Beginnings, Endings and the Implementation of the Uluru Statement from the Heart

Late May and early June brought several events which touch upon the connection between the law and Indigenous Australians.

On 21 May, Australians elected a new Federal Government, whose political mandate includes two
matters which have been closely followed and supported in this column: a referendum to amend the
Constitution to include the Voice to Parliament requested in the Uluru Statement from the Heart (the
Uluru Statement), and the creation of a federal anti-corruption body. While the new government has also
appointed an assistant minister for the republic, it has made clear that it is the implementation of the
Uluru Statement that will be the focus of this term of office and that there will be no referendum on a
republic before the next federal election.

On 27 May, at the start of National Reconciliation Week, the Queensland Government announced
the appointment of Mr Lincoln Crowley QC to the Supreme Court of that State. Mr Crowley QC, a
distinguished Crown prosecutor, is a Warramunga man and the first Indigenous Australian to be appointed to the Supreme Court of any State. This appointment is to be celebrated as a positive step in our country’s story.

And then on 1 June, former Chief Justice of the High Court of Australia, the Hon Sir Francis Gerard
Brennan AC KBE QC died a few days after his 94th birthday. Sir Gerard was a lifelong advocate for
social justice, an advocacy which for him was inseparable from his deep Roman Catholic faith. His
special commitment to establishing and upholding the rights of Indigenous Australians was given
national public expression as long ago as 1974, when he represented the Northern Land Council in the
Woodward Royal Commission into Aboriginal Land Rights in the Northern Territory.

However, for many Australians Sir Gerard will forever be known for his leading judgment in Mabo v
Queensland (No 2). (1) His passing was felt as especially poignant because the 30th anniversary of that decision fell only two days after Sir Gerard’s death.

In recording these beginnings and endings, the Journal takes this opportunity to express its support again
for the full implementation of the Uluru Statement: a Voice to Parliament enshrined in the Constitution,
and a Makarrata Commission to supervise truth telling and agreement making between government and
Indigenous Australians. The Journal respectfully adopts this observation by the Hon Andrew Bell at his
7 March swearing in as Chief Justice of New South Wales:

I … express my support for the “Uluru Statement from the Heart”. It is an eloquent, accurate and powerful
statement, which looks forward to “a fuller expression of Australia’s nationhood” with great dignity. In the
spirit of the Uluru Statement, I acknowledge the regrettable reality that this nation’s laws and legal system
have so often in the past delivered the opposite of justice to our indigenous people. (2)

– The Hon Andrew Bell, Chief Justice of New South Wales

The hope engendered by the new government’s commitment to implement the Uluru Statement must be
tempered with the realisation that between now and any referendum much remains to be done. The terms of any proposed amendment to the Constitution must be finalised. The government has reportedly been provided with a draft s 129 which has been prepared by constitutional law experts to create the Voice to Parliament.

It is often said that wide, if not unanimous, political support for a referendum question is a necessary
prerequisite to its passage. There was no official “no” case for the 1967 referendum to amend ss 51(xxvi) and 127 of the Constitution and only three referenda of the successful eight have passed despite a
published “no” case. Much could therefore turn on whether the vote in Parliament on a referendum bill
will result in an official “no” case having to be put to the people with the “yes” case.

Even in the absence of an official “no” case, there will be opposition. Proponents of the constitutional
amendment will need to make their case. They may soon be assisted in doing so through the recently
announced partnership between the Public Interest Advocacy Centre and UNSW’s Indigenous Law
Centre to create “Towards Truth”. This will be a database, publicly accessible through a website, bringing
together the often now hard to find laws and policies that have been applied to Indigenous Australians
over the nation’s history.

One example of opposition has already come from Northern Territory Country Liberal Senator-elect
Jacinta Nampijimpa Price, a Warlpiri-Celtic woman. She has been reported as saying that critical issues
such as family and domestic violence, child sexual abuse, and education should be given priority over
any constitutional reform. (3)

Neither the urgency of the issues raised by the Senator-elect nor her sincerity can be doubted. For example, the “epidemic of violence” against Indigenous women was highlighted in a rare judicial intervention by Justice Judith Kelly of the Supreme Court of the Northern Territory. Her Honour’s newspaper interview on the topic came at the end of National Reconciliation Week. (4)

Similarly, progress on reducing the overrepresentation of Indigenous Australians in prison is painfully
slow. However, some small good news came from a recent report by the New South Wales Bureau
of Crime Statistics and Research which compared outcomes for 151 Aboriginal young people who
participated in the Youth Koori Court with 2,883 comparable Aboriginal young people who proceeded
through the usual Children’s Court process. (5) Youth Koori Court participants were 40% less likely to receive a custodial sentence compared to Aboriginal young people who were sentenced through the regular pathway. While the report found no statistically significant reduction in reoffending, Youth Koori Court participants who did re-offend were 84% less likely to receive a custodial penalty at re-conviction.

One answer to concerns such as those expressed by the Senator-elect is that the project of dealing with the inequality and injustice still suffered daily by Indigenous Australians will be given both new focus and
impetus by a constitutionally enshrined Voice to Parliament. However, in addition to such matters, clear
and easily comprehensible explanations will need to be offered to meet already familiar arguments, most
recently rehearsed by former Prime Minister, the Hon Tony Abbott AC, such as that the Voice to Parliament will be a third legislative chamber or that it will entrench racial distinctions that should be eliminated. (6) Some of these arguments have already been authoritatively rebutted in the pages of the Journal. (7)

Mr Abbott was plainly correct about one thing when he wrote that “our cohesion as a nation is too
important to be put at risk by a referendum that fails”. In some States, implementation of treaty
negotiations and truth telling has already begun or is under active consideration. Victoria, for example,
has recently announced it will be establishing an independent treaty authority. (8)

Significant as these developments may be, national reconciliation requires national action. The Uluru
Statement lays out the two steps that a representative body of Indigenous Australians has identified
as essential for genuine reconciliation. The recent beginnings described in this column suggest that
the community is open to those steps being taken, including by having given a mandate to the new
Commonwealth Government to engage the necessary political and legal processes.

The most important political decisions almost always involve moral choices. The enduring recognition
of Indigenous Australians by providing for a constitutionally enshrined Voice to Parliament is one such
decision. In providing the legal solution to achieve that result, good lawyers understand that there is an
inseparable moral dimension to their work. They should also be well equipped to provide the necessary
clear and persuasive arguments in favour of the measure, as much around the kitchen table and water
cooler as in op-ed pieces and social media posts.

United States Supreme Court Justice Oliver Wendell Holmes Jr once said that the aim of a law school
should be to make lawyers “wise in their calling”, noting that “nearly all the education which men
can get from others is moral, not intellectual”. (9) Sir Gerard Brennan was the epitome of a lawyer wise in his calling. One of his greatest legacies to the law is the corpus of judgments and speeches which demonstrate his lifelong adherence to the proposition that a strong moral compass is essential to the sound development of legal principle.

It appears that the outcomes called for in the Uluru Statement from the Heart may be edging closer
towards becoming realities. If that is so, then these lines by Seamus Heaney chosen by the Brennan
family for Sir Gerard’s funeral notice are apt as both inspiration and challenge: (10)

History says, Don’t hope
On this side of the grave.
But then, once in a lifetime
The longed-for tidal wave
Of justice can rise up,
And hope and history rhyme.