Chifley Research Centre
Saturday, 4 February 2023

Senator Patrick Dodson’s address to the 2023 Chifley Conference

National Press Club, Canberra
Saturday 4 February 2023

Greetings to you all.

I pay my respects to the Ngunnawal and Ngambri peoples, on whose land where we gather this morning, and I thank Tina Brown for her Welcome to Country.

I acknowledge the presence here of distinguished visitors, my Parliamentary colleagues and the many Labor luminaries who are attending the conference this weekend.

And I thank the Chifley Research Centre for the opportunity to talk to you today.

Ben Chifley was halfway through his four-and-a-half-year Prime Ministership when I was born 75 years ago.

Twelve months before he became Prime Minister, Chifley – as Treasurer under Prime Minister John Curtin – was one of the architects of the Post War Reconstruction and Democratic Rights referendum that was put to the people in August 1944.

The so-called 14-powers referendum sought to give the federal government a five-year licence to legislate on a range of health, welfare, economic and infrastructure matters.

And, here’s a fact little known beyond the thin ranks of those who know the history of our Constitution:

Point number fourteen, and last, on the 1944 referendum wish list was for the Commonwealth to have power to legislate for “the people of the aboriginal race”.

It seems that the Labor government tacked the Aboriginal clause onto its reconstruction agenda at the behest of the Association for the Protection of Native Races, whose president was the clergyman and anthropologist, A P Elkin – an avowed assimilationist.

But pre-war agitation by Aboriginal leaders like Yorta Yorta man William Cooper would also have played into the government’s wish to legislate for Aboriginal people.

I’m a great admirer of Cooper who in 1937 famously presented Prime Minister Joseph Lyons with a petition to be forwarded to King George the Fifth, praying for Aboriginal representation in the Commonwealth Parliament.

Lyons made a pretence of considering the petition, but he never did forward it to the King.

Australia’s international standing, post war, was no doubt another factor which moved the Labor government to be seen to take some responsibility for First Nations people – not that that language would have been used back then.

There’s still some nervousness today about referring to First Nations in this country.

The Victorian Labor MP Lesley Haylen was publicity director for the 1944 referendum, and he, for one, was mindful of our international reputation:

“After the war,” he said, “Australia may have other dark-skinned people under its mandate or control, and unless the aborigines are properly cared for, this country would be subjected to criticisms levelled at Hitler and his followers when they oppress the minority populations under their control.”

In spite of Haylen’s publicity skills, the referendum was lost.

It did gain a majority vote in two states – South Australia and Western Australia – but, nationally it won only a 45.99 per cent approval.

No doubt the majority voters were put off by the multitude of the clauses which the government was seeking to win approval for under the umbrella of just one omnibus question.

Chifley became Prime Minister a year after the referendum, but he was never inclined to revisit the idea that the Commonwealth should be able to legislate for Aboriginal people.

In the words of his biographer David Day:

“He seemed content to let responsibility for their welfare rest largely with the states whose treatment of Aborigines varied from indifferent to atrocious.”

The status quo would prevail – that is, section 51 (xxvi) of the Constitution remained.

That section then said:

“The Parliament shall have power to make laws with respect to the people of any race, other than the Aboriginal race in any State, for whom it is necessary to make special laws.”

So, from the very first day of federation, the states had free reign to rule over us.

Not having us on their books, except in the Northern Territory, gave Commonwealth governments the excuse to pretend to ignore us.

Any blame for bad treatment lay with the states.

There was still land aplenty to be grabbed at the start of Federation.

Killings of Aboriginal people would continue for at least the first three decades in the life of the new country, without anyone being held accountable.

Only a couple of months ago I was invited to write an endorsement for a new non-fiction book about a massacre of Aboriginal people in the Kimberley in 1926.

Kate Auty is the author, and her book is called O’Leary of the Underworld.

Kate was my legal officer when I was a commissioner on the Royal Commission into Aboriginal Deaths in Custody.

