David Allinson at Allens Lawyers, Melbourne
David Allinson, CEO of Uphold & Recognise, spoke at Allens Lawyers in Melbourne about constitutional recognition. Allens' Sydney office attended via teleconference.
Allens is an international commercial law firm with a commitment to reconciliation. You can read more about their Reconciliation Action Plan here.
I run a non-profit organisation called Uphold & Recognise. It was founded in 2014 by Damien Freeman, a lawyer at Australian Catholic University, and Julian Leeser. Julian stepped down from his role in the company when he was elected to the Federal seat of Berowra in 2016.
What is Uphold & Recognise?
There is a simple idea driving Uphold & Recognise. It is this: any constitutional amendment to empower Indigenous Australians needs to satisfy two conditions. It needs to be a practical reform that Indigenous people actually want. It must also uphold the democratic values that underpin the Australian Constitution.
This is because referendums require bi-partisan support to win. Everyone votes in a referendum, and we need a majority of Yes-votes in a majority of states to win. And, of course, there are always people who will resist political change.
Uphold & Recognise was established in anticipation of inevitable resistance. The main people who would oppose constitutional reform are always the constitutional conservatives. So that’s the idea, we went into this, with our winning formula: uphold and recognise, trying to find a solution that would satisfy both sides.
Before I get into exactly what we’re advocating for, I want to explain the two key steps in how I came to be involved with this. Back in 2008, I was a policy officer for the Queensland government. I was responsible for, among other things, the alcohol management programs in 15 Queensland communities. I found that what was most effective in that space was programs that were developed with community involvement. It sounds really simple, but that’s what it comes down to: there’s a positive correlation between good outcomes and proper consultation. The importance of Indigenous-led processes is something which has stuck in my mind ever since, and I’d like you to hold on to that thought for the next 15 minutes.
The second step was in 2015. I had gone back to university to do a Law degree, and I took a class on law and Indigenous peoples. The topic came up of a Declaration of Recognition. This was an idea that Damien and Julian, the founders of U&R, came to in cooperation with Shireen Morris and Noel Pearson. A Declaration of Recognition, the argument went, is something that would help us come to terms with what it means to be Australian today.
I wrote to Damien, saying what a good idea I thought this was. He said he had started U&R and was looking for a someone to help run it. I applied. And that was that.
Since I came on board in 2016, U&R has grown into a major asset at the disposal of Indigenous advocates for constitutional reform. I’m pleased to say that we are an Indigenous-led organisation 5 of our 7 directors are Indigenous, including the Chair. And I am very proud to work with Indigenous activists like Sean Gordon and Geoffrey Winters from NSW, Nolan Hunter from the West Kimberley, Rachel Perkins from South Australia, and Adam Bray from Queensland.
What are we trying to do?
I think the really key thing about Uphold & Recognise is that we work with Indigenous leaders. Especially for our non-Indigenous advocates, like me, it’s about supporting the aspirations of First Nations peoples in a way that is compatible with our existing democratic institutions. To that end, the basis of our advocacy is the Uluru Statement from the Heart.
In 2016 the Prime Minister and Leader of the Opposition appointed the Referendum Council to advise on progress towards a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution. In order to obtain feedback from Indigenous communities across Australia, the Referendum Council planned and co-ordinated 12 First Nations Regional Dialogues. Across the country, Over 1200 Indigenous leaders participated in them in 2016 and 2017.
The Uluru Statement was the product of these dialogues. The final meeting took place at Uluru in May last year. And there, something really amazing happened. The 300 delegates came to a consensus, and produced the document you see before you. It is a document for all Australians to hear, so I’d like to read it now.
Proposals from the Uluru Statement
As you’ve heard, the Uluru Statement from the Heart makes some proposals. These were later formalised in the Referendum Council’s final report, which was handed to the Prime Minister and Opposition Leader on 30 June last year.
Firstly, it stated that there should be an Indigenous voice to Parliament. This would ensure that First Nations have a constitutionally guaranteed say in the laws and policies that affect them. Much like how the Indigenous Parliament works for the Sami, the Indigenous peoples of Norway. This is because the Race Power, which makes laws only for Indigenous people, does not require any consultation. I won’t go into legal detail here, but it would be, in essence, simply an advisory body. No veto powers. No ability to hold up legislation. It would encourage a respectful dialogue, and involve Indigenous people directly in the laws and policies that affect them.
Secondly, the Uluru Statement calls for Makarrata to achieve a fair and truthful relationship with the people of Australia. This is a Yonglu word for ‘coming together after a struggle’. The Statement seeks a Makarrata Commission to be established to help us ‘come together after our struggle’, and oversee truth-telling about Australia’s history. It would also oversee agreement-making, or treaties between First Nations and Australian Governments. Much like how the Waitangi Tribunal has helped reconciliation between Indigenous and non-Indigenous New Zealanders.
Thirdly, they recommended that a Declaration of Recognition sit outside the Constitution. This Declaration would give expression to what it means to be Australian today. We should be proud of our Australia’s Indigenous heritage, our imported democratic institutions, and our multicultural accomplishment. This Declaration would be the symbolic gesture that galvanises the Australian people in support of the Voice to Parliament and Makarrata Commission.
At each regional dialogue and during the Uluru Convention, these options were discussed in detail in smaller working (or break out) groups, as well as in whole-group discussions. The idea behind all of these recommendations is that they would empower Indigenous peoples to have a say in their own affairs, and that we can finally start to reconcile ourselves with Australia’s past.
To offer a personal observation, as a non-Indigenous Australian, I am genuinely excited by the call for truth-telling that came out of the Uluru Convention. I say this first because it is a call that emerged strongly and organically from the delegates and the communities themselves, and so it truly represents what they wanted and overwhelmingly feel they need in terms of meaningful reform. Secondly, because I too believe that it represents a process through which all Australians might be able to grow and ensure that the whole nation emerges richer and stronger for that process.
Where to next?
In October last year, the Prime Minister rejected parts of the Uluru Statement. Malcolm Turnbull said that the Uluru Statement was full of big ideas, but light on detail. This raised a question, in the minds of many people, about why he had asked Indigenous people what they wanted, if he was just going to ignore the response. But, whatever the answer to that riddle, the Prime Minister made it clear that Cabinet wasn’t prepared to consider the proposals without more policy detail.
So, late last year Uphold & Recognise formed a partnership with Cape York Institute, the University of NSW and the PM Glynn Institute at Australian Catholic University. The purpose of this partnership is to develop policies that provide the detail that the Prime Minister asked for. Questions like, ‘how would the voice to Parliament work, what would the legislation look like, etc.’.
To guide the policy making process, we’ve formed an Advisory Council of political and legal experts. We are putting legal flesh around the skeleton of the Uluru Statement, and we’ll launch these documents by 25 June this year, at an event hosted by Michael Kirby at the iconic Royal Botanical Gardens in Sydney.
In addition, we’ve brought many eminent liberal or conservative Australians on the journey – people who feel that this is something worth doing. Despite the government’s rejection of the Uluru Statement, there are still people on the right who will support First Nations in their struggle for recognition.