that they thought symbolism was a waste of time, that if you were going to go to all the effort of getting Australians to a ballot box on a referendum, you want to make it something that's going to actually make a difference to people's lives. So there is actually a alignment between the Australian kind of people who have been involved in these processes and being polled or actively participated and Aboriginal communities. So mid 2015, we make this point to Abbott. He decides to run a leaders meeting at Kirribilli just to check that we're that we're telling the truth, I guess, no, no, just to hear from other leaders. And he calls in 40, Aboriginal and Torres Strait Islander leaders from land councils and paid bodies and other things. Brings us all to Kirrbilli house with shorten and basically, everybody had the same message for him. You know, we don't want constitutional recognition, if it's symbolism, sorry. So he goes, Okay, we'll set up another mechanism. So he gets kicked out, turn book comes in and table sets it up. And, um, and so the referendum councils actual, you know, terms of reference, where to look at, you know, what kind of options are likely to bring the Australian people are likely to get support from the Australian people so that we can go to a referendum. So, in terms of reference required us to kind of lead a national consultation and community engagement, about constitutional recognition. And the terms of reference also allowed us to have a concurrent series of indigenous design and lead consultations.
Nicole Abadee 18:24
I know that you were one of the members, could you just tell us about who some of the other members were indigenous and non Indigenous?
Prof. Megan Davis 18:29
Yeah, so it was a really a great experience, actually. It was very broad cross section. So there was Amanda Vanstone, who'd been the ATSIC minister and had been around when ATSIC was abolished. Former Chief Judge Murray Gleeson who was really deadly actually, really active and awesome member of the panel.
Nicole Abadee 18:53
Former Chief Justice of the High Court.
Prof. Megan Davis 18:56
He was really deadly. Um, you know, Mark Leibler and Pat Anderson they chaired.
Nicole Abadee 19:01
And Mark Leibler is the is the senior partner in a law firm Arnold Bloch Leibler
19:06
Arnold Bloch Leibler. Yeah,he is he is and he was also the chair of the expert panel as well, so there was that continuity there. There was Kristina Keneally from Labour, Noel Peearson was on it.
Nicole Abadee 19:19
You said Pat Anderson, she was the chair. Tell me a bit about her.
Prof. Megan Davis 19:23
So Pat Anderson is an Aboriginal woman who has been involved in the community control health sector. She's one of the people that led to the establishment of the Aboriginal medical services. So she's been around for a very long time. She's currently the chair of the Lowitja Institute, which leads you know the nation in terms of research on Aboriginal and Torres Strait Islander health. She was also one of the authors with Rex Wild SC of the Little Children Sacred Report. And that report, although, you know, had nothing to do with Pat, but that report was the report that led to the Northern Territory intervention.
Nicole Abadee 20:08
So it was a really diverse group of people, wasn't it? It was people from both sides of politics. It was senior lawyers, the most senior, the former Chief Justice of the High Court, and I think it was about 15 people. Is that right?
Prof. Megan Davis 20:21
Yeah. And Natasha Stott Despoja and Michael Rose and Gullaroy, so it was very, it was a very, and Andrew, Dmitri, I think I said that from the AFL but it was a very, yeah, in turn in terms of, you know, Murray, and, you know, there was it was a very kind of distinguished panel. Including, as I said, my main events on who's very, you know, thoughtful on, she'd been there in terms of Indigenous Affairs Policy. And, you know, also was an incredible contributor. So it's a very, it was absolutely a cross section, I think Jane McAloon. Two, I think is like used to be the senior counsel with BHP, so a big, a very kind of diverse committee Council.
Nicole Abadee 21:03
And Mgan it's real role was to consult, particularly with the indigenous community, and then to come back and report on what their preferred form of recognition was. So I know that you were very much involved in designing the method for consultation. Could you just tell us a little bit about the 13 regional dialogues? And how, what happened at them who attended, how they were run?
