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Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples
16/10/2018
Matters relating to constitutional change

BRENNAN, Father Frank Tenison, Private capacity

Committee met at 12:37

CHAIR ( Mr Leeser ): I declare open this public hearing of the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, and I would like to take this opportunity to acknowledge the traditional owners of the land on which we meet and pay respect to their elders past and present.

This committee was established by the Australian parliament in March this year to consider matters relating to constitutional change and recognition. The committee presented its interim report in July and is now seeking further evidence in relation to a First Nations voice, truth-telling and agreement making which arose from the Uluru Statement from the Heart, as well as other forms of recognition. The committee is due to present its final report in November.

This hearing will be broadcast on the parliament's website, and a transcript of proceedings will be made available. Those present here today are advised that filming and recording are permitted during this hearing. I also remind members of the media who may be present or listening on the web of the need to fairly and accurately report the proceedings of the committee.

I'm delighted to welcome Father Frank Brennan to give evidence. Although the committee doesn't require you to give evidence under oath, I should 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.

Father Brennan : Thank you, and I join you in acknowledging the traditional owners of the land on which we meet. I have prepared a brief opening statement, which is available to you there, and I welcome this opportunity to address the committee and thank you for the invitation.

My participation in this discussion has been largely limited to the publication of No Small Change in May 2015, and I happily provide the committee with a copy of the book—

CHAIR: Can I ask a member to move that we accept this?

Ms BURNEY: Moved.

CHAIR: Thank you.

Father Brennan : a copy of my address to the Australasian Institute of Judicial Administration in October 2015, which was published in the Australian Law Journal; my Lowitja Oration, marking the 50th anniversary of the 1967 referendum, which is available on the Dunstan website; and my recent address to the National Aboriginal and Torres Strait Islander Catholic Council, NATSICC, on 1 October, which is now available as submission No. 453 and available on the internet.

I acknowledge that the Uluru Statement from the Heart is the only realistic starting point at this stage in Australian history for constitutional recognition of Aboriginal and Torres Strait Islander peoples. That's because, after a series of Indigenous dialogues conducted under the auspices of the Referendum Council, all other options for constitutional recognition were rejected by the Aboriginal and Torres Strait Islander delegates at Uluru. There is absolutely no point in proceeding with constitutional recognition, other than recognition which is sought by those being recognised. It would be a waste of this committee's efforts and resources to consider any mode of constitutional recognition, other than the establishment of a First Nations voice enshrined in the Constitution.

The First Nations voice enshrined in the Constitution is the only destination to be considered at this time in Australian history. Importantly, the Uluru Statement from the Heart invites all Australians to participate in this journey:

We invite you to walk with us in a movement of the Australian people for a better future.

The First Nations voice was rejected by Prime Minister Tony Abbott on 28 August 2015. After Uluru, it was rejected by Prime Minister Malcolm Turnbull on 26 October 2017 when, joined by his ministers Brandis and Scullion, he stated:

The Government does not believe such an addition to our national representative institutions is either desirable or capable of winning acceptance in a referendum.

It was rejected again by Prime Minister Scott Morrison on 26 September, early in his prime ministership, when he said:

I don't support a third chamber.

      …      …      …

People can dress it up anyway they like but I think two chambers is enough …

      …      …      …

But the implications of how this works frankly lead to these same conclusions. I share the view that I don't think that's a workable proposal …

Despite what Messrs Turnbull and Morrison have said, I reject the classification of a First Nations voice as a third chamber.

Given that the proposal has been rejected by three coalition Prime Ministers over the last three years, including the two most recent Prime Ministers since the Uluru statement was published, the question now for this committee is simply: what is the best way to proceed? The committee's terms of reference accept the four principles of the expert panel, which were formulated to guide the assessment of proposals for constitutional recognition, including that each proposal must be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums. With strong prime ministerial opposition, backed by the ministry, there is presently no prospect of this proposal being supported by a strong majority from across the political and social spectrums.

