Sally McNicol and James Haughton, Social Policy

Key issue

The issues of Aboriginal and Torres Strait Islander people’s inclusion in law, policy-making and the Australian Constitution have a long history. Where do matters currently stand and what are the current issues to be considered at the federal level?

The Albanese Labor Government has made a commitment to implementing the Uluru Statement from the Heart in full, but the detail of what this would look like in practice is not yet known.

Constitutional recognition- recent history

Australia has seen almost a century of debate over how to best recognise prior occupation of Australia by Aboriginal and Torres Strait Islander people. The last decade has seen proposals for constitutional recognition made by the:

• Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (2012)
• Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (2013- 15)
• Kirribilli Statement (2015)
• Referendum Council (2017)
• Uluru Statement from the Heart (2017; reaffirmed in 2022 by the Yarrabah Affirmation)
• Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples (2018).

As stated in the final report of the 2018 Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, the Uluru Statement from the Heart (Uluru Statement) largely defines the parameters of the current debate (pp. vii–viii). Anthony Albanese began his election victory speech by committing to the Uluru Statement from the Heart ‘in full’ and acknowledging Linda Burney as ‘Australia’s next Indigenous Affairs Minister’.

Uluru Statement from the Heart

In May 2017, the First Nations National Constitutional Convention (convened by the bipartisan‑appointed Referendum Council) met to develop an approach to constitutional reform to recognise Aboriginal and Torres Strait Islander peoples, drawing on a series of preceding First Nations Regional Dialogues. The majority resolved, in the Uluru Statement, to call for ‘constitutional reforms to empower our people and take a rightful place in our own country’. A minority, including now-Australian Greens Senator for Victoria, Lidia Thorpe, walked out of the convention as they believed recognition of Aboriginal Sovereignty and a treaty (or treaties) were preferable to inclusion in the Constitution.

The Uluru Statement called for a ‘Voice’ enshrined in the Constitution that will empower Aboriginal and Torres Strait Islander peoples to shape the policy and legislation governing their affairs. It suggested that the establishment of a Voice to advise the Australian Parliament will address structural disempowerment. It did not define the form such a body should take.

The Uluru Statement also proposed that a Makarrata Commission be established to supervise a process of agreement-making and ‘truth-telling’. Makarrata is a Yolngu word meaning ‘a coming together after a struggle’. According to the Uluru Statement from the Heart FAQs webpage, ‘The Makarrata Commission would allow these processes to be struck at a national level and regionally with First Nations, by providing support and momentum and helping the parties reach agreement'.

Truth-telling draws on the view expressed in dialogues leading to the Uluru Statement that recognition requires an understanding that ‘the true history of colonisation must be told: the genocides, the massacres, the wars and the ongoing injustices and discrimination’ (p. 32). The 2018 Joint Select Committee saw truth-telling as ‘an opportunity for Aboriginal and Torres Strait Islander peoples to record evidence about past actions and share their culture, heritage and history with the broader community’ (cl. 6.5).

The Yarrabah Affirmation

The Yarrabah Affirmation, declared on 10 April 2022 by prominent Indigenous leaders, restates a commitment to the Uluru Statement and calls for a referendum during the term of the 47th Parliament to enshrine a First Nations Voice in Australia’s Constitution. The Yarrabah Affirmation proposes 2 possible dates for a referendum: 27 May 2023 (the anniversary of the 1967 referendum) and 27 January 2024 (‘the day after Invasion Day/Australia Day’).

Responses to the Uluru Statement

The Referendum Council Final Report

In June 2017 the Referendum Council recommended (p. 2) that a referendum be held to provide in the Australian Constitution for a representative body to give Aboriginal and Torres Strait Islander peoples a Voice to the Commonwealth Parliament, with its form to be decided by Parliament. They proposed that a specific function of such a body, to be set out in separate legislation, should be to monitor the use of the heads of power in section 51(xxvi) (the ‘race power’) and section 122 (the ‘territories power’) of the Constitution.

The Council also recommended that an extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian parliaments, ideally on the same day, to articulate a symbolic statement of recognition to unify Australians.

In October 2017, the Turnbull Government responded to the report, expressing the view that establishing an additional representative body to Parliament was not desirable or capable of winning acceptance in a referendum.

2018 Joint Select Committee

In 2018, the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples was asked to consider the work of the 2012 Expert Panel, the previous Joint Select Committee, the Uluru Statement and the Referendum Council.

