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Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples
22/01/2013

KILDEA, Dr Paul, Director, Referendums Project, Gilbert + Tobin Centre of Public Law, University of New South Wales

PARMETER, Mr Nick, Manager, Civil Justice Division, Law Council of Australia

PRITCHARD, Dr Sarah, Law Council of Australia

TWOMEY, Professor Anne, Private capacity

WILLIAMS, Professor George, Foundation Director, Gilbert + Tobin Centre of Public Law, University of New South Wales

Evidence from Mr Parmeter and Prof. Twomey was taken via teleconference—

CHAIR: Welcome. We have a submission from the Gilbert + Tobin Centre of Public Law, which we have numbered two on the website. Professor Twomey has lodged submission 1, and the Law Council's is submission No. 6. Is there anything you wish to add about the capacity in which you appear today?

Prof. Twomey : I am with the University of Sydney but I appear today in a private capacity.

CHAIR: I am going to ask if perhaps each of the three components here would like to provide some opening comments, and then of course we will go to questions. I might start with you, Professor Twomey.

Prof. Twomey : I take it that this inquiry is really into the bill rather than the actual substantive proposed amendments themselves. My submission addressed the bill. It substantially supports the bill but it raises a few small issues, seeking clarification on a couple of points. There was an issue about clarification about what is intended by the reference to recognising continuing connection to land and water and whether that has any impact at all on native title and just seeking some sort of an explanation as to what is intended there, and, beyond that, some recognition that the expert panel's report is a very good beginning, but I do not think that we should try and set their words in stone at this stage; I think there still needs to be a process to be gone through to refine those recommendations, to make sure that they are in their best form by the time it gets put to the people. I am happy to support a further process of an inquiry into the subject. I guess the only concern I had was that the terms of reference there tended to relate solely to the issue of what is likely to succeed in a referendum rather than the more fundamental question of, 'What is it that is right to be put to a referendum?' So I would hope that there might be some expansion of the terms of reference to be able to consider that issue as well.

CHAIR: Thanks. Professor Williams and Dr Kildea?

Prof. Williams : My colleague will start and I will then make a few comments.

Dr Kildea : I just have a short statement to make. I want to thank the committee for inviting me to appear and expand on our submission. My comments relate primarily to questions of process—the process of reform, looking ahead to a possible referendum in a few years time. I welcome the bill as an attempt by the government to maintain momentum on constitutional recognition and to secure a multipartisan commitment to continue working towards that change in the coming years, but I am doubtful that the bill constitutes, in the minister's words, a clear step forward towards holding a successful referendum.

I am mindful that the minister's reason for delaying a referendum on the issue was a lack of community awareness and support. So I am concerned that the bill in its current form does not put in place processes or mechanisms designed to address these problems. The bill is certainly alert to the importance of popular engagement in constitutional matters. The preamble recognises the need for further engagement with the Aboriginal and Torres Strait Islander peoples and the wider community and also expresses a commitment to building national consensus. But the bill otherwise is vague as to how these things could be achieved.

I think if the bill is to truly be a clear step forward it should map out a series of specific process goals on matters such as the timing of the referendum and the intermediate mechanisms that will be used to engage the public and determine the final form of the proposals that are to be put to a vote. I suggest that one of the intermediate mechanisms that could be used here is a popularly elected constitutional convention or citizens' assembly. These events are certainly being increasingly used around the world to progress constitutional reform matters, with Iceland and Ireland just two recent examples. And they have proven effective in raising the profile of an issue, generating awareness and improving public understanding—the kinds of things that are currently lacking from the process before us. They also provide an impetus for national discussion and reflection that might not otherwise occur.

On that subject I note that in section 4 the bill does set up a review mechanism, but this review body as drafted is focused on measuring existing levels of public support or readiness for Indigenous recognition. As I understand it, it will not be engaged in running awareness-raising or public education activities in its own right. I also note that the bill is currently vague as to who is going to run that review—whether it is going to be a parliamentary committee, perhaps this one, or whether it is going to be an external body or independent body such as an expert panel or the like.

Finally, in terms of preparing for a future referendum on Indigenous recognition, in our submission we suggest that action be taken on reforming Australia's referendum machinery and picking up on some of the recommendations made by the House Standing Committee on Legal and Constitutional Affairs in its 2009 inquiry.

