This paragraph that I read in an article by Megan Davis caught my attention…

The story of Uluru Statement from the Heart is an Australian story and an Aboriginal innovation. The starting point is 1999. At the last referendum to be held in Australia in that year, Prime Minister John Howard put to the Australian people a preamble to the constitution that included recognition of Aboriginal and Torres Strait Islander Peoples. This form of recognition was rejected by all of the cultural authority of Australia in its entirety, from land councils to the elected representatives of the Aboriginal and Torres Strait Islander Commission (ATSIC), to the electorate. Yet Howard proceeded with the agreement of a single Aboriginal champion of the reform.

The long road to Uluru
Walking together – truth before justice
MEGAN DAVIS

But from my own recollection of the late 90’s, I remember ATSIC and many “Aboriginal leaders” promoting it and saying we need to be in the preamble. Did I remember wrong?

I dug a little deeper, and found that Megan Davis is correct here. But only if you take a starting point of 1999. I did remember correctly, the preamble was supported by the “Aboriginal leaders” throughout most of the 90’s. But they backflipped during the ‘final approach’, in 1998/1999.

In the early 1990s, the Aboriginal and Torres Strait Islander Commission, the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Social Justice Commissioner all supported constitutional recognition of Indigenous Australians.

The preamble and indigenous recognition, Twomey

Megan Davis chose to frame her essay in a way that gives the impression that “Aboriginal leaders” never supported symbolic recognition. But “Aboriginal leaders” did support it – before and even after 1999, up to the more recent “Recognise” era.

ATSIC sent delegates to the February 1998 Constitutional Convention. They even put forward a proposed preamble; Here is what the chairman of ATSIC, Gatjil Djerrkura put forward as a proposed preamble on behalf of ATSIC at the 1998 constitutional convention;

Australians affirm their Constitution as the foundation of their commitment to, and their aspirations for, constitutional government.
Our nation dedicates itself to a reasonable and representative system of government that is inclusive of all its peoples, upholds fundamental human rights, respects and cherishes diversity and ensures full participation in its social, cultural and economic life.
Australia recognises Aboriginal and Torres Strait Islander peoples as its indigenous peoples with continuing rights by virtue of that status.
We seek a united Australia that respects and protects the land and the environment, including the indigenous heritage and the values and cultures of its people, and provides justice and equity for all people.
We the people of Australia give ourselves this Constitution.

Constitutional Convention Transcript of Proceedings

Many Aboriginal delegates at the convention seemed to support in-principle both the preamble and the republic. There was only one Aboriginal delegate who really spoke against it – that was Neville Bonner in his famous “how dare you” speech.

The final communique from the 1998 convention was “achieved with a remarkable spirit of unanimity“. But the preamble was not committed on until later.

In the final moments of the Convention, Prime Minister Howard committed his Government to holding a referendum on the republic but made no commitment on the preamble. In terms of the federal political agenda, the Convention’s final resolution on the preamble was the last word until February 1999, when the preamble suddenly took centre stage.

With Hope In God, The Prime Minister And The Poet: Lessons From The 1999 Referendum On The Preamble
MARK McKENNA, AMELIA SIMPSON AND GEORGE WILLIAMS

Fast forward to early-mid 1999. The proposal now has more meat on the bones. “Aboriginal leaders” are now complaining about the Howard-Murray draft preamble that John Howard has proposed.

There were objections to the Indigenous reference, in particular its failure to go beyond the recognition of prior occupation and include reference to Aboriginal ‘custodianship’. Indigenous leaders roundly criticised the draft. They had not been consulted.

Ibid.

The preamble was later changed again to the final version, which many “Aboriginal leaders” still did not support.

Why did “Aboriginal leaders” backflip after a decade of hard work trying to get recognition in a preamble – because they don’t like the particular wording? It is to tip the baby out with the bathwater. Furthermore, in the 2000’s the usual suspects were back supporting “Recognition”. There was a mere slither of time during 1999 where complaints of Aboriginal leaders about symbolic recognition were amplified.

