In response to resident enquiries regarding the difference between the Federal Government Voice referendum, the Queensland Government Path to Treaty, Truth Telling Inquiry and related matters, we have compiled the following information. After reading, we would appreciate any feedback from Noosa Electorate residents via noosa@parliament.qld.gov.au.

Background

Indigenous efforts for recognition have been a constant in Australia since the 1788 British colonisation and particularly since the 1901 introduction of the Australian Constitution.

At the time, the Constitution had no recognition of indigenous peoples except to essentially classify them as non-persons: Section 127 provided:

“In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.”

The only other mention was to give the Commonwealth powers to make laws regarding indigenous people.

Eventually the Liberal-Country Party Holt government in 1967 held a referendum to remove s127 from the Constitution, which was passed with a yes vote of 90% (note: both the Liberal-Country Party and the Australian Labor Party supported the ‘yes’ vote).

Further changes came with the ALP Whitlam Government which “introduced the Northern Territory Aboriginal Land Rights legislation, established the National Aboriginal Consultative Committee, funded Indigenous legal services, passed the Racial Discrimination Act, and returned land to the Gurindji people, just to name a few”.

Paul Kelly’s song “From Little Things Big Things Grow” references this history.

Since then many attempts have been made to improve the lives of indigenous peoples, such as:

One response to aid in closing the gap between non- indigenous and indigenous people is set out in the National Agreement on Closing the Gap.

Constitutional recognition of Indigenous peoples

Following on from all of this, the lack of acknowledgement of indigenous people in the Constitution was identified as an issue that needed to be addressed, and was considered over a nearly thirty-year period:

  • In February 1995, the Recognition, Rights and Reform report by ATSIC recommended Constitutional reform to acknowledge Indigenous people
  • In 2007, Prime Minister John Howard promised to hold a referendum on constitutional recognition
  • In 2010 Prime Minister Julia Gillard announced plans for a referendum on the issue
  • On 12 March 2013, with all-party support, the federal parliament passed the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013, which recognised the indigenous peoples of Australia and required the establishment of a committee to advise on a suitable date for a referendum on these proposals
  • In 2015, a Referendum Council was established to advise the Prime Minister Malcolm Turnbull and Leader of the Opposition Bill Shorten on progress toward a referendum

The question at the heart of constitutional recognition was whether it should be symbolic, or something more. The first view was that we should recognise indigenous people in the Constitution, but not make any more substantive change to the Constitution. So, for example, by recognising indigenous people in the preamble. Tony Abbott when he was Prime Minister argued in his 2014 Neville Bonner oration that the goal is to “acknowledge Aboriginal people in the Constitution without otherwise changing it”. On the other side was the view that the change must be more than simply symbolic, it must involve a real change. The Voice to Parliament, that has been referred to since the Uluru Statement of 2017 (see below), endeavoured to present more than a symbolic change, which was to not only recognise indigenous people but provide a constitutional mechanism for indigenous peoples to make representations directly to Parliament.

In 2017 the final report of the Referendum Council recommended a referendum to create the Voice to Parliament.

The Uluru Statement from the Heart

At that time indigenous leaders undertook their own consultation with their communities and held the First Nations National Constitutional Convention. This led to the Uluru Statement from the Heart.

The Uluru statement from the Heart called for:

  • “We call for the establishment of a First Nations Voice enshrined in the Constitution.
  • “Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination”.
  • “We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.”

So it had three elements:

  • A Voice to Parliament
  • A truth telling Commission
  • A Treaty

Only the Voice (below) has been advanced by the Government following the Statement (given the focus over many years on constitutional recognition).

A Voice to Parliament

The Voice to Parliament was to be a representative group of Indigenous people, who can make representations to Parliament, but would not be binding on Parliament in any legal way.

It was to represent a more than symbolic change, but not a drastic or dramatic one.

All Constitutional referendums are difficult with only eight of the forty-five in history have passed. The requirements to win are high (a majority of voters and also a majority of States), and the history of referendums show there is a strong ‘anti-Canberra’ vote.

Bipartisanship is crucial. Since Federation no referendum has passed without bipartisan support.

A Truth telling Commission

A truth telling commission is an official body tasked with discovering and revealing past wrongdoing by a government or others in the hope of resolving conflict left over from the past.

They first appeared in the 1970s and 1980s in Latin American countries, such as Argentina’s National Commission on the Disappearance of Persons, relating to events that occurred under the previous Argentina ‘Junta’ dictatorship.