Prof. Williams : As Dr Kildea has indicated, we would suggest that we have cautious conditional support for the bill, but there are two main problems that we identify that go to that conditional support. The first is the one my colleague has talked to, and that is that even though the purpose of the bill has been stated as resulting from insufficient awareness and support to bring about a successful referendum, there is actually nothing in this bill that would seek to remedy that problem. In particular, what the bill does is set up another possible inquiry process, which might begin in a year or less and might report in six months. But we have already had a very significant Australia-wide inquiry in the form of the expert panel. It was unsuccessful in generating the momentum, and a lesser inquiry would seem even less likely to generate the momentum needed.

Most importantly, that process and what the bill does will not address the single most important political problem, and that is that there has not been any genuine community process of engagement—that is, something that moves beyond politicians, constitutional lawyers and others to actually provide a level of energy and imagination that will mean that people take note, think about the issues and actually begin to become engaged. So I strongly support the notion in our submission that Dr Kildea has also put that it is critical that at this point we do not just focus on words of recognition but processes that actually will genuinely move us towards that outcome that we are seeking.

The second substantive concern we have—and that I have in particular—is that the bill shows signs of losing connection with the most important aspect of recognition of Aboriginal and Torres Strait Islander peoples in the Constitution. That is, that recognition needs to deal with the fact that the Constitution was drafted on a premise of racism, essentially. It was drafted at a time when, in the words of our Prime Minister, Edmund Barton, we needed a power in the Constitution to enable the federal parliament to pass laws against 'the coloured and inferior persons' within the Commonwealth. Those words in the Constitution and that racist power have now been extended to Aboriginal people. Section 25 still recognises the possibility that states might enact laws that disenfranchise people on the basis of their race. Certainly from my dealings across the community, including with very conservative groups, it is that element of racism that most motivates people to think that they need to fix the Constitution to move beyond the values of the time. It is quite striking to me that there has obviously been a deliberate choice made to exclude the words from this bill that would actually go directly to the bigger substantive concern that faces the referendum. Again, that sends a signal that I think is quite unfortunate in terms of any sort of public debate we might have over the coming months.

The final thing I want to talk about is when we will actually know when we are ready to hold the referendum, because surely this bill needs to speak directly to that concern. My concern again is that I am not sure this bill does actually speak to the key aspects of readiness that we need to keep in mind. These aspects are derived from a book that I wrote with David Hume that analyses all of the 44 referendums Australia has held. We distilled what worked and what did not work and reached very clear findings as to why referendums like 1967 were actually successful.

We know we will be ready, firstly, when we have clear bipartisan political leadership on this issue. I do not just mean bipartisan agreement. We need people such as the Prime Minister and the Leader of the Opposition making joint public statements indicating their support on a proposal. Until we get that it is simply not worth proceeding. We can look at the ALP's experience previously in government: 25 referendums and 24 have failed. The only one that passed had that level of bipartisan support. The other 24 did not and they failed very simply for that reason. So we obviously have a fair bit of work there, and this bill unfortunately does not seem to progress this in any meaningful way. It might, but it seems unlikely.

The second thing we need is popular ownership. We have had proposals fail where there has been bipartisanship, because that has actually worried Australians, who thought that if their political leaders agree, and they are not involved, it must be for politicians and not for them, hence the politicians republic in 1999. This again focuses attention very much at the political elite level. The inquiry itself does not do anything to engage people through more popular processes in terms of what is proposed through this bill. Indeed, there is a grave risk here that this will continue to cement perceptions that this is not about people but about others being involved.

The third thing is popular knowledge. People need to be able to cast an informed vote, at least a comfortable, confident vote. Here, what we have actually seen in this survey is suggesting that awareness is decreasing slightly over time. 'Don't know, vote no' still holds very true, I believe, in referendums. It is a rational decision to vote no if you have no idea what you are being asked to cast a vote on. I note in this bill that there is nothing proposed that will actually educate Australians. There is funding for the You Me Unity campaign, but in the absence of other public processes I cannot see that that campaign will generate sufficient traction.