Prof. Megan Davis 21:26
Yeah, so I was charged with designing what the dialogues might look like. And that was, you know, it was a long and difficult job, because our people were kind of insular, but at the end of their tether when it comes to consultations, or as they call them, consultelling, I think they call them. Where people just come out, tell them stuff and disappear, and they never hear again from them. And so we didn't want to do the same. We didn't want to impose the same thing upon them. Constitutional reform is like a once in a generation opportunity. It was such an incredible opportunity for people to grasp and run with. And so we needed to work out a way that they felt safe and they felt like they were in control. So we we we started thinking about the dialogues very early on, we actually had a meeting about what they might look like, on the very first day that the council met. The Aboriginal members met the night before and nutted out what we thought might it look like around the country. What we, I mean obviously we couldn't meet with every single Aboriginal, Torres Straight Islander person, but we thought, you know, we are, you know, a culture that is a collective that is a gerontocracy. So it was really important to ensure that whatever we do, we would have a sample of First Nations people, but we would privilege our traditional artists and our cultural authority in those meetings, because then the nature of cultural protocol is that, you know, the rest of the First Nation members will understand and, you know, support the approach that might be adopted. So, we decided that we would get the land councils to auspice the dialogue, because that's where the bulk of our traditional owners sit. And the invitation list was to be 60% Traditional Owners or or cultural authorities they are our old people. And 20% would be our Aboriginal organisations. So the organisations that do all the heavy lifting and the work in community, so legal services, health services, cultural groups, Rangers, all sorts of types of groups. And then the last 20 would be up to each region to decide who the individuals would attend, but it was meant for individuals, so you know, Stolen Generations or famous leaders in the movement, in the struggle, or, you know, grandmothers against removal, like all of the many different, we had a lot of young people turn up, all the many different people that would be interested in constitutional reform could attend, and different different dialogues or different systems for that. Some were hand picked, and others wrote a little expression of interest and were selected. And that's how we got our kind of 100 people in all 13 sites. And then, you know, it was designed in a way we did a lot of research on real groupthink, for example, because we had a number of options that have been sent to us or agreed to by Turnbull, and Shorten, and they agreed to all the expert panel recommendations plus treaty plus voice to Parliament. So they were the options that Turnbull and Shorten gave permission for. I didn't want dialogues where people, sometimes in our kind of community meetings, people don't talk because they're not senior enough. Or they don't talk because they might be women and feel intimidated. Or, you know, you I've seen people comandere meetings and nobody gets to talk because everybody's to fearful and we wanted to have an environment where people were fully informed using the UN Declaration on the Rights of Indigenous Peoples and the notion of free prior informed consent. Although it is a First Nations based thing, we wanted everyone participating in it, to feel free to express an opinion. And we didn't want it being hijacked by groups who had preconceived ideas of what they wanted it to be. So we didn't want like a treaty group coming in and just dominating, we needed people to go through a really structured process. So it was a structured process over three days. That involves civics education, and it involved legal education as well so that we could walk all of the mob through the options that the government had allowed us to take to them.
Nicole Abadee 25:45
There were five options weren't there? There were five options for recognition that you were authorised to take and the idea was that you would ultimately come up with a consensus about one of them,
Prof. Megan Davis 25:55
we counted seven all up because they, we did have treaty and voice as well, section 25, that, so deleting section 25, that contemplates the possibility of a state government excluding Australians from voting on the basis of the race. You know, Gleeson, the panel that I sat on, were adamant that that was a dead letter, and that there was no use taking that out for a yes or no, kind of like, let's debate whether we say, so we didn't include that, we talked about it in the dialogues but everybody accepted that it isn't functionally a section that has any kind of valid operation today.
Nicole Abadee 26:37
What happened, as I understand it, is that there was a consensus from all of the 13 regional dialogues, what emerged was that they unanimously supported one form of recognition. And what was that?
Prof. Megan Davis 26:51
Yeah, so that was the voice to Parliament. So every single region, nominated that first. And so the Uluru convention really was just each of the regions coming to Uluru reading out what the recorded meeting was in their meeting, so everybody had to agree on that record of meeting before the end of the meeting. And then we pulled together, they read out what their priorities were, and we pulled together the stats on which options were the most, you know, prominent, and yeah, voice to Parliament was the number one, it was a consensus right across the continent.