To move from Uluru to constitutional recognition, it seems to me there are six possible routes for consideration by the committee, so might I briefly outline my six possible routes? First, the committee could recommend that the parliament proceed with the referendum in the foreseeable future in the knowledge that it does not enjoy the support of the government of the day. Second, the committee could recommend that the parliament proceed with the referendum, but only after a national voice has been designed in consultation with Indigenous leaders, with the design having then won bipartisan support in the parliament. Third, the committee could recommend that a national voice be designed in consultation with Indigenous leaders, with a view to legislating a national voice as a prelude to constitutional recognition. Fourth, the committee could recommend that a national voice be designed in consultation with Indigenous leaders, but that any decision about whether (a) to legislate a national voice as a prelude to constitutional recognition or (b) to proceed with a referendum after a national voice has been designed be deferred until the design process is concluded. Fifth, the committee could recommend against a referendum in the foreseeable future and recommend against the public design and legislation for a national voice while recommending that resources be allocated for education of the public and of members of parliament without the benefits of a national voice. Or, sixth, the committee could recommend the abandonment of any consideration of a national voice, leaving in place the National Congress of Australia's First Peoples and leaving open the option of a referendum on a proposal put forward by Indigenous leaders if and when that proposal enjoys support from the government and the opposition.

Ms BURNEY: Sorry, Father Brennan, but can you please say your first option again? I didn't catch it.

Father Brennan : Yes, the first one was that the committee could recommend that the parliament proceed with a referendum in the foreseeable future in the knowledge that it does not enjoy the support of government of the day. At the NATSICC assembly, I urged Indigenous members to consider option 3, and I commend the opposition for espousing option 3. But, not being Indigenous, it's not my call. I was there simply speaking to an Indigenous group, many of whom I have known for over 30 years. It was a church meeting of the National Aboriginal and Torres Strait Islander Catholic Council. As a citizen, I would be strongly opposed to option 1. In my opinion, a referendum doomed to fail would be a disaster for all Australians. Putting aside option 1, I urge the committee to be attentive to Indigenous voices when considering options 2, 3, 4, 5 and 6. There may, of course, be other options proposed to the committee by Indigenous Australians.

For completeness, I state that I am one of those citizens who would still like to see the race provisions—section 25 and 51(xxvi)—removed from our Constitution, but not as part of any reform for Indigenous recognition. Rather, such amendments would be part of the modernisation of the Australian Constitution. There is no need for the term 'race' to appear in an up-to-date Australian Constitution. Section 25 should be repealed and section 51(xxvi) replaced with a more contemporary head of power.

CHAIR: Thank you. I acknowledge your long history of work both as a priest and law reformer and in Indigenous affairs for many decades. Why have you put option 3 rather than, say, option 4? I'm interested in that particular view.

Father Brennan : If you're looking at constitutional reform, we've had only eight successful referenda off 44 in this country. If I can stay very bluntly but respectfully, given the present political atmosphere around this building, this is not a time for constitutional change, no matter what the topic might be. It requires robust and respectful bipartisan support in order to move forward—even putting aside questions about Indigenous recognition. It's fine that the Referendum Council made a decision that its resources would be delivered almost exclusively to Indigenous consultations to determine what would be put forward, but you cannot proceed to a referendum in Australia—where you require a majority of voters and a majority of states—until the public has an understanding of what is being proposed. Given we have a situation where three prime ministers in a row have said that this suggestion is unacceptable, there is all the more need for design work to be done.

This is purely a personal opinion, but I was putting it respectfully in the context of addressing an Indigenous group, including people I have known for over 30 years. I am not an evangeliser for option 3, but, to Indigenous friends of mine who trust me, I say: 'If you want the fruit of my reflection over 30 years, I think option 3 would be the way to go. Namely, I think the prospect of getting the Australian community to understand what this is about would not reach the level of acceptability for passage until you had something designed and, I thought, something legislated.'