The fourth and last thing we need for a successful referendum is a sound and sensible proposal, which I think the expert panel made good headway on. In fact, we are probably more advanced on that than any of the others. That is perhaps where I think we need to move now to the popular engagement processes—less about constitutional lawyers and more about people and what they believe is important when it comes to Aboriginal people, problems of racism and the like. I think when we get those sorts of things on the table to discuss—the four things I have talked about—they are I think the indicators of a successful referendum. My question simply is: does the bill address those in a meaningful way? I do not see the bill as particularly harmful, but I am also concerned that the bill does not address the key things that need to be done. In the absence of that, my own assessment is that the most likely result in two years time is that the sunset clauses are not likely to be particularly advanced from where we are now. The minister's concerns about popular engagement seem to me to be quite unlikely to be improved, and we will simply have another inquiry and another process and still ask when we are going to do the things that really engage the broader community to get them involved and aware of this referendum.

CHAIR: Did you have an opening statement, Mr Parmeter?

Mr Parmeter : I think I will hand over to Dr Pritchard, who is going to make an opening statement on behalf of the Law Council.

Dr Pritchard : If I could just note at the outset that I was the lead author of the expert panel's report, and of course nothing in the panel's report reflects my views. I was merely the scribe, but I think that should be made clear for the record. Also, I appear today as a representative of the Law Council of Australia, so, again, the views I express today are those of the Law Council and they are not my personal views as well.

The Law Council has been closely engaged with the process that has led us to this point, since August 2010, when the establishment of an expert panel was first announced. The members of the committee will be familiar with the various activities undertaken by the Law Council in an endeavour to support this process. They are identified in the written submission that was filed in December.

In a nutshell the Law Council supports this bill, subject to two amendments. The first concerns the exclusion of a paragraph that takes up the fourth paragraph of the expert panel's draft bill, concerning securing the advancement of Aboriginal and Torres Strait Islander peoples. In the Law Council submission it would be appropriate to include in the draft bill a fourth paragraph acknowledging, on behalf of the Australian people, the need to secure the advancement of Aboriginal and Torres Strait Islander peoples.

In this regard we note that a number of other submissions made to this committee, and elsewhere, have suggested that language of advancement is racist, or might cause offence. If we could say a couple of things about that view. The first is that it is to be recalled that one of the chairpersons of the expert panel was an Aboriginal man, Patrick Dodson, and that half of the membership of the expert panel was Aboriginal, including two representatives of the National Congress of Australia's First People, the Aboriginal and Torres Strait Islander Social Justice Commissioner, Professor Megan Davis, et cetera. So, I think one needs to be a little careful in using such language to characterise a recommendation of the expert panel. That is the first thing.

Secondly, the suggestion that such a paragraph is unnecessary does not grapple with the explanation given by the expert panel at pages 150-151 of its report, concerning the importance of such a provision. There was detailed consideration by the panel of the importance of such a provision confining the text to laws 'for the benefit of' or 'for the advancement of' et cetera, and the reason given by the panel for adopting the language of advancement included that the term is used widely in legal context, particularly in the area of trusts and testamentary provisions. It is a concept with which the courts are familiar. It is used in the preamble to the Native Title Act, which provides, amongst other things, that the people of Australia intend to rectify the consequences of past injustices by the special measures contained in the act for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders. And it also appears in numerous other pieces of legislation that I do not presently have at hand.

It is also to be recalled that the concept of advancement, I say respectfully, has particular resonance for many Aboriginal and Torres Strait Islander people—it is to be recalled for example the establishment of FCATSI in 1958, and the involvement of eminent Aboriginal individuals such as Joe McGinness, Dulcie Flower, Doug Nicholls and others. The Law Council considers that the inclusion of a paragraph using language of advancement or the like is essential in order to remove any lingering doubt concerning the intention of parliament in relation to the availability of a race power—51(xxvi) or whatever replaces it—to support adverse laws. The Law Council has made this position clear in all of its submissions to this committee, to the expert panel et cetera. And of course the Newspoll figures commissioned by the expert panel showed 60 per cent of the population supporting provisions of that kind.

The second amendment that the Law Council respectfully suggests this committee consider is one that is not referred to in our written submission, but it takes note of the submission made by the congress to this committee to the effect that the elimination of racial discrimination is one of the key recommendations of the expert panel in the report, and there is no reference in the bill to this key recommendation of the expert panel. We submit that the bill should be amended to include acknowledgment of the importance of the Commonwealth, states and territories not to discriminate on the ground or race, or words to like effect. In this regard it is to be recalled that 80 per cent of those polled by Newspoll supported the inclusion of such a provision. In this regard we note the suggestion by some commentators that the prohibition of racial discrimination is not connected to or related to the project of recognition. In that respect the Law Council refers to the discussion of similar suggestions by the expert panel, at pages 167 and following. It is there stated by the panel that the prohibition is seen as a necessary complement to the repeal of the race based provisions of the Constitution. Noel Pearson is quoted as follows:

Elimination of racial discrimination is inherently related to Indigenous recognition because Indigenous people in Australia, more than any other group, suffered much racial discrimination in the past. So extreme was the discrimination against Indigenous people, it initially even denied that we existed. Hence, Indigenous Australians were not recognised. Then, Indigenous people were explicitly excluded in our Constitution. Still today, we are subject to racially targeted laws with no requirement that such laws be beneficial, and no prohibition against adverse discrimination.

