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Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples
Matters relating to constitutional change

BUCKSKIN, Prof. Peter, Co-Chair, Reconciliation South Australia

WATERS, Mr Mark, State Manager, Reconciliation South Australia


CHAIR: I would now like to welcome the representatives of Reconciliation South Australia to give evidence today. Although the committee does not 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 the parliament. The evidence given today attracts parliamentary privilege. I now invite you to make a brief opening statement before we proceed to discussion.

Prof. Buckskin : We have tabled this morning a written statement for the committee's consideration. Sorry about the late notice of tabling the document. We welcome the opportunity to contribute to the committee's work on constitutional recognition relating Aboriginal and Torres Strait Islander people. We really believe that this a real act of reconciliation. To improve on and deliver opportunities that have been passed over before is a real opportunity for nation-building, to ensure that we are a more inclusive community for the 21st century and allows all Australians to not only have an historical understanding of our past but, more importantly, to develop a strategy for a more cohesive way of moving forward as a nation.

There needs to be a real education process associated with constitutional reform for the wider Australian community to understand the political processes that we have in Australia about constitutional change. Reconciliation SA had the opportunity to co-chair a process in South Australia for constitutional reform, invited by the Premier of the day. That certainly was a much easier process to go through at a state level than it is nationally. But as co-chair of that work, what I found travelling around our great state was a real lack of understanding of the political and parliamentary system. A lot of people really didn't understand what the Constitution was. We mainly had non-Indigenous people at these forums, so it was a real education process for people to understand why we were so concerned to have us mentioned in the Constitution. Because, despite the letters patent that Dr Thomas talked about recently from King George, it was ignored by the leaders of our state of the day. It still is unresolved business. We acknowledge that the sovereign did ask the state to negotiate with people that were settled here, and the leaders of the day—obviously non-Indigenous people; the whitefellas that were the founders of our Constitution—decided to totally ignore Aboriginal participation in that process. Again we saw an opportunity to contribute to a better understanding of our previous history, our joint histories and possibly our future history to lead that particular process.

I don't want to spend a lot of time talking about the Declaration on the Rights of Indigenous Peoples. Like Senator Dodson, I'm more interested in educating non-Indigenous Australia about what we believe are our rights to get them to understand our cultures, our identity, our languages and why they're important to us; to understand our connectedness to our country and our lands; and to understand how we work with each other through shared songlines, through our language groups and how it connects us.

I understand that we have issues around the word treaty, but I do support the integrity of the Uluru statement in the way that we need to move forward. We have been very generous, I think, in our spirit of generosity to try to engage in the English language in a way that non-Indigenous Australians can understand what we mean by 'treaty' and what the English language means by 'treaty'. We know that, though shared histories with our indigenous brothers and sisters from across the world, every country that's been colonised by others has had difficulties with understanding what a treaty would look like. I think we have an opportunity to get those words right. I think we have the commitment to work with and for our Aboriginal and Torres Strait Islander communities. Particularly for us as a nation of peoples of humanity, we can move forward together, but we need to be heard. Even though we have constitutional reform here in South Australia, there is no real Indigenous voice in our parliament other than through political party representation if we ever get the opportunity to be preselected and elected to government.

Here is an opportunity, as I said, to build on the opportunities that were passed over in the history of this country. We're very much prepared to facilitate that conversation. I'm strongly committed to reconciliation because I really believe it's got to be our voices that shape the way we negotiate with non-Indigenous peoples, get to educating them about our histories and try to get them to understand that engaging with us isn't a threat but an opportunity and a way that we can all move forward together as Australians for the future.

CHAIR: Thanks. Mr Waters?

Mr Waters : From Professor Buckskin leading the constitutional change process in South Australia, Reconciliation South Australia has continued to be for constitutional reform at the national level. We've participated fully in the recognised campaign, the journey to recognition, and continued public education across the community. With regard to the Uluru statement, we've backed the Aboriginal people standing and saying, 'This is what we want.' I think the lessons for me through this process have been that constitutional change has been recognised in every state and territory; that that hasn't got a huge level of legally binding status; that the act of recognition at federal level indicated that Aboriginal and Torres Strait Islander peoples were the first people in this country but, once again, that has no binding effect; and that the Aboriginal people gathered at Uluru indicated that that was fine, that was enough. There was something more that was needed, and the concept of an Indigenous voice was put forward and supported. I believe that that's a conversation that we need to have across the country. The Uluru statement says we should now trek forward to have this conversation across the country.