Police officers and white civilians murdered at least twenty Oombulgurri people at Forrest River – country that I know well.

Oombulgurri, a mission settlement, was demolished by the WA Government only a few years ago.

Bernard O’Leary was a returned World War I light horseman, and Auty puts him at the centre of the killings with two police officers.

The official response by the Western Australian government was calculated to bury the truth and deny justice to Aboriginal people.

A Royal Commission in 19027 was compromised by missing witnesses.

A subsequent criminal trial of the two police officers went nowhere.

Even in the Northern Territory, where the Commonwealth government did have constitutional control, uniformed killers ran amok and nothing adverse was ever found against them.

The 1928 Coniston massacre in Central Australia, for example, was scandalously covered up.

After the killing of one white man, Fred Brooks, revenge raids led by police officially left 31 Aboriginal men woman and children dead.

The death toll was certainly much higher.

The raids were led by constable George Murray, also a former World War one light horseman.

He happened to be an acquaintance of Bernard O’Leary, who crossed the border from WA to join in the killings.

A sham board of inquiry appointed by the Commonwealth government found the Coniston killings were justified on the grounds of self-defence.

I dwell on these horror stories, not just because of their relative recency, but because they represent the unfinished business that the Uluru Statement from the Heart seeks to address.

The country thought it was on the road to repair when it voted overwhelmingly at the 1967 referendum for the Commonwealth to be able to make special laws for Aboriginal people.

For the record, that was 23 long years after the doomed 1944 referendum promoted by the Curtin government.

In 1967, there was no clamour for detail about what laws the Commonwealth might envisage after a successful referendum.

And there was much euphoria when more than 90 per cent of voters said yes to amend the Constitution.

Was that because it was not a new provision in a new chapter of the Constitution, or because the amendment sat squarely in the racist origin of S51(26)?

But that amendment, so widely celebrated, would prove to be something of a Trojan Horse.

I was in my final year of secondary school down in Victoria when the ‘67 referendum was held.

I was 18, and couldn’t vote because the voting age back then was 21.

But I do remember that the general presumption at the time was that things might improve for us Aboriginal people because the Commonwealth was taking hold of policy and legislation.

We all thought the constitutional amendment – the so-called race power – would authorise the Commonwealth to enact only beneficial laws affecting us.

And we took heart from the High Court Tasmanian Dam case in 1983 when Justice Gerard Brennan, later to become Chief Justice, said the race power was, and I quote:
“…an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial,” unquote.

Further, Justice Brennan said back in 1984 – and I quote again:

“The passing of the Racial Discrimination Act in 1975 manifested the Parliament’s intention that the race power would be used only for the purpose of discriminatorily conferring benefits upon the people of a race for whom it is deemed necessary to make special laws.”

The race power, for example, entitled the Commonwealth parliament to pass the Aboriginal and Torres Strait Islander Heritage Protection Act in 1984, and the Native Title Act in 1993.

None of us expected that the power could be used against us.

How misplaced was that!

The High Court blew away that expectation in 1998 when it upheld the validity of the Howard Government’s Hindmarsh Bridge Act.

As the dissenting judge Michael Kirby wrote, the Act was designed, in effect, to terminate the pursuit by Aboriginal traditional owners of their rights under the Heritage Protection Act and to prevent any further such applications.

And so it was that the Howard government went on to use the ’67 amendment to licence a welter of laws to sustain its infamous Northern Territory intervention in 2007.

I have said it elsewhere before: it was to the discredit of the Labor Opposition that it backed the intervention, even though it was facing an imminent federal election and was not wanting to be seen as opposing the Mal Brough rhetoric about protecting Aboriginal children.

If ever there needed to be a First Nations’ Voice to the Parliament, that was a time.

The Howard government, of course, had got rid of ATSIC a couple of years earlier – also with Labor’s support, I must note.

