Aboriginal Input into Constitutional Reform - With Prof Megan Davis
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Chris Patterson 00:06
Hello and welcome to the Law Down Under Podcast with barrister Chris Patterson. We will give you insights into the law in New Zealand and Australia, its application, and the law's future. Each episode features a new guest who will inspire interest in the law and give you a greater understanding of the legal issues that helped shape our justice system here down under. We thank you for tuning in and hope you enjoy the podcast. I'm very excited and privileged to have with me joining me on the podcast today, Professor Megan Davis. Megan serves as the Pro Vice Chancellor of Indigenous Affairs at the University of New South Wales, Sydney, as well as a professor of law. She's a renowned constitutional lawyer and public law expert, focusing on the efficacy for Aboriginal and Torres Strait Islander people, with work that extends internationally through her role at the United Nations, focusing on global indigenous rights in 2017, and again in 2019. Megan was elected by the United Nations Human Rights Council to the UN Expert Mechanism on the Rights of Indigenous People, based in Geneva, and she currently serves as chair. Professor Davis was named Australia's most influential woman in the Australian Financial Review's Qantas 100 Women of Influence Awards and was awarded the overall winner of the public policy section. She was also named in 2017 by the Australian Financial Review's annual power list and was ranked number seven on the cultural power list for her work on constitutional reform and delivering the Uluru Statement from the Heart. Professor Davis holds a Bachelor of Laws, a Bachelor of Arts in Australian history from the University of Queensland, a Graduate Diploma in Legal Practice, a Master of Laws in international law, and a Doctor of Philosophy from the Australian National University. Megan, welcome. How are you today?
Prof Megan Davis 01:59
Hi, thank you for having me. I'm really well. It's cold here in Sydney, but...
Chris Patterson 02:03
That's good. Well, we've entered sort of the winter, although while we've had shorter days, I always just sort of feel a little bit cold about. What can you say? As I was fortunate over the weekend, I managed to get up to northern New South Wales, to a lovely spot called Hastings Point, just north of Byron Bay. It was a lovely 24 degrees, and I managed to get out on the water. What a great piece of paradise. Have you spent any time up that way?
Prof Megan Davis 02:32
No, I haven't, but it sounds lovely. Let me know. I was in Perth for the...
Chris Patterson 02:39
The weekend. Did you take my team lost?
Prof Megan Davis 02:44
Chris Patterson 02:48
Would it be fair to say they were the victims of some rather harsh calls, or was it just the better team on the day?
Prof Megan Davis 02:55
I can't actually say that because I'm a board member of the Australian Rugby League. I can't answer that question. All I can say is that, you know, one more game. Yes, alright. It's not all lost.
Chris Patterson 03:11
It's not all lost. There's always a big season to look forward to. Alright, let's talk. You know, sometimes, teams just need something like that to pick them up, and then they get going and leave the best for last. Right? Let's talk matters constitutional. What I was hoping you could help with, for the listeners, some of whom won't know a lot about Australia's constitution at all, some will know quite a bit. But can you give us a summary of the constitutional framework that has constituted Australia as the Commonwealth state that it is today? What's the Constitution made up of?
Prof Megan Davis 04:00
So we have a written constitution that was drafted in the 1890s and came into force in 1901. You know, most of constitutional law and acceptance of pretty robust constitution. We've never had any major constitutional crisis, except for obviously 1975 and Gough Whitlam, around the interpretation of the Constitution. But it's, but it's kind of a very functional Constitution. It distributes powers across the Federation. So, of course, Australia, before the Federation, was the number of colonial parliaments and colonies who all came together in a union, of course, and federated and retained various powers for themselves and conferred various powers to the squeaky wheel in the Commonwealth. And then there's a lot of shared powers across the Federation, but kind of functional in that kind of distribution of power across the continent. In relation to indigenous peoples, we were involved in the drafting of the Constitution, and the original Constitution that came into place in 1901 excluded Aboriginal and Torres Strait Islander peoples from meaningful participation in the Federal Parliament. And it also excluded Aboriginal populations from the counting of the national population for you. So, you know, from the outset, in terms of indigenous rights, it was a constitution that very much excluded First Nations peoples from the legal and political arrangements.
Chris Patterson 05:53
Now, Megan, I do want to focus throughout this podcast on the issue of indigenous people. But I do want to ask this going back to 1901, or 1900, other than Queen Victoria, who's obviously a woman approving the Constitution, because that was her role, or part of her role or involvement at the time? What role did women have in the drafting of the Constitution and voting for it?
