Voice to Parliament, recognition and Makarrata: What you need to know

The Referendum Council’s final report is the culmination of 18 months of work by the now-disbanded Referendum Council. The Council was tasked with advising the Prime Minister and the Leader of the Opposition on the next steps towards a successful referendum that would ‘recognise’ Aboriginal and Torres Strait Islander peoples in the constitution. The report states that it was informed by 13 regional dialogues across the country and a national convention at Uluru, as well as the work of the Parliamentary Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution in 2012 and the Parliamentary Joint Select Committee in 2015.  

You can view the full final report of the Referendum Council here.

The Council was appointed in December 2015 by Prime Minister Malcolm Turnbull and Leader of the Opposition Bill Shorten. It is comprised of 14 Indigenous and non-Indigenous members.  

Explainer video: Treaty or recognition?

The council was initially appointed for one year, but this was extended by 6 months. They were disbanded in June, 2017.  

Members

Council Co-Chairs: Pat Anderson and Mark Leibler

Council Members: Professor Megan Davis, Andrew Demetriou, Murray Gleeson AC, Tanya Hosch, Kristina Keneally, Jane McAloon, Noel Pearson, Michael Rose, Natasha Stott Despoja, Amanda Vanstone, Dalassa Yorkston and Galarrwuy Yunupingu (represented by Denise Bowden)

Past Council Members: Pat Dodson, Mick Gooda and Stan Grant.

The report's key recommendations and ideas:

• It recommended a constitutionally entrenched "Voice to Parliament" in the form of a national Indigenous representative body. This is the only change to the constitution that the report recommends that would be taken to a referendum. The Referendum Council said the Voice to Parliament emerged as the "preferred option" in their community consultations. 

• The report also called for a separate Declaration of Recognition, outside of the constitution: "Containing inspiring and unifying words articulating Australia's shared history, heritage and aspirations". 

• The report strongly supported the concept from May's Uluru Convention for a Makarrata Commission, separate to the Voice to Parliament, to supervise the process of agreement making between governments and First Nations, and facilitate truth-telling of First Nations' histories. However, the report acknowledged that it couldn’t make any official recommendations on either of those ideas because it fell outside of the Council’s terms of reference.

  Explainer video: What is Makarrata?

Why this recommendation?

The Council argues that a Voice to Parliament, enshrined in the constitution, was “the most endorsed singular option for constitutional alteration”.

It argued that a constitutionally enshrined voice would be different to other advisory bodies, because:

“For Dialogue participants, the logic of a constitutionally enshrined Voice – rather than a legislative body alone – is that it provides reassurance and recognition that this new norm of participation and consultation would be different to the practices of the past.”

Explainer video: A Voice to Parliament?

What will it do?

The report describes the proposed functions of the Voice to Parliament as:  

• Monitoring the use of the heads of power in section 51 (xxvi) and section 122.  

• And, the body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.

Further down it explains that the body could contest legislation not agreed to with the Voice to Parliament:

This means that discriminatory legislation like the Northern Territory Emergency Response would be contested before it originates.  

But the definition of body will be decided by Parliament, and it will have no veto power:

The report made clear that the ‘structure and the functions of the body’ will be defined by Parliament. This includes deciding whether members of the body will be elected by the community, or appointed. Under ‘Findings,’ the report states:

Legislation of the Parliament would deal with how the body is to be given an appropriately representative character and how it can properly and most usefully discharge its advisory functions. 

It is not suggested that the body should have any kind of veto power.

A note on the ‘powers’ of the Voice to Parliament:

While the co-chairs have emphasised the limited powers of the Voice to Parliament, such as when Mark Leibler spoke at the release of the report:

Mark Leibler: “There is absolutely zero interference with parliamentary sovereignty... because this body will no right of veto, not only that, the parliament itself will define how the body is going to be constituted and how it will operate."  

It should be noted that former Indigenous Affairs minister and Referendum Council member, Amanda Vanstone, released a qualifying statement in the report. Part of that statement expresses concern that the Voice to Parliament will have influence that would be ‘perilously close to a veto’.  

Amanda Vanstone: "Australians would, in my view, need to be assured that any such body, whilst intended to be a step towards coming together would not in fact be an inbuilt dissonance within our system. The advice to parliament would be public and thus any disagreement would feed into the public debate. Advice opposing a proposal before parliament would in effect be perilously close to a veto. It would be important that such a body did not become another combatant in a frankly all too combative political arena.

Ms Vanstone proposes that the task now is to find a ‘version’ of a Voice to Parliament that is both ‘acceptable’ to the Aboriginal and Torres Strait Islander peoples, and the parliament.  

And there are already suggestions about what form it might take.  

