8 June By Dear Sir/Madam,

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1 Maurice Blackburn Pty Limited ABN Level Latrobe Street Melbourne VIC 3000 DX 466 Melbourne T (03) F (03) June 2018 Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples PO Box 6021 Parliament House Canberra ACT 2600 By jsccr@aph.gov.au Dear Sir/Madam, We welcome the opportunity to provide input to the inquiry of the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples. Please do not hesitate to contact me and my colleagues on or at MThorne@mauriceblackburn.com.au if we can further assist with the Committee s important work. Yours faithfully Michael Thorne On Behalf of The Aboriginal and Torres Strait Islander Rights ( ATSIR ) Committee MAURICE BLACKBURN

2 Submission to the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (June 2018)

3 About Us Maurice Blackburn is proud to be Australia s leading social justice law firm. We ve built a reputation on the belief that the law should serve everyone, not just those who can afford it. Our firm carries the name of a man Maurice Blackburn whose sense of social justice and civil liberty was ahead of his time. He established the firm in 1919 with the aim of fighting for disadvantaged groups and everyday Australians. He left behind a legacy of compassion, generosity and commitment to justice that is reflected in the work we do every day. Today, Maurice Blackburn is a national firm with over 30 offices throughout Australia and more than 1000 employees. We specialise in personal injuries law, class actions, employment law, superannuation and insurance, and wills and estate. Our firm has a long history of litigating and campaigning for social justice and change, and we advocate strongly for fairness and equality. The Aboriginal and Torres Strait Islander Rights ( ATSIR ) Committee at Maurice Blackburn is a group of lawyers, legal assistants and senior members of staff who assist in public interest litigation, in maintaining and building relationships with Aboriginal and Torres Strait Islander groups, and in implementing internal policies and projects aimed at promoting reconciliation in Australia. The ATSIR Committee, on behalf of Maurice Blackburn Lawyers, is grateful for the opportunity to provide a submission to this inquiry. Introductory Remarks Extensive efforts have been made to change the Australian Constitution to provide appropriate and respectful recognition of Australia s First Peoples. The most recent of these efforts include the First Nations Regional Dialogues and a historic meeting of Aboriginal and Torres Strait Islander leaders at the National Constitutional Convention in Uluru. These two processes culminated in the Uluru Statement from the Heart and the Referendum Council s final report. 1. Significance of the Uluru Statement from the Heart The Uluru Statement from the Heart was the outcome of an ostensibly inclusive, principled and focused consultation process, the likes of which Australia has never seen. It represents what has been described as a rare constitutional moment 1 in which First Nations Peoples came to a conclusion about how constitutional recognition of Aboriginal and Torres Strait Islander Peoples should look and what it should achieve. The Uluru Statement from the Heart says: 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 the country. The proposals for reform that were supported by 243 (of 250) delegates at the National Constitutional Convention and enshrined in the Uluru Statement are: 1 Laureate Professor Emeritus Cheryl Saunders AO described the Uluru Statement from the Heart as a constitutional moment at a talk presented at the University of Melbourne Law School on 9 April Page 1