Must be legally sound

Every proposal since 1999 has the criteria that it “must be legally and technically sound”. Well duh, that goes without saying. Why would they spell this out? Could it be, in fact, because 1999 was – for some reason – not legally and technically sound?

If 1999 were legally unsound – you can bet that any known problems will be addressed before future attempts. So just watching what’s going on might shed light on what the legal problem was. I’m going to explore some possible problems below.

Lack of Mandate

I think Megan Davis’s assertion (about 1999 being widely rejected by Aboriginal people/leadership) hints at one possible reason why 1999 was not legally sound.

As I have written about on this blog previously, these constitutional reforms are all about achieving decolonisation. For decolonisation to happen as per UN resolutions and the C24 committee’s standard – they must be able to demonstrate broad Aboriginal consent, or the consent of “the peoples of the colony”. Otherwise there may be a future situation like what is happening now in West Papua – where the consent is challenged. ATSIC was the vehicle to get this consent for decolonisation. But there were a few problems. A major problem was the poor ATSIC election turn out

(In 1996) 49,500 out of a population of about 400,000 voted, whilst in 1999 voter turnout was 48,000. This means that in its ten years of existence ATSIC has had the active endorsement of, at most, 13% of the national indigenous populace

ATSIC Flaws in the Machine, Gary Foley

Without a great turn-out in the October 1999 elections, ATSIC had no mandate to consent for decolonisation and to sign a reconciliation instrument. Perhaps this is the real reason why the “Aboriginal leaders” backflipped mid-1999 on the preamble. They predicted that they would not be able to build a mandate in time to act of our behalf and to finish the job of signing off on the reconciliation instruments.

Another thing of note: the October 1999 ATSIC elections were the very first that there were no government-appointed commissioners. Conveniently – just in time for making the body for consent 100% Aboriginal-controlled for the November republic referendum!

Definition of Aboriginality

Had there been a healthy turn-out to ATSIC elections, it may still not have been enough. There is another possible problem that affected the legality of ATSIC being able to give consent in 1999. And perhaps the colony was not aware of this problem it during the lead-up, but are aware of it now.

The problem is with the three-part definition of Aboriginality.

Some time around the birth of ATSIC, the colony created a conceptual definition of Aboriginality that encompasses a racial criteria so they can continue using the constitutional races power in section 51(xxvi). The ATSIC act itself was underpinned by this constitutional head of power. The descent requirement is effectively a one-drop racial criteria.

But the colony also requires a political definition, because you cant do a political settlement with a race. More specifically, the colony needs a political settlement with the peoples under colonial subjugation (see my post Self-determination Roadmap for the difference between “colonised” and “indigenous”).

The result of combining concepts of race and polity is the 3-part definition. This concept was tossed around from the early 80’s, and was eventually solidified after some non-Aboriginal people in Tasmania were challenged in court for their eligibility to run as ATSIC candidates.

As a side-note: the point that these ATSIC eligibility cases were tested in Tasmania might be an important factor – because Aboriginal people in Tasmania will probably never meet the up-coming, post-reconciliation strict cultural continuity requirement to be “indigenous”. By testing this case on people who are under colonial subjugation, yet not indigenous – logically separates the two concepts. There is also no Native Title in Tasmania for the same reason, they cannot prove cultural continuity.

But the problem with the 3-part definition – which may mean the 1999 referendum was not legally sound – is this… By unilaterally imposing the one-drop race criteria on us, they are denying us the prerogative to freely decide the make-up of our polity. You cannot treaty with just “some” people, you need to treaty with a polity acting under their own self-determined definition and acting using their own representative structures. It may be that if we had the choice, that we would include people without ancestry in our communities.

Other settler colonial states have tribal registration systems where each tribes have criteria for membership. This is sometimes based on blood quantum. These registration systems are a administrative necessity to uphold the treaties themselves. They are, at least in theory, based on self-determined criteria.

But as Australia has no treaties, and have tried assimilation and breeding us out for so long – they now have this unique problem that they lack a definitive way to determine exactly which political communities or community they need to do treaties with, and also and which persons are members of these communities. And those communities need to be able to fully determine and define who they are – criteria cannot be imposed.