The committee acknowledged the broad stakeholder support for a Voice enshrined in the Constitution (p. 116) and recommended a co-design process to achieve a model that would best suit the needs and aspirations of Aboriginal and Torres Strait Islander peoples (pp. 78–79). It recommended the co-design process should report, and the Voice be legislated, within the term of the 46th Parliament (p. 78). The committee also supported the process of truth-telling (p. 185). Finally, the committee recommended the establishment of a National Resting Place for Aboriginal and Torres Strait Islander remains, which could be a place of commemoration, healing and reflection (p. 185; this recommendation was subsequently acted on with the Morrison Government’s announcement of Ngurra, a national Aboriginal and Torres Strait Islander cultural precinct and resting place). The committee stated that it did not have time to deeply consider the proposal for a Makarrata Commission and agreement-making (p. 137) but did note that agreement-making was already occurring at local and regional levels (p. 144).

Indigenous Voice co-design process 2019–2021 and Final Report 2021

In October 2019, the Minister for Indigenous Australians, Ken Wyatt, announced a 2-stage Voice co-design process, with 2 co-design groups tasked with developing options at the local and regional and national levels. The process was overseen by a Senior Advisory Group chaired by eminent Aboriginal leaders Tom Calma and Marcia Langton . The terms of reference (pp. 239–245) made explicit that constitutional reform was out of scope. The National Co-design Group was tasked with developing ‘models to enhance local and regional decision-making and options to provide a voice for Indigenous Australians to government’.

The Indigenous Voice co-design process: final report was provided to the Australian Government in July 2021 and publicly released in December 2021. The Final report:

… presents the proposals and recommendations for an Indigenous Voice—a cohesive and integrated system comprised of Local & Regional Voices and a National Voice—with connections to existing Aboriginal and Torres Strait Islander bodies. This Final Report also presents considerations for implementing an Indigenous Voice and details the consultation and engagement process. (p. 9)

Chapter 2 of the Final report discusses a National Voice, including:

• membership considerations for a National Voice (sections 2.3–2.6)
• links with Local and Regional Voices (section 2.7)
• proposed functions of a National Voice, examining in some detail the reasons for a National Voice to be a Voice to both Parliament and Government (section 2.8, pp. 151–153). This section also considered how a National Voice might interact with other Aboriginal and Torres Strait Islander stakeholders, using the National Agreement on Closing the Gap as a potential case study (p. 158)
• the Australian Parliament and Government (section 2.9, discussed in text box below)
• how to ensure a National Voice is appropriately supported (sections 2.10–2.11).

When releasing the Final report, the Minister for Indigenous Australians, Ken Wyatt, stated that work would begin on forming 35 Local and Regional Voice mechanisms, ‘as per the process set out in the Report’. The 2022–23 Budget provided $31.8 million under the Indigenous Voice – Local and Regional Voice Implementation measure to ‘commence establishment of 35 Local and Regional Voice bodies’ (p. 161). The Morrison Government did not comment on the options set out in the Final report for a National Voice.

While the Final report did not discuss constitutional reform, it did include a recommendation that the Australian Government:

… note the support for the enshrinement of the Indigenous Voice in the Constitution that was expressed particularly through the submissions received as part of the consultation process (Recommendation 6, p. 14).

On 26 May 2022, the incoming Minister for Indigenous Australians, Linda Burney stated that the work done during the Voice co-design process would not be discarded by the incoming Labor Government:

It would be disrespectful and, quite frankly, stupid not to take into very deep consideration the work that’s been done by the expert advisory group … They have delivered their final report, and I am sure that parts of that report are very relevant for new discussion and new direction.

It should be noted that, according to the Referendum Council’s report accompanying the Uluru Statement from the Heart, only the existence of a Voice, not any particular form, would be entrenched in the Constitution (pp. 2; 36). The form of the Voice would be a matter for legislation.

2022 election platforms

During the 2022 election campaign the Australian Labor Party committed to fully implementing the Uluru Statement from the Heart, stating that it was the only political party committed to doing so. This was reaffirmed upon election. The Australian Labor Party has an existing First Nations Caucus Committee (established in 2016) that reviews legislation impacting First Nations people and is a platform for raising matters of concern for First Nations people to party members and leadership. In 2021, Senator Malarndirri McCarthy observed that ‘If we are talking about a First Nations Voice to the Parliament, we need to make sure we have a First Nations Voice within the practice of a party'.

The leader of the Greens, Adam Bandt, has stated that ‘The Australian Greens were the first party to support the Uluru Statement from the Heart in full, and we still do’ and they would not block legislation for a Voice. The Greens campaigned for a national Truth and Justice Commission (p. 2), stating that this would lay the foundations for developing a Treaty or Treaties. At his address to the National Press Club during the election campaign, Mr Bandt, reaffirmed the Greens’ position that a Truth and Justice Commission should precede the creation of a Voice.

