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Uluru Statement from the Heart

Delegates from 13 Aboriginal and Torres Strait Islander regions recently met at Uluru for the 2017 National Constitutional Convention, organised by the Referendum Council.  On Friday 26 May 2017, following three days of discussion at the Convention, and six months of public consultation, Professor Megan Davis delivered the Uluru Statement from the Heart which called for “substantive constitutional change and structural reform”.

The Statement contained two important proposals:

1. First Nations Voice

In the Statement, delegates “call for the establishment of a First Nations Voice enshrined in the Constitution”. According to the Statement, “In 1967 we were counted, in 2017 we seek to be heard.”

Noel Pearson, a member of the Referendum Council, explained that under this proposal the constitutionally enshrined body would not have the power to veto legislation, but would instead provide non-binding advice to parliament. The First Nations Voice is envisaged, as Paul Kelly articulates, to be “an indigenous body, almost certainly elected, to provide advice and recommendations on proposed policy affecting indigenous peoples.

2. Makarrata

According to the Statement, “Makarrata is the culmination of our agenda: the coming together after a struggle… We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

The proposal of a treaty is not new, Daniel McKay notes, and gained prominence in the 1980s when Prime Minister Bob Hawke committed his government to negotiating a treaty. In fact, as Professor George Williams writes, that this is process is “already being pursued by states and territories”.

Importantly, the Statement did not contain the following proposals:

  1. Amendment to the Race Power

It had previously been proposed that Section 51(xxvi) of the Constitution be amended, or deleted. The “Race Power” empowers the Commonwealth Government to “make laws for the peace, order, and good government of the Commonwealth with respect to… the people of any race for whom it is deemed necessary to make special laws”, which has arguably, historically, been used to the detriment of Indigenous Australians.

However, as reported in the Saturday Paper, Noel Pearson appeared on Q&A and explained that “it had become clear that there was very little support for amending the race power

Linda Burney, the first female Aboriginal MLA, is reported as commentingI would advocate strongly that we do have to deal with the race powers because if we don’t do that, it could actually give Parliament the capacity to do away with a  body of any sort within the Constitution.

  1. Inclusion of an Anti-Discrimination clause

Another prominent proposal that was not contained in the Uluru Statement, is the insertion of a general anti-racial discrimination clause into the Constitution, however, Noel Pearson told the Saturday Paper that “he had come to the view that an anti-discrimination clause was “never going to fly””.

What’s next?

On Friday 30 June 2017 the Referendum Council presented its final report, containing the proposals set out in the Uluru Statement, to the Prime Minister and Leader of the Opposition. Parliament ultimately has the final say as to the proposals, and the form they take. Parliament ultimately has the final say as to the proposals, the form they take, and whether a Referendum should be held.

Merryn Lynch, Solicitor

Josephine Heesh, Partner

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