I think that, from September last year, the conversation changed, because, instead of just talking about what should be in the Constitution, here was a self-determined voice saying, 'This is what we want for Aboriginal people' through a two-year process that had been really well followed and tracked across the country. To turn around and say that that's actually not going to happen I find difficult, and I really appreciate that the joint parliamentary committee has now taken up that we do need to listen to this and see where it takes us.

In South Australia during Reconciliation Week, Noel Pearson gave the Lowitja O'Donoghue Oration, and there are elements in there that are quite statesmanlike in terms of putting forward what the voice is and how we can prosecute it, also picking up on some of your thoughts, Senator Leeser, in terms of the declaration and actually putting some words to it that might be a conversation piece around the country.

CHAIR: Thank you both for that opening statement. Professor Buckskin, I agree with you that it's always a bit of a shame when you find out how little Australians know about our Constitution and what's in it. I wish Australians knew more about it.

One of the key things that we need to do in this committee is put some meat on the bones of the Indigenous voice. As I have been going around talking to people about the voice, three questions keep coming up, and I want to put them to you. What's the purpose of the voice, what is the problem that we're trying to solve and how will the voice be different from existing committees or advisory bodies that are there? I wondered if you might take those questions.

Prof. Buckskin : I think the main purpose of the work that we're considering is to give us a permanent voice in our Australian political process, that our federal parliament ensures that all its work has a consideration about its impact on Aboriginal and Torres Strait Islander peoples as the first peoples of this country, to ensure that our unique cultural connections to this country that make Australia Australia are sustained into the future forever. It gives us the opportunity to ensure that we're growing together, developing as a nation, ensuring that we're not left behind in any of those considerations. So it's securing a permanent voice where we can have a debate in the parliament where our voices are informed by representative voices of the people. I respect Senator Dodson and our other Aboriginal senators and members of our Australian parliament; however, they are products of the non-Indigenous-people system. As pointed out by many of our senators and members, Aboriginal and Torres Strait Islander communities have their own processes, and I think that needs to be acknowledge in the way that we elect Aboriginal voices to the federal parliament.

So that's the first bit. What was the other question that you had?

CHAIR: How will it be different from existing committees and bodies?

Prof. Buckskin : I think it will be different in terms of the process in which we engage to elect, appoint or select our Aboriginal and Torres Strait Islander members. The processes probably need to be worked on further. That's the next phase of consulting. Better people than me will have an understanding, I suppose, of good governance around those political processes. Whatever it is, it's got to be representative and it's got to have the capacity to come from the regions, from the base of our communities to regions and to states to form that voice.

CHAIR: People have said to us that it's important to have local, regional and national voices. Do you support that proposition?

Prof. Buckskin : Absolutely. I thought it was an outstanding contribution that ATSIC made to our nation and to the Aboriginal and Torres Strait Islander communities in our state. We had outstanding regional councils, and we were very perplexed that both parties supported the demise of ATSIC. There clearly needed to be some change, some amendments, some lessons learnt, but we didn't need to totally unpack, I suppose, the process. It's got to come from the regional communities; that's where we live on country, and we respect our country and want to maintain our country. But it needs to be built up to ensure that those voices are representatives and have the opportunity to be elected onto the national voice to parliament.

I'm a Narungga man from Yorke Peninsula. You'll be hearing from the Narungga Nation Aboriginal Corporation this afternoon. I'm on the board of that, but I'm sure that our chief executive and chair will be able to give you much more informed representative views of that rather than me as an independent director. But that has allowed us to have really serious conversations with own people to understand our collective and individual trauma around colonial experiences, the levels of disadvantage still faced by many, the fact that we still have intergenerational unemployment in our home community and how people have moved off the home community for further employment and educational opportunities. It shows that having that regional voice enables us to build our capacity to listen more to our communities, to be more inclusive of those that are still struggling to achieve opportunities and certainly puts in my mind an absolute commitment to spend more time working with community so they can realise the opportunities of being an Aboriginal Australian citizen, supporting them in developing a fuller life of being well, healthy and having opportunity to benefit from the wealth of this country.