The panel concludes that a clear and unambiguous renunciation of racial discrimination is essential if our Constitution is to reflect the values of contemporary Australia and elsewhere. The panel argues that the prohibition of racial discrimination is part of a package of proposals to eliminate racial discrimination and recognise Aboriginal and Torres Strait Islander peoples.

CHAIR: Mr Parmeter, did you want to add anything to that?

Mr Parmeter : I would just add one thing. I refer to Minister Jenny Macklin's second reading speech in the House of Representatives in which she refers to the expert panel's report and indicates that the expert panel talked to over 4,600 people in more than 250 meetings in 84 locations and received 3,500 submissions, which indicates that the expert panel's process was an extensive one. It is for that reason that the Law Council considers that the expert panel's report should be the starting point for this committee and for the process going forward. We therefore do not support the removal of part 4 of the statement of recognition put forward by the expert panel. And we consider that these things ought to be put forward for further debate within the community if necessary but should remain the starting point for the committee.

CHAIR: I will start with Prof. Williams or Dr Kildea. Your submission suggests that the bill does not, and it should, map out a series of specific processes leading to the referendum. Would you not think that once this bill has gone through the parliament that that would be the next step the committee would take in consultation with this advisory committee it would set up or, as was suggested this morning, parliamentary commissioners if the committee goes down that path?

Dr Kildea : I think that is true that the committee does have an important role to play in setting up next steps. I suppose it would be useful at this point in time to have a clear statement from the parliament as to what it considers to be the next important steps in the process because the committee has a lot of work to do in a busy year. It may be that if the parliament is able to set out some key process goals as to when the parliament thinks the referendum could be held or what sort of mechanisms are going to be useful going forward then that would be a useful multipartisan statement coming from the parliament as opposed to just the committee. I suppose also I am a little bit concerned, reading through the terms of reference, the committee has a great deal of work to do engaging in consultations, further engagement and the like but it is a little unclear what sort of resourcing it is going to need to engage in that sort of process—I imagine a great deal of resourcing. So it may be that the other bodies may be better placed to implement wider mechanisms. Certainly, it is open to the committee to recommend further mechanisms whether it be a citizens' assembly of the like that we have suggested. But at this stage given that the bill is silent on it, given it is an important moment in this process and given that there has been somewhat of a lag since the wording of the expert panel, it would be useful to get a statement from parliament on some of these process goals at this point in time.

Prof. Williams : Can I just say that committees have their worth in these sorts of processes but that would be the third committee. We have had the expert panel, we have this committee and then we have another one. I cannot think of another referendum proposal that has had so many committees without getting to the nub of the issue, and that is: when are we going to have a process that genuinely involves the community in a way that builds support, knowledge and understanding?

It is well understood; there are a variety of ways of doing it. Our submission sets out those. Traditionally, we hold conventions. For example, on the republic issue we went to a convention because that was the way of moving to the next stage. No-one then would have suggested we needed another committee to make recommendations for what is obvious now.

We also need to take stock of the fact that the expert panel delivered its report. It was made public almost exactly a year ago. The last year should have been an opportunity not for more committees but for the popular process that needs to start to get people involved. I just ask: why do we need more committees when, in the end, this bill has its place but, really, it is a relatively minor place in the scheme of things? When are we going to get clear recommendations as to what needs to be done to win the referendum when the knowledge is out there very clearly as to the sorts of processes that are open? That does not necessarily need to be reflected in this bill. I would be comfortable for this bill to passed as a statement of recognition but, at the very least, it has to be accompanied by a clear statement by government, preferably also jointly with the opposition. Certainly it cannot have any opposition support. The government might say, 'This is how we're going to fill in the community process.'