Australia needs to step back, and allow us the free opportunity to determine who we are – as a technical legal necessity.

Finetuning the definition, and backing off policing of Aboriginal identity

That is exactly what is happening right now, a stepping back. See;

• The Love High Court Case in which Australia removed the imposed exclusion of non-Australian citizens from being part of the Aboriginal community, and also recognised the Aboriginal community as not being alien.
• The way that the AFP dropped Cashman’s complaint challenging Pascoe’s identity, feds stepping back from policing Aboriginal identity.
• I remember also hearing that there were non-Aboriginal people voting in the Victorian Aboriginal assembly – if that’s true I would bet that no non-Aboriginal governmental authority will challenge that.
• The recent recognition of Torres Strait Islander adoption practices in Queensland, removing a possible blood-line exclusion on adopted individuals and their children – given their cultural relationship with Papua New Guinea.

While these cases all deal with very small numbers of people, it is important that all imposed barriers are removed for the peoples under colonial subjugation to freely determine their own criteria for community membership .

Australia is stepping back from imposing any identity criteria because they are preparing for a treaty.

Other reasons for not being legally sound…

Maybe there are other reasons that 1999 referendum and proposed instruments of reconciliation were not legally sound. I can’t think of any right now.

Why the backflip in 1999?

What I am suggesting is that “Aboriginal leaders” backflipped on symbolic recognition, and John Howard provided them with a face-saving excuse to do so, both because some eagle-eyed lawyer realised in 1998 or 1999 that the reforms were not legally and technically sound. The fatal flaw was set in place way back when ATSIC was first legislated using the races power. You can’t treaty with a race!

They tried to save a decade of work by taking a gamble on separating out the republic question from the preamble question. If the preamble question got through alone, it would have been a step in the right direction. And the preamble was polling better than the republic at one point. If the republic question went through without the preamble, it would have been impossible to implement, as without the preamble there would be no authoritative basis and no autochthony of the new republic. In the end, the republic question did better than the preamble, and officially both failed. It was a complete cock-up.

The meeting between the Queen and Aboriginal leaders at Buckingham Palace makes sense in this context. The meeting was a month before the referendum but just a few days after the ATSIC election. It was probably scheduled long in advance to be a kind-of “State visit” form of diplomatic recognition ahead of signing a reconciliation instrument. The timing makes perfect sense – you want a recent successful ATSIC election to give the leaders a fresh mandate, and it should happen shortly before the referendum. But due to the technical problems, it instead became a meeting about Plan B.

We dodged a bullet in 1999!

Predictions

If I am right about this, I would expect the following;

In the realm of Native Title law, there may be a loosening of rules, or not policing where official Native Title Holders can allow wider family branches (i.e. not having strict apical ancestry, but part of the nation) to have traditional access to their Native Title land or becoming members of PBC’s without the government complaining. Maybe this is already happening, but I have not been following closely enough. I think this will happen because Native Title PBC’s are one type of vehicle which will be used for agreement making. Loosening the rules means the agreements will cover more people in total. The loosening of the rules will be temporary until the constitutional reform is over, after which they will become strict with tribal membership ID cards based on proven apical ancestry.

Another thing I would expect, is a novel solution to a potential problem with the constitutional power to legislate a Voice to Parliament. The races power cannot be used in the same was it was used to underpin ATSIC. Perhaps an external foreign affairs power will be used as well, or used instead of the races power. Or maybe they will not use any Australian constitutional power at all, and it will be somehow underpinned by the Uluru Statement (which asserts constitutional spiritual power) itself. If the Voice is legislated, watch carefully how it happens – because it may break new ground in the way it is passed.

I would also expect a small number of non-Aboriginal people participating in a legislated Voice from the very beginning. Awareness of this will be made in the Aboriginal community to prompt them to complain. Aboriginal leaders will complain, and the government will initially do nothing about it. But by the time the referendum comes (which may actually look like a republic referendum), there will be real Aboriginal-led solutions put in place to weed out fakes from the legislated Voice to a point where the Aboriginal community are satisfied.