Mr Waters : I think it's worthwhile, building on what Professor Buckskin said, to look at the history of the Narungga agreement. On 14 December, 2016 the minister at the time, Kyam Maher, announced Aboriginal regional authorities but also then said the government was committed to entering into treaty conversations. As I understood it, the minister never saw a treaty as a full and final settlement in South Australia, but he did acknowledge in launching the treaty conversation that, from the 2013 state constitutional change, the conversation continued because of the formation of this state through letters patent that said we don't have any legal status or standing or understanding about letters patent, but there's a moral argument that indicates that this is the next logical step from constitutional change, to go into agreement making. The Narungga nation has sat very consideredly with state government departments and with politicians to arrive at the point they have got to today, and the mutual agreement in that I think is something that we can learn as non-Aboriginal Australians in saying, 'This is a good way of prosecuting some development and growth and change.'

Senator DODSON: Thank you both for your contribution today. The other day we heard that part of the reason for wanting the voice and wanting it entrenched in the Constitution was in part the recognition that First Nations peoples are different. They are Australians, but they are different Australians. They are uniquely different in that they have a culture and a language and a relationship to land and a connection to country and the things you spoke of, Professor Buckskin, and at times they want to discuss those matters as to where they're going in light of the awful social statistics we see—kids in out-of-home care, drugs, alcohol, violence, family problems et cetera. I think we as politicians and governments often think of those issues as needing redress, and they have to be addressed. So it's difficult sometimes for the parliament or for politicians to see that First Nations people have a right to self-determination, but they have to be able to have the discussions in an independent manner about the matters that affect them.

As you rightly say with people like me—I'm a member of the Labor Party, a senator from Western Australia. I represent the constituency that's Western Australia in this federation, but included in that are First Nations peoples, of course. But I'm not the voice of First Nations peoples. So the parliamentary process is a very important one from my perspective, but it's not for everyone. And I do respect that there is a need for an independent voice through which the First Nations can interface with the parliament over matters—not just what the parliament or the government wants to legislate upon in light of its policies. There are many other matters—healing matters that have been talked about, the coming together, the reconciliation. I think you put it very nicely when you said there's an opportunity for the parliament to avail itself of the First Nations perspectives by having a voice, so it's not seen as a threat to the parliament or to nation but for a dialogue to actually begin around many important, complicated issues.

Some of my colleagues have raised terminology, 'treaty'. I think the voice notion, whilst we're trying to put the meat on it and the need for further consultations we understand, what comes first is also a bit of a challenge for us, whether you entrench this first. You've got to deal with the people who are going to vote, because they don't understand what the thing is going to do or what it's purposes are, which the co-chair has been asking about, and it's really difficult for us to know which way to go on some of that. But we'll come back and ask people, because we'll report in July, but then we'll report finally in November.

So the argument isn't clearly enough made, I think, from the First Nations side as to the need for that independence to have the freedom to discuss those matters that really are critical to the future of the First Nations peoples, and that goes to culture and language and our identities and our uniquenesses, which are not always about having parliaments do something for us but a way for us to get a grip on the impact of change, which we don't often get the chance to do, except maybe at a local community level. Sometimes we have grappled with that. Would you like to make a comment about that, Professor Buckskin?

Prof. Buckskin : To go back to Senator Leeser's comment, our voice is important for us to have those conversations around our individual and collective identities as the oldest living cultures of humanity. That's a strength for this country. It needs to be celebrated and respected. I think we still have a long way to go to see that being appreciated in non-Indigenous Australia. We have seen continued governments over many years fail to deliver on citizenship rights—better education outcomes, health outcomes, social outcomes, housing outcomes et cetera. Therefore, we need a higher level of accountability and monitoring and reporting from our perspective on what's being done to us rather than with us.

When we talk about the failures, the increased incarceration rates, especially here in South Australia and, more concerningly, among our females—our mothers, our daughters, our sisters et cetera—have a real impact on family. But who's held to account for that? Where are the better policing strategies? Where are the better alternative measures given to our judges and magistrates to give them much more flexibility in the way they might sentence our people for issues that they've been found guilty of? There's no accountability in that. We just keep locking them up and, as one of our premiers once said, 'rack 'em and stack 'em.' That doesn't help us when our young people come out and there is no program to ensure that they can merge back into society.