South Africa had a Truth and Reconciliation Commission after the ending of apartheid. It was a form of restorative justice process, with the mandate to bear witness to, record, and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations, as well as offering reparation and rehabilitation to the victims. In a sense drawing a line under the end of apartheid.

The Australian Council for Aboriginal Reconciliation established by the Hawke Government discussed an Aboriginal truth telling commission back in 2000.

Canada had a truth telling commission recently, although more narrowly focussed. Canada’s Truth and Reconciliation Commission focused on the legacies of Canadian Indian residential schools and Indigenous-settler relations. The commission was established in 2006 as part of the settlement of a class-action lawsuit in which nearly 4,600 residential school survivors had sued the federal government.

The Queensland Path to Treaty Act was passed by the Queensland Parliament in May 2023 with bipartisan support. This bill established a Truth-telling and Healing Inquiry to inquire into, and report on, the effects of colonisation on indigenous peoples and a First Nations institute to support treaty negotiations.

Subsequently the LNP withdrew support for the path to treaty and when they formed Government in November 2024 passing legislation that repealed the Path to Treaty Act.

A Treaty

From The Conversation website: “When European colonial powers encountered indigenous peoples, they often negotiated treaties. The British did not engage in treaty talks in Australia. Instead, they claimed the land belonged to no one and took it for themselves. For generations, Aboriginal and Torres Strait Islander peoples have called for a formal treaty or treaties to recognise their sovereignty and set out mutually agreed terms for our relationship with the Australian government”.

The early treaties were the Treaty of Waitangi, initially signed in 1840 between the British Crown and approximately 45 Māori chiefs, the American treaties were established between 1788 and 1871, and the historic Canadian treaties entered into between roughly 1701 and 1921. Canada has some more modern treaties although these appear to be more like Australian Native Title agreements.

Unlike Britain or New Zealand, which both have a ‘unitary State’, Australia’s Constitution draws on the US Constitution and gives specific powers separately to the Commonwealth and the States (for example, the Commonwealth is responsible for international trade, whereas States own and manage most crown land). Australia therefore would need Treaties at the Commonwealth and State levels to deal with their respective responsibilities.

The (now repealed) Queensland legislation for treaty only set out a process. Any treaty outcomes would have had to be implemented separately, whether that required Government to sign contracts, set out new policies or legislate in Parliament.

Recent developments in New Zealand

The Treaty of Waitangi was a foundational document in the establishment of New Zealand, and its history.

It was drafted with the intention of establishing a British Governor of New Zealand, recognising Māori ownership of their lands, forests and other possessions, and giving Māori the rights of British subjects (in contrast, for example, only in 1944 did West Australia allow Indigenous persons to apply to the Government to be declared citizens).

The Treaty has never been directly translated into law; further legislation is required to implement many aspects. Despite this, Māori frequently used the treaty to support a range of requests, including greater independence and return of confiscated and unfairly purchased land.

Since the 1970’s, as around the world, with greater recognition of indigenous rights, the Treaty has taken a more central role in demands and responses from Government, including the passage of the Treaty of Waitangi Act, establishing the Waitangi Tribunal as a permanent commission of inquiry tasked with interpreting the treaty, investigating breaches of the Principles of the Treaty of Waitangi by the Crown or its agents, and suggesting means of redress.

However, the new, New Zealand Government, elected in 2023 has committed to a policy that might be described as ‘winding-back’ the treaty, introducing a Treaty Principles Act and amending the exiting Treaty of Waitangi legislation to focus on what they call the ‘original intent’ of the legislation.

As the Guardian has said: The rationale behind many of the government’s proposals is to end “race-based” policies, tackle crime and reduce bureaucracy. The coalition has said it is committed to improving outcomes for Māori and all New Zealanders. But critics fear its policies, including rollbacks of the use of Māori language in public services, alter the way the treaty is interpreted, igniting anti-Māori rhetoric and eroding the Māori relationship with the crown.

Further information

As mentioned above, we would appreciate any feedback from Noosa Electorate residents via noosa@parliament.qld.gov.au.

For information regarding the Kabi Kabi Native Title claim, head to www.sandybolton.com/kabi-kabi-native-title-claim-update-june-2024

Updates on many local matters are available on Noosa 360 at www.sandybolton.com/noosa360. To receive information straight to your email inbox, please subscribe to our monthly newsletter via www.sandybolton.com/newsletters. This also ensures you receive any future Noosa related surveys or polls.