What happened behind closed doors, deep inside the Canberra bubble that led to the Turnbull Government rejecting the Voice to Parliament in 2017?
Why were the wishes of thousands of First Nation's Australians so unsettling for those who held the power to call a Referendum? To the extent that the resultant work commissioned by the Government from the Referendum Council, was rejected as a 'third chamber of Parliament' - a judgement quickly by legal experts.
"Give me a break!" exclaimed Mark Leibler AO, now disbanded Referendum Council co-chair, along with Patricia Anderson AO.
"It's clear that it is not a third chamber. Have parliamentarians suddenly become shrinking violets, such that they do not dare disagree with a body, which only has advisory powers?" asked Mr Leibler.
A change of political leadership has breathed new life into the proposal of a Voice, but the resurrection after a near-death rejection has been a tumultuous affair.
Constitutional reform is a marathon not advised for the faint hearted. Most referenda fail to win.
Those still running the race for substantive reform are match-fit, First Nation's campaigners who will stop at nothing to break "the torment of our powerlessness", the collective lament expressed in the Uluru from the Heart.
Right now, due to all the work of past campaigners and social justice strategists, we could be close to the greatest advancement of our rights since colonisation.
Campaigners for the Uluru Statement insist, the proposal for a referendum to enshrine a Voice to Parliament in the Constitution, along with a Makarrata Commission and a truth-telling process, will be pursued and are still viable.
Protests on Sydney Harbour on January 26, 1988 Source: Wordpress
Proponents for the Indigenous Voice to Government are also convinced, positive outcomes will flow, if supported.
With so much at stake it stands to reason, stress levels are high.
Karla Grant has spent months investigating these issues in her gripping episode of Living Black, "Voiceless".
In the program, agendas are exposed in a collection of frank interviews with political elites, commentators, lawyers and Elders. What is unravelled through the events and the arguments for and against, is a political landscape of fear, distrust, ambition and prejudice. The Voice to Parliament was made vulnerable to attack from left, right and centre.
Imagine, if the aspirations of the Uluru Statement were nurtured to fruition, would society and politics be different today?
Over many months Grant has been unrelenting in her quest for a truthful answers to the critical questions; how did we get here? And what is the position of the Voice now?
How did a progressive Prime Minster who learned to speak numerous Aboriginal languages, fail the First Nations he strove to represent? How did months of consultation, costing millions of dollars, lead us to the humiliation of Turnbull's rejection of the Referendum Council's recommendations?
Who is responsible for the failure?
Delivery of the Referendum Council Final Report
Three years ago the Referendum Council handed over a monumental piece of work to Prime Minister Turnbull, who it as "a very big new idea", that was "very short on detail".
The now disbanded Referendum Council member, Professor Megan Davis is unequivocal "it wasn't a new big idea."
The Referendum Council final report, delivered to Prime Minister Malcolm Turnbull and Opp Leader Bill Shorten, July 2017. Source: NITV News
Prof Davis explained, the Council formally notified the Prime Minister and the Opposition Leader of their intentions to discuss a Voice to Parliament concept, before they commenced the regional dialogues during 2016-17.
Additionally, Noel Pearson of Cape York Partnerships along with his advisor Dr Shireen Morris insist they briefed Malcom Turnbull, before he won leadership of the party in 2015.
Living Black has evidence that on three separate occasions in the years leading up to the Uluru Convention in May 2017, Mr Turnbull was alerted to the strong prospect of a Voice to Parliament.
Three years have passed since the Turnbull government rejected the proposal... an eternity in Australian politics. Now no longer a politician, Mr Turnbull is keen to share his side of history.
In a lengthy interview with Grant, the self-described small "r" republican was concerned about membership to the Voice to Parliament.
As he understood the proposition "it should be a national assembly council, elected only by Aboriginal and Torres Strait Islander people to which only Aboriginal and Torres Strait Islander people could be members. And that Parliament would have an obligation to consult with it, with respect to laws relating to Aboriginal and Torres Strait Islander people.
"Now, I don't think that's a good idea, bluntly."
The former Prime Minster holds a fundamental belief that we are all the equal.
"Everyone has a right to have a seat at the table.
"I believe that all of our national institutions should be open to all Australians, regardless of their race, whether they've descended from Aboriginal people who've lived here for 60,000 years or whether they just got their citizenship yesterday, you know?" said Mr Turnbull.
It is a widely held view that all Australians are equal, but is there equity of opportunity and influence?
Prof Davis has a persuasive counter-argument. "Australians are very much committed to the notion that while it is the case, we would like all Australians to be equal, we recognize that we are not all equal."
"Australia's commitment to substantive equality can be seen in many things that Australians hold dear. We have a universal healthcare system. We have a welfare safety net. We have social housing. We have measures and mechanisms aimed at supporting low SES or low socioeconomic Australians to attend university. We have special measures for Aboriginal people to attend university.
"I think the former prime minister, Malcolm Turnbull, when he makes these arguments, I just think they're very weak arguments that aren't played out in fact.", stated Prof Davis.
Voice To Government & Voice to Parliament
Politics has moved on and we know, all was not lost with the Turnbull government rejection.
Prime Minister Scott Morrison has passed the agenda over to his Minister for Indigenous Australians, Ken Wyatt, along with a budget of $7.3million to investigate an advisory body model. The objective is for 'a co-design process to develop models for an Indigenous voice at a local, regional and national level'.
The aim is to achieve an Indigenous Voice to Government rather than parliament, but many would wonder, what is the difference?
Prof Calma explained "the key thing about parliament is that it represents all political parties. But the decisions of government are primarily made by government. The elected body that has a majority are able to do deals with others to be able to pass legislation.