The final thing I would say is that You Me Unity has the $10 million. Surely, having that money it needs to coincide with the community processes. It having the money is a bit wasted while we are holding these committees when it has nothing to latch onto to use that money effectively. That is a lot of taxpayer money that really cannot go anywhere, not matter what they do, until we move from a committee process to a community engagement process.

My fear, as I said in my opening statement, is that the timing on this means that it could be 18 months until we get another committee report when we know now what needs to happen. Frankly, another committee is just not what is needed.

Ms SAFFIN: Just an observation: the bill and the committee, in themselves, recognise some multipartisan support. So that, of itself, is a statement. So that is a good starting point. We deal with the art of the possible, not exactly what is ideal. The process itself will be useful. There is an agreement to move forward, and that is the committee, the act and the process. So there is value in what we are doing.

Prof. Williams : I accept that completely. For me it is not that what is being suggested does not have some value but that we are not doing the additional things that make a referendum successful. Many failed referendums have failed for the reason that they have some good high-level political engagement but have missed the most vital issue. That is that the decision-makers are the people. And in the end, the expert panel process was a good expert committee that was exhaustive in its process. It cannot be replicated by any proposed committee that is being looked at at the moment. It is as good a job as you could want.

What you would normally do from there is move to a popular base. That is really where we should have been a year ago. We have politicians from both sides engaged in a committee with Aboriginal leaders and experts. Now let's move to a people phase, where people have a say, through processes—conventions or others. I think that without that we run the grave risk of either nothing happening or people voting no for the quite sound reason that they do not know what it is about have not had any real chance to be involved or to have a say.

CHAIR: I just want to ask you your views about this. I was in Ireland late last year. I was there during their process of referendum and constitutional change to have children recognised in the constitution. The Irish government had funded the Bernardos Ireland and UNICEF to run the 'yes' campaign. There was no 'no' campaign. So some in the community took the government to court and won, three days before the referendum, the right to recognise the deficiency of a 'no' campaign. What was expected to be a 90 per cent turn-out ended up being only 54 per cent. So the referendum was successful but it had quite a severe blow because there was no 'no' campaign.

No-one is talking about a 'no' campaign, and no-one is suggesting there should even be one; we are all singing off the same song sheet, almost. But based on your studies of constitutional change, is there a problem if there is not a 'no' campaign in this process? And does it have the validity or the probability of some kind of legal challenge then?

Dr Kildea : I am not sure about the possibility of a legal challenge. I would note, I suppose, that in a couple of the very successful referendums we have had, including the 1967 referendum, there was no 'no' campaign.

Prof. Williams : But the majority of successful referendums in Australia have not had a 'no' campaign.

CHAIR: So there has not been any question asked about why there is no 'no' campaign?

Prof. Williams : The reason comes from the act itself. The Referendum (Machinery Provisions) Act says that there is a 'no' campaign—that is, a 'no' booklet—if a member of parliament votes 'no'. If you look at the preamble proposal in 1999, there was a 'no' campaign because Peter Andren voted no—the single parliamentarian to do so. If he had voted yes there would not have been a 'no' booklet, and that is what is usually taken to mean a 'no' campaign. In 1967 nobody voted no, and I think that should be the goal here—that parliament speaks with a united voice.

CHAIR: So that will eliminate that.

Prof. Williams : It would eliminate having a 'no' booklet. But I think certainly parliament would be wise to pick up the recommendations of the House of Representatives committee that looked at a range of changes to the machinery that go beyond that booklet—because the booklet, frankly, does not do the job anymore that it was meant to do. But in the end the telling experience of referendums is that the ones that get up are the ones that do not have any organised resistance. If they do they tend to be successful in their resistance, irrespective of the merits of that resistance, because people are sufficiently confused and concerned about it, particularly if it is high-level political resistance, that they will vote 'no' simply for that reason, even if the resistance has nothing whatsoever to do with the merits of the proposal. That is why bipartisanship is a necessary condition for getting it up.

Prof. Twomey : There is a different way of doing it. In New South Wales, for example, when there is a referendum there is not a yes-no case written by politicians on either side; the yes-no case is actually written by public servants in what is supposed to be the most objective manner possible, and that is usually tested and sent to academics and various other people to try to get the most objective factual version so that people have something that is not just written by advocates for one side or another but that tries to fairly put what arguments there might be on either side. That is a different way of doing it. Of course, it is always difficult to maintain objectivity and to establish that objectivity has been achieved. But you have a higher chance of that if it is being done on that basis rather than being done by the advocates for one side or another. So that is a different way of doing it. I should also add that in New South Wales referenda have been far more successful than at the Commonwealth level. You are looking at success rates of about 80 per cent.

