Submission to the Joint Select Committee Is Based on the Interim Report

The information, photos, and images if deceased persons may cause distress in the process of sorry business. Submission

To the Joint Select Committee On

Constitutional Recognition Relating to

Aboriginal and Torres Strait Islander Peoples

Before the 17th September 2018

Hope O’Chin

11 May 2018

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Committee Secretary Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples Parliament House Canberra ACT 2600

Dear Secretary,

Thank you for the opportunity to make a submission to this inquiry. I do so in a personal capacity, as a Kabi-Kabi [Gubbi-Gubbi], Wakka-Wakka, Koa Australian, enrolled as a research student, in a PhD of Creative Arts at the Sunshine Coast University at Sippy Downs, Queensland.

The Australian Constitution needs to be changed to provide appropriate and respectful recognition of Aboriginal and Torres Strait Islander peoples. It is from the intensities of attitudes and values that prevailed in the historic treatment of Cherbourg residents, and other Indigenous Australians, and my personal, and contributions as an educator and practicing artist which informs this submission. It is from this perspective that I have applied this submission to Strait Islander Peoples, to address the issues personally and to contribute to the as outlined in this submission.

The Uluru Statement from the Heart articulate reforms desired by Indigenous peoples. The proposal for a Voice by way of an advisory body/advocacy/peak body and or Makarrata Commission to Parliament is sensible and sound, and provisions exist under present Parliamentary legislation. Further amendments to the Constitution is overdue in addressing inclusion for Australia’s First Nations people.

I applicable these amendments need to address  Preamble and or include introductory words to the Constitution that includes the principles for inclusiveness, purpose and context, respecting continuous occupation of Indigenous peoples on this continent.  The repeal of section 25.  The repeal and replacement of section 51(xxvi), A general power to make laws in respect of Aboriginal and Torres Strait Islander peoples, which do not discriminate adversely against Indigenous peoples.  Other matters include; Australia’s identifying national symbols and emblems.

The following submission examines, discusses and makes recommendations in addressing those issues raise above.

Hope O’Chin Tuesday 11th September 2018

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Table of Contents

1. Submission Proposal …...... Pp, 4 2. Proposed Submission: ………………………………………………………….…………………………….Pp, 4 3. Background of this Submission……………….…………………………….……………….……………Pp, 4 4. Summary of Interim Report …………………………….………………………………………………….Pp, 4 4. i Further Reports informing this Submission …………………………………………….Pp, 4 4. ii Possession Foundation of Indigenous exclusion……………………………………..Pp, 5 4. iii Relevant Literature ……………………………………………………………………………….Pp, 7 4. iv Committee Comment Pp 125 …...... Pp, 8 4. iii Previous Reports. ………………………………………………..…………………………………Pp, 9 4. iv Considerations for the way Forward…………………………………………..……………Pp, 10 5 Suggested models for this Submission…………………………………………..…………………….Pp, 10 5. i Past, Existing and proposed structures …………………………….……………………..…Pp, 11

6. [Preamble] ‘Belongingness’ for all Australians, ………………………….…..….………………Pp, 11

6. i The Question of a Preamble…………………………………………………………………………Pp. 11

6. ii Belonging for all Australians………………………………………………………………………..Pp.12

6. iii Agreement making [truth] …………………………………………………………………………Pp.13

6. iv Australian Peace Summit cultural context of Makarrata Commission ………..Pp.14

6. v Uluru Statement of the Heart……………………………………………………………………..Pp.16

7. Other matters………………………………………………..……………………………………………………Pp.17

7. i Emblems and Symbols of Australia……………………………………………………………...Pp.17

8. Conclusion………………………………………………..……………………………………………………….Pp.17

9. Recommendations…………………………………………………………………………………………...Pp.18

10. References...Pp.29

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1. Submission Proposal 2. Proposed Submission: Submission must be submitted to the Secretariat of the Joint Select Committee before the 17th September 2018.

3. Background of this Submission On 1 March 2018 the Commonwealth Houses of Parliament established the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples (the Select Committee). Submissions to contribute to the interim report be made to Parliament by 30 July 2018 with a final report by 29 November 2018.

4. Interim Report This submission to the Joint Select Committee is based on the Interim Report. The COMMITTEE COMMENT on Pp. 119 which outlines Questions for further consultation in point 7.39 which states: This interim report canvasses options for the possible structure, functions, and implementation of various Voice proposals. The Committee is seeking further evidence in relation to these options and proposes a set of questions for consideration. For a National, Regional and Local voice of Aboriginal and Torres Strait Islander people to Parliament.

