Response to David Alexander

In Friday’s edition of the Australian Financial Review [published Friday 22 March 2019], eighteen of the nation’s leading law firms declared their support for the Uluru Statement from the Heart.  They welcomed it as an historic mandate to create a fuller expression of Australia’s nationhood, and affirmed their support for a referendum as the next step towards reconciliation.

A referendum is no small thing.  David Alexander, writing in this newspaper, is right to warn that constitutional change through a referendum involves more than floating ideas, and he is right to warn Bill Shorten off dabbling with the constitution. 

Malcolm Turnbull said as much when he remarked that the Uluru statement from the heart contained some “big ideas” but was short on “detail” for those idea.  He refused to be pushed into implementing big ideas for which there was no detail.

For Mr Shorten to hold a plebiscite on becoming a republic without providing the detail for how the president would be appointed is to ask the Australian people to cast a vote of no confidence in the Australian constitution without being able to say what new constitutional arrangements would have their confidence.  That would surely be the best course towards constitutional uncertainty and national instability.

Mr Alexander is also right to warn Mr Shorten of the difficulties of amending section 44 of the constitution relating to dual citizens.  More needs to be understood about the detail.  Likewise, the thought-bubble about four-year parliamentary terms needs options for how the detail could deal with the concomitant changes required for the Senate.

When it comes to constitutional recognition of indigenous peoples, I would respectfully suggest that Mr Alexander has missed the mark.

This is no mere thought-bubble.  When Tony Abbott declared that he wanted to make good John Howard’s commitment to recognition of Indigenous Australians, Julian Leeser MP and I established an organisation called Uphold & Recognise.  Its aim is to demonstrate that it is possible to recogise Indigenous Australians and at the same time uphold the Australian constitution. 

Our first chairman was Lloyd Waddy QC – who led the Australians for Constitutional Monarchy delegation at the constitutional convention in 1998 – and our current chairman is Sean Gordon – a Wangkumarra man and Indigenous leader.  Their involvement reflects our commitment to working both with constitutional conservatives and indigenous activists.

Together with the PM Glynn Institute, Uphold & Recognise established a policy unit to provide the detail for Uluru’s big ideas.  In each case, we identified two options for how the big idea could be implemented.  We then drafted detailed proposals for how each option might work.

Much important work had already been done over the last decade by Professor Megan Davis and her team at the University of NSW and Noel Pearson’s team at Cape York Institute.  So, in order to ensure that we did not try to reinvent the wheel, the policy unit had a strategic committee which included Professor Davis and Mr Pearson, enabling us to draw on their contributions.

The policy unit’s work was overseen by an advisory group comprising three professors of constitutional law (Greg Craven, Sheryl Saunders and Anne Twomey), commercial lawyers (Danny Gilbert and Ian McGill) and a cross-section of indigenous leaders, including Marcia Langton, Warren Mundine, Geoffrey Winters, Adam Bray and Nolan Hunter.

The options papers that resulted from this work were submitted to the parliamentary committee chaired by Senator Patrick Dodson and Julian Leeser MP last year.

Critics of constitutional recognition of an indigenous voice to parliament often complain that there is insufficient meat on the bones of current proposals.  I agree that there is work to be done.  But, as the Dodson/Leeser committee explained, progress is ultimately dependent on deep consultation.  This requires a seat at the table with the government and experienced public servants working with indigenous leaders, constitutional lawyers and organisations such as Uphold & Recognise, UNSW’s Indigenous Law Centre and Cape York Institute. 

This is the way to agree on the framework for new institutions and the wording of any alteration to the constitution.

The policy unit’s work demonstrates that there are already several options on the table for realising indigenous aspirations for constitutional recognition which also manage the risks.

Constitutional change need not be fraught with risk if the detailed work is commenced in advance.  That process has already started in the case of indigenous recognition.  As far as I am aware, it is yet to get underway in the case of the ideas relating to an elected president, dual citizens and section 44, or four-year parliamentary terms.

Damien Freeman is a fellow of the PM Glynn Institute (Australian Catholic University’s public policy think-tank) and a director of Uphold & Recognise.

Uphold & Recognise