4 i. a constitutionally enshrined Voice to Parliament; and ii. the establishment of a Makarrata Commission to supervise a process of agreementmaking and truth-telling. These proposals were supported against the framework of the Guiding Principles which were distilled from the First Nations Regional Dialogues. 2 The recommendations call for Parliament to consult and engage with Aboriginal and Torres Strait Islander Peoples on policies and legislation that affect them. Maurice Blackburn believes that this is crucial to the process of addressing the disadvantage experienced by Aboriginal and Torres Strait Islander Australians. 1.1 Government Rejection of the Uluru Statement On 26 October 2017, Prime Minister Malcolm Turnbull released a media statement 3 rejecting the Referendum Council s recommendation for a representative body. The Prime Minister stated that a constitutionally enshrined additional representative assembly for which only Indigenous Australians could vote is inconsistent with the fundamental principle that all Australian citizens have equal civic rights. Our Submission In providing comment to each the relevant paragraphs of the Joint Select Committee s terms of reference, we offer members of the Committee an insight into what Maurice Blackburn believes are important considerations in ensuring that the achievement of constitutional recognition of Aboriginal and Torres Strait Islander Peoples is successful and effective. 2. Responses to Terms of Reference 1(a) and 1(f) 4 Terms of reference 1(a) and 1(f) provide: 1(a) Consider the recommendations of the Referendum Council (2017), the Uluru Statement from the Heart (2017), the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (2015), and the Expert Panel on Constitutional Recognition of Indigenous Australians (2012). 1(f) Advise on the possible steps that could be taken to ensure the referendum has the best possible chance of success, including proposals for a constitutional convention or other mechanism for raising awareness in the broader community. Maurice Blackburn believes that the Uluru Statement from the Heart contains a powerful and important expression of the desire for constitutional reform by Aboriginal and Torres Strait Islander Peoples. We also believe that any proposal for reform must have as its starting point, the aspirations of Australia s First Peoples themselves. 2 We refer to the Guiding Principles listed on page 22 of the Referendum Council s Final Report (30 June 2017) which include: (1) does not diminish Aboriginal and Torres Strait Islander Sovereignty; (2) involves substantive, structural reform; (3) advances self-determination and standards established under the UN Declaration on Rights of Indigenous Peoples; (4) recognises the status and rights of First Nations; (5) tells the truth of history; (6) does not foreclose on future advancement; (7) does not waste the opportunity for reform; (8) provides a mechanism of First Nations agreement making; and (9) has support of First Nations; (10) does not interfere with positive legal arrangements. 3 < 4 We note that term of reference 1(f) appears to be referred to as 1(d)(vi) on the Parliamentary Committee webpage < Page 2

5 Maurice Blackburn submits that it is wrong to suggest that a First Nations Voice enshrined in the Constitution would function as an additional representative assembly for which only Indigenous Australians could vote. 5 We also submit that Mr Turnbull s comment, that a First Nations representative body is inconsistent with equal civic rights principles, is baseless and divisive. Mr Turnbull s position encourages belief in an outdated notion of formal equality, which suggests that in order to be equal we must all be treated the same. The deficiency of this model has been highlighted by the common-sense notion of substantive equality, which contends that the only way to achieve genuine equality is to acknowledge the disadvantage experienced by Aboriginal and Torres Strait Islander Peoples in comparison to non-indigenous Australians. Maurice Blackburn believes that our society is made richer and more inclusive by the multitude of organisations with distinct cultural or religious composition that already exist to advise the government on behalf of their members. Bipartisan, cross-party and community support is necessary to ensure the success of any potential referendum. 2.1 Our Recommendations Maurice Blackburn recommends that the Committee s report should call for the Parliament to dispel the notion that a Voice to Parliament will act as a third chamber as part of its work to build support for the proposal. Maurice Blackburn also recommends that the Committee s report should address how the Parliament will build community support for a Voice to Parliament. Further, if a legislative representative body for Aboriginal and Torres Strait Islander Peoples is created before taking the question to referendum, 6 we recommend that the Committee s report should outline how the Parliament will ensure that the momentum behind constitutional recognition is not lost. Maurice Blackburn believes that it is important for Parliamentarians to understand the significance of what was achieved at Uluru and to embrace this opportunity to tackle both the practical and symbolic aspects of Reconciliation. 3. Response to Term of Reference 1(b) Our submission does not respond to paragraph 1(b). 4. Response to Terms of Reference 1(c) and 1(d) Terms of reference 1(c) and 1(d) provide: 1(c) Recommend options for constitutional change and any potential complementary legislative measures which meet the expectations of Aboriginal and Torres Strait Islander Peoples and which will secure cross party parliamentary support and the support of the Australian people; and 5 Megan Davis, Shireen Morris, Maria Giannocopoulos, The Uluru Statement from Heart, One Year On: Can a First Nations Voice Yet be Heard? ABC online, 26 May 2018, accessed at < 6 Bill Shorten has stated that Labor would legislate a Voice to Parliament if bipartisan support for the proposals in the Uluru Statements from the Heart is not possible: Bill Shorten, Response to the Closing the Gap Report (Speech delivered in reply to the Prime Minister s annual statement on Closing the Gap, Canberra, 12 February 2018) < Page 3