"In effect, any report to government will end up being a report that goes to the parliament that they can discuss, but the primary decision-makers are government. And that's why, I think, there's that focus."
According to the co-design process , three groups are working together to develop options and models for an Indigenous voice:
The senior advisory group co-designing the Indigenous Voice to government first meeting. Source: SBS News
Mr Wyatt has said "the voices of 800,000 Indigenous Australians across the nation must be heard.
“The best outcomes are achieved when Indigenous Australians are at the centre of decision-making."
According to the Indigenous Voice webpage;
Once options and models for an Indigenous voice are developed, all three groups will provide recommendations to the Australian Government. The government will decide which models and options will go forward to the community for feedback.
Then, community consultation will begin and you’ll be able to have your say. This will take place with Indigenous and non-Indigenous Australians in urban, regional and remote locations across Australia.
Indigenous voice options will be refined based on the feedback. The refined options will go back to government for consideration.
Despite COVID-19, consultations are occurring with communities across the nation. The work is done digitally.
Senior Advisory Group Co-Chairs, Professor's Marcia Langton and Tom Calma are optimistic about the future.
"Many of the Aboriginal and Torres Strait leaders across the country are very sophisticated people. They've waged some longterm battles over decades and they've won." said Prof Marcia Langton. Of personal concern though is the level of understanding between the Voice to Parliament and the Voice to Government.
"Just to be clear, the matters that we're considering do not go to a referendum. Our matters go in a series of reports to the minister, Ken Wyatt and he takes those to cabinet and eventually to parliament.
"They're two very separate processes. We are not considering a voice to parliament. We are considering a voice to government."
Referendum on recognition is a separate process
Indigenous Voice co-chair, Professor Tom Calma specified what is likely to be put to the public in a Referendum.
"Minister Wyatt's got a separate process to look at a referendum question; I believe to have Aboriginal and Torres Strait Islander people recognized in the referendum.
"But that's a different process to the voice process. Ours is a report to the government and indications are that they'll take it through the legislative process in the first instance. And at a future time, it could be years ahead. It will take that time.
"I would just encourage all Australians, both Aboriginal and Torres Strait Islander people and non-Indigenous Australians to get ready for stage two when we present the models....and know that this will go to a formal decision sometime next year.
"It has to be done, I believe within this parliamentary period because we've got both the Prime Minister and the Minister for Indigenous Affairs on the same page and willing to work with us. Let's take advantage of that and hopefully it can get embedded, this parliamentary cycle.
"This is something we've been working on and ... it can coexist with whatever moves that the Uluru group want to do." said Prof Calma.
Similarly, Constitutional expert Professor Megan Davis sees light at the end of the tunnel.
"I'm hopeful that the Voice to Parliament will be achieved. I started this as a constitutional lawyer in 2010. And in that time we've had something like six processes and eight reports.
"For over three years, we have polled over 60 percent, sometimes as high as 70 percent of the Australian people, supporting a constitutionally enshrined Voice to Parliament. The Uluru statement is a hopeful document for our nation. "That fundamental reform of a Voice to Parliament is such a logical, pragmatic reform that Aussies intuitively get.
"I think Australians will be able to see... the logic of the reform of the Voice to Parliament. All we are saying is that when you do things to us, you pass laws or policies about us, then you have us at the table. You talk to us and ask us what we think. And things are more likely to succeed when we are sitting there."
Thomas Mayor (far left) with Nyangaumarta people at the Yule River, W.A meeting where they endorsed the Uluru Statement, 2017. Source: Thomas Mayor
Background, from the Referendum Council Regional Dialogues
Professor Megan Davis explained the logic behind the dialogues. "Before we went out to communities, we wrote to Prime Minister Turnbull and Opposition Leader, Bill Shorten and said, "We are running a Dialogue process so that we can elicit from our communities, what meaningful recognition is to them." And we say this because in a recognition exercise, there is the recognized or the Australian people, and there are the people that are being recognized, the Aboriginal and Torres Strait Islander people.
"You can't have a form of recognition that they don't agree to."
Voice to Parliament ranked #1, by our people
"The voice was really the only option that was ranked one by everyone without any controversy, because it's a logical practical thing that our people understand." said Professor Megan Davis.
Why Kirribilli matters
In 2015, forty Aboriginal and Torres Strait leaders from around the country meet with Prime Minster Abbott and the Leader of the Opposition, Bill Shorten with a strong message.
"We had the meeting at Kirribilli and we were very clear...We would not accept a Statement of Recognition. We would not accept changes to the race power or the deletion of Section 25, that wasn't meaningful recognition."
Treaty / agreement-making ranked #2 by our people
"All of the other options did not carry the same support as a Voice to Parliament. Not even agreement making."
This conclusion is in the referendum council report. At the Broome dialogue meeting, agreement-making was ranked as a very low priority by the community.
Prof Davis explained "Partly because of the fatigue. Or at least that's what we heard in that dialogue.
"The fatigue that people feel when they have very strong native title and lots of native title agreements. There is a fatigue around agreement making. Which is effectively what a treaty will be, a very legal environment, a very agreement-based environment that, talking to anyone from New Zealand or the US or Canada, it can be extremely emotional and fatiguing."
Non-Discrimination clause 116A inserted into Constitution ranked #3 by our people
"That was probably the third ranked model that went out. It was very clear that no matter which way you drafted a non-discrimination clause, it could not prevent, absolutely prevent, and I mean ironclad guarantee, it could not prevent the parliament still passing racially discriminatory laws."
The full documentary can be viewed on NITV's Living Black, Monday 1st June, 2020 at 8:30pm or on SBS OnDemand.
