In 2017, after 13 regional grassroots dialogues and a national constitutional convention, the First Nations who participated in the Referendum Council's work on constitutional recognition called for Voice, Makarrata and Truth. A law reform agenda aimed at empowering First Nations people, commencing with a protected political voice as a form of constitutional recognition. More importantly, they unanimously declared: no more symbolism.
Many old people who participated in the referendum council dialogues over 2016 and 2017 also told us that "reconciliation" was the wrong concept for Australia. They believed it was imported from other countries and didn't suit Australian conditions well, because it means to restore friendly relations. And we, as First Nations and Australians, have never even met each other. There was never any pre-existing relationship.
They said reconciliation works for Canada because First Nations peoples and colonisers signed treaties, and provided constitutional recognition. But we have never met. And from these grassroots conversations and observations in dialogues across the continent, the idea of an invitation to the Australian people emerged. This thinking, a sophisticated critique of "reconciliation", became what we know today as the Uluru Statement from the Heart. An invitation for all Australians to meet with us at the heart of the nation, and walk with us in a journey of the Australian people.
The Uluru Statement and the advocacy for an enshrined Voice as a singular amendment to the constitutional text, unencumbered by symbolic measures, was what First Nations said was "repair". Yet the Minister for Indigenous Australians views the one-syllable change to the Australian national anthem announced on Thursday night as "real reconciliation" and a "significant defining moment for the Morrison government".
A last-minute tweak
The puzzling drop of this announcement at two hours to midnight made for a gloomy new year's celebration for some of us. After all, 2021 officially marks a decade of the Indigenous constitutional recognition project in Australia. While John Howard had constitutional symbolic recognition in a preamble as a policy for the 2007 federal election, it was Julia Gillard who kicked off a formal mandated process led by the Commonwealth, which has continued for ten years. Gillard of course was forced to do so by independent MPs Rob Oakeshott and Tony Windsor as well as the Greens, after the hung parliament. Constitutional recognition had been the policy of all the parties for some time post-1999 and the independents and the Greens wanted action to match the words. The expert panel was chosen in December 2010 and had its first meeting in February 2011.
Since that time we have had an Expert Panel on Constitutional Recognition of Indigenous Australians, an Aboriginal and Torres Strait Islander Peoples Recognition Act, a Recognition Review Panel chaired by former deputy prime minister John Anderson, a Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, a Referendum Council and another Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples. That's eight reports on constitutional recognition in 10 years. That's a pretty substantial reform agenda for any public policy issue.
And yet at the decade mark, two hours to midnight, the nation was delivered a one-syllable change to the national anthem. It's hard not to be despondent; but not because of the anthem. Let's face it, most mob don't sing the anthem. A small change isn't going to alter that fact. It's not even played at the NRL Indigenous All Stars game, the silence was so excruciating for organisers.
The despondency felt by many, given that virtually no consultation with Aboriginal and Torres Strait Islander peoples occurred, resides in the hard yakka of so many Indigenous and non-Indigenous Australians on hard-headed law reform. So many Aboriginal and Torres Strait Islander leaders have been working hard to create the conditions for substantive change. Yet here is the mighty party of John Howard - who chided ATSIC for the pursuit of symbolic measures - delivering us more symbolism. The Uluru dialogues were unanimous: no more symbolism.
There are those who will insist this is a "major minor reform". And there are many who are saying that this would have been tough for the Prime Minister to negotiate with his party room. But this is a leader who has, to date, successfully navigated the nation, its people and the economy through a pandemic. This is a more than capable leader who understands complex things. It leaves me incredulous, this infantilising of successive Australian prime ministers when it comes to Indigenous affairs. Climate change policy is understood forensically by the media, but a single word change to the anthem is uncritically cheered by so many in the media as a "good start" or a step in the right direction.
As Luke Pearson, the founder of independent Indigenous media company IndigenousX, said: "The headlines for the anthem change are so consistently uncritical ... You don't just do write-ups verbatim spouting out government press-release talking points, FFS."
The headlines for the anthem change are so consistently uncritical that I honestly just can’t... especially disappointing from those media organisations who damn well know better.— Pearson In The Wind (@LukeLPearson) January 1, 2021
You don’t just do write ups verbatim spouting out government press release talking points, ffs.