The further issue for me was this: having been around as long as I have—as have many others on the committee, including the Hon. Linda Burney—we've seen the NACC, the NAC, ATSIC and we now the National Congress of Australia's First Peoples. You as a committee have heard various Indigenous viewpoints as to whether or not congress, as it presently exists, could fill the gap in being a voice. That is purely an Indigenous question. Until there is clarity about what model is being proposed, I think the prospect of the Australian community coming aboard and the prospect of convincing the coalition—whether in government or in opposition—to come aboard would require that degree of detail.

CHAIR: Can you expand a little bit more on what you think the effect of a failed referendum on this question would be on Indigenous people and the Australian nation more broadly?

Father Brennan : I think it would be, existentially, an appalling thing for us that, after 220 years of so-called European settlement and after all that we've talked about in terms of Indigenous recognition, we as Australians couldn't get right duly recognising the place of Indigenous people in the Constitution. I think it would make our Constitution even more a rent document than it presently is.

CHAIR: So you would urge us as parliamentarians to bear the history of referenda, the need for bipartisan support and the need for broad Indigenous support before proceeding to a referendum.

Father Brennan : Yes. I would insist on two points. First, as we're speaking about Indigenous recognition, there is no point in proceeding with anything other than that which is sought by Indigenous Australia. Yes, people like me have happily cast aside the sorts of arguments and proposals that I put in a book like No Small Change. I happen to think that one of the lessons of the 1967 referendum was that it was minimal, symbolic change which actually created the political imperative for the big changes that occurred in this country—moving from terra nullius to land rights, from assimilation to self-determination. That is not an argument that has won favour with Indigenous Australia. In fact, it's been firmly rejected. I, as a whitefella, accept that.

That being the case, it is absolutely essential that, first, whatever is considered is that which has the support of and is endorsed by Indigenous Australia. Second, it has to then jump the hoops which are necessary for any prospect of real constitutional change. This is not like referenda that we've had in the past about the retirement age of judges or whatever, where it doesn't much matter whether it gets up or it doesn't. This goes to the nation's soul. We only want to go there if we're sure that we can get it right. That will require both sides of politics to be solidly on-board. If we have prime ministers saying—as we now have had three in a row saying—'This won't fly,' then the best we can do is say, 'We've got to rethink this.'

Ms BURNEY: As you said, we have known each other for a very long time, and I deeply respect and appreciate your thoughts on this. I have a number of questions—or reflections, I suppose. I agree with you that, unless there is enthusiastic bipartisan support, whether it's on this question or any question on a referendum, it is going to be extremely difficult. The last terrible experience of that was, of course, the republican debate. The remit of this committee is a challenging one, and the timing is also incredibly difficult in the sense that we know that there will probably be an election in the next 30 weeks.

One of the enormous challenges of this committee is we are seeking very much to try and have a report that we can all live with and that will keep this thing alive whether there's an election or not and whether there's a change in government or not. It's an incredibly complex challenge that we have. I want to know a little more about the point that you've made about the atmospherics around the parliament at the moment. Also, one of the things we've been struggling with is in question No. 2. If we are to continue consultations, my fear is that there is so much frustration in the Aboriginal community—not just about this but a whole bunch of other things—that people are going to just say, 'Get stuffed,' if I can be so blunt. I am fearful that.

Father Brennan : I share that fear, and I would simply say that first and foremost for this committee is to try and reach a bipartisan position where we say, 'We will treat with the upmost respect what has been put forward in the Uluru statement.' But—and this is the quid pro quo—once that is accepted respectfully as the starting point, you don't get it as an end point unless you have an agreed journey, and that agreed journey has to incorporate what is your legal and Constitutional responsibility as members of parliament and what are the constitutional provisions for the passage of a referendum.