The Liberal Party’s Plan for Northern Australia restated its commitment to implementing of Local and Regional Voices (p. 9). During the campaign, when Prime Minister Morrison was asked whether a Coalition Government would hold a referendum on a constitutionally enshrined Voice, he replied ‘It’s not our policy to have a referendum on the Voice, so why would I be doing that?’. Since the election the new Opposition Leader Peter Dutton has stated that he is ‘open to discussion’ and ‘wants to see the detail’ of the proposal. Julian Leeser, the new Shadow Minister for Indigenous Australians, was the co-chair of the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples and is a prominent supporter of a constitutionally enshrined Voice.

Potential next steps

A Voice could be established by legislation with or without a constitutional amendment. However, a legislated Voice would be vulnerable to defunding or abolition by the government of the day, as were the National Aboriginal Consultative Committee (1973–77), the National Aboriginal Conference (1977–85), the Aboriginal and Torres Strait Islander Commission (1989–2005), the National Indigenous Council (2005–07), the National Congress of Australia’s First Peoples (2009–19) and the Prime Minister’s Indigenous Advisory Council (2013–c. 2019).

Establishing a constitutionally enshrined Voice will require a referendum to amend the Constitution. A referendum requires a Bill to be passed by Parliament, which establishes the wording of the proposed amendment and the question to be put to voters. A number of options for an amendment are discussed in Chapter 3 of the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples’ final report (pp. 79–119). This chapter also discusses the arguments over whether the form of a Voice should be determined before, or after, a referendum.

To successfully amend the Constitution, a majority of voters overall (including in territories) and a majority of voters in a majority of the states (at least 4 out of 6 states) must approve the proposed amendment. Referendums are overseen by the Australian Electoral Commission (see its detailed guide). Studies of opinion polls since the Voice was first proposed indicate that this level of support exists, but there are many ‘undecided’ voters, and levels of support in smaller states are difficult to determine. Whether an amendment has bipartisan support is likely to influence the chance of success. The Australian Reconciliation Barometer poll has indicated (in 2018 and 2020) that approximately 90% of Aboriginal and Torres Strait Islander people support a constitutionally protected Indigenous representative body.

Constitutional and representative structures for Indigenous peoples in comparable countries

New Zealand has legislated reserved Maori seats in Parliament and the Treaty of Waitangi. The treaty has an uncertain legal status, but is commonly referred to as the ‘founding document’ of New Zealand, which does not have a single, codified constitution.

The US Constitution is held to recognise (via Supreme Court interpretation of Article I, Section 8) the status of ‘Indian Tribes’ as distinct, sovereign, but subordinate governments, to be governed at a federal rather than state level. There are approximately 374 (pre-20th century) ratified US treaties with Native American peoples, but Congress may unilaterally abrogate them. In fulfilment of a previously unexercised treaty right, the Cherokee Nation is seeking to seat a non-voting representative delegate in Congress.

In Canada, section 35(1) of the Constitution Act 1982 states that ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed.’ This section gives historic and modern treaties, as well as native title (‘aboriginal rights’), the protection of constitutional law. Section 25 of the Constitution Act 1982 requires that other constitutional rights and freedoms are not interpreted in ways which abrogate or derogate from aboriginal rights and freedoms. The Canadian Government is also held by the courts to have a fiduciary duty to protect Aboriginal rights, which has not been established in Australia (see The honour of the crowns: state-indigenous fiduciary relationships and Australian exceptionalism). Canada does not have codified, indigenous-specific representation in or to its Parliament, but section 35.1 of the Constitution Act 1982 requires that ‘representatives of the aboriginal peoples of Canada’ must be consulted before any alteration to sections 25 or 35. The majority Inuit territory of Nunavut has a representative in the House of Commons.

While in the US and New Zealand all treaties date to the era of colonisation and frontier expansion, in some provinces of Canada ‘modern’ treaty negotiation is an ongoing process, particularly in British Columbia. This may offer some insights into the kinds of agreements that might be overseen by a Makarrata Commission, if one were to be established.

Further reading

Yarrabah Affirmation, (Yarrabah: 2021).

Daniel McKay, Uluru Statement: a Quick Guide, Research paper series, 2016-17, (Canberra: Parliamentary Library, 2017).

Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, Final Report, (Canberra: the committee, 2018).

James Haughton and Apolline Kohen, Aboriginal and Torres Strait Islander Treaties, Constitutional and Legal Recognition and Representation in Australia: a Chronology, Research paper series, 2021-22, (Canberra: Parliamentary Library, 2022).

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