4. i Further Reports informing this Submission The Australian Bar Association (ABA) (2018) Submission to the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples. Pp. 3 point 7 explains that: “Since 2010 Commonwealth Governments have established a number of bodies to assist with determining how best to recognise First Nations peoples in the Constitution. Those bodies have all engaged in detailed consultations and produced

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a number of reports and recommendations. 2 Those bodies and processes have been: a. The Expert Panel on the Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples established in 2010 which reported to the Government in 2012; The Expert Panel on the Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples established in 2010 which reported to the Government in 2012; b. The establishment of Recognise in 2012 to campaign for the recognition of First Nations peoples in the Constitution. The campaign was funded until 30 September 2017, but its objectives are now managed by Reconciliation Australia; c. The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples established in November 2012 which reported to the Government in 2015; d. The Referendum Council,3 jointly appointed by the Prime Minister and Leader of the Opposition in 2015 to advise the Prime Minister and Leader of the Opposition on progress and next steps towards constitutional reform, reported to the Government in 2017; and e. The First Nations Regional Dialogues established by the Referendum Council which resulted in the National Constitution Convention held in Uluru in May 2017 and the Uluru Statement.” Pp. 3 point 7 f. Canberra Parliament of the Commonwealth of Australia (July 2018) Interim report Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples © Commonwealth of Australia ISBN 978-1-74366-860-3 (Printed Version) ISBN 978-1-74366-861-0 (HTML Version) http://creativecommons.org/licenses/by-nc-nd/3.0/au/.

4. ii Possession Foundation of Indigenous Exclusion: The implication of Terra Nullius by possession laid the foundation for Indigenous exclusion rather than inclusion in the developments of Australia’s future by the British.

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The matter for First Nation’s diverse people inclusion in Australian society has been a continuous issue of exclusion since a British presence on this continent’s shores. Whereas prior to the arrival of the British, thousands of years of continuous occupancy of hundreds of Indigenous diverse nation have contributed to their survival and the survival of this continent. Undisputed evidence exist in highlighting Indigenous people continuous occupation of Australia.

Defeated in the defense of this continent Indigenous people were slaughtered, captured, rounded up, impounded, controlled and managed on missions and reserves throughout every part of Australia. Then neglect was physical, psychological, and intentional in the grab of lands for mining, postural, farming and other endeavours in the settlement of Australia by the British.

Historians, anthropologists, and authors such as Reynolds (2001), Langton (2000), Loos (1996), Hegarty (1998), Huggins (1998), Kerwin, D. Martin, K. Peterson, N. and Sanders (1988) and others, suggest that alienation and disorientation experienced by Indigenous Australians in its history were influenced by legislation and their accompanying powers, coupled by the attitudes of the day that prevailed, by governments, communities, and ordinary people.

Or Was it necessary to remember That there needed to be Time To converse, time understand to learn from one another, Time To listen to one another And time To share with one another.

The articulation of the above sums up the effect of the proclamation of Terranullus through possession by the British, which promoted colonisation, settlement and ignored Indigenous

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defence of their respective countries, and human presence. A study undertaken by Clark, T. Maddison, S. Ravi de Costa [Editors] (2016) on the topic suggests the settler mentality of Australia refer to Indigenous people as invisible in the question of attempts at reconciling conflict, and further suggest that: “Most of settler society does not see the violence and vulnerability that many Indigenous peoples experience. When they do—and typically this occurs under states of emergency imposed by settler societies—these situations are absolutely not allowed to be understood as the inevitable product of colonialism. This limited, contrived understanding of Indigenous life weakens reconciliation projects by placing the burden on Indigenous peoples to deal with their own problems, or to be subject to further state interventions. Indigenous peoples by contrast, are unlikely to become more widely and deeply interested in reconciling with societies that sporadically pay them attention only to see their suffering as an inherent failing of their cultures and capacities” Pp. 8

Citizenship provides ongoing debate for many Indigenous authors, and author Dobson, M. (1997), elaborates on these issues and argues the following on “Indigenous Citizenship within Australia” by stating: Pre-1967, during the assimilation era, there was a way Indigenous people could, theoretically, enjoy rights like non-Indigenous people. These rights did not, however, inherently accrue to us by virtue of our humanity. If we could show that we lived like white fellas then we could have rights like them. Citizenship and the protection of our rights were a reward, achieved at the price of our Aboriginality. Only if we were prepared to embrace the dominant status quo and renounce our identity could we have access to the spoils of citizenship — education, health care, housing and paid employment, to name just a few.”