Prof Megan Davis 06:27
Well, women weren't included in it as well. Were not included in the drafting of the Constitution. And so, you know, it was by and large middle-class men who owned property. So, so yeah, it was a pretty gendered kind of framework as well. That's not to say there wasn't a very strong history of very strong women's groups in it, particularly in colonies like South Australia, Western Australia, Tasmania, and Queensland, who were really fierce in advocating for women's recognition and women's role in the drafting of the Constitution, but they obviously weren't included.
Chris Patterson 07:23
Okay. Now, the Australian Constitution, the piece of legislation itself, covers most of the aspects that one would expect in a constitution for a state, particularly a federal one, it covers the Parliament, the executive government, the judiciary, trade and finance, the states themselves, and introducing any new states. What are your views on whether it's lasted the test of time and whether it has served? And we'll come back to the issue of indigenous people, because it's beyond doubt that it hasn't served them. But how has it served the Australian people generally?
Prof Megan Davis 08:15
I think it depends on who you talk to, but most Australians would probably think that it has served the Australian population really well. It's not the easiest constitution to read, and you often need additional material to understand what the Constitution means. By and large, it enables the Commonwealth and the States and Territories to function, understanding their various powers under the Constitution. Of course, the primary arbiter in these disputes has been the High Court of Australia, and the High Court's jurisprudence has strengthened the power of the Commonwealth over the decades, to the detriment of State and Territory power. But, generally, people believe it has served us well. There are some areas where it has worked well, like managing the distribution of powers, but there are also areas that need updating. These include issues like citizenship, who is allowed to stand for election, recognition of local government, and other matters like republicanism and four-year terms in the Constitution. People believe that the rule of law and relative peace in Australia are consequences of the national constitution, although it's arguable that our welfare state and commitment to universal healthcare have played significant roles as well. Vulnerable communities, such as indigenous communities, may not feel well-served by the Constitution due to the lack of constitutional or human rights. It's also worth noting that most common law countries now have some form of a Bill of Rights or Charter of Rights as a check and balance on state power over federal power, which Australia lacks. This is an important yardstick when evaluating how well the Australian Constitution is functioning. Additionally, Australia's constitutional system lacks certain accountability mechanisms for Commonwealth power, making it an extreme form of parliamentary sovereignty.
Chris Patterson 10:43
I agree. When assessing the success of a constitutional framework, it's important to consider the views of vulnerable communities, such as indigenous populations who might not feel well-served. The recent COVID pandemic highlighted the Constitution's role, where the federal parliament's authority was evident in many areas, but cooperation with states and territories was necessary. This test demonstrated the constitutional system's ability to allow states and territories autonomy, which was appreciated. When we look at international comparisons, most common law countries have some form of Bill of Rights or Charter of Rights, which acts as a check and balance on state power over federal power. In Australia, the absence of such a framework may make it challenging for our judges to comprehend the jurisprudence around rights. The Australian Constitution is a robust system but may need some improvements in areas like accountability mechanisms for Commonwealth power, as well as recognizing the need for constitutional or human rights.
Prof Megan Davis 15:28
Yes, it's true. I agree. The Australian Constitution has created a relatively stable system for the most part. However, it's important to acknowledge the provisions like Section 51(26), which allow the Commonwealth to single out Aboriginal people for adverse treatment based on their race. This provision has had detrimental impacts on Aboriginal communities. For example, the Native Title Act Amendments, which reduced Aboriginal native title to a bundle of rights and upgraded pastoral leases to freehold. These consequences have been dire for our community. So, while the Constitution has provided a sense of moral rule and a distribution of power between the federal government and the states, there are aspects of it that have been destructive to people's lives.
Chris Patterson 17:41
Now, the Constitution can be changed. There have been 19 referendums since 1906, but only eight changes have been made. There is a mechanism for changing the Constitution, isn't there?
Prof Megan Davis 17:59
Yes, there is a provision in the Australian Constitution, Section 128, that outlines the rules for changing the text and how those changes can be approved. So there is a mechanism, but it hasn't been engaged very often, and when it has, it hasn't been very successful.