Image by Steve Buissinne from Pixabay

Fraud: intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. 

There is intentional deception to make people believe that the Voice referendum is for a modification to the Commonwealth of Australia Constitution Act – when it is not. But the term “fraud” has a very narrow meaning in Treaty law, so despite this being fraud in a general sense – this fraud will be legally valid.

The “Voice” referendum is no normal referendum. It may not involve the Australian Constitution Act at all.

The first recommendation from the Final Report;

That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament.

Referendum Council Final Report

I going to break down some points to show why this referendum is not normal.

Point 1: There are two different possible meanings of the term “Australian Constitution”

a) “Australian Constitution” can refer to the Commonwealth of Australia Constitution Act. The written constitution (the document). Prominently written on the title page of this document is “AN ACT to constitute the Commonwealth of Australia”.

b) “Australian Constitution” can also refer to the constitution/components of Australia – the sum of laws and institutions that make up that entity. Australia at it’s most basic, is a constituency of colonies/States. It is that which the Constitution Act (document) has enacted. This context of the word is the same as in “the Constitution of New Zealand” – because New Zealand does not have a written codified constitution.

Which of these two possible meanings is meant by the Referendum Council? Most would assume it is the first meaning, but I think it is the second meaning. In the next points I will show some reasons why it is ambiguous.

Point 2: The term “Referendum” is not set in stone.

The Referendum Council recommends that a referendum be held. A referendum is commonly understood to mean a nation-wide vote to make a modification to the text of the Constitution Act.

But the term referendum can, and has been used for a nation-wide vote that does not modify the constitution act. The conscription referendums of 1916 and 1917 were called referendums – but did not involve proposals to change the constitution. So just because it is called a referendum does not automatically mean that the vote is to change the Commonwealth of Australia Constitution Act.

In section 128 of the Constitution Act (full text at end of this post), it says for the Constitution Act to be changed a vote must be put to the electors – but the word referendum is not used. The term referendum is legislated and defined in the Referendum (Machinery Provisions) Act 1984. As the term referendum is legislated – it can be changed, re-interpreted, expanded or shrunk by the two-party colonial elite and their courts.

Point 3: Application of The Referendum (Machinery Provisions) Act 1984 is not exclusive to Section 128 referendums

The Referendum (Machinery Provisions) Act 1984 (Referendum Machinery Act) was used in the same-sex marriage plebiscite. The plebiscite question was not a ‘constitutional amendment’ (by either of the meanings in point 1 of this blog), nor was it ever referred to as a referendum – yet it utilised the Referendum Machinery Act nevertheless.

The Bill is unusual in that it is not a stand-alone piece of legislation but, rather, incorporates a number of provisions from other legislation. In particular the Bill would apply provisions from the Referendum (Machinery Provisions) Act 1984. The effect of this is that the legal framework for a referendum would apply to the plebiscite, including: the ‘one vote per person’ rule; formality rules for ballot-papers; provision for the appointment of scrutineers; and compulsory voting. This would mean that the plebiscite would be conducted in much the same way as a referendum.

https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1617a/17bd022

Timeline:

• Same-sex marriage bill introduced to Parliament – 14 September 2016
• Uluru Statement convention: 26 May 2017
• Same-sex marriage plebiscite mail vote – 12 September and 7 November 2017

Plebiscites are rare, the last one was in 1977. It is not often that the political elite ask the people directly – they did not even bother polling the people about the Australia Acts in 1986. Note how the timing of the Uluru Statement convention was sandwiched time-wise with this rare plebiscite.

An important observation here – at the time of the First Nations National Constitutional Convention at Yulara- the delegates at the convention and their advisors would have been fully aware of the same-sex marriage plebiscite. They should have also been aware that just because a national vote utilises the Referendum Machinery Act, does not mean that the vote is also utilising section 128 of the Constitution Act.