4. Iii Relevant literature Relevant literature, provides an examination of exclusion and or inclusion of an Indigenous presence within the Australian Constitution before and since the 1967 Referendum’s ‘YES’ vote, and further explores Section 127, and Section 51 amendments. This begs the question of whether Indigenous people exists within the Australian Constitution and therefore the need for an Aboriginal and Torres Strait Islander Voice to Parliament. It was necessary To remember that there needed to be Time To converse, Time to understand, to learn from one another,

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Time To listen to one another And Time to share with one another.

Previous advice has been obtained by other such processes of consultation in reviewing outstanding issues in the recent past still applies and is still applicable to today’s situation. The Expert Committee foreword by the co-Chairs (2010) suggest that inclusion of Aboriginal and Torres Strait Islander peoples in the Constitution can be achieved by recognising their continuing cultures, languages and heritage as an important part of our nation and by removing the outdated notion of race.” The Co-chairs state:

“We believe that the current multiparty support creates a window of opportunity to provisions from the Constitution, provided that the necessary conditions for a successful recognise Aboriginal and Torres Strait Islander peoples in and eliminate race-based referendum, as detailed in this report, are in place.”

Perhaps that Time is Now.

4. iv. The Committee Comments Pp. 125 Other matters 7.48 The Committee notes that little evidence has been received on other proposals in relation to the recognition of Aboriginal and Torres Strait Islander people, including:  proposals for a declaration of recognition; and  proposals in relation to section 25 and section 51(xxvi). 7.49 It may be that some of the proposals from earlier reports might form part of a package of reforms. Some of the proposals, or a version of them, may potentially have cross party support but may face some opposition from Aboriginal and Torres Strait Islander peoples. If there was an entrenchment of The Voice first would any of these previous recommendations be worth pursuing? 7.50 The Committee would welcome further evidence on these proposals.

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The Joint Select Committee in its final round for the call of submission, have provided more questions in their quest to determine different models for the voice. They call for exploration, analyses arguments, and support or endorsement of or against existing models, and seek further contributions for proposed models.

In finding solutions for appropriate future models to inform Government, consultations, and other means such as submission provide mechanism to questions explore, analyse and argue to the debate of models in providing a voice to the government on issues of concern for and about Aboriginal and Torres Strait Islander peoples. 4. vi Previous Reports In determining different models for an Indigenous voice to parliament proposed from the Uluru Statement of the Heart an understanding of the purpose of that statement needs consideration. This cannot occur unless purpose of the models are an analysed and additional recommendations gleaned from the following reports and other submissions are seriously considered: Reports include the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples Interim report (July 30th 2018), the Referendum Council (2017) proposed Uluru Statement from the Heart. It follows that this submission will complement: a. the following recommendations of the Referendum Council (2017), the Uluru Statement from the Heart (2017), the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (2015), and the Expert Panel on Constitutional Recognition of Indigenous Australians (2012); b. c. d. [I, I,ii,iii,iv,v,vi] and 2 are considerations for the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples processes in reporting mechanisms and recommendation on Referendum matters arising out of the Interim and Final Reports of the Committee.

4. vii Considerations for The Way Forward Pp. 125 The way forward can be obtained in 7.50 The Committee would welcome further evidence on these proposals in 7.51, 7.52, 7.53, 7.54 points below:

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7.51 The Committee looks forward to receiving further evidence on the matters that are discussed in this interim report. The Committee encourages those wishing to make a further contribution to consider the questions outlined in this chapter. 7.52 The Committee intends to travel to more communities around Australia to speak with both Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians. 7.53 The Committee will also consider other methods of engaging with individuals and organisations with particular expertise that could inform the Committee’s deliberations, and with the Australian community more broadly. 7.54 The Committee would appreciate submissions dealing with the questions raised in this report by 17 September 2018. 7.55 The Committee is required to present its final report on or before 29 November 2018

5 Suggested Models 5. i Reports and Existing Models: Existing models of Aboriginal and Torres Strait Islander participation in government and decision making for and about them can be achieved through:  Consultations with experts, individual, and community groups.  Workshops, conferences symposiums, forums,  Discussion papers, white papers, green papers, interim reports.

