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The idea of recognising indigenous Australians in the Constitution is not new.  Twenty-five years ago, it was a topic of major discussion at the constitutional convention as delegates grappled with the competing claims of symbolism and workability. How could the desire for recognition be aligned with the need to ensure necessary predictability in the nation’s constitutional arrangements?

In February 1998, 152 delegates gathered at Old Parliament House Canberra, half elected, half appointed, representatives from every state and territory and every political party and those without political affiliations. It was a fair cross-section of representatives of the Australian populace, including indigenous and migrant peoples, brought together for two weeks to debate the nation’s future constitutional arrangements.

Debates were both willing and respectful. Not only was general support or opposition to the idea of Australia becoming a republic discussed; various models and specific constitutional proposals were debated in detail. Amongst the latter, was the proposal to recognise indigenous Australians in the constitution.

For and Against

The relevant working group had proposed that the preamble contain an acknowledgement of the Aboriginal occupancy and custodianship of Australia by Aboriginal Peoples and Torres Strait Islanders; and recognition that Aboriginal people and Torres Strait Islanders have continuing rights by virtue of their status as Australia’s indigenous peoples.

Debate about these proposals canvassed a wide range of views. Some delegates, like Pat O’Shane, believed the provisions should enable an extensive expression of indigenous aspirations. Others, such as the late Patrick O’Brien, argued that there should not be a limit on what the Australian people would like to include in the future.

Others warned that because the proposal was silent on the question of whether the preamble could be used by the High Court to interpret the Constitution, it created the possibility of that occurring. As a consequence, I moved an amendment that ‘chapter 3 of the constitution state that the preamble not be used to interpret the other provision of the constitution.’

The amendment produced a memorable response, at least for me, from the chair of the drafting group, Gareth Evans:

‘Might I indicate, from my own perspective and that of a number of people with whom I have just canvassed it—and I never thought I would say this, Kevin—that that is a remarkably sensible suggestion and I am happy to endorse it. The reason why we were very reluctant to have language of this kind in the preamble itself was that it detracted from the literary, aspirational and inspirational character of it.

But if you put it elsewhere in the Constitution, you have exactly the same legal effect and it means the draftsmen of the constitutional preamble can have a much freer hand and we can all have a freer hand in expressing our aspirations in the way that we want to. It is an excellent suggestion and I, for one, would endorse it.’

Suffice to say, the amendment was endorsed by the convention!

I reflected on the 1998 constitutional convention when thinking about the current ‘Voice’ campaigns. No process is perfect in a democracy, but the convention was a far superior mechanism to the mess that Australians are trying to muddle through currently. Many supporters and opponents of the current proposals are despairing at the process.

While any group of Australians, such as those who gathered to sign the Uluru Statement, are entitled to advance and argue for constitutional change, a well-considered and unifying outcome requires a process of reflection and discussion — and the ability to shape the final proposal. This is entirely missing currently.

Loggerheads

Instead of a reflective, probing debate, the nation is descending headlong into a vindictive squabble. People close to the ‘yes’ campaign privately express their dismay that it is being driven by one or two people who seem determined to reject any consideration of amendments that would make the proposal more workable – and therefore acceptable to the Australian people.

They are despondent that the Prime Minister seems to have doubled down on the breadth of the proposal, when a sensible narrowing would have assured many Australians that once enacted, the new provision would not be used to undermine the existing system of government. Symbolism is trumping workability without compromise.

Had the current proposals been put to a constitutional convention comprising a broad cross-section of members of the Australian polity, both the objectives of the proposers and the constitutional means to achieve them would have been considered. Not only would the intended outcomes have been examined, but also any unintended consequences.

The discussion would have commenced, as did the dialogue in 1998, with a genuine desire to recognise indigenous Australians as the original custodians of the land and to celebrate their continuing role. But this result has now been lost in a noisy quarrel in which motives are being impugned and personal criticism of advocates of both supporters and opponents is replacing sober and thoughtful discussion.

A series of constitutional conventions produced the Australian Constitution in the 1890s. The process was slow and frustrating to some, but it helped to reinforce a single, unified people. The 1998 convention did not result in the outcome that many people hoped for, but it helped to refine the proposal that was eventually put to the Australian people.

Bypassing this process is unhelpful. It greeneries the populace with a vague proposal that many do not understand; it leaves the wording open to criticism that it is so broad as to incorporate matters far beyond indigenous recognition; and it raises the prospect of the High Court having to determine constitutional challenges in almost all areas of public policy.

Had the proponents of the ‘Voice’ devoted a little time to studying the 1998 constitutional convention, they would have recognised the very issues that now confound their cause. As the philosopher George Santayana observed, ‘Those who cannot remember the past are condemned to repeat it.’

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Originally published in The Spectator Australia. Photo by Mikhail Nilov.