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Law Council of Australia


Time for a strong Voice: Ken Wyatt has the chance to start Australia walking down a new and unifying path towards recognition

10 July 2019


Opinion Piece by Law Council of Australia President, Arthur Moses SC – published in Daily Telegraph, 10 July 2019.

Today, when the Minister for Indigenous Australians addresses the National Press Club, many Australians will be listening keenly.

Ken Wyatt’s appointment by Prime Minister Morrison was nothing short of a defining moment in Australian history. Not only is the Minister a proud Noongar man and son of a member of the Stolen Generations, he is the first Aboriginal person appointed to Cabinet since Federation and the first to hold this significant portfolio.

The Minister’s topic, ‘Walking in Partnership to Effect Change’, is extremely timely.

Our nation’s recent path to reconciliation has been, at times, incredibly slow. And we are not there yet.

Not because there is disagreement necessarily on where we need to head or why, but because we have moved at different speeds, chartered different courses and tripped over best intentions.

In 2007, then Prime Minister John Howard acknowledged that “the Australian people want to move … towards a new settlement of this issue”.

But reconciliation, he said, “can’t be a 51-49 project; or even a 70-30 project. We need as a nation to lock-in behind a path we can all agree on”.

Within the community there is an acute recognition of wrongs done to our First Nations peoples. The impact continues to manifest today, through generational disadvantage, gross indigenous over-representation in the criminal justice system and an epidemic of youth suicides.

Two years ago, the Uluru Statement from the Heart was conceived from one of the most comprehensive consultations of indigenous Australians in our nation’s history. The Statement laid down a road map and issued an invitation — not to Canberra but to all Australians — “to walk with us in a movement of the Australian people for a better future”.

Minister Wyatt has a unique opportunity, as part of a conservative government, to lead the way, to inspire and empower our nation to walk together on a path we can all agree on.

Australians are a decent, fair people whose wisdom should never be underestimated.

In the 1967 referendum, more than 90 per cent of all Australians voted in favour of amending the Constitution to include Aboriginal people in the census and empower the commonwealth to create laws for them.

A referendum on Constitutional Recognition and a First Nations Voice is a natural progression from the 1967 referendum, and an essential step forward to progress meaningful reconciliation in a post-apology Australia.

The same “right wrongs, write yes” campaign posters used then could well be used some 50 years later in a new referendum to enshrine a First Nations Voice in the Constitution.

Australians recognise there is power in having a voice. They recognise that for 249 years our First Nations Peoples have not been heard, and indigenous affairs have faltered in no small part because of this.

But for a referendum to succeed, and for the Voice to achieve its potential to allow all Australians to move forward as a nation, we must tread that path together. This means clearly and accurately explaining the Voice, and what it means, to an Australian community that is open to listening.

Adopting the Uluru Statement from the Heart and enshrining in the Constitution a First Nations Voice is critical to empowering and improving the lives of Aboriginal and Torres Strait Islander peoples through self-determination and the development of meaningful policy and law reform.

But misinformation and misunderstanding about what the statement stands for and what an indigenous voice to the federal parliament would mean has already stalled progress, despite goodwill. Such misinformation cannot be allowed to let us wander off course.

This opportunity to remedy the omission of First Nations People from a proper place in our society is too important to be lost. I am not pessimistic that the Morrison government will not be able to deliver the Voice. It can and it should with bipartisan support from Opposition leader Anthony Albanese. It is not a controversial proposal.

It is not onerous, nor would it impact on the sovereignty of parliament, create a ‘third chamber’, or threaten democracy.

There is no conceivable basis on which a third chamber of parliament could ever be justified and that is not what this proposal is. Simply stated, the Voice is an indigenous advisory body to provide advice on how legislation will impact on Indigenous Australians.

Minister Wyatt’s approach to the Voice has been pragmatic and measured. He has stated that the wording of the referendum proposal has to be sufficiently detailed in order to ensure it is properly understood and able to be explained to Australians.

Minister Wyatt is right to note the potential legal implications of the wording, which High Court judges in the future will use as a basis for rulings. If we get it wrong, it could result in a misinformation campaign as well as unintended consequences.

He is also right to state that implementing the Voice will take time. Not getting it right could set indigenous constitutional recognition back decades. However, there is no reason why it should not be done during this term of the parliament. The steps to develop and implement the Voice must be led by indigenous Australians and explained in an accessible, inclusive way to the community.

In order to keep faith with indigenous Australians, the Morrison government must set realistic timelines to ensure the Voice is constitutionally enshrined, but also effective, empowering and enduring.

The invitation posed by the Uluru Statement is an invitation to all Australians to come together for a better future and learn from the past. For two years, that invitation has been there for the taking.

Now is the time to accept that invitation and start walking together.

Arthur Moses SC
President, Law Council of Australia




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