Not a new idea  

The idea of a Voice to Parliament, enshrined in the constitution, is not a new one. In 2014 a Joint Select Committee looking at recognising Indigenous peoples in the constitution took a submission from the Cape York Partnership. It called for a “constitutionalised Indigenous body”.

In the submission it outlined a proposed framework for that Indigenous Body. Some of the key points were:

1.It would not transfer any power to judges

2.It would be drafted so that the advice of the Indigenous body is highly persuasive and authoritative, but not binding on Parliament.

3.It would not constitute a veto over Parliament’s law making.

4. It be constituted by a small number of respected Indigenous leaders made up of a mix of popular representatives,  

5.Those members would be directly elected by Indigenous people, and appointed Indigenous leaders.

And since that submission, the idea of a Voice to Parliament has been discussed at every regional dialogue held by the Referendum Council, the process for which is outlined below.

The report states that it was informed - largely - by 13 regional dialogues across the country and a national convention at Uluru, as well as the work of the Expert Panel and Parliamentary Joint Select Committee before them.

The regional dialogues  

The First Nations Regional Dialogues commenced in December 2016 and culminated in a National Constitutional Convention at Uluru in May 2017.

The report says that 1200 people were engaged in the 13 dialogues – estimating that around 100 Aboriginal and Torres Strait Islander people attended each one.  

The Referendum Council report claims that each dialogue went for two and half days, on the final day each region elected representatives to go to the Uluru Convention.  

Where were they?

13 dialogues were held across Australia in:

What did they discuss?

The regional dialogues were open to the public, but the dialogues at the Uluru Convention happened behind closed doors between the Referendum Council and elected delegates.  

Five proposals for reform formed the basis of the Council’s regional dialogues. Four of these proposals are based on the substantial overlap between the Expert Panel’s recommended model, and the Joint Select Committee, the fifth option was a Voice to Parliament:

• a statement acknowledging Aboriginal and Torres Strait Islander peoples as the First Australians (which could be placed in the Constitution or outside it);

• amending the existing ‘race power’, section 51(xxvi) of the Constitution, or deleting it and inserting a new power for the Commonwealth to make laws for Aboriginal and Torres Strait Islander peoples;

• inserting a guarantee against racial discrimination, Section 116A, into the Constitution; and

• deleting section 25, which contemplates the possibility of a state government excluding some Australians from voting on the basis of their race.

• providing for a First Peoples’ Voice to be heard by Parliament enshrined in the Constitution.  

These five options for reform had to pass four principles. Each proposal had to:

1. Contribute to a more unified and reconciled nation;

1. Be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples;

1. Be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and

1. Be technically and legally sound. 

The sixth option: Agreement-Making

The report clearly outlines just five options for reform in section 1.4 Selecting the options to consider.

However, in Appendix I: Process for First Nations Regional Dialogues, the report states that the dialogues broke into workshops to discuss 6 options.  

Six principal reform options were explained: a statement of acknowledgement, within or outside the Constitution; amendment or replacement of the ‘race power’; repeal of section 25; constitutional prohibition of racial discrimination; agreement-making; and an Indigenous Voice to the Parliament, with a base in the Constitution.

So where does agreement-making fit into the conversation? What is it?

Agreement-making can refer to different types of reform, it could be:

• Inserting an agreement-making power into the constitution (this was a recommendation put forward as far back as 1983)  

• Agreement-making under the native title framework

• Treaty negotiations, outside of the constitution, such as those happening in Victoria and South Australia

The Referendum Council’s report claims that agreement-making does not “require constitutional alteration”.

Earlier in the report, the Council acknowledges that ‘agreement-making’ was a favourable option prior to the dialogues, and so it was included in the discussions as:  

A substantive reform option … and was also touched on in the broader community consultations.

But that:  

Although agreement-making and these other matters do not form part of our formal terms of reference, it is our view that they are inextricably linked to the issue of constitutional reform.  

So while delegates could discuss agreement-making, it ultimately never become part of the Referendum Council’s recommendations.  

What did the delegates vote on?  

Interestingly, Option 4 was rejected by the dialogues (deleting section 25, which contemplates the possibility of a state government excluding some Australians from voting on the basis of their race). The report says this was because it “addressed to past historical circumstances that are unlikely to be replicated in the future”.

The below table is how the Referendum Council reports each dialogue voted:

NOTE: Some delegates have expressed concern that the below table does not accurately represent what their region voted for. For example, it is unclear what kind of “agreement-making” is supported. 

Lawyer and Activist, Michael Mansell, told the ABC that the report "twists support":

"It is true that national dialogue meetings supported a national body. That support, mostly in anticipation of a new national body that would take over funding of Aboriginal programs and set priorities, was thought to warrant security in the constitution," he said. 