Chris Patterson 18:21
Okay, so it's something that might need reform itself. Now, can we rewind the clock back historically and look at how we've arrived at the point you've just clearly explained? Understanding the current constitutional arrangements, which was great, but could we go back in time and explore how we got here before we delve into where we might be heading in the future? Australia wasn't "discovered" by the Europeans, although they claimed to have "discovered" it. When they arrived, the continent was already inhabited by a large number of Aboriginal and Torres Strait Islander people who had been living there for thousands of years. It's scientifically proven that the First Nations of Australia had been on the continent and the Torres Strait Islands for over 60,000 years. Is that accurate?
Prof Megan Davis 19:46
Yes, that's correct. Recent scientific studies, like the one published in Nature magazine, have shown that Aboriginal people have occupied this continent for well over 60,000 years. This is also acknowledged in the Uluru Statement from the Heart.
Chris Patterson 20:24
Let's go back in history. In the 1770s, Captain Cook, who was assigned to discover the great southern continent, stumbled upon New Zealand, which was already occupied by a group of people who had been there for hundreds of years. Then he encountered Australia, which was "discovered" to the extent that it wasn't known to the British Empire at that time. What happened next?
Prof Megan Davis 21:09
The historical narrative is quite complex. The British Empire had various approaches to colonizing new lands, which included theories of settlement, conquest, and cession. When the British arrived in Australia, it was inhabited by Aboriginal people, but they didn't possess it in the way the British recognized property ownership. Settlement, the theory the High Court ultimately relied on, was based on the idea that the land was uncultivated and not possessed in the British sense, or inhabited by "backward" people, which was the language used at the time. The theory of conquest involved forcible invasion of unoccupied land, while the theory of session required a treaty when indigenous populations were present. In Australia, the settlement theory was primarily applied, leading to the automatic application of British laws. The reality was that the frontier wars began soon after British arrival and continued for a long period, extending until the late 1800s or even the early 1900s. We don't have a clear and unified national narrative about these events.
Chris Patterson 25:45
Yeah, look, I think the reality is that in the late 18th century, the British Empire was expanding and sending naval ships to explore and acquire new territories and lands. It was an era of exploration driven by the desire to expand the empire's wealth. That's what was happening. The big fear was that competitors and enemies would beat the British to it, whether it was the French, Spanish, or Dutch, because new lands meant new resources, which added to the empire's wealth. When the British arrived in Australia and New Zealand, they immediately assessed the resources of the land and sent back reports to the Motherland. The question of what to do when encountering indigenous populations was not entirely clear, as the British Empire had inconsistent colonial policies. In Australia, there was no treaty with the Aboriginal people, unlike New Zealand, where there was a treaty. The versions of these treaties had substantial differences, which I'll come back to later, especially concerning the concept of "Makarrata," which means a treaty or agreement. But before we delve into that, you mentioned Mabo. Earlier this month, we marked the 30th anniversary of the Mabo decision, handed down on the 3rd of June 1992 by the Australian High Court. Unfortunately, it's also relevant to mention that Justice Sir Gerard Brennan, who wrote the lead judgment in the Mabo decision, recently passed away. Can you tell us what issue the High Court of Australia was asked to resolve in the Mabo case?
Prof Megan Davis 29:39
Certainly, the main issue before the High Court was the recognition of Aboriginal native title. It involved recognizing that Aboriginal title had survived the interception of British law in Australia. The decision essentially aimed to acknowledge that traditional laws and customs of Aboriginal and Torres Strait Islander peoples were central to their culture, and these laws governed the land for thousands of years.
Chris Patterson 30:38
Could you explain the concept of "terra nullius"? It's a Latin term used in the decision. What was its significance?
Prof Megan Davis 30:55
"Terra nullius" means "land belonging to no one." Although it wasn't necessarily used in practice at the time, the High Court employed this concept to describe the legal situation at the time of British colonization.
Chris Patterson 31:17
Was one of the arguments to deny Aboriginal or Torres Strait Islander rights to land that no one owned the land when the British arrived, so they could claim it for themselves?
Prof Megan Davis 31:47
The doctrine of "terra nullius" effectively meant that the British could claim land if they believed no one owned it, and this justified the dispossession of the land as legitimate because it was considered unowned. However, this doctrine wrongly applied to Australia as it disregarded the existing legal systems of Indigenous peoples and the fact that they had been living on the land for thousands of years.
Chris Patterson 33:42
Justice Brennan appeared to draw upon international law in his judgment. He suggested that the common law should evolve in line with international law, particularly concerning universal human rights. One such right recognized by international law is the right of Indigenous inhabitants in a settler colony to occupy their traditional lands. Did you interpret this as Justice Brennan using international law to highlight the inconsistency between the treatment of Indigenous people and international human rights?
