- After 111 years of British colonisation, the six colonies federated into the Commonwealth of Australia in 1901. The Federation was founded on the Australian Constitution which set out the division of powers between the former colonies (now states) and the new Commonwealth government. The Constitution was silent about the First Nations of the continent, it was silent about the dispossession of Aboriginal and Torres Strait Islander peoples and it was silent on how it would reconcile the formation of the Australian state with the truth of its origins.
- In the 120 years since Federation, Aboriginal and Torres Strait Islander peoples have been fighting for recognition of their prior and continuing sovereignty.
- Since 2000, there have been numerous Parliamentary processes to address the conspicuous silence in the Constitution. But consecutive Commonwealth governments have failed to take the next steps in recognition and constitutional reform.
- Since 2017, the presentation of the Uluru Statement from the Heart has elevated the debate about recognition and constitutional reform, centred around the enshrinement of a First Nations Voice in the Constitution to ensure Aboriginal and Torres Strait Islander peoples have Voice in the halls of of power that make laws affecting the lives of First Nations people across the country.
In May 2017, at Uluru, following months of consultation and dialogue, First Nations peoples from across the continent came together to make a direct and powerful statement regarding their aspirations for true recognition in Australia’s Constitution:
"With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood… We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country… We call for the establishment of a First Nations Voice enshrined in the Constitution."
The Uluru Statement from the Heart is a consensus statement from over 250 First Nations’ delegates. The Statement called for a constitutionally enshrined Voice to Parliament, one that would advise on all matters concerning the wellbeing of First Nations peoples and their communities. It also called for a Makarrata commission:
"...to supervise a process of agreement-making between governments and First Nations and truth-telling about our history."
Unlike petitions of previous decades, the Uluru Statement from the Heart was not presented to Government, but was rather an invitation extended to the Australian people....
"...to walk with us in a movement of the Australian people for a better future."
Since the late 1930s there have been many struggles for recognition and justice led by First Nations peoples. They include:
- The 1937 petition from William Cooper to King George VI for Aboriginal representation in the federal parliament;
- The establishment in 1938 of 26 January as a ‘Day of Mourning’;
- The 1963 Yirrkala bark petition presented to parliament protesting the loss of land to mining;
- The 1967 referendum where Australians voted Yes to First Nations being counted in the census and to federal government making laws for Indigenous people;
- The 1988 Barunga Statement presented to PM Hawke who responded with the (unfulfilled) promise of treaty;
- 1991: The Royal Commission into Aboriginl Deaths in Custody Final Report recommendations called for a process of reconciliation; the Council for Aboriginal Reconciliation Act, was passed and the Council for Aboriginal Reconciliation (CAR) was established;
- 1992: High Court decision in the Mabo case recognised native title and gave rise to 1993 Native Title legislation;
- 1997: Bringing them Home Report into the Stolen Generations;
- 2000: Corroboree 2000 and Bridgewalks for Reconciliation – collectively the biggest demonstration of public support for a cause that has ever taken place in Australia;
- 2008: National Apology to the Stolen Generation;
- In 2012 the Act of Recognition Bill is passed through parliament to acknowledge Aboriginal and Torres Strait Islander peoples’ unique place in Australia’s history. This made some acknowledgement in legislation and set a time limit of two years to determine the way forward for constitutional recognition;
- 2015: Referendum Council established with bipartisan support, was tasked with consulting First Nations people on next steps to constitutional recognition;
- In 2017 the Uluru Statement from the Heart was gifted to the Australian people;
- 2021 Yoorrook Justice Commission established in Victoria as the first truth-telling process into injustices experienced by First Nations people;
- The 2022 #Freetheflag Campaign to place the copyright under Commonwealth control which enabled the free use of the flag design by the Australian community;
- Parliament of Victoria passes Treaty Authority and Other Treaty Elements Bill 2022;
- May 2022, incoming Prime Minister Anthony Albanese commits to holding a referendum to enshrine a First Nations Voice to Parliament in the constitution within the first term of Government;
- 30 July, 2022, Prime minister Albanese announces draft wording for the referendum question on a First Nations Voice.