Nicole Abadee 27:28
Megan, when you say the Uluru convention that was the National Constitutional Convention, which was held at Uluru in May, and I think there are about 250 delegates that attended and and that that the purpose there was not to make a decision, but it was to really endorse the work that had been done by the Regional dialogues. And that then led to the drafting and adoption of the Uluru statement. I gathered that you were very much involved with this with the actual drafting of the Uluru Statement and I was wondering, who came up with that idea, that very beautiful, gracious idea, pulling together the consensus and then putting it in the form of an invitation in that way and who actually drafted the Uluru Statement,
Prof. Megan Davis 28:15
I think, in terms of the decision to actually issue it as a statement to the Australian people, you know, it was it was really, it came from a lot of, so everything that we ever do came from the people who participated in the conventions, including Uluru, the Uluru statement, if you look at each and you read the Uluru Statement is actually 18 pages long because it includes the Aboriginal version of Australian history. And when you read the, what's called Our Story, that's what it's called. You can see the Uluru Statement in our story, you can see how we've pulled out different lines and put it into fashioned it into the Uluru Statement. And look the Uluru Statement from the Heart was written by a number of us over, I don't know, mus've been 12 hours or something, we finished at 4am, we were pretty tired. And then had to deliver it that morning, I think to the to the to the mob, and it got endorsed unanimously,
Nicole Abadee 29:11
What law reforms did it ask for?
Prof. Megan Davis 29:14
So the primary thing is a is a referendum to have a, enshrined in the Constitution, a constitutional voice to Parliament. So that's the primary reform. And then and then the reason why the Restatement was written this because it speaks to the other agendas that Australia has to attend to. And one is the agreement making that needs to be done between First Nations and and the state and so that's what we call traty, Makarrata is the word that, you know, Gullaroy gave us or allowed us to use in this process. It means the coming together after a struggle. So Nicole, one of the things that's at the heart of the Uluru statement is that a lot of the dialogues are really critical of the reconciliation movement and reject reconciliation as the framework. They say reconciliation is the wrong word, that it means that there was a relationship beforehand and you're reconciling but one of the things many dialogues said was we have not met yet. And all the Uluru Statement is that gesture it is, it is asking Australians to come and meet us for the first time at the rock, to listen to the grievances that we have. And then to walk with us to help us convince the Australian political class, that this is a really important thing for the nation to do. And that, you know, as Australians, we're going to take the lead on this because they represent us. And so that really, I think is at the core of, of the Uluru statement is us coming together after a struggle.
Nicole Abadee 30:48
Megan, as you said, it ends with an invitation, we invite you to walk with us in a movement of the Australian people for a better future. You were the one who read out that statement for the first time to the national convention and to the Australian people. And I wanted to ask you, how did that feel?
Prof. Megan Davis 31:06
Yeah, I can't, I remember the one out at the rock that was on television but I don't remember, really the one inside. I wa, we were pretty nervous and anxious about everything for that meeting. But no, I mean, you know, I felt pretty honoured to have worked with these people. You know, and, you know, the community wasn't in a good place when we went out and did these consultations. And, and, you know, we had to really talk them into participating.
Nicole Abadee 31:36
Was that just because they were sick of it, Megan, because there have been so many consultations, and so many committees and nothing had come of, of them.
Prof. Megan Davis 31:43
It wasn't recognition so much, I mean, they didn't like there was a thing called the recognised campaign at the time and they really hated that. So we had to convince them we weren't the recognised campaign. But it's more the government, they're just, they're just tired. They're just tired. And I think when Abbott was elected, he introduced something called the indigenous advancement strategy, which saw all of the Aboriginal money ripped from communities and put into another bucket. And so what you saw was a lot of the infrastructure and jobs and employment and what were the remnants of the Whitlam self determination policy just dismantled overnight. And so you had communities that, and we know now the Australian National Audit Office backs up what the mob set in the dialogues, right, these decisions were made, in a really arbitrary fashion where bureaucrats kept no record keeping, there's no evidence of how decision was were made, and why. But the bulk of the money in the first two rounds went to corporations with Reconciliation Action Plans, which, you know, really spoke to, I think, the animosity in communities towards the reconciliation process. So something like 70 to 80% of the money went to non Indigenous entities. And so in some of the places where we work, and have been and visited and worked on constitutional form, like Yarrabar, 40 minutes outside of Cairnes, they, they lost control of a lot of their programs, and they were now being delivered by Save the Children and other NGOs who drove in from Cairnes to deliver them to community. So the disempowerment and the lack of autonomy that has come as a consequence of that policy setting has been really devastating. And so they just were not in the mood. And they certainly, because of the policy setting, couldn't understand why recognition would be on the table.
