By Bob Ellicott QC
The approach in this paper is conceptual. It asserts that the settlement of constitutional issues can be found within the indigenous process or concept of makarrata. Although mindful of the past and what has happened it looks to the future relationship within which constitutional issues will be worked out. It recognises that in the Australian nation of the future there can be a settlement of differences where the substantial majority of indigenous and non -indigenous people will find peace and harmony . It is based on optimism. The process or concept on which it is all founded is makarrata.
It accepts that it is time our indigenous people managed their own affairs, were involved in the formulation adoption and implementation of the policies and programs which the Parliament and the Executive of the day adopt in relation to them and that they are empowered to do so.
I. The spirit of Makarrata and its implications
- This is a seminal moment in the relationship between indigenous people and the rest of the nation. As Galarrwuy Yunupingu recently put it: (Article p.11 The Australian 31/7/17):
“We have come to a time in our nation’s history when the Australian people have an opportunity to decide whether or not to deal with the relationship between my people and those that came after us and changed our way of life. Either a real process of settlement or makarrata will now start or the nation will turn its back on these issues leaving those challenges to the next generation.”
- Speaking of the Uluru statement he said:
“The statement goes further than constitutional recognition takes into the heart of the relationship … This gives us a process where we can now get serious and look to a proper settlement. All of us, as Australians, are part of this process.”
- Having noted the importance of the makarrata process in the settlement of disputes and the achievement of peace and harmony he said:
“We know we are part of the nation- we want to be part of this nation – but we want to have our grievances settled in a calm and proper way. We want our wounds healed, our injuries tended to and to be given an equal shot at the prosperity of this nation. We want unity and togetherness – a shared future.
- He later said:
“The words from Uluru are clear, but they are a position from one party, not the final settlement. What I see as required now is the true partnership of the Prime Minister and Leader of the Opposition to take the settlement process forward and to a conclusion. We have before us a simple proposal that can be understood by all Australians – with genuine leadership we can make it a reality.”
- As I understand it Galarrwuy’s words express the views of the great majority of indigenous Makarrata is a process towards settlement. Constitutional amendments are only a part of the process. Declarations by Parliament can be part of that process. But the establishment of a framework within which the process can be worked out and fulfilled in the future is the most vital part of all. It is an imperative as is the timely provision of sufficient funds to establish it.
- Makarrata is a call to action by our indigenous people. Already there is a strong feeling or empathy in the Australian community towards achieving the goals which the Uluru statement and Galarrwuy’s exposition of it embrace. Considerable efforts have been made and funds expended by governments at all levels and by private bodies towards that end. The seed bed for makarrata is fertile and funds already provided are able to be directed in future years to uses more appropriate to achieve its goals. Aboriginal art and music have captured the hearts and minds of non-indigenous Australians. Tourism, involving travel to to remote aboriginal sites is a well established industry involving indigenous and non-indigenous Australians. It is reasonable to assume that a substantial majority of Australians would support a positive answer to the indigenous call to action.
II. Constitutional amendments as part of the Makarrata process
7. The history of past referenda teaches:
- the major parties must support them and the text of the amendment;
- amendments must be precise and unambiguous;
- there must be no extraneous issue. A general anti-discrimination provision such as proposed in s.116A is such an issue.
- The following amendments would be precise unambiguous and are widely supported.
- repeal s.25;
- repeal s.51(xxvi) in its present form.
- It has been proposed that s.51(xxvi) should be replaced to read:
- The Parliament shall, subject to this Constitution have power to make laws with respect to:
(xxvi) The aboriginal and Torres Strait Islander peoples.
- The High Court in Kartinyeri’s case has held that under the present provision (as amended in the 1967 referendum) the Commonwealth Parliament has such a power. There is a residual issue as to whether a new provision should also contain a “reverse discrimination” provision to make it clear that the Commonwealth Parliament can pass laws which in its opinion are for overcoming disadvantage and ameliorating the effects of past discrimination.
- Since the Parliament already has the power to make laws with respect to indigenous people a provision in this form should not be controversial.
- In any event the notion of makarrata involves a settlement having effect across the whole nation and for this purpose it is essential that the Commonwealth Parliament have this power to legislate.
- The Joint Select Committee on Constitutional Recognition in its 2014 Progress Report recommended as Option 1, a new section 51A conferring power to legislate with respect to indigenous peoples. The section contains recitals which were based on widespread consultation and which recognised first occupation of the Australian continent was by the indigenous people acknowledged their continuing relationship with their traditional lands and waters and respected their continuing cultures languages and heritage. The actual text of these provisions was adopted by the Select Committee after considerable consultation around Australia and therefore are likely to represent the views of the indigenous peoples
- The Constitution itself could be amended by inserting a Statement as follows: “This Constitution recognises, acknowledges and respects” these various matters. Frank Brennan, in his recent impressive analysis of these matters, “No Small Change” suggests this (see Appendix 1 (288-300) and, especially, appendix 2 (301) for the advancement or benefit of such Peoples.