The Report of the Expert Panel (January 2012) “Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution” recommend that the following underpinning principles should guide any model for constitutional recognition:  contribute to a more uniﬁed and reconciled nation;  be of beneﬁt to and accord with the wishes of Aboriginal and Torres Strait Islander peoples;  be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums;  be technically and legally sound Additionally the Committee seeks direction for the following points raised in the report and they include:

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5. i Past, Existing, and Proposed structures  7.40 As outlined in this report, the Committee is aware of a number of past and existing structures that could inform the design of The Voice.  7.41 The Committee notes that several indicative models for The Voice have been presented in evidence over the course of the inquiry so far.  7.42 For instance, the Committee heard from regional bodies (such as Murdi Paaki in Western New South Wales) who, with a minimum of public sector outlays, have established a community controlled regional mechanism for consultation on government services and programs. Where such bodies exist, there have been demonstrable improvements in community engagement with local, regional, and federal government agencies in establishing dialogue, partnership, and agreement with the Aboriginal and Torres Strait Islander community of the region. The Committee is particularly interested in learning of more good examples of regional governance and decision-making.  7.43 The Committee encourages submitters to reflect on these existing models, assess their relative advantages and disadvantages, and suggest how they might be built upon and improved.  7.44 The Committee also strongly encourages and would welcome new proposals for consideration. 6. [Preamble] ‘Belongingness’ for all Australians 6. i The Question of a Preamble Evidence of inclusion and or exclusion of Indigenous Australians in Australia’s National Identity and the implication of civility, and citizenship will be addressed in Constitutional reform and contribute to empowering all Australians. Australia’s demonstrated and continued commitment to the diverse cultural values and belief systems, and therefore identity of all Australians can be measured, through the examination of Australia’s legislation, policy and practices. This submission discusses exclusion and inclusion of Indigenous principles of identity, and cultural contributions to the fabric of ‘Our Australian’ identity. Indigenous and other perspectives of life experiences, contributes to the continuous evidence of Indigenous contributions to Australian ‘Civil’ Society.

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Different perspective of the topic, informs aesthetic attributes of its underlying principles on different aspects of Australia First Nation’s culture within traditional and contemporary practice techniques. In turn their reports, guiding principles and recommendations inform, and influence this submission’s research methodology. Symbolic entities of being Australian as a Nation, and promoting nationalism in its people will require an examination of the appropriateness of Australia’s existing symbols and emblems, including the design of the Australian flag, and the rights of the Anzacs, and the Australian Constitution. Thereby linking theoretical research to strategies to determine Indigenous investment within Australia, in addressing the following questions: 1. How do Indigenous Australiana contribute contemporary expression of civility within contemporary Australian society? 2. How does they deal with rebutting the stereotypic labelling that automatically places on them negative connotations within the realm of Australian Civil Society? 3. Are there conflicting principles that define civility within contemporary Aboriginal society and to that of contemporary mainstream Australian society? 4. What is that ‘other’ sense of belonging to Australia portrayed by mainstream in validating their culture and territory?

6. ii ‘Belongingness’ for all Australians In the preliminary submission and their findings their appears to be consistency in formulating its recommendations, as demonstrated in the guiding principles of the Expert Panel, The Makarrata and that of the Referendum’s Council “Uluru’s Statement of the Heart”. It seems conclusive that the recognition of, and acceptance of Indigenous peoples’ perspectives of lore, law of people and country, and the linkage of the two in Governance, has provided similarities to that of mainstream Australia’s non-Indigenous culture and identity. It should therefore follow that an articulation of how these similarities and differences could provide identity, and culture in ‘Belongingness’ for all Australians.

Therefore the validation of Belongingness, can explore the question and issues of citizenship and identity in Australia’s civil society. This will also explore, and examine Aboriginal citizenship within the domain of Aboriginal culture vs. Non- Aboriginal culture; Occupation

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vs. Possession; Colonization vs. Invasion; European Settlement vs. Aboriginal Internment; Australian citizenship. The Chair Patrick Dobson of the Expert Panel (January 2012) Report “Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution” executive summary outlines the methodology for the Report and clarifies that: “The Panel’s task was to report to the Government on the options for constitutional change and approaches to a referendum that would be most likely to obtain widespread support across the Australian community. The conversation with our fellow Australians took place in communities, towns and cities across the country and gave the Panel invaluable insights into how people from many backgrounds and walks of life want to see their sense of nationhood and citizenship reﬂected in the Constitution.”