Mr OAKESHOTT: My only question is about a comment made by Professor Williams, I think it was—I might have got the voices wrong! The comment was in regard to the racist premise of the original document and the very point of the exercise in trying to remove those race based elements of the document for the future for all Australians. The question I have in relation to this bill is: is the suggestion that that should be quite confronting as a statement in the bill before the parliament and as an exercise to generate awareness and generate compassion for change? And, if so, how hard is the recommendation that that be included? Is it a suggestion to basically say that Australia currently has a racist document? Or is it to put it in some historical context and be a bit more subtle in the words used?

Prof. Williams : Yes, I think it should clearly be in the committee's recommendations and in the bill—worded carefully, of course. The Law Council and the National Congress have come up with proposals, but essentially I think the act, if passed, should indicate that Australia should have a Constitution that does not permit discrimination on the basis of race. I think it can be said as simply as that, and that certainly runs counter to the drafting intentions and the text that is currently there. I think that is necessary because the expert panel clearly identified this as a key concern.

It is something that Aboriginal people themselves speak very powerfully about across the community as being in many cases their No. 1 priority. Also in my experience in dealing with the broader community on this issue I find sometimes some reluctance to change the Constitution to recognise Aboriginal peoples. People say, 'Why bother? Why is it needed? What is the problem?' But once they understand that the Constitution still permits people to be treated differently because of their race they very quickly say across the spectrum that that should change and they want a Constitution that treats everyone equally.

Mr OAKESHOTT: How do you get around the dilemma from the expert panel and others suggesting that, based on the history of referenda in Australia, you need bipartisan support. That very point that you raise has up to now anyway been one of the triggers for the loss of that bipartisanship, that that is seen by some as the one-line bill of rights. How do you get around that dilemma in your suggestion?

Prof. Williams : This is where I chose my wording carefully because I think it is consistent, for example, with the statements of Senator George Brandis, and even though he has argued against the proposed section 116A he has been at the forefront of saying that we do need to deal with provisions such as section 25 and the races power, ensuring that they do not in themselves permit racial discrimination. If we have a wording that generally indicates we need a Constitution that does not permit racial discrimination, we do not have to do that in a way which seeks to clarify the wording issues. It speaks just as directly to the concerns that the opposition has put and the government has put. The question is whether they are prepared to recognise that and come to agreement on it. But, as I say, I think it is consistent with what the shadow Attorney has been saying.

Mr OAKESHOTT: Just to clarify, in the broad sense these are statements that can be made in this act even if when it comes to the crunch in what were the recommendations from the expert panel that there may be a need to negotiate around that issue of explicitly writing in the issue of racial discrimination. Is that the point you are making?

Prof. Williams : It is, and I think if you do not make mention of it it sends a pretty clear signal that the parliament does not see it as a priority or something that needs to be addressed as part of this referendum over the coming two years. The omission is very notable and very direct and of great concern. But I think also if you are looking to move beyond that partisan block it is why in the end I do not think parliamentary committees are likely to achieve that. It is actually where you need to move to a convention or other form of popular process to hear what the community thinks. If the community is extremely strongly of a view that there is a particular way of dealing with this issue then I think it is a case where the community can provide some leadership through good processes and we are more likely to see agreement among politicians where it is actually clear that the community has a firm view, which I think the expert panel shows is likely to be the case.

Senator SCULLION: Just some clarification, Professor Williams. You spoke briefly about potential amendments of the Referendum Act, the machinery provisions of 1984. You said in your submission that if you can make some amendments to that it would better prepare the ground. You talked briefly about a no pamphlet and the timely context of that is all a bit historical what we should do. You ended up there. Do you have any specific recommendations in terms of those amendments and how you think they would actually change how people would view the process?