Because it had fallen out of favour with the government, ATSIC was disbanded – just as previous representative national bodies had been gotten rid of – the National Aboriginal Conference in 1985 and the National Aboriginal Consultative Committee before that, in 1977.

Howard himself had forever opposed the creation of ATSIC, and the Coalition’s arguments in 1989, when the ATSIC legislation was introduced, bear close resemblance to the arguments today from some in the Coalition who oppose the principle that a Voice should be embedded in the Constitution.

At least for the meantime, Opposition Leader Peter Dutton, while niggling away about the need for more detail about the Voice, has been prepared to engage with the Referendum Working Group which the Albanese government has assembled to advise us on implementing the Uluru Statement from the Heart, especially the upcoming referendum.

The working group comprises around 20 First Nations leaders and they have been advised by some of our best constitutional lawyers.

The working group last met again only two days ago, when Mr Dutton joined for a while.

The working group took time to brief him on Thursday about the many turns of events which culminated in the Uluru Statement from the Heart, in May 2017 – which itself was the culmination of an exhaustive round of constitutional consultations with First Nations people across the land.

A dozen regional constitutional dialogues preceded the convention at Uluru, and the hundreds of delegates to those dialogues were carefully chosen.

60 per cent came from traditional owner groups, 20 per cent came from community organisations, and the remaining 20 per cent were key individuals.

But the journey to recognition was launched many years before those regional dialogues and the convention at Uluru.

As the working group informed Mr Dutton, we have had seven processes and 10 reports since 2011, and I think it’s worth reminding you all today about how tortuous that journey has been.

In November 2010, Prime Minister Julia Gillard established an expert panel to consult on options for a constitutional amendment recognising Aboriginal and Torres Strait Islander peoples, to be put to a referendum.

I co-chaired that expert panel with the esteemed Melbourne lawyer Mark Leibler, and we reported in January 2012.

In February 2013, the Parliament passed the Aboriginal and Torres Strait Islander Peoples Recognition Act, which was sent off for consideration by a Joint Select Committee.

That committee, co-chaired by Ken Wyatt and Nova Peris, produced three reports: an interim report in July 2014, a progress report in October 2014 and its final report in June 2015.

As well, in September 2014, there was the report of a review panel which was tasked with assessing levels of public awareness and support for amending the Constitution.

John Anderson, who’s now apparently an opponent of the Voice, was chair of the review panel.

I was back in the fray in December 2015 when Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten appointed me to co-chair the Referendum Council, whose job was to advise on progress and next steps towards a successful referendum.

I had to resign from the council in March 2016, before the dialogues began, when I was invited by Bill Shorten to fill a vacancy for WA in the Senate.

After the Uluru Statement was settled in May 2017 and the Referendum Council reported a month later, I co-chaired with Julian Leeser the Joint Select Committee on Constitutional Reform and we submitted our final report in November 2018.

This was the best we could manage to stop the issue of a Voice to Parliament from being lost under false assertions that it would be a third chamber of Parliament.

Finally, after the election of the Morrison government, Proessor Marcia Langton and Tom Calma in July 2021 produced their final report on a co-design process to establish a Voice – although that government eschewed the fundamental request from Uluru that the Voice should be embedded in the Constitution.

The Labor government led by Anthony Albanese has had no such qualms.

As you all know, we’re committed to implementing in full the Uluru Statement from the Heart, and we’ll be holding a referendum before the end of this calendar year, seeking to embed a Voice in our Constitution.

And while much of the focus of our work since coming to office just over eight months ago has been on the Voice, we have not passed over the other, important elements of the Uluru Statement – Treaty and Truth.

For instance, our last Budget committed five point eight million dollars towards establishing a Makarrata Commission.

We’ll be in a position to say more about progress on those fronts later in the year.

In my first public engagement as Special Envoy for Reconciliation and Implementation of the Uluru Statement from the Heart, I spoke to Reconciliation Australia’s national conference in June last year.