6 1(d) Ensure that any recommended options are consistent with the four criteria of referendum success set out in the Final Report of the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: i. contribute to a more unified and reconciled nation; ii. be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander Peoples; iii. be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and iv. be technically and legally sound. Maurice Blackburn supports the recommendation that a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander Peoples a Voice to Parliament. 4.1 Our Recommendations Given a representative body for Aboriginal and Torres Strait Islander Peoples will leave parliamentary sovereignty undiminished, Maurice Blackburn recommends that the Committee s report should address how any proposals for reform will ensure that the powers and functions of the Voice to Parliament are not weakened by design. 7 We recommend that the Committee s report should consider how the Voice to Parliament will be representative of the diversity within Australia s Aboriginal and Torres Strait Islander communities and how it will ensure that the body will be protected from abolishment, even if the body expresses views that are different from the government of the day. While Maurice Blackburn respects the fact that a Voice to Parliament was the sole recommendation for constitutional reform to emerge from the Regional Dialogues and the National Constitutional Convention, we recommend that the Committee s report addresses the fact that a constitutionally enshrined representative body is not a mutually-exclusive alternative to: agreement-making processes, including treaty-making; truth-telling processes; the repeal of section 25 of the Constitution, which contemplates that States may prevent people from voting in state elections due to their race; repeal or replacement of, or amendment to, section 51 (xxvi) of the Constitution in order to protect Aboriginal and Torres Strait Islander People from future discriminatory actions of Parliament; and additional introductory words that frame the purpose and context of the Constitution, including the long history of Aboriginal and Torres Straits Islander Peoples on our continent. While Maurice Blackburn appreciates the challenge of securing the level of community and political support required for constitutional change, we submit that reform may involve aspects of all of the proposals listed above if it is to contribute to a more unified and reconciled nation, and be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander Peoples. 7 It is questionable whether, in the absence of any determinative powers, such advice or consultation will have much effect on the making of laws by the federal Parliament. In particular, it is hard to see how the advice of Aboriginal people will be sufficient to overcome the demonstrated willingness of the federal Parliament to enact laws to their detriment. It is notable that such laws have been enacted even over the vocal opposition of Indigenous peoples. Examples include laws for native title and the Northern Territory ( NT ) intervention that suspended the operation of the Racial Discrimination Act 1975 (Cth) : George Williams, Constitutional Recognition by way of an Indigenous Advisory Body? 8(18) Indigenous Law Bulletin. Page 4

7 5. Response to Term of Reference 1(e) 8 Term of reference 1(e) provides: 1(e) Engage with key stakeholders, including Aboriginal and Torres Strait Islander Peoples and organisations. Maurice Blackburn recommends that the Committee s report should outline how Parliament could engage in meaningful and effective consultation with Australia s Aboriginal and Torres Strait Islander Peoples throughout the process of developing any proposal for advancing constitutional recognition. We also recommend that the Committee s report should address how the Voice to Parliament and any other reform proposal will, in practice, provide for genuine engagement and effective consultation with Australia s Aboriginal and Torres Strait Islander Peoples. Concluding Remarks We ask the Committee to advocate to Government to reconsider the Uluru Statement in an informed and respectful manner, so that our nation may take up a historic invitation to walk with our First Nations Peoples in a movement of the Australian people for a better future. 8 We note that term of reference 1(e) appears to be referred to as 1(d)(v) on the Parliamentary Committee webpage Page 5