12 July 2019
It’s good to hear, in this NAIDOC week, that the Federal Government has finally decided to take seriously the wishes and aspirations of 250 Australian indigenous delegates who gathered at Uluru in May 2017 and made their “Statement from the Heart” — a plea to be recognised and heard.
Their plea was referred to a specialist committee, the Referendum Council, which was set up for that purpose by the Government and the Opposition. That Council produced comprehensive recommendations in June 2017 which included for a referendum to “provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament”.
The Turnbull Government dismissed the idea of a voice to parliament, saying it would become a third parliamentary chamber, and that it would undermine democracy. This was and is not true. The report of the Referendum Council says quite clearly it was a voice “to” parliament — not a voice within parliament. There is nothing in the Report of the Referendum Council that supports any notion of the
body having any right other than to exist and be heard.
Happily the newly appointed Minister for Indigenous Australians, Ken Wyatt, appears to accept that the proposal is a means of ensuring indigenous peoples’ unique needs, wishes and aspirations are not swept aside by parliamentary indifference. Mr Wyatt quite properly urges caution and patience around the issue. He is deserving of our support in this while the detail of the referendum proposal, and subsequent legislation, are worked out.
The critical final point for any constitutional amendment are the actual words that are inserted or deleted to make the change. That is something that lawyers will have to exercise their minds on. Of course, parliamentary statements made at the time of the enacting may be relevant to interpretation, but the intended sense of the words should be contained in the words themselves as far as possible.
The report of the Referendum Council can be accessed at https://www.referendumcouncil.org.au/.
Chris Donohue
President, ACT Law Society