I pledged then that I would not be attacking those who would be arguing against a Voice.

In the end, they’re entitled to their opinions, as wrong-headed as they might be.

I’ve held to that pledge, but let me tell you: with so much nonsense and mischief being peddled out there, there’ve been times when it’s been hard to hold my tongue.

Having said that, there are some myths and misinformation which I must put to rest.

The provision proposed by the PM at Garma last year will give recognition to Aboriginal and Torres Strait Islander peoples in the Constitution, and give them a right to be consulted by Parliament and Government.

Parliament will retain its supremacy and will be unencumbered in its law making functions.

The Voice will be chosen by First Nations people based on the wishes of local communities.

It will be representative of Aboriginal and Torres Strait Islander communities.

It will be empowering, community-led, inclusive, respectful, culturally informed, gender-balanced and will include youth.

Importantly, it will be accountable and transparent, and will work alongside existing organisations and traditional structures.

Those principles, agreed to by the working group, have been out there for more than four months now.

However, the referendum working group did decide on Thursday that those principles could be elaborated on, without compromising or limiting Parliament’s processes.

To that end, I will be chairing a small sub-committee of the working group to progress that work, and we’ll be reporting back to the next working group meeting in a couple of weeks.

There are some out there for whom more detail will never be enough, and we will not fall into the trap of answering every last question about the shape and function of the Voice.

That, rightly, will be the job of Parliament post-referendum.

We’re expecting that the working group, having considered the expert legal advice they have sought, will give its final recommendations on the referendum question and the constitutional amendment within the next month.

We’ll then be on track to introduce the Constitution Alteration Bill to the Parliament in March.

The bill will then go off to a parliamentary committee for consideration for some weeks.

Parliament will then debate the committee’s report and recommendations, and once it’s passed the legislation, a six-month window opens in which the referendum must be held.

It can’t be held until two months after the legislation is passed, and must be held no later than six months after enactment.

Preceding this is the legislation to amend the Referendum (Machinery Provisions) Act which was introduced to the Parliament early in December.

It’s designed to regulate financial donations and streamline voting procedures to bring them into line with ordinary election voting protocols..

The Joint Standing Committee on Electoral Matters has been considering the bill and is due to report back to parliament next week.

In spite of all the static that has characterised debate over the past holiday season, I remain positive about the prospects of the referendum’s success.

But success won’t depend on political advocacy.

The invitation from Uluru was to the people of Australia

This will be the people’s referendum.

And if it’s successful, we’ll be a better country.

After all, why shouldn’t First Nations people secure a formal structure through which it provides advice to the Parliament and Government on matters which affect them?

There’s nothing threatening in any way about that.

And why shouldn’t this vehicle, the Voice, that provides advice to Parliament and Government, be protected in our founding document?

We respect and recognise the First Nations by doing this.

At last we’d be recognised.

It would be a momentously unifying moment for all of us.

We will no longer remain diminished as a Nation.

A successful referendum will signal a new and unifying era for this great country.

It will also serve to improve Australia’s standing internationally.

Government policies have failed First Nations people so far, and international agencies are constantly taking note of those failures.

It continues to appal me that the statistics around entrenched poverty, incarceration and child removals continue to blight First Nations communities, especially remote communities.

We are capable of doing better.

We must do better, and a permanent Voice with a singular focus on such matters, will help achieve better outcomes.

I’ve been on a mission of reconciliation for decades now.

As I said at the start of this address, I turned 75 a week ago.

That makes me a very old man in Aboriginal years.

There won’t be another opportunity like the invitation from Uluru in what’s left of my lifetime.

I hope that Australians will respond generously to this first step.

The other components of the Uluru Statement will follow under this Albanese government.

Thank you for listening to me.

I’m happy now to take questions.

About Chifley Research Centre:

The Chifley Research Centre is the Labor Party’s official think tank, committed to advancing public policy debate and progressive thinking in Australia.