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Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples
06/07/2018
Matters relating to constitutional change

BREEN, Dr Michael, Private capacity

[12:08]

Evidence was taken via teleconference—

CHAIR: I now invite Dr Michael Breen to give evidence before this committee. Although the committee does not require you to give evidence under oath, I advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. I now invite you to make a brief opening statement before we proceed to discussion.

Dr Breen : I thank the committee for the opportunity to speak on this very important topic. As you know, my name is Michael Breen. I am here in a personal capacity, but I am currently a political scientist at the University of Melbourne, and my background is in federal constitutional reform in Asia and also in native title in Australia. This process intersects both. I want to begin by emphasising the importance of acting on the Uluru Statement from the Heart. As I'm sure the committee has heard, having a consensus statement of this nature gives the parliament and the political parties an unprecedented opportunity to listen and to act. But what I want to focus on here is one potential way to act, and that is through federalisation.

The Uluru statement has four main elements or requests, and I want to focus on three: Indigenous sovereignty, to which almost half the statement relates; agreement-making, about which in the main I'm talking about treaties; and a First Nations voice. I believe that a federal approach to this statement and this opportunity is suitable for the Australian context and, in particular, to meeting those wishes and aspirations as expressed in the Uluru statement. Taking such an approach may be longer than some of the other proposals that have been put forward, but I believe it would be more meaningful and should in any case be underpinned by immediate action towards implementing the structures and systems required. Further principles apply to the regional dialogues, we should not waste this opportunity of reform.

My suggestion is to take the essential ingredients of federalism and apply them to the question at hand. Ultimately, this would mean that Indigenous nations must be recognised as sovereign constituent units of Australia and therefore be equal in status to states in the Commonwealth. They should have constitutionally defined executive and legislative powers, and these could be defined according to treaties to be negotiated with the states and the Commonwealth. Indigenous nations should therefore, taking a federal approach, also be represented in the upper house of parliament and have representation on the Council of Australian Governments.

Such a type of federalism has been called non-territorial federalism because membership of Indigenous nations is dependent on who you are rather than where you live. However, it is both non-territorial and territorial because certain rights and obligations attach to the land and attach to the person. It is inherent in such an approach that First Nations, as in native title groups, are the sovereign entities, and I think the primacy of such nations and their distinctiveness as traditional owners has been acknowledged through many forums such as state and federal legislation, the UN Declaration on the Rights of Indigenous People, decisions of the High Court, the regional dialogues and so forth.

While a federal approach might sound ambitious or unrealistic, I think it is logical, simple and entirely consistent with the system of and principles underpinning our federal democracy. Further, in Australia all the ingredients already exist, and the statement gives the impetus to bring them together. For example, sovereign power is already shared, states and territories have a voice to parliament, native title groups are already being defined and empowered with limits and native title settlements establish the equivalent of legislatures and executives.

In practical terms, certain steps may be taken now. A voice that is representative of Indigenous nations could be legislated, and this could take on a future role in selecting members for an upper house of parliament and Council of Australian Governments. The governments of Australia, state and federal, should give priority and resources to negotiation of treaties and native title settlements, and the treaties should be negotiated with a view to future constitutional status such that they establish legislatures and executives with defined powers and revenue sources.

I believe federalism is the most secure and just way to give effect to the positions and aspiration expressed in the Uluru Statement from the Heart and I believe it is capable of broad support. If the committee is determined and perhaps courageous and Indigenous people wish, Indigenous nations may agree to become part of a renewed bargain between the states that establishes the Commonwealth of Australia, in doing so acknowledging and preserving sovereignty and sovereign rights and finally giving legitimacy to the Commonwealth's founding document and the nation as a whole. Thank you.

CHAIR: Thank you. How is the question of sovereignty retained on the basis of the British taking of these lands?

Dr Breen : That's an interesting question. When you look at how the Constitution could be changed to give effect to such a system, I think one of the better ways would be to take a more wholesale look at the Australian Constitution and make it a republic at the same time. Having said that, there are other ways to do it. For example, many constitutions don't allocate sovereignty as such but share sovereign power and are specific about sharing sovereign power. I think that, when you look at, say, the Uluru Statement from the Heart, the important point made there is that sovereignty has never been ceded or extinguished and co-exists with the sovereignty of the crown. So I believe that the Constitution should be changed to acknowledge that. Even though currently it gives the sovereignty to the Queen, in actual fact sovereignty continues to exist, so a constitutional amendment would not be granting sovereignty; it would merely be granting sovereignty, and then it would give effect to sovereignty through executive and legislative powers.

CHAIR: In terms of the Indigenous voice proposition that seems to have evolved in collaboration with the dialogues and the Uluru Statement from the Heart, do you have a view about how that could work or should work?

Dr Breen : Yes, I do have a view. One of the points is that I believe it should work in a way that is compatible with future federalisation. I think that federalism provides principles such as shared and self-rule and shared sovereignty that can deal with these sorts of issues. The first thing is that I believe the Indigenous voice should be representative of the nations that would be or are the constituent sovereign units of Australia. I believe there should be representatives of all the different native title groups or traditional owner groups, however defined, and they should be voted on accordingly. I also believe that, in order to make this practical, membership of Indigenous groups should be voluntary, because, as I'm sure the committee is aware, native title has not been resolved all around Australia, and membership disputes continue to happen. But one of the beauties of taking a non-territorial approach is that it can accommodate things like overlapping boundaries and multiple identities if you provide choice in how people identify.