Prof Megan Davis 34:52
Yes, Justice Brennan did draw upon international law to emphasize that the common law should evolve in alignment with international law, especially with regard to universal human rights. The treatment of Indigenous people concerning their right to occupy traditional lands was indeed inconsistent with international human rights declarations. This decision marked an important moment in recognizing Indigenous rights in Australia, even though the legislative implementation of the Mabo decision has been subject to debate and discussion.
Chris Patterson 36:28
He did say, just before we move on from Mabo, I'd like to quote this part because I believe it vividly encapsulates where his thinking lay. He stated, "There can be no worse denial of human dignity to the first inhabitants of this continent than to refuse to acknowledge their existence." This, to a large extent, encapsulates the fallacy of non-recognition that persisted up until that point. I assume this judgment provided some hope to Aboriginal people back in 1992 by finally acknowledging them as the first inhabitants and rejecting the offensive notion of their non-existence. Was that the effect when the judgment was handed down?
Prof Megan Davis 37:41
Absolutely. That's the essence of non-recognition.
Chris Patterson 37:48
Indeed. Let's move on to the Uluru statement from the heart. It recently celebrated its fifth anniversary, stemming from a national constitutional convention held in 2017, where Indigenous people from across the nation came together to make this statement. What is the Uluru statement, how did it come about, and what can you tell us about it?
Prof Megan Davis 38:14
The Uluru statement from the heart is the result of a long process aiming to achieve a referendum on recognition of Indigenous people. It emerged from the Uluru Convention, which was part of a three-stage process to determine what form of recognition was meaningful to Indigenous Australians. A subcommittee designed the Uluru framework and engaged in a constitutional dialogue across the continent to seek the Indigenous perspective on meaningful recognition. It was discovered that a constitutionally enshrined voice to Parliament was the primary reform that Indigenous people sought. The Uluru statement serves as an invitation to the Australian people, explaining why constitutional change and the establishment of a voice to Parliament is necessary. Instead of delivering the statement to then-Prime Minister Turnbull at Uluru, the decision was made to present it to the Australian people. The statement provides a heartfelt letter to the Australian people, directly addressing them and emphasizing that Indigenous people have never been constitutionally empowered. It asks for their support to change the constitution and outlines the reasons for doing so.
Chris Patterson 42:15
Is it correct that sovereignty is a central concept within the Uluru statement?
Prof Megan Davis 42:26
Yes, sovereignty is indeed a critical issue for Indigenous people regarding recognition. What we have learned from our work over the years is that there is no form of constitutional recognition that can extinguish or negate Aboriginal claims to sovereignty. We've consistently asserted that our sovereignty has never been ceded since sovereignty was declared in 1788. We maintained this position in 1901 when the Federation was formed, reiterated it in 1967 when we were included within the power of the federal parliament to make laws regarding Indigenous people, and it remains true in the context of the Mabo decision and the constitutional reform we're currently seeking. What the Uluru statement emphasizes is that Indigenous sovereignty coexists with the crown, allowing both to exist in the constitutional framework.
Chris Patterson 43:37
For our listeners, I'd like to read a passage from the Uluru statement because it's beautifully written and provides significant context. The statement reads, "We seek constitutional reforms to empower our people and to take our rightful place in our own country. When we have power over our destiny, our children will flourish, they will walk in two worlds and their culture will be a gift to the country." The aspirational tone of this statement is quite moving.
Prof Megan Davis 44:20
Indeed, it's a powerful and moving statement, setting the stage for Australia to take meaningful steps to give it substance.
Chris Patterson 44:24
It is powerful. Now, let's turn to the concept of "Makarrata" and the Makarrata Commission. Could you explain what Makarrata is and tell us about the Makarrata Commission?