Basically, I would say, even to Indigenous leaders who say that it should be a simple move from the Uluru statement to constitutional recognition, that when you've had three prime ministers in a row who have said, 'This ain't on,' then there is a lot of work to be done. That's why it is then necessary for you as a committee, I think, to see what compromises you can effect among yourselves as to a bipartisan step forward in terms of keeping the Uluru vision alive while at the same time respecting that, indeed, three prime ministers in succession have said that they will not accept this.

Ms BURNEY: I acknowledge what you've just said. I also agree, whilst it may not be a popular view everywhere: unless we believed this was going to fly, why would we do it? It would set us back—how many years? A generation.

Father Brennan : Sure.

Ms BURNEY: We're coming to the conclusion of our work as a committee in the next little while. What do you think of the idea, which is one of your propositions, of legislating with a view to having a referendum down the track?

Father Brennan : I think that is the only conceivable option. But, given I know that there are key Indigenous leaders who are opposed to legislation, I say at the very least, even if there not be legislation, there is a need for design and there is a need for public design. There is a need for members of the public of goodwill to know what it is we're voting yes or no to, particularly when at the moment we have an organisation called the National Congress of Australia's First Peoples, and, if you look at the terms on which it was set up, in a sense these things often tend to be equal and opposite reactions to what came before—

Ms BURNEY: That's right.

Father Brennan : so, ATSIC, which was a statutory model. Those who designed the congress, and they were Indigenous leaders, said, 'The benefit of the congress is that we not have a statutory base. It will therefore give us the flexibility of real self-determination. We will have a corporate entity which is purely under our control.' I can understand that there are shortcomings in that. Now what I think is being said is that the pendulum is swinging back a little to something of the ATSIC model—not in terms of service delivery but in terms of representation. And, as you know much better than me, in terms of Aboriginal representation, nothing works at a national level unless it is grounded in the local context. Who speaks for the local mob; who speaks for the country?

The way it was done with ATSIC was to set up a three-tiered structure: locally elected councils; elected regional councils; and then a national commission, partly elected, partly nominated. That's not to say that's perfect, but it is to say that anything less than a three-tiered arrangement would create two enormous risks. One is that the national spokesman, the national voice, becomes disconnected from the local communities. The other is that the local communities become so dissipated that they find it impossible to work up to a national voice.

Ms BURNEY: Sure, yes. Thank you.

Senator STOKER: Thank you, Father Brennan, for your submission and your evidence. They are very helpful. I'm interested in the last paragraph of your opening statement, in relation to the race provisions currently in the Constitution. What value, if any, do you see in pressing ahead with a change to those provisions in advance of dealing with proposals for a voice to parliament?

Father Brennan : I don't see any benefit in that. If you look at the history of it, it was solidly proposed by the expert panel that those matters be dealt with as part of Indigenous recognition. With whatever went on within the processes leading to Uluru, a decision was made to reject all so-called minimalist approaches, including the amendments of 51(xxvi) and 25. I think, understandably, if an attempt were made to deal with that prior to moving towards the national voice question, there would be Indigenous concerns—I'm sure you'll hear them directly from Indigenous people themselves—that this is simply a convenient means by which the parliament might revert to the minimalist model and put off to the never-never that which is the substantive request. I don't think there would be any point in trying to do that beforehand. The only thing which I would see as significant would be to try and separate out the question of race provisions from Indigenous recognition and say that race provisions would be dealt with if and when we get to the stage of saying we have the maturity now to engage in the modernisation of the Australian Constitution, whether or not that related to a republic debate.

Ms McGOWAN: Senator Burney, I would like to acknowledge your questions and the complexity of the task that we've got.