Nicole Abadee 33:33
So it was quie an achievement wasn't it, then to get all of them to the table at these regional dialogues, and then to actually achieve consensus? And the consensus was that the main reform was to be a voiced Parliament, and that that was to be enshrined in the Constitution. George, I want to ask you about that now. So the idea of the voice, I think a lot of people have heard talk about this voice, and they don't really know what it's meaning, what its function would be. My understanding is that it would be an indigenous body, whose role would be to advise parliament on laws and policies relating to Indigenous Affairs. Is that right? Is that basically what it amounts to?
Prof. George Williams 34:13
Yeah, I think it's as simple as that. It's, it's a means for indigenous people to be heard in making laws that affect them and their communities. No suggestion will be binding, they won't be making laws, that's Parliament's job, but just a way of being heard. So that a vital perspective is not missed, when laws are made for First Nations people
Nicole Abadee 34:31
And no veto power, right?
Prof. George Williams 34:32
No, no veto power. So there's been suggestions, for example, that this might amount with blue Chamber of Parliament. It's just wrong.
Nicole Abadee 34:38
Yeah. Could you could you deal with that allegation?
Prof. George Williams 34:42
It was one of these furfies that emerged pretty early in the debate and I think probably somebody bring that up as a way of having a bit of a scare campaign, perhaps the voice would amount to a brand new Chamber of Parliament, Indigenous peoples would have a privileged position that they could make laws themselves, they might have a veto on what are elected representatives would do, but none of that is correct. It's just an advisory body. We have many advisory bodies already in our system of government, this would be another one a particularly important one. But it's actually not possible or even sensible to set up a third chamber in that way. So it's a bit of rhetoric that sadly, some people don't quite understand how wrong it is. And they should just focus on the fact that it's an advisory body with an advisory role.
Nicole Abadee 35:26
George, I want to talk to you a little bit about why it was that this was the form of recognition that Australia's indigenous people selected, do you write in your book about how other countries have given a voice to their indigenous people in various different ways? You write that in Norway, Sweden, and Finland there's a First Nations parliament. In New Zealand, for example, they have seven seats in their parliament reserved for the Maori people. Why did Australia's First Nations people decide not to go for an option like that, and instead to ask for a voice to Parliament?
Prof. George Williams 35:59
Well, I think the first thing to say about those options is they demonstrate again, just how normal this is. That in countries around the world, it is a normal thing to give indigenous peoples a say, over the laws that affect them. And indeed, if you don't give them a say, the odds are the laws won't work, they won't be well calibrated, they won't meet the need. And you'll end up with a disempowered community and a really paternalistic system. In fact, what we've had for decades in this country with a conspicuous rate of a lack of success, in this case, in the dialogues, as Megan has indicated, the people debated all the options, it might have been reserved seats in parliament, it might have been the other options you've mentioned but they felt that this was the right way forward. And there's a number of reasons why we can understand that. One is that it fits very well with our existing system of government. It's not a radical change, it's something that's likely to attract broad support across the community, including, if we look around the nation, many of our conservative politicians see this as a sensible, modest, workable change. And so it had the potential to have broad support. But at its fundamental, again, as Megan suggested, it moved us beyond symbolic change. This was not about putting words in the Constitution that can be read out and make us feel good. This was actually about structural change that was inserting a new source of authority, a new source of meaning within our system of government that would inform the all sorts of laws we make. Not directing becaue it's advisory, but actually would be a substantive, meaningful change that indigenous peoples felt would actually change the way the nation makes laws and engages with their community
Nicole Abadee 37:38
And George why is it so important that the voice should be enshrined in the constitution rather than just in ordinary legislation.
Prof. George Williams 37:46
Well, I mean, one reason is that we've had a lot of record of all sorts of things being put in ordinary legislation and it's vulnerable. I's chop and change. You can look at whether it be at ASIC you can look at other advisory bodies, you can look at a range of programs that just haven't survived a political change of government, or changing political fortunes. And we're dealing here with something pretty basic. And that is the ability to have a say, in the making of laws. It can't be subject and had that level of insecurity to be effective. Remembering, of course, we're dealing with a community, that's a couple of percent of the population. So it's always vulnerable to the swings of popular opinion. And that's just not an acceptable basis to have a long standing structural change to our system of government. But another one is that a referendum itself has power. You look at 1967. That change was pretty modest in 1967.
Nicole Abadee 38:39
Could you just explain to our listeners about the 1967 referendum?