Where is the education department in this state, with our very bad literacy and numeracy outcomes in years 3, 5 and 9? Where ever has a chief executive been held to account? Where ever has a school principal with the lowest outcomes been held to account for that? No. They blame the community. They blame the parents. They blame all the external issues, outside the school gate. And yet, in lots of our schools, our children do turn up every day, and it's like time served, because they actually don't gain from that participation. They might go, but what is the learning outcome in terms of their participation?

This gives a high level of accountability. I thought ATSIC was going to be able to achieve that, especially under section 7 of the ATSIC Act, which gave the opportunity for commissioners and the representative group to monitor the budgets and programs of every federal authority. That was never really taken on board by the government, and any time the Aboriginal community, through ATSIC, made a comment it was always turned around to, 'The Aboriginal community's got to change,' when really the way that governments were doing business with Aboriginal and Torres Strait Islander people hadn't changed. We were still marginalised, on the fringes of the way that we were developing programs and implementing them, even though we had a commission that was quite sophisticated in its approach at a regional level, with the regional authorities.

In this state, we had our commissioners and the chairs of our regional councils, and I was the chief executive of Aboriginal Affairs in the state at that time, working with the state minister, working with chief executives, bringing Aboriginal voices and trying to utilise the opportunities that ATSIC gave the state government to embed Aboriginal voices in our decision-making. But still I didn't see any chief executive or bureaucrat being held to account for the poor outcomes. It's always our fault, for not being able to achieve Western outcomes. But no-one's really invested in our cultures, our languages, our epistemologies, our pedagogies, how we teach, how our kids learn, how we engage with community. It's all got to be the white way or no way.

I just think we have an opportunity here to embed Aboriginal voices so that it is a true partnership in that decision-making and a respected one and it has protocols and procedures and it's reciprocal; it's not just one way, as non-Indigenous governments continue to blame the community, when the governments have never invested in us really, in an equitable way, since 1901. Here's an opportunity to fix that, learn from those lessons, look at these terrible social outcomes and get governments to start delivering on citizenship rights. Let's do what the '67 referendum enabled governments to do and then ensure, at the same time—now—that we start to invest in Indigenous cultures, in language and understand our connectedness to our countries and sea, because that's where our spirit is and that's what makes us the unique people in the world that we are.

Senator DODSON: Given the voice is being proposed as advisory, its advice would be nonjusticiable—that is, you couldn't use the advice to go to court. Do you see the value of the voice more in a dialogical approach with the parliament on all of the matters you mentioned? Because you wonder what difference it would make if it is not having that dialogue but more as compulsion—that the parliament must do something. I get the impression you see the tension between the voice's capacity to get a result—that is, to get the parliament to do something—more as the constancy, the permanency of a voice not only having this dialogical interchange with the parliamentary processes, the politicians, the government, the opposition and the crossbench parties around a whole range of complexities but also providing formal advice from time to time on matters that are going to affect us if it's legislation or if it's policy. I think we sometimes think of the voice as a third chamber of the parliament when in fact what I am hearing is that it would not be that; it would be more of a relationship matter, coming to a more equal conversation about the matters that the government is confounded by and the parliament is compound confounded by, where the First Nations can put perspectives that may help get better outcomes and better results and better policy rather than it being a prescriptive thing saying 'you must do this'.

Prof. Buckskin : I think it will have the element of authoritative processes and protocols built into whatever it is that gets established. We have to be held accountable for the decisions we make, but most of the time it is advice that we give and other people make the decisions. It is not about blame game; it's about giving people the capacity to develop their strategies and to take some responsibility for decisions that we make. You cannot do that if you are continually providing advice and then other people are implementing it. Aboriginal people have given great advice to governments over many, many years since 1901, but do we implement it? No. Non-Indigenous people implement it. There are more non-Indigenous people implementing Aboriginal policy today than ever before. I find that a retrograde step, the lack of Aboriginal voices in the areas of health and education and law.

I started my participation advocating for and representing Aboriginal education 40 years ago with the Liberal government after being appointed to a national Aboriginal education council. That continued all the way up, but Labor got rid of it, unfortunately. There is now no national voice on Aboriginal education. We had the Aboriginal AEP established in 1989. We have a whole range of policies that are still relevant today. The first tenor of the AEP was to consult with Aboriginal and Torres Strait Islander people. We are still asking to be consulted. Some bureaucrats do that better versus their ministers, under the authorities that they have as being heads of department and having their own advisory mechanism. Obviously that informs the secretary to provide good advice to the minister but they are responsible too. It is not a ministerial endorsed process in some departments; it is where the secretary gets a collective of Aboriginal people together that they see as experts in the area and they consult. I want to see a more established representative expert mechanism that can actually advise on a whole range of issues around housing, the social determinants, understand what they are, be informed and see the implementation. But I don't see our Aboriginal voices being as prominent as they were in the Australian government's bureaucracy and, unfortunately, that is replicated in a lot of state and territory bureaucracies as well.