Which begs the question for some: why can't we be magnanimous? Because we have high expectations, and a right to expect our public institutions to change. We will not consign our jarjums to another generation of no change. Australia's constitution is built to be altered by the people. and we have a leader who can clearly deliver that.
Yet The Guardian, in breaking the news on the anthem, said of Morrison: "His government has disappointed Aboriginal and Torres Strait Islander leaders by ruling out changing the constitution to enshrine the concept of an Indigenous "Voice to Parliament", as recommended by the Uluru Statement from the Heart in 2017."
That's it. That's the entire sum of the trajectory of events post-Uluru in May 2017. That's it. Yet the facts present a more complex picture.
Although Turnbull as leader rejected the idea of the Voice to Parliament in October 2017, there was agreement between the government and the opposition later that year that there would be a joint select committee to consider the work of the Referendum Council and the enshrined Voice. This commenced in March 2018. The two co-chairs, Julian Leeser and Patrick Dodson, presented their interim report on July 30, 2018, and their final report in November 2018. They found that while they lamented the rejection of symbolism at Uluru, given the support it has among the political elite, the only viable option was the enshrined Voice.
Putting in the hard yakka
The committee considered that its primary task was to put meat on the bones of the First Nations Voice, and its final report recommended that the government "initiate a process of co-design [of the Voice] with Aboriginal and Torres Strait Islander peoples". It also said that the co-design process should "outline and discuss possible options for the local, regional, and national elements of the Voice", and after this the committee recommended that the government "consider, in a deliberate and timely manner, legislative, executive and constitutional options to establish the Voice".
This approach is known as the two-step approach: design the Voice first, then decide the constitutional option for the Voice once there is a model. In its April 2019 budget, the Coalition committed $7.3 million to a co-design process for the Voice, to "improve local and regional decision making", and allocated $160 million for a future referendum once the Voice model had been determined. The $160 million resides in a contingency fund.
Everyone knows the Labor Party made it an election policy to hold a referendum on the Voice. They committed to put this to a referendum within the first term of a Labor government.
Yet the Coalition's election platform adopted the two-stage approach that there needed to be more work done to develop a model before a referendum could be held: "There needs to be more work done on what model we take to a referendum and what a Voice to Parliament would be - which is why we are funding a consultation process with Aboriginal and Torres Strait Islander Australians."
The Coalition policy then noted that: "A referendum will be held once a model has been settled ... and we have allocated $160 million in the budget to run a referendum, with funding remaining in the Contingency Reserve until a referendum model has been determined."
The Coalition was returned to government in the 2019 election. Minister Ken Wyatt announced in October 2019 a "co-design" process for an "Indigenous voice to government". While journalists glibly say that Morrison has dismissed the Voice as a "third chamber" and it all ended with Turnbull, there's an entire live, publicly funded piece of complex policy work occurring.
Prior to lockdown, the Prime Minister in his "Closing the Gap" speech on February 12, 2020 said the following: "We support the process of co-design of the Voice because, if we are going to change the lives of Aboriginal and Torres Strait Islander peoples on the ground, we need their buy-in on the matters and policies that affect them. The committee did not make recommendations as to the legal form of the voice-constitutional or legislation. It recommended considering this matter after the process of co-design is completed, and that is what we are doing. We support finalising co-design first."
Are we now one and free?
And this is where we are at the beginning of 2021. A decade-long law reform and policy agenda that most journalists write off because three years ago some bloke said "no". As if a law reform agenda just vanishes with a "no". On New Year's Day, the Prime Minister sad cabinet has approved the Voice paper, which now, presumably, will go to the Australian community for consultation.
It is surely understandable to our fellow Australians why we don't lose our heads over this minuscule alteration to our national anthem. We are in the middle of a very serious and complex reform agenda, entering its second decade, that seeks a substantive alteration to the nation's rulebook so that we are mandated by the Australian people through a referendum to be seated at the table for conversations that are had about us.
Please excuse us if we don't view the anthem word change as a "good start". Australia is a lot further down the road toward substantive and durable change than that. If only the political elite could recognise that.
- Professor Megan Davis is a Cobble Cobble Aboriginal woman from Queensland, and the Balnaves Chair in Constitutional Law and Pro Vice-Chancellor at UNSW.