Prof. George Williams 38:43
Well, there's all sorts of myths of course, we think about 67 as giving indigenous people citizenship didn't do it. Did they get the vote then? No, that happened in 1962. What it did do is it said the Federal Parliament can make laws for indigenous people, which previously they were prevented from doing. And it also removed a clause that stopped the counting of indigenous people, particularly for things like calculating electorates, important changes, but nowhere near as large as the popular imagination
Nicole Abadee 39:13
had thought really was huge support wasn't there. There's 90%
Prof. George Williams 39:17
support our most successful ever referendum and indeed, in many ways, tracking this process, popular process, strongly backed by Aboriginal and Torres Strait Islander people. And the government is still very reluctant over many years, they had to be dragged to the referendum ultimately, and they were and then we had our highest ever result. And in some ways, I think this is a positive for me and another campaigners that the more the government is seen as being a bit reluctant, in some ways, the easier it is to convince the people that this isn't a politicians change, this is actually for the people. This is for the community it's seeking to serve and in 67 90%, our most successful, and it was one of those nation building moments that change perceptions and changed our understandings of who we were as a country. But it just left this unfinished business. It didn't have the structural change, it didn't build in a voice. And so this referendum is about that next step. But just as an important nation building moment, that you cannot replicate through legislation, neither security nor the mandate. And what the Uluru Statement says is they want to walk with the community, they want the community to get behind this. That's what's needed. And frankly, a referendum is the only way of actually doing that.
Nicole Abadee 40:30
And George the only element of constitutional change is the insertion of the voice. There are two other things that the that the referendum Council, recommended that came through in the Uluru sStatement and that's, as I mentioned, briefly, with Megan, the Makarrata commission, to oversee a process of treaty making and truth telling. Now, those things have to take place, as I say outside the Constitution, but they're also part of the Uluru Statement, could you just talk a little bit about those aspects.
Prof. George Williams 40:58
And the sequencing is important. Because as the Uluru Statement identifies until you have a voice, it's hard to have a fair treaty process or to have a proper truth telling process. So you've got to have people at the table first, before you can do those other things. But once you've got the voice, it is recognized that Australia does need to have a fair settlement with First Nations. That's what a treaty is simply an agreement. It's not a constitutional change. It might be an agreement between government and a local community that the naming of an area, there might be compensation in some cases, it can deal with a wide variety of unresolved grievances. And so it's a coming together to solve those things. They're very common, it is the settled way of resolving these things. And, and sometimes these were treaties entered into when colonisation first occurred, often to authorise the taking of land. And usually on very unfair terms. Sometimes they contemporary treaties, like in Canada, they still making treaties, to this day to resolve this unfinished business, these grievances, so they're common, Australia is actually really exceptional, we're the odd one out in not having these arrangements. And we actually have a system of government that was premised upon the exclusion of indigenous peoples not resolving these issues. And so hence, the Uluru Statement says, hear us, then we want to negotiate a treaty, finally, after a couple of hundred years. And then thirdly, we do think truth telling is important. But the truth telling is part of this story. It's not the first thing, because if nothing else, I've had a lot of attempts at truth telling a lot of reports a lot of things have happened, but without a voice, it's not clear truth telling will be effective in atheway it shoud be.
Nicole Abadee 42:03
So then, of course, after the Uluru Statement in May, in June 2017, the referendum council handed down its final report and endorsed the Uluru Statement, and it's call for a voice for parliament. Megan, I'll throw this one to you what what was the government response? And what's happened since then?
Prof. Megan Davis 43:01
Well, the the initial response was just definitely silence. There was silence for about a for about a month I think, until we got a report out. But look, the first formal response was the rejection via by Malcolm Turnbull to the referendum councils recommendations. So that was in about October of 2017, I think. But we've we've come a long way since then. But just on his rejection. It was pretty disappointing given that there'd been no public discussion whatsoever of what had come out of the referendum councils report. And after, you know, 10 years of this constitutional recognition journey, it was a pretty sad and ruthless way to try and to shut down recognition. But we're still here four years later, which speaks to I think, my colleague, Noel Pearson, and calls it the torment of Malcolm Turnbull's powerlessness to take a light from the Uluru Statement, which is probably had more to do with politics than anything else. But the world has moved on. He's no longer Prime Minister. And what we've seen is the his rejection, and then about a month later, it was put into a Joint Select Committee. And that committee was led by Julian Lisa and Patrick Dodson. And they spent the year just talking to people and hearing people give evidence about, you know, the old process and the reforms and they call for and and I think they came to the end and concluded that there was no other constitutional reform on the table. They did tellingly lament the loss of symbolism because they said that was what, you know, politician supported in Canberra, but they accepted that this process has made a pretty clear statement from First Nations people that they don't want symbolism. So they said the voice was like the only viable reform that would take us to a referendum but they needed to some work done on Yes, I do. Their view was there needed to be meat on the bones of voice would look like. And they were recommended a co design process in which the state and indigenous peoples and the Australian people would all design the voice together. And then a referendum could be contemplated after that.