- In a referendum campaign which has the support of the major parties, the Commonwealth and the States, their adoption and inclusion in the Constitution can reasonably be expected to be supported by the necessary majority.
- Inclusion of these statements in the preamble is controversial and in my view should not be pursued.
- It could be inserted before s.1 of the Constitution in words such as “this Constitution: Recognises etc …”
- Recently, Noel Pearson expressed a view that supported a declaration outside the Constitution as a substitution for constitutional change. Clearly the statement of recognition acknowledgement and respect referred to in paragraph  above could be the subject of a declaration adopted by each of the Commonwealth State and Territory parliaments and not included in the Constitution. It would be a part of the makarrata
III Participation by the indigenous peoples in the Commonwealth Parliamentary and Executive process.
- Establishing a framework within which the makarrata process can be worked out and fulfilled is, as I have said in  above, vital.
- There is a relatively small number of indigenous leaders who are members of Parliament. One is a Minister, the other a Shadow Minister.
- This is not sufficient by itself to enable the challenge of makarrata to be fulfilled. A much more powerful instrument is needed to impact the decisions of the Executive and Parliament.
- In May 2017 the Referendum Council, meeting with indigenous leaders in Uluru stated that delegates overwhelmingly rejected a statement of acknowledgement recognising Aboriginal people and will only accept fundamental reform. The final statement pushed for a constitutionally elected indigenous body in federal parliament, a mechanism for treaty-making and a healing commission.
- On May 27, 2017 in a powerful article in The Australian Noel Pearson said the Uluru statement “endorsed a makarrata between us and the Commonwealth” referring to the Yolgnu concept of makarrata he said “The makarrata is now revived as the right language for the reform sought in the Uluru statement.” He concluded:
“the Uluru Statement from the Heart confirms that constitutional recognition must ensure the forgotten peoples, the peoples wrongfully omitted from the Constitutional compact, a voice in our affairs. … It is a proposition that Australians can accept.”
- My understanding is that what is contemplated is that the Constitution be amended to establish a body made up of indigenous leaders elected by the indigenous people. They would be empowered by the amendment to express their views as to legislation actual or potential that may not only affect indigenous people but also empower them as the First Peoples to manage their own affairs giving them power over their own destiny and take a rightful place in their own country.
- Confidence is expressed that this will find favour with the Australian people. I doubt this. The proposal if left in general terms will not be precise and clear enough to answer criticisms from those who would want to oppose it as there would certainly be. If it was spelled out in detailed form it would not quell that criticism.
- My other criticism is that it does not go far enough, that it misses what is really needed – a voice at the very heart of government in its executive arm.
- Makarrata demands action. It goes beyond talking, lays down a process of settlement and requires action if the parties are sincere about it. In relation to indigenous matters it demands both government and opposition commit themselves to the process. Also to deal with the issues which need to be addressed and the steps decided upon to be taken and any funds necessary to be provided. The steps to be taken will be determined as most issues are dealt with – a combination of Executive and Parliamentary action. By its very nature makarrata demands the direct involvement of the indigenous people in those steps.
- In outline, what I propose is as follows:
- There be established by legislation a body called “The Makarrata Council”.
- Administratively it would be located in the Department of PM&C- which is responsible for Indigenous Affairs- and have its own office within the Department.
- It will work under the authority of the Minister for Indigenous Affairs and through him or her and the Department it will have access to cabinet submissions in which the indigenous peoples have a special interest.. Which submissions would be decided by the Minister. In some cases it may need some input from the executive members of the Council.
- Through the Minister it will need a strong voice in Cabinet. The task is important enough for the Minister to be a Cabinet Minister. The issues the Minister will face will require strong commitment and a creative and practical mind. Under the authority of the Minister the Council would be empowered to make submissions to Cabinet .
- Access by the council to the Prime Minister should be available.
- The Makarrata Council would ideally consist of 10 to 13 members in order to operate efficiently.
- Those members are intended to work as a unit within the government of the day. On its establishment its members would therefore be chosen by that government. To ensure continuity and to be consistent with the fact that the Opposition would be consenting to the proposal as a central part of the Constitutional settlement some process would need working out to obtain approval to their appointment by the Opposition. .
- Members chosen should be recognised leaders of the indigenous people. The aim should be to choose a Council of men and women who collectively have had broad experience in the types of matters the Council would be considering e.g. education, health, employment, justice, culture. Some should be under 30, others should have strong business experience. Together they should be a group who come from the various States and Territories. Above all they will be the beating heart of the constitutional settlement and they will need to be a body of women and men who work together as a unit. Initially, because of the many tasks it will have in establishing itself members of the Council will need to devote much of their time to the Council. The Chairperson and several others will probably be full time.
- This process is a settlement of differences. The very nature of it demands that indigenous and non indigenous work together as members of the one nation to build a community where there is “no us and them”. There may be some who will never agree to this because they have a different agenda . But the substantial majority of Australians must see this as the spirit of makarrata. Through the Executive and Parliamentary arrangements there is set up a framework which recognises that the indigenous people must be seen as equally competent to manage their own affairs as other Australians . There will be some who will need a hand indigenous and non indigenous. Otherwise this is the moment when indigenous leaders become empowered on behalf of their peoples to be involved in the decisions made by government and their implementation It is the end of having a Treaty to settle differences because this is the Treaty. This however does not prevent for instance there being agreements or “treaties” between indigenous groups or landowners and local non indigenous bodies about how they should relate to each other.