Senator DUNIAM: Thank you very much, Professor Buckskin and Mr Waters. I just had a question, going back to the first bracket of questions from the chair, around the points you made in your opening statement. Apologies for being late, from Tasmania—that's not why I'm late, but I'm from Tasmania. We're behind in some ways. There was a point around the voice body being truly representative. One of the difficulties we have is around how we ensure any model is going to be truly representative. I note the document you've tabled here talks about previous entities where a select group of Aboriginal and Torres Strait Islander people were appointed as advisory committees to government. Whilst they were recognised as having both profile and important opinions, they could never been seen as representative of diverse interests. Noting also another comment you made with regard to the diverse communities with different issues to deal with and different priorities, how do you actually make sure that something is truly representative?

Prof. Buckskin : I think non-Indigenous leadership in this country needs to understand that we pick our leaders; with all respect to the committee, you don't. We select them through our elders, through our leadership in our communities. I'm proud to know that my community elected me to be sitting on a board that has been charged with developing Australia's views around how we look after the Narungga, how we position our community for the 21st century and how we develop schedules—we've got 12 of them, for every state and territory chief executive here—about key things that we want for the Narungga. We say, 'This is what we want for education, this is what we want for our national parks and wildlife, this is what we want for fishing rights, this is what we want for better policing and justice issues on the lands of the Narungga.' That comes because the people elect people, then we get on to do it, and then we report back. Some people obviously think we can do it better, and that's fine, because that's democracy. That's engaging in that community based reflection—they can actually make comment on what they think we're doing well and what they think we can improve. We choose our leadership.

Senator DUNIAM: Yes, I suppose that's what I'm getting at.

Prof. Buckskin : It's not for non-Indigenous Australia to do.

Senator DUNIAM: I'm not suggesting it is, but I'm looking at the nuts and bolts of how it happens.

Prof. Buckskin : Talking to non-Indigenous Australia, my advice to non-Indigenous Australia is to start being more respectful to the voices of the Aboriginal and Torres Strait Islander leadership. We can't make many more mistakes than have been made already by the governance arrangements in the state on how to administer Aboriginal and Torres Strait Islander affairs.

Senator DUNIAM: I fully understand what you're saying, Professor. You're saying that each of the communities has a leadership, like the one you refer to.

Prof. Buckskin : They've got to promote and develop their leadership models. They've got to give an opportunity. They've got to agree that that's what they go into. We decided as the Narungga to go into our process. We're going to wait for any other group in South Australia, we're going to wait for the nation. We just look at our literacy and numeracy outcomes, our schools, our retention rates, et cetera. We look at our intergenerational employment of our people. Governments aren't fixing it for us, despite our advocacy and banging on the table, so we decided to take some responsibility and try to bring our communities together. Our community was one of the communities defunded under the Abbott government when they decided to restructure the funding under the AIS of Aboriginal communities and organisations. We're still recovering from that. We've got to find a new way of engaging with government on how they want to support our community, and a much more respectful way of giving us the opportunity to develop those strategies together. We're the people that have to implement them. We've got non-Indigenous people running around our communities and doing things to us rather than with us. That's a shame in the 21st century. It's more like a 1901 model, not a 21st century model.

Senator DUNIAM: Just to be clear, noting the point you made in your opening statement, it's not a one-size-fits-all approach; each community's different. I just want to get to that.

Prof. Buckskin : I suppose that there has to be an overall philosophical arrangement in this country that appreciates and understands that there needs to be a better relationship with the First Australians.

Senator DUNIAM: Thank you.

CHAIR: I think that's a message that we've heard right across these consultations—that each community is different and in whatever process comes out of this we have to respect the uniqueness of the different communities. I thank you both for your attendance here today. If you've been asked to provide any additional material, would you please forward it to the secretary by 16 July. You'll be sent a copy of the transcript of your evidence and will have an opportunity to request corrections to transcription errors. Thanks so much.

Prof. Buckskin : Thanks.