I suspect the same-sex marriage plebiscite was a “dry run” to test using the Referendum Machinery Act on a non-section 128 constitutional amendment, to iron-out any wrinkles and smooth the way forward. Like the same-sex marriage plebiscite, the Voice referendum will also not be a constitutional amendment under section 128. (The Voice referendum will be a constitutional reenactment partly using section 52(xxxviii).)

The timing of this “dry run” – running concurrent with the Referendum Council work allowed a two-way feedback. i.e.- it allowed time for both the Referendum Council process and the same-sex marriage plebiscite process to come to a consistent position, and allows adjustments on either side. If they ran the same-sex marriage plebiscite to completion before the Referendum Council started their work – that would limit flexibility on the same-sex marriage plebiscite side.

Fact is – since both the historical conscription referendums and the same-sex marriage plebiscite – neither the use of the term ‘referendum’, nor the utilisation of the Referendum Machinery Act are exclusive to a section 128 change to the Constitution Act. The technical advisors at the Uluru dialogues should have been aware of these facts and taken them into consideration when drawing up the proposal.

Point 4 – The current definition of a ‘referendum’ in Australian law has room for interpretation

Referendum is defined in The Referendum (Machinery Provisions) Act 1984 –

referendum means the submission to the electors of a proposed law for the alteration of the Constitution

Note – this is about alteration of the Constitution. It does not say – alteration of the ‘Commonwealth of Australian Constitution Act’ , nor does the act itself make any reference to section 128 or to Commonwealth of Australia Constitution Act.

Going back to point 1 in this blog post – there are two possible meaning for this word constitution. If the meaning in the Referendum Machinery Act is interpreted (expanded) to include both of these possible meanings, then the Referendum Machinery Act should also apply to changes to the ‘make-up’/composition of Australia – even if the changes do not involve a modification under section 128 of the Commonwealth of Australia Constitution Act.

If the Voice is an amendment to the Australian Constitution (the composition of Australia, but not the document) – under an expanded interpretation the Voice referendum should use the Referendum Machinery Act in full. The consequence of this is it will look identical to a section 128 referendum, even if though is not. Most people will probably falsely believe that it is a s128 referendum because they will watch it go through all the usual expected motions of a s128 referendum (writs, ballot box rules, scrutineers etc.).

It is the perfect masquerade – a constitutional reenactment dressed up as a section 128 referendum.

Point 5 – The Referendum Council Final Report DOES NOT request an amendment to the Commonwealth of Australia Constitution Act

Lawyers are attention-to-detail types. It’s hard to fathom that teams of technical advisors and expert lawyers would have carelessly missed this crucial point. The Referendum Council Final Report requests a provision in the “Australian Constitution”. It does not request an amendment to the Commonwealth of Australia Constitution Act, nor make it unambiguous that this is the intention.

In previous iterations of constitutional recognition – it was always clear that the Constitution Act was meant – either by referring to specific parts of the Act, referring to numbered sections of the Act, or spelling out the name of the Act. This is not the case for the Uluru Statement proposal. If you don’t believe me – read the Referendum Council Final Report carefully – there is nothing there that makes it clear that a modification to the Constitution Act is intended. I’m happy to be proven wrong – leave a comment if you find something.

Constitutional lawyer Megan Davis sat on the Referendum Council. Previous processes she worked on had offered suggested draft wording and section numbering for constitutional amendments. She is a constitutional lawyer – qualified and capable. But this time around there has been no draft amendment wording provided. Why not?

Where is the draft wording?

There can’t be draft wording when it is not a proposed amendment to the Constitution Act. This is why there is no Referendum Council recommendation along the lines of “insert a new section x in the constitution”. They are not asking for modification to the Constitution Act. They are asking for a modification to the constitution – the make-up of Australia via the federalism of a new non-territorial Aboriginal State.

Appendix: Australian Constitution Act 1901 – section 128.

128 Mode of altering the Constitution

This Constitution shall not be altered except in the following manner:

The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.
But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives.

When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.

And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen‘s assent.

No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.
In this section, Territory means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives.

Commonwealth of Australia Constitution Act

Title image by Gerd Altmann from Pixabay