- There will no doubt be some well known indigenous leaders who will probably be unable to devote the time because of other responsibilities they are involved in. Their experience and wisdom should be made available through a board or panel set up for the purpose. The Council would have power to set up committees of indigenous or non indigenous people to assist with advice or in the implementation of executive decisions or legislation
- The present administrative arrangements regarding indigenous affairs place it within Prime Minister and Cabinet. If the Makarrata Council were set up those officers directly involved would have a different focus and enlarged responsibilities servicing the Council. The workload it will need to undertake would be a challenging creative time for those officers
- There is a Joint Standing Committee on Indigenous Affairs. As part of the constitutional settlement the membership and functions of the Committee would need to be reviewed. For instance, consistent with the Uluru Statement calling for an indigenous voice in Parliament, the Committee should have on it all indigenous members of Parliament who do not hold ministerial appointments as well as the non-indigenous members. There would also be a need for it to consult closely with the Makarrata Council to co-ordinate its activities with those of the Council and conduct enquiries in exercise of its powers which they agree could best be undertaken by the Committee.
- The Chairperson and other members of the Council should be able to attend committees dealing with the Council’s budget (the Estimates Committee) and other Committees considering matters relevant to indigenous people.
- Outside the Parliament and the Executive, the Council has an equally important role. They must be empowered to meet with indigenous people throughout the continent and its islands, to become familiar with their views and discuss the need for their and the manner of their involvement in the various programs and initiatives being undertaken through the Council. They will need to visit cities, towns and remote places where indigenous people live and meet with State and Territory officials. Much of their communications of course would be on the net or social media.
- In the preceding paragraph, I have endeavoured to give an outline of a way in which our indigenous people could be directly involved in the formulation and implementation of the decisions which are made by the government through its own actions and those of Parliament. That is a huge task but something like this is needed if the Federal Government is to take seriously the Uluru Statement. No half measures are enough. The challenge is either accepted as Galarrwuy wrote and said or left to future generations. There is so much momentum throughout the whole community that there is a general expectation among indigenous and non-indigenous Australians that something will at last be done. Government will be seen to be weak if it does not involve itself in the makarrata process.
- There is a precedent for this. In 1978, I was given the responsibility by the Fraser Government as Minister for Home Affairs to provide “an effective channel of communication between women in the community and government.”
- As a result, I set up a National Women’s Advisory Council. It had twelve part-time members. Its chairperson was Beryl Beaurepaire and the women were chosen on the basis of individual experience and expertise and as far as possible to reflect the diversity of backgrounds and interests among women in Australia and on a broad non-political basis. Its object included achievement in practice of equality of opportunity for women and the representation to government of the issues concerning women. It had access to the Prime Minister through Beryl Beaurepaire and access to cabinet submissions through myself as Minister and the Office of Women’s Affairs set up to service it. It had the power to talk to and arrange conferences with women around Australia and the funds to carry out its work. It undertook a number of research projects in relation to matters affecting women economically or as migrants and otherwise. The Council succeeded in my having Cabinet agree to Australia signing the United Nations Declaration for the Elimination of all Forms of Discrimination against Women which I did in 1980.
- Among the members were Quentin Bryce, Wendy McCarthy, Jan Marsh, Valerie Fisher and Connie Bush, an aboriginal woman. My recollection is that Evelyn Scott who chaired the Council for Aboriginal Reconciliation 1997-2000 was either a member or played a prominent role in its activities. It was disbanded by the Labor Government in 1984.
THE PREFERRED APPROACH
- In an actual referendum make limited changes such as the amendments repealing ss. 25 and 51(xxvi) and adding a new placitum (xxvi) discussed in paragraphs (9) and (10) above.
- The Parliaments of the States and Territories and the Commonwealth Parliament make declaratory statements that at least cover the matters contained in the statements of acknowledgment recognition and acceptance. Consideration should be given to whether it should also contain an acknowledgment to the effect that discrimination had occurred in relation to indigenous peoples and should not have and should cease otherwise than provided in s51(xxvi) of the Constitution. Other declarations could of course be made as the parliaments agreed.
- Legislate as to the establishment of the Makarrata Council. This legislation may take some time to settle in a final form. In these circumstances, so that the Council could be appointed and get on with its task, it could be established administratively within PM&C with powers to the effect discussed and serviced by the Office of Indigenous Affairs. The other steps in Parliament and otherwise could be taken independently of this. This could remain in place for some time to allow any breathing problems to be worked on. All the time it must be in mind that the Makarrata is a process through which the Settlement of differences is taking place.
By Bob Ellicott QC
Wolters Kluwer covers constitutional issues in the High Court & Federal Court Practice, view Recent cases on the Constitution for additional insights.