Nicole Abadee 45:17
So that would be to sort of work out the nuts and bolts of the of the voice, the structure, the number of members, things like that?
Prof. Megan Davis 45:25
All of that. All of that. So that was their recommendation and then we had a budget not long after that, and Frydenberg, or the government put aside $7 million for the CO design process. And they also put aside $160 million for the referendum to be run. And that 160 million sits in the contingency reserve still, for the purposes of a voice referendum. Then we had the election, we had a strong indication from labour under shorten that they would run a referendum in the next term. Although they had quite a robust constitutional policy, where they were going to set up a Constitutional Commission to start running a number of referendums on important things that were plaguing the Australian Constitution, such as you know, citizenship, section 44, and four year terms again, and other other matters that need to be cleaned up, I think. So that that was their agenda, but they didn't win and so Morrison, Scott Morrison won, and Ken Wyatt became our minister, this is 2019. And since then you've we've kind of just got kind of mixed messages, but no, no from from the LNP. What we have seen is a co design process set up just as Lisa and Dodson recommended, the Prime Minister has stuck very much to the recommendations of that JSC. Meaning design the voice, take a look at the voice before making any decisions about what form that was should take. And a referendum. And so we've had this year has been spent COVID was difficult for that committee, this year has been spent, they produce an interim report on what the voice might look like. And that report is, I believe, has been handed to the minister Wyatt. And I'm not sure when it's going to be handed down. What he has said, though, is that, although the report might be handed down, there'll be no action on the voice in this term of Parliament, which means we pick it up again, on the other side of on the on the other side of an election.
Nicole Abadee 47:37
One thing I meant to ask you earlier, when we were talking about the regional dialogue, something else that was significant is that there was quite a great deal of public consultation as well, in addition to the regional dialogues. And I wanted to ask you, we've seen what the government's response was, what's the community response been to the idea of a voice to Parliament?
Prof. Megan Davis 47:56
That's been it's been really incredible, actually. I mean, when I look back on all the work that we've done, over 10 years, it's it's, it's, it's such a radical difference to say that expert panels recommendation for a non discrimination clause, you know, just didn't kind of capture the Australian people in the same way. And, and so, we've had this overwhelming response from people right across the political spectrum, which has been the really nice thing. And of people accepting the invitation saying, though, that they want to walk with us, and they want to help. So what we know from the polling over four years from 2017, to now, is that it runs up around 60%. And definitely over 50%. In favor, sorry, we've made that very clear to the to the prime minister that, you know, we say it's in a good, it's in good shape to go forth to a referendum, because it's got a really strong base. And in that polling via Crosby, Textor, etc. It's very clear that the nose and the rusted on nose is very small. And it's partly what George was alluding to. It's actually quite a logic, it's very conservative reform that actually is his differential to parliamentary sovereignty. And we worked a lot on that in the dialogues about what kind of reform would be robust, but but fit in with the Australian kind of political temperament, but would actually make a huge difference to our people's lives. And so I think, I think, you know, that polling is consistent. And this new polling that we'll be releasing soon, that show that that's, that's solidifying, it's not going anywhere, it's not going down. The other thing is we intends process, it had it, there was a public process for Australians to make submissions on a voice. And Nicole, you know, from being a lawyer that these law reform proposal processes only get attract, a small number of submissions from Australians, and this one got something like 3000 submissions from the Australian people about a voice to Parliament. And it was 90%. I think it's 80 - 89% of submissions are asking for a referendum. So they're saying we support this model, but we want a referendum before you legislate to set up a voice to Parliament. So that's quite unusual to see such a huge response. And it's right across the spectrum. It's, it's unions, its teachers. It's the churches have been incredible. It's Fekir, and all multicultural Australia, its sporting groups, its corporate Australia, who really led the way on this. It's Australian law firms who just incredibly went out and supported all the route from the very beginning, actually. So it's, it's extraordinary. I've had Aboriginal leaders come and say to me, you know, we lead the process, we're negotiating the Native Title Act, but they're like, you know, you don't have the same organised opposition. You know, we get pieces by the IPA occasionally in The Australian but, but generally, there seems to be a sentiment that 1) Australians are really taking up the offer of Uluru what is the promise of a nation that enshrines the voice of these polities whose ancestors are over 60,000 years old on this continent? To enshrine them in our very young democratic framework to recognize their voice as being integral to who we are as a nation, it's such an incredible offer. And if an Australians can see that, I think George just summed it up really well, that, you know, as politicians resist, and this just shows Australians and black fellows that this is actually a really important, this is a really important thing for the nation to do together and for Australians to do together. And I think that's where we're headed.