"The Referendum Council report mistakenly twists that position into support for a constitutionally entrenched advisory body, an entirely different concept."

A breakaway group walked out of the Uluru Convention, claiming it was a flawed process. The delegates were from Victoria and Dubbo, and included a large group of supporters.

At the time, Wiradjuri elder Jenny Munro condemned the Referendum Council’s efforts to support constitutional recognition.

"It's not a dialogue, it's a one-way conversation. Every time we try and raise an issue our voices are silenced," she said.

"They are not looking at any alternative options other than the Noel Pearson road map. And like Native Title that will prove to be an abject failure."

Victorian delegate, Lidia Thorpe, said her delegation had come to represent a number of nations with the greatest respect and integrity, and hopeful to reach an agreement - but said such an agreement was no longer possible.

“We as sovereign First Nations people reject constitutional recognition. We do not recognise occupying power or their sovereignty, because it serves to disempower, and takes away our voice," she said. 

“We demand a sovereign treaty with an independent sovereign treaty commission, and appropriate funds allocated."

Referendum Council response

The Referendum Council responded to the walk out saying that the process had been “a hard journey”, but it was still an important one.

"The recognition of Aboriginal and Torres Strait Islanders as human beings," council member Phillip Wilyuka said.

“We came to this conference here to have a say and put in a strong position to be recognised ... That’s the only thing we are here for," he added.

“Coming together as one voice to send a message out to white Australia to be recognised in the Constitution, so that we can too live in harmony and work together and live together.”

Report receives mix-reactions

Since that walkout, and the release of the Referendum Council's Final Report there has been a mixture of support and disagreement over the proposals and process. 

Prime Minister Malcolm Turnbull's initial reaction to the report was cautious, saying it contained "big ideas," but was "small on detail".

But member of the Prime Minister's Indigenous Advisory Council, Chris Sarra, told NITV's The Point in July that Mr Turnbull was "very interested in the essence of the Uluru Statement" and the report's recommendations.

Mr Sarra said a voice enshrined in the constitution should be something we "aspire to", but he said we need to be patient, and not rush the process. 

Indigenous politicians, Linda Burney and Pat Dodson, expressed surprise at the recommendations, and some disappointment that they didn't address the race clauses in the constitution. 

Other responses were more scathing towards the report, calling for treaty despite this sitting outside of the Council's terms of reference. 

Wiradjuri and Ngunnawal elder Les Coe said an advisory body does not go far enough, and that treaty and recognition of sovereignty is the answer. 

"If you want a nice and easy question you want to put to the Australian people, the question should be treaty yes or no, it's pretty simple.”

Michael Anderson from the Tent Embassy released a statement about the report’s proposals, saying the Referendum Council “failed to understand the resolve of constructive organised grassroots resistance”.

While lawyer and activist Michael Mansell told the ABC that the report didn't honour the outcome of the Uluru Convention. 

"At Uluru, 250 people from across the country said they wanted change of substance and we talked about a treaty, a truth and justice commission, a new national body, as well as constitutional recognition," he said. 

"The final report delivered only symbolic recognition in the form of an advisory body."

"Such a body can do nothing. It cannot make laws, cannot deliver services, administer any revenue and would supervise nothing."

Meanwhile support for the recommendations came in the form of a joint-statement in late July from senior Aboriginal and Torres Strait Islander figures and supporters, following a meeting called by Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar and Reconciliation Australia co-chair Tom Calma.

It calls on "the leadership of this country to support the Referendum Council’s first recommendation to have a voice to Parliament, to have a body that enables us to determine our affairs”.

The full list of signatories:

June Oscar AO

Professor Tom Calma AO

Pat Anderson AO

Professor Megan Davis

Thomas Mayor

Josephine Crawshaw

Suzanne Thompson

Jackie Huggins AM

Gary Oliver

Roy Ah-See

Sol Bellear

James Christensen

Mark Yettica Paulson

Karen Mundine

David Allinson

Andrea Mason

Noel Pearson

Shireen Morris

Sean Gordon

Geoff Scott

The discussions at the Uluru Convention happened in private, but after three days of consultations with delegates the Referendum Council presented a document titled the ‘Uluru Statement from the Heart.’  

The statement was developed over three days of consultation among Indigenous leaders.

Referendum Council representatives, Pat Anderson and Megan Davis said that a working group for the next phase of the process had been chosen from the forum.

They stated there would be a treaty commission, as well as a truth and justice commission that would run parallel.

Referendum Council Co-Chair Ms Anderson said constitutional acknowledgement had been "totally rejected" by all the meeting held in the 6 month consultation process before the Uluru forum.

Uluru Statement from the heart

"We, gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky, make this statement from the heart:

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs.

This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.

How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?

With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.

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.

Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future."