Father Brennan, I think you've been around a very, very long time. The conversation for me is so frustrated and so fraught, because the expectations and the needs are so great. Your wisdom is we need patience, we need to do this very carefully and we need to do it well. The Aboriginal and Torres Strait Islander people we've come across have said, 'We've given you so much, and we keep doing it.' So for us to go back to all those people who have come and given us their time and given us their energy and say, 'We want more time; we haven't got our act together,' while I can hear the logic of it, is a really, really hard thing to say. You're not the right person to ask, really, but how do you do that? There's a logic to what you say, which is clear, but there's an emotional reality that has nothing to do with what you say. The emotional reality is do something, show us your credibility, put something on the table that actually shows you've heard what we've said and that you will act. It's a bit like what you just said: let's agree on the journey to the end point. You're probably not the man to know, really, but how can we do that? We do need more time, because we're not there, but we're asking a huge amount of people to come with us on another journey that's not quick. As my colleague said, we're facing an election. As you said, the environment in this place is not conducive to cooperation. We're asking a lot to think, given what we've just experienced over this week, that it might be better in nine months; I suspect it won't be. I'm saying as an independent member of parliament, because I carry the weight really heavily of balancing this. How do we make a case to Aboriginal and other Australians who are really saying, 'Get on with it?'

Father Brennan : I concede that there are emotions in this, but trying to be as logical or objective as possible, let me step outside: who are the key groupings. I think the key groupings at this stage are: those Indigenous people who are the spokespersons for the Uluru statement, you as members of parliament, and then a third subgroup of yourselves, if I may say, which is those who are Indigenous members of parliament. I've had a rule of thumb on this for quite some time: I'm a whitefella who doesn't put my head up very often on these sorts of things. I'm only here because you invited me to be here. But I have said to myself on this issue: I, as a white Australian, will take my lead from the Indigenous members of parliament. We're fortunate now to have a parliament where there are Indigenous members who are competent, who are on both sides of the aisle, who are passionately concerned for their mob, and who know who this place works. I think the only thing that could work would be that the key spokespersons of the Uluru statement and the Indigenous members of parliament, being entrusted by you or by the parliament generally, tell us a way where you can work respectfully together where we can do two things. First, we can acknowledge with full faith and credit the Uluru statement as being a genuine statement of the aspirations of Indigenous Australians. Second, that we can have a full, frank statement as to what are the complexities that surround us in this place and, therefore, to what degree is it necessary to have given the elements of design of this model so that there might be some prospect of advancing it to the next stage.

CHAIR: Just to go back to something you said earlier, the Uluru statement represented a complete change in what had gone before?

Father Brennan : Absolutely.

CHAIR: What the people at Uluru have put to us is something that is complex, and it is important to get the detail right. That is effectively what you're saying to us? This is something detailed, something complex and it will take some time to get the detail right, just as it will take time to build bipartisan support and that's part of our job to explain that to the general community, if we go down the track you've recommended?

Father Brennan : Yes, and that there are two aspects that need to be taken into account as we start to move to the next stage and everyone, including the spokespersons for the Uluru statement, need to acknowledge that. Namely that what has gone on to date under the auspices of the Referendum Council was a conversation within Indigenous Australia. It was not a conversation of the Australian community generally. That's no criticism of it; that was seen to be a necessary first step. But the necessary second step has to be expanding to incorporate the community generally.

Secondly, there is a necessity for some particularity of design, if only because at the moment we have a National Congress of Australia's First Peoples who were not central to the deliberations at Uluru and who, before this committee, have repeated twice that they could be the national voice. As I read it, key spokespersons from the Uluru statement have said that the national congress would not be the appropriate body to be that voice. The prospect of moving that forward with the Australian community when you have three prime ministers on record saying, 'We won't buy it,' is minimal. That's why it's necessary that there now be that mechanism set up for a trustful building as to what that design might be.

Ms McGOWAN: That was useful to me. To my colleagues: we're talking design; we're not necessarily talking a huge consultation?

CHAIR: I think this is a question for later today rather than at this particular meeting.

Thank you, Father Brennan, for your attendance today. If you've been asked to provide any additional information would you please forward it to the secretariat by 22 October? You'll be sent a copy of the transcript of evidence and you'll have an opportunity to request corrections to transcription errors. Thank you very much for your participation in the committee today.

Father Brennan : Thank you for the invitation to appear.