Nicole Abadee 51:47
I have one question left for each of you, but just before that, Megan, I want to ask you, if somebody listening to this program thinks that they want to do something proactive, to support the inclusion of the voice in to, to have the voice in Parliament enshrined in constitution, to support this, what can they do? What's the most effective thing they can do?
Prof. Megan Davis 52:08
I think, I think that our listeners, well your listeners should sign up to the Uluru Statement. So if they go to ulurustatement.org. That's a little website that me and Bros Dixon and a few other people at UNSW law set up the day, after Uluru with like 200 bucks. And soon it's going to turn into a magnificent butterfly, because we've got a website, thing built behind it, but ulurustatement.org is, is the website set up by all of the leadership and black fellas involved in the Uluru process. And it's our invitation website, it's where we want Aussies to sign up and, and we send out material every week, every two weeks to keep people involved. And on that website is a letter generator, where we're asking Australians to write to their local MP. So it's got one of those local MP kind of things, tricky little things that I don't understand where you put in your address, and it gives you your local MP. And you know, we had a nice, Uluru, just did a big talk with Dave Sharma on Instagram Live last week about how to write letters that are effective to local MPs. And he was really good. He said, You know, we do prefer we have a pro forma on there, but he says we do prefer meaningful letters. And so we have been asking Australians, you know, if you have something really, you know, meaningful to say, if this means something to you, or you might have Aboriginal family in your heritage, or, you know, you're just really moved by the oral statement, that people fashion their own letter so that their local MP can see how much it means to them as you know or means to you as an Australian. So that's, that's what I would suggest that they do.
Nicole Abadee 53:41
Thank you. George, can I just ask you something for just we won't go into the technical issues in relation to what section 128 of the Constitution requires in terms of a referendum. Let's just say that it's quite complex, and that for whatever reason, most referenda in Australia have failed. Only eight out of 44 have got, have got up, have been successful. You or both of you, in your book, outline the best prospects of success for this particular referendum. What are they? Could you just explain what what how do we give it the best chance of succeeding this referendum?
Prof. George Williams 54:19
And a lot of this is common sense. And a starting point is that as much as possible, we would like the political parties to be aligned in wanting this change. It's not essential, but it's certainly desirable to have that. It's harder to get a referendum up if you've got one of the major parties opposing. Another aspect is that it needs to be owned by the community. If this is seen as a politician's proposal that tends to be the kiss of death in Australia. So this needs to be grassroots. It needs to be born out of the community, but in fact, he couldn't have this more in spades than the Uluru statement which is a community based statement on behalf of the very people the referendum is designed to help. Another aspect is that you need enough community knowledge about these matters to cast an informed vote, the evidence clearly shows that when the community doesn't know about something, they're likely to vote no. In fact, the old slogan or don't know, vote no, is really powerful in referendums. So hence this book, and much of the work that Megan and others are doing just to give a baseline set of factual information that helps people understand enough they can confidently cast a vote. And when they do, you know, my view is they will likely support this change. And the last one is that you want to have a sound and sensible proposal. It needs to be workshopped. It needs to be tested. This is something that will go in the constitution for 50, maybe 100 years. And again, the time taken for this exhaustive process that people are going through should give people confidence. This is a modest not a radical change, fits well with existing structures and every bit is being well workshopped to make sure people can vote yes, with confidence.
Nicole Abadee 55:53
Megan final question for you. This is a question that you hear or this is something that you hear people say, how will recognition actually make a change in the lives of indigenous people? Why is this something that's so important? Can you give your response to that place?