Prof. Williams : This is where the House of Representatives committee is very useful from 2008. It sets out really pragmatic, straightforward recommendations informed by the view of the Electoral Commission, experts and others. Essentially we have got a referendum process that is archaic that was put in place in 1912 and has never been updated since that time to reflect things such as people not needing always to receive a written piece of material in their letterbox. The internet has come around since that time and other forms of communication technology. The act does not even take those into account. So at the moment we have got people receiving information in a lengthy written form that the evidence suggests they do not even read and it is not even permissible as a matter of law to do it in other more effective ways. It is actually a gross waste of taxpayers' money, frankly, the way in terms of is structured at the moment, let alone the fact that it harms chances of success. There are many other things that that committee dealt with, for example setting up proper yes and no processes as occurred in 1999 should there be opposition within parliament and really just streamlining it in a way that meant that we had sensible processes providing a level playing field, better use of taxpayer money that reflects the technologies of today, not 1912.

CHAIR: So you are saying that this committee can work incredibly hard with the congress and the organisation can recognise Indigenous peoples under some sort of bipartisan advisory committee. We will get a timetable, but at the end of the day the actual tool that will achieve that timetable is out of date and chronically needs updating in order to do that.

Prof. Williams : It is deeply flawed, and that is recognised across the spectrum by the Electoral Commission. In their evidence to the House of Representatives committee they expressed frustration at the fact that they are forced to spend money in a fashion that is not effective. But this has been the story of referendums now for literally decades. We invest money early in the process, we get to the campaign over the two- to six-month period once the referendum bill has passed and then suddenly we have this process that is very poorly designed. It was the best process for 1912—that is what we have. If we are talking about things that need to be done, it clearly needs to be done. But the recommendations are there.

Dr Kildea : One other limitation worth noting is that the referendum currently places a cap on the amount of the Commonwealth can spend on the referendum campaign. It can only spend money to produce and distribute the referendum pamphlets; for anything else there needs to be a special amendment to the act. That is how the 1999 Yes and No committees were able to occur, because a special amendment was made. But, without a special amendment for each referendum, the Commonwealth has severe limitations on what it can spend money on.

Senator SCULLION: Professor Williams, in your introductory remarks you indicated some disappointment and suggested that what was really needed was clear public support for the referendum generally. Going into the specifics, I understand that with the introduction of the bills there will be an opportunity for both the leaders to make a broad statement with regard to their support, specifically putting it on the record. I know it has been policy in the past. As the bill is introduced, hopefully both the Prime Minister and the Leader of the Opposition will take that opportunity to make such a statement. So I would not be completely disappointed with the fact that the bill does not seem to do a great deal in terms of pragmatics in that regard. It is an opportunity that I am quite sure will be taken up.

Prof. Williams : I agree. In providing a platform, that is a useful thing, but, as we are all aware, it is through repetition that you get the buy-in. A worthy statement, 'Once a year', does not really get you through in terms of this being an issue that people should take seriously. We need members of governments and oppositions taking this up to the media and explaining why it is important.

That is one half of it; the other half is the community processes. If we take the example of the Northern Territory statehood process, which looks like it is about to start up again, there would be no suggestion there, given the experience, that you could run that through three committees. People would just say, 'No way, it's ridiculous.' So what is being proposed there is an excellent process involving a convention meeting twice over the space of two years, a popular election where people are involved from the age of 16 up, leading itself to a referendum. Those conventions will generate enormous media interest, they will lead to ongoing comments by political leaders and there will be direct and clear evidence of people being involved in designing change. That, I think, is much more likely to a 'Yes' vote than a process, as the 1998 Territory referendum showed, where people will say, 'If it's a politician process, we're going to be sceptical about it.' You have to meet them at two ends. At the moment we are sort of doing one end of it, but the other end is just absent from the debate.

Ms SAFFIN: I have a general question for Dr Pritchard. The AIATSIS submission suggested the statement of recognition in the bill could be bolder and include an acknowledgement of Australia's hybrid political and legal histories, along with recognition of the right to self-determination of Aboriginal and Torres Strait Islander people consistent with the United Nations declaration. Does the Law Council have a view on that position?

Dr Pritchard : I would have to take that on notice. Obviously, there are processes of clearing statements made on behalf of the Law Council. I can confirm—and I trust Senator Xenophon is listening carefully to this—that the Law Council's policy statement on Indigenous Australians and the law provides recognition by the Law Council of the importance of the principle of self-determination and the consistency of Australian law and policy with international human rights standards, including the Declaration on the Rights of Indigenous Peoples. The Law Council could provide something briefly in writing in answer to the member's question.

Ms SAFFIN: That would be useful, thank you.

CHAIR: We do not have any other questions and we need to move on to our next witnesses, so can I thank all of you for your submissions and your availability for our inquiry today.