Prof Megan Davis 44:54
Yeah, sure. "Makarrata" is the term from the Yolngu clan in the Northern Territory. It was a name that was given by Galarrwuy Yunupingu to the treaty movement in the '70s. It's based on a kind of dispute resolution ceremony in the Yolngu clan, which has to do with coming together after struggle. That's why the word "makarrata" means coming together after a struggle. The Makarrata Commission is effectively a commission that First Nations people hope will be set up after a voice referendum is successful. The commission's work will be to fast track land rights, the Native Title agreement, and help negotiate treaties or agreements across the continent with nations. During the course of the dialogues, what we heard was that many communities said they did not have the resources to enter into treaties with the states. Many said that after Native Title and discussions in communities, the Native Title process has torn many communities apart. There are a lot of concerns that nations can't negotiate treaties until they learn to communicate effectively with each other. People talked more about dispute resolution services in their community than treaty-making. So the Makarrata Commission is intended to be the commission that is set up after the voice referendum to facilitate that and truth-telling. I don't know who called it "voice, treaty, truth." That's a colloquial term. The term is "voice, Makarrata," and Makarrata is the process that begins after the voice, after First Nations people press play on this piece of work in a successful referendum. Truth-telling, I think, got hijacked by academics and elites and people after the Uluru Statement process. People assumed it would be a truth commission, but truth-telling was not introduced as a truth commission by the people who participated in the dialogue. The view was that there's a lot of truth-telling that happens in the nation now, and that groups will decide when aspects or elements of that truth will be filtered upwards to some sort of Makarrata Commission. But people were adamant it needed to be bottom-up, driven by communities and individual nations, not by some centralized body that decides what truth commission looks like. I think that's an important point because we're thinking too much in the Australian context. Now we're conflating transitional justice theory and practice, which is not an Aboriginal thing. They're conflating it with unfinished business and the work that needs to be done in Australia to get on the road to reconciliation or whatever it is that we're pursuing as a people. People in the dialogues also said reconciliation was the wrong word. But that's in essence what the Makarrata Commission is. It's meant to flow on from the voice. And part of the reason for that is the threshold question of a treaty and the treaty with. A big part of the creation of the voice is to work out what that means.
Chris Patterson 48:58
Okay, so it sounds to me that there is a lot of work to be done before the Makarrata Commission will come into existence, if at all. And if I'm understanding you right, Megan, one of the things that's going to have to happen is there's going to need to be a referendum.
Prof Megan Davis 49:21
Yeah, there needs to be a referendum on a voice. I mean, the Makarrata Commission, Linda Burney took it to the election as policy. So I wouldn't say there is a lot of work to be done on this. But once the referendum is successful, then they can work towards getting it up. Currently, the work is towards the referendum. Yes.
Chris Patterson 49:46
Look, can I ask about the Uluru statement from the heart? How has that been received by the wider populace in Australia? What's been the feedback you've received?
Prof Megan Davis 50:00
In five years, it has really changed. I mean, our testing on the Australian Central is no different from political parties. So it's been polled for over five years. It never sits in negative territory. It always in positive territory, usually around 58-59-60%. Sometimes it gets higher, depending on the issue at hand. So during the Black Lives Matter period, the yes vote went up, and the undecided moved to the yes. We even had a lot of rusted no voters move to the undecided. So it really just depends on where you're sitting in a political cycle as to how it polls. But prior to there being any focus on it and prior to there being any campaign for it, it's polled better than any other proposal for change in Australia for First Nations people.
Chris Patterson 50:53
Okay, so is it something that we can expect that a formal request for a referendum will be presented to the Federal Parliament?
Prof Megan Davis 51:10
Yes, the government expects to have a referendum sometime in the next year or the year after. Attorney Generals have started hiring lawyers for the voice section of the Office of Constitutional Law. They're already looking at language, wording, and timing. So it will be presented to the Australian people, although I don't have the exact date.
Chris Patterson 51:33
Okay. Well, it's certainly something that can also have relevance to the people of New Zealand. There is a concept in the Maori concept of "rangatiratanga," which is Maori sovereignty. In 1840, there were two versions of the Treaty of Waitangi. There was the English version, which made it clear that the signatory tribes became citizens of the British Empire and conceded sovereignty. The Maori version didn't concede sovereignty and provided for "rangatiratanga." So it may be that what happens in Australia may provide further impetus or aspiration for indigenous people of New Zealand to look at the issue of the voice within the constitutional setting that exists in New Zealand. Certainly, what happens in Australia may have far-reaching implications and be very exciting.
Prof Megan Davis 53:32
Thanks for having me.
Chris Patterson 53:35
Thank you for tuning in to this episode of the Law Down Under Podcast. You're welcome to join the discussion via my podcast page, which you can access at patterson.co.nz. That's patterson.co.nz. Thanks for supporting the podcast, and tune in again for more on the law, its application, and the future of the law here down under.