An Aboriginal Voice to the Australian Parliament

, par David Neal

Late in 2020, the Australian Government received a report from a committee co-chaired by two Australian Aboriginal human rights leaders. The committee was set up by the Australian government in 2019 after it rejected a proposal to amend the Australian Constitution as a method of reconciling the Australian political system with the dispossession of the Australian Aborigines upon colonisation by England in 1788. While the government rejected an amendment to the constitution, it did set up a committee to recommend legislation to provide Aboriginal Australians with “a Voice” to the Australian parliament. The committee’s final report has been submitted to the government and will be released early in 2021 for consultation.
Battles to recognise Aboriginal Australia have a long and tragic past since Australia was colonised. During the 19th century and into the 20th century, Aborigines were denied legal title to the lands that they had occupied for thousands of years, forcefully dispossessed of vast tracts of land, often associated with the deaths of Aboriginal tribespeople by murder, poisoning, diseases and starvation.
The 19th century Australian colonies formed a federal Australian government in 1901. The new Australian constitution did not include any specific provision for representation of Aboriginal people in either the lower or upper house of the new federal parliament. Members of the lower house were democratically elected from local districts based on population size ; members of the upper house were elected on a state or territory basis (now 12 members from each state and two from each of the two territories). Aborigines – who currently make up 3% of population spread over the whole country – form only a very small voting bloc.
Section 51(xxvi) of the new Constitution enabled the Australian parliament to make laws with respect to any race, but not including people of the Aboriginal race. This provision was originally intended to allow legislation to exclude non-whites from Australia but it did not intend to exclude Aboriginal people.

There was a further provision in s.127 of the Constitution, which meant that Aboriginal people would not be counted in the census of the Australian population.
Both of these provisions were removed from the Australian Constitution by a referendum in 1967. That referendum was carried by 90% of the Australian population, a record for referenda in Australia where most referendums fail. The old s 51(xxvi) was replaced by a new provision, which allowed Parliament to the people of any race for whom it is deemed necessary to make special laws. This would allow that Parliament to make special laws for Aboriginal Australians and provides a constitutional basis for legislation to address Aboriginal representation.
The passage of the 1967 referendum led to Australian Aborigines being, at last, counted in the population census. This was an important and long overdue recognition of the full status of Aboriginal people and practically important is providing census data important. However, it was also somewhat anomalous because by 1967, Aborigines already held citizenship and were entitled to vote in parliamentary elections. However, their small numbers in the overall population make the issue of their effective representation in the Australian political system more acute given their prior claim to the Australian continent. Moreover, their lack of representation has been a very significant impediment to solution of the large social and economic inequalities imposed on them.
The 1967 referendum was a bright light in an otherwise very sad history. Aboriginal dispossession and dislocation has had, and continues to have disastrous effects on their education, health and well-being. A “stolen generation” of Aboriginal children were forcibly taken from their parents. Aboriginal people were moved onto missions or lived in the margins of cities and continue to have rates of infant mortality, disease, and incarceration which are many times higher than the rest of the Australian community.
The period after the 1967 referendum has seen some very significant improvements. In particular, in 1988, the High Court overturned the colonising doctrine of “terra nullius” – that the Australian Aborigines did not own the land in any sense recognised by English law. In a case brought by an Aboriginal man named Eddie Mabo, the High Court recognised “native title” : that Aboriginal tribes did have legal title to lands that they had continuously occupied since colonisation and which had not been extinguished by the colonisers. These criteria meant that most native title claims are in areas remote from the big cities. But, it has had a profound symbolic effect on the Australian polity and has also secured legal entitlements to valuable land associated with pastoral or mining rights and for protection of Aboriginal cultural sites.
While the symbolic and economic effect of the Mable decision have been great, the issue of political representation remains unresolved. Government programs administered by non-Aboriginal bureaucracies have often failed to achieve their objectives and failed to incorporate or more importantly to give Aboriginal decision makers control of programs, some of which were ill-conceived in the first place or badly administered in the second place and suffered from the vices of paternalism.
In the early 1960s and 70s, paralleling the civil rights movement in the United States, Aboriginal activists lodged campaigns to gain recognition of the wrongs that had been done to their people in the preceding 200 years. One of the most dramatic demonstrations of those campaigns was an Aboriginal tent embassy set up in 1972 on the lawns opposite the Australian Parliament in Canberra to highlight the nationhood of the peoples who had been colonised and led to calls for land rights to their own country. The tent embassy became a gathering point for protests and campaigns on Aboriginal issues for over 40 years.
After Mabo, the issues became more focussed on a treaty – drawing analogies with treaties in other colonised countries, like analogous with the Waitangi treaty made in 1840 between the English colonists and the New Zealand Maori peoples and to social programs across a wide range of social and economic issues.
In 2007, a program entitled “Closing the Gap” set up a series of social and economic indicators to measure the position of Australian Aborigines across a range of social and economic indicators starting with health. These extended to include income, education, housing, etc. Surprisingly, and only recently, the rates of Aboriginal incarceration were not included in these measures. This is surprising because Australian Aborigines are vastly over represented in Australian prison populations. The program included regular performance reports to Parliament against the campaign targets. The results have been “terrible” to quote an opinion piece from The Australian, a Murdoch newspaper.
In 2013 – in a moment of great national significance – the then Australian Prime Minister, Kevin Rudd, formally apologised in Parliament to the “Stolen Generation” - Aboriginal children who had been removed from their families by “welfare” officers as an extension of a policy which assumed that the Aboriginal race would die out or be assimilated into the white population.
At about the same time, the Australian Parliament resolved that a Parliamentary Committee on “Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples be appointed to inquire into and report on steps that can be taken to progress towards a successful referendum on Indigenous constitutional recognition. The “Recognise Campaign” consulted Aboriginal people across the length and breadth of the country. The final stages of that campaign produced one of powerful political statements in modern Australian history. The “Uluru Statement from the Heart” was signed by 250 Aboriginal leaders at the end of consultations with 1200 people over a six month period. The Committee produced its final report in 2017 which called for a referendum to change the Constitution and provide “A Voice to the Parliament for First Nations People”.

The constitutional change and the models for that change became controversial in conservative ranks and some Aboriginal groups criticised the proposals as merely symbolic and called for more consultation. The Turnbull Liberal government rejected the recommendation for a referendum.
In 2019, the Australian Government commissioned a Senior Advisory Group to develop a “Voice to Government” (ie not to Parliament”) which would be created by legislation rather than a constitutional change. “First, two groups, one local and regional and the other a national group, will create models aimed at improving local and regional decision-making, and identifying how best federal government can record Indigenous peoples’ views and ideas. The groups consist mainly of Indigenous members.
Consultations will be held with Indigenous leaders, communities and stakeholders to refine the models developed in the first stage.
The report from Senior Advisory Group - led by a group of 20 Aboriginal leaders and experts - has been provided to the Government in 2020 and will be circulated for discussion in early 2021. This process has been championed by some very prominent Aboriginal leaders will be put out for consultation to the Australian public in 2021. The focus is expected to be on the involvement of First Nations people in decisions about methods for solving the deeply troubling issues highlighted by the by the Closing the Gap Reports. Incorporating the voices of Australia’s first peoples in the solution to the political, social and economic needs created by their dispossession is one of the most serious issues confronting the Australian federation.