In December 2015, another bipartisan supported Referendum Council was established to lead a national process of consultations and community engagement, including those ‘Indigenous-designed and led’, and to advise government on the next steps to a successful constitutional referendum.
Despite the generosity of spirit embodied by the Uluru Statement, in October 2017 the then Turnbull Government outrightly rejected its proposals, breaking the Prime Minister’s promise of ‘doing things with Aboriginal people’ not to them. Turnbull made the decision unilaterally without consultation with either the National Congress of Australia’s First Peoples – the national representative body – or members of the Referendum Council.
After rejecting the Uluru Statement, the Government established another Joint Select Committee in March 2018, tasked to again ‘inquire into and report on matters relating to constitutional change, including the proposal for the establishment of a First Nations Voice.’
This Committee’s Final Report in November 2018 endorsed a constitutionally entrenched Voice to Parliament. By the end of 2018, the Federal Labor Opposition took an affirmative position by promising to ‘establish a Voice for First Nations people’ and to take the issue of Constitutional Recognition to referendum if elected to government in 2019.
The Hon. Ken Wyatt, the first Indigenous person to hold the office of Minister for Indigenous Australians, shared mixed messages on constitutional reform. He could not rule in a constitutionally enshrined Voice to Parliament; he suggested other forms and levels of co-operative self-determination between government and the people were available; that he was attempting to ascertain the extent of support throughout his own government; and, that any referendum must not go ahead without a confident expectation of success.
Prime Minister Scott Morrison never expressed support for a constitutionally enshrined Voice. It appears that the former government was, at best, ambivalent in its commitment towards a lasting solution to what the Uluru delegates described as ‘the torment of our powerlessness’.
The recently elected Labor government has made a pledge to implement the Uluru Statement from the Heart in full and have stated their intent to progress a referendum for a constitutionally enshrined Voice to Parliament. In his first ever press conference as Prime Minister Anthony Albanese ensured that the Aboriginal and Torres Strait Islander flags stood alongside the Australian flag before he addressed his audience, reigniting hopes for First Nations people and many other Australians.
While momentum and support for a constitutionally enshrined Voice to Parliament is growing there continues to be uncertainty over what this reform will mean. A constitutionally enshrined Voice to Parliament will allow First Nations peoples the opportunity to guide policy that affect them and their communities. Against the backdrop of a constitution that prior to the 1967 Referendum excluded First Nations people from the Australian census, providing First Nations peoples with the agency to inform decisions made for them should be perceived as a minor change for the nation.
To this, PM Albanese said in his historic address to the nation at Garma Festival 2022: "A referendum is a high hurdle to clear, you know that and so do we. We recognise the risks of failure – but we also recognise the risk of failing to try. We see this referendum as a magnificent opportunity for Australia… I am optimistic that this historic decision, this long-overdue embrace of truth and justice and decency and respect for First Nations people will be voted into law by the people of Australia."
Out of the 19 referenda and 44 proposed changes have been attempted, only eight amendments to the Constitution have been accepted since 1901. It is a dedicated nation-building campaign drawing on the significance of representation and mutual respect that will shift the votes of uncertain Australians.
The case was made in the 1967 Referendum that Section 127 of the constitution (declaring Aboriginies [sic] should not be counted in the census) was “completely out of harmony with our national attitudes and modern thinking. It has no place in our Constitution in this age”. This same sentiment could be argued in the campaign in 2022 to have an enshrined Voice which is a necessary progression towards treaty and reconciliation negotiations.
“The absence of an Indigenous representative body leaves First Nations peoples in the same position as they were in the 1960s—with an inability to have their voices heard and interests considered in the processes of government. In the face of Commonwealth reluctance, First Nations activism has turned to the states and territories. This strategy has had some success.” Harry Hobbs, Australian Public Law.
Constitutional recognition offers the opportunity to transcend the influence that electoral politics has had on First Nations peoples’ rights, access to justice and to build the foundations to have meaningful input on policies and projects that impact their communities and futures.