Prof. Megan Davis 56:10
Yeah, I mean, I think I think the voice spoke to something that people felt at a particular time and somtimes they still do, and that is a really powerful feeling of voiceless and powerlessness within our country. And being a kind of constitutional lawyer that, you know, although I grew up here at my mum's place, and Eagleby, which is one of the most low socioeconomic areas in the country, you know, George's working with George at UNSW. And I don't, you know, listening to people, you know, being in positions like ours, but then listening to mob talk about how hopeless they feel about the situation is, has such an a profound impact upon your, your thinking about things. And so a lot of the dialogue design, read a lot of the material to do with voices and powerlessness within, within liberal democracies. And that leads you to a lot of literature that was done post German/Jewish concentration camps in World War II about what happens to a person, their dignity and their soul, when they, when every, when everything that is meant to protect them abandons them. And they feel like they have no voice in this world. And a lot of that writing had a profound impact on how I was listening to the dialogues, because of the way people were talking about the suicide rates and the dislocation rates and, you know, the, the numbers in Northern Territory of young men who are not in the labour force, but also aren't on welfare. So there's a miss on where they're not there's 80%, what are they doing? They're just completely dislocated from, from our from from this country. And it's because of this continual dislocation that occurs as the consequence of our people feeling like they don't belong. So one of the consequences of that indigenous advancement strategy is, and the abolition of ATSIC is we have no champions in Canberra, you know, and we get told, well, you've got the ballot box every three years, well, that's not helpful. And then we have this big close the gap performative, you know, ritualism, that happens every year where the Prime Minister gets up, and, you know, laments that they haven't closed the gap. But Australians are really shocked to hear that we're not actually at the table when laws and policies are made about our lives. You know, as of two years ago, the main agency in Canberra that Ken leads, didn't even have a single Aboriginal or Torres Straight Islander people in it. You know, so like, so we're talking about a nation that does not listen to the voices of Aboriginal Torres Staight Islander people. And even if they do, they're not hearing what people are saying. And so, you know, we made it a very deliberate decision to ensure that we consulted grassroots people who don't have a voice. So we did not invite people to add voices. We didn't allow CEOs of big companies you know, any famous leaders we didn't allow Patrick Dodson, Linda Burney, we didn't allow anyone who has a voice in those meetings. And they chose this notion of a voice to Parliament, because constitutionally it means the state is compelled to have us at the table. And even though people accepted that parliamentary sovereignty mean that you couldn't veto a parliament, like having us at the table, having us give input into laws and policies will radically increase the quality of the laws and policies that are now applied, and you're more likely to close the gap. But right now, we're not included. So it's bureaucracy has their foot on our necks. So bureaucracy runs the show. And then after that, it's it's what sociologists would call black elite. So it's people in who work in black organisations with very high three, you know, number three figure salaries, who have a voice, who who are not not accountable back to mob. Yeah, so there's no two way accountability, which was spoken about a lot in the dialogues, people were as concerned about people reporting back to mob who are Aboriginal as they are the government being accountable. And so it will make a difference, it will make a huge difference because for the first time since probably the abolition of ATSIC, we will actually be involved in the development of laws and policies that impact upon our lives And, and, and when that doesn't happen now. It does not happen now.
Nicole Abadee 1:00:32
Doesn't seem like too much to us, does it? Thank you both so much. Thank you so much for speaking to me today. Thank you for this wonderful book, which I really recommend to everybody listening. It spells out in crystal clear terms exactly what it is that is meant, what the Uluru Statement is all about what the voice for Parliament means and I really encourage anybody who feels passionately about this issue to to read this book and to pass it on to their friends. So Megan and George, a big thank you to both of you for speaking to me today.
Prof. George Williams 1:01:02
Thank you.
Prof. Megan Davis 1:01:03
Thank you
Nicole Abadee 1:01:09
Thank you for listening to Books, Books, Books. If you liked what you heard in this episode, please go to my website, nicoleabadee.com.au. To listen to all the episodes and find out more about the podcast you can also find me Nicole Abadee on Facebook, Instagram and Twitter, and look for my reviews in Good Weekend. You can subscribe to Books, Books, Books at Apple podcasts, Spotify, Google and all the usual places. It would be lovely if you could go to any of these platforms and give a rating or review. Thank you. I look forward to talking books with you again soon.