I believe the Indigenous voice should be representative of the particular native title groups, but it could include additional representatives for people who do not or do not wish to identify with a particular native title group or perhaps in particular areas where no native title group is able to be identified—although I believe these to be rare situations. And then I think that the parliament and the executive government should be given a legislative obligation to refer issues that potentially have an impact on Indigenous people to the voice for comment, to take account of those comments and to provide a response if the comments aren't to be addressed. I think this would go a little bit further than a purely advisory role that the government could take or leave but not go so far as to introduce the idea of a veto or a third house of parliament, which I think it is clear is not likely to be supported, at least in the near term.

CHAIR: What would you see as the purpose of the voice? What's it there to do?

Dr Breen : To me, I would see the voice as, in a sense, a third house of parliament, but I wouldn't necessarily like to use that language. But it's there to represent the interests of the Indigenous nations in a similar way as, say, an upper house of parliament represents the interests of the states and the territories. But, because of practical issues, including the number of groups and the amount of legislation going through parliament, its role would have to be confined to certain things that impact directly on Indigenous peoples or that are referred to it by the parliament or government.

CHAIR: And how would you see it interacting with, say, other Aboriginal peak organisations or entities and delivering at a reasonable local level for the best interests of First Nations People?

Dr Breen : I believe that that should be through traditional owner and native title groups. Indigenous peak bodies and other organisations have a role and they should continue with that role, whether it's providing advice directly to government agencies, getting involved in consultation processes or providing advice to people on the ground. Those roles could continue. But I don't see that an Indigenous voice is representative of organisations or peak bodies. I think that that's a different thing. I think it goes without saying that if you're going to set up an Indigenous voice then that needs to be resourced adequately, and adequate resourcing is not just for an election, a venue, meetings and so forth but also to continually engage with the constituents, to get things like legal advice and policy advice and so on. So I believe that the representatives in the Indigenous voice should be chosen by the Indigenous nations, and it is through the traditional owner structures that that relationship or the messages continue to be made. It should happen from both ends so the Indigenous voice is empowered with funding and responsibilities according to legislation passed by the federal government and the Indigenous nations are empowered with responsibilities and resources through treaty-negotiation processes so that at both ends there is the capability of talking to each other and inputting to each other. I believe the links through native title groups, their corporations and their peak bodies have a separate role from that process or a distinct role in that process.

CHAIR: Thank you. I'll hand to my co-chair.

Mr LEESER: As you know, the Uluru Statement from the Heart gave us a direction but did not put much meat on the bone. I think it's fair to say that yours is the most radical proposal that we've heard of the various ways that this could be put.

Dr Breen : Great. I'm pleased to hear that, actually.

Mr LEESER: I was keen to hear from you because we do want to hear the full range of proposals. Let me just see that I've got what you're saying correct. Your proposal isn't just that there be an additional, as it were, non-jurisdictional state that comprised all Indigenous people as electors but that each Indigenous nation would comprise their own state that would be added to the federation, so we might have something of the order of, instead of six states and two territories, 150-odd states and territories.

Dr Breen : Yes, that's essentially correct and that's essentially what I'm saying except that I'm not saying that the Indigenous nations would be new states. They would be another tier or government or a personality-based tier of government. There would be states, territories and Indigenous nations, but, yes, there would be 150 or so constituents units of Australia.

Mr LEESER: Would they have all the same rights as original states and so on in relation to the parliament? Is that the proposal?

Dr Breen : Not at all, no. The proposal is that the rights, executive and legislative powers and so forth are negotiated through treaties so that there is some flexibility for Indigenous nations to express and achieve their own priorities. Also because of the nature of the Australian Federation—as you know it was a coming together type of federation, so the states retained very substantial powers. I don't think it's realistic for the Indigenous nations to have those same powers as the states, even if only because of the relative size difference.

Mr LEESER: Given that you'd have each individual treaty, it's possible the different Indigenous nations would have different sets of powers, rights and responsibilities. Is that right?

Dr Breen : That's correct, yes.

Mr LEESER: I have to ask you the practical question: 44 times since Federation, Australians have tried to amend the Constitution. On eight out of 44 occasions that has succeeded—it's quite rare. Most of the proposals that have passed have been very modest; they've had bipartisan support and they've had support of state leaders as well. I have to ask: what chance do you rate this particular proposal of succeeding at a referendum?

Dr Breen : Right now, or in the next year or two, it's virtually zero. But if we take a longer-term perspective, in five, 10 or 20 years I think it'll have a much, much higher chance. I think there will be two important things towards getting it achieved. One would be undertaking some initial steps in accordance with the statement, being the establishment of an Indigenous voice that represents the individual Indigenous nations, giving them responsibility and status. Second is bipartisan support. If the political parties got out there and were positive—perhaps I should say non-partisan support—and unified in their support of this proposal, I think that a lot of people would fall behind it. At the moment, when you've got disagreements among the major two political parties about how to proceed, it's very difficult for the average person to see the benefits behind some of the proposals for change. So I think it needs to be done in the longer term, but it should be underpinned by immediate action in a way that would be consistent with further federalisation. The Indigenous peoples and the political parties would have to get behind it. I think when it can be explained how it fits in with our current system and when it empowers but doesn't undermine some of the existing principles and responsibilities of states and the Commonwealth, it's actually a very unthreatening proposal. I could also throw in that maybe it's time Australia considered some more fundamental constitutional reform and updated its Constitution more broadly, such as by becoming a republic.

Mr LEESER: You've definitely lost me on that one, Dr Breen, but thank you for your submission.

CHAIR: Dr Breen, thank you for your very insightful submission. Thank you for your contribution before us today. If you wish to make any further submissions to us, if you could do so by 16 July it would be most appreciated. A copy of the transcript of your submission will be made available to you, and if there are any matters that you wish to correct, please inform us about that. Again, thank you for the time and effort you put into your written submission and for your contribution today. Thank you very much.

Proceedings suspended from 12 : 28 to 13 : 38