Expression in literature of the living culture of Indigenous Australians and portrayal of the effects of history, invasion, colonisation, identity, and future aspirations are raised by Indigenous and non-Indigenous proclamation of ‘Terranullus’, had major implication for acknowledgement of Aboriginal people as its sole occupants, inhabitants and traditional owners for thousands of years. Therefore providing appropriate models for considerations to address the business of Indigenous exclusion in determining inclusion of Indigenous identity and culture within the Australian Constitution’s powers of citizenship, and subsequent State and Territory legislation in achieving a unified voice as Australian is long overdue.

6. iii Agreement Making and Truth-Telling 7.47 The Committee is of the view at this stage that there would be value in considering what truth-telling means and how it might work both in formal and informal settings at the regional and local level, where communities could come together to commemorate both positive and negative examples of the history of the community through identifying and supporting activities such as:  historical exhibits in museums and art galleries;  commemorative signage at key historical sites;  cultural events (dance, music, and arts) that bring together the community to acknowledge and celebrate the shared Aboriginal and Torres Strait Islander history of a community and a region;

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 naming of electorates and public spaces;  support for promoting oral history and language revival and maintenance; and  Formalised processes of reconciliation.

6. v Australian Peace Summit- Makarrata The Committee would be pleased to receive more evidence on the cultural context of and its potential practical operation in the broader Australian democratic context and in particular determine that the way forward Pp. 125 can be obtained in 7.50 The Committee would welcome further evidence on these proposals. 7.45 The Committee appreciates that the Uluru Statement from the Heart also called for a Makarrata Commission to supervise a process of truth-telling about Aboriginal and Torres Strait Islander history and agreement making between governments and First Nations. 7.46 More evidence would be required for a fuller understanding of what Makarrata means and how it might operate. The Committee would be pleased to receive more evidence on the cultural context of Makarrata and its potential practical operation in the broader Australian democratic context.

This submission explores the effects of past legislation, policies, and practices on Indigenous Australia and investigates these perspectives of identity: belongingness, Aboriginality, connection, pride in identity and culture in consideration of a way forward. Indigenous reflections, definitions, meanings and statements are examined to ensure past Government legislation which managed the lives of Aboriginal and Torres Strait Islander people as wards of the State in Church, Welfare or Government can be reconciled. Suggestions to right the wrong of the past have been numerous and include the document ATSIP. “MAKARRATA Options for Discussion”: Providing the detail and upholding the big ideas SUMMARY Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples Submission 172 Attachment 3 Interim Report, (July 2018)

The affirmation and validation of Aboriginality that existed in traditional society is evidenced in identity and the practice of culture in ceremonies, in many forms today, and the expression of these by Cherbourg and other diverse Indigenous Communities across

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Australia, has been maintained and passed down through the ages. For example archival material gleaned out of the publication by Angus Lucas “Cherbourg a Brief History” (1988) documenting reports written in 1912 by the Cherbourg Superintendent (Mr. Lipscombe) states that: “In 1934, despite many years of missionary influence and white rule, the people still maintained many customs relating to totems, burials, marriage etc. It is interesting to note the extent to which totemism is returned in the life of the settlement. Contact with the official and the missionary have made them chary of openly discussing these practices”

The relevant research literature provides evidence of the hypothesis that the Diversity of First Nations people were able to survive because of Governance by cultural codes of conduct, acknowledged and practiced across this continent, respected the diversity of people (approximately 250 or more diverse nations) through Governance based its people’s lore, law and country. Governance similar to that known in Australian civil society as compacts, agreements and or treaties, which are indeed the fundamental essence of any Constitution between counties recognise and acknowledge people, their connectedness and sense of belonging to their respective countries.

The similarities of passports, visa, treaties of all world countries in trade, business or other personal or family activites, for leisure including festivals, tourism etc., were also evident in Australia’s First Nation’s peoples pan Cultural codes of conduct across Australia and other off-shore countries. Permission was asked to be in a foreign country other than one’s own, and was either granted or refused. There was the understanding of respect of the country visited, the people their lore, and consideration of a Makarata in developing and maintaining laws. For example the Yolngu version of a Makarata and or Treaty is a legal binding agreement based ones lore according to identity and culture and country which determined Governance in the practice of law in respect of its people and their country.

Extracts from the submission ATSIP. “MAKARRATA Options for Discussion”: Providing the detail and upholding the big ideas SUMMARY to the Joint Select Committee on

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Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples Submission 172 Attachment 3 Pp. 5 maintains that: “In writing for The Monthly in 2016, Galarrwuy Yunupingu recalled an occasion on which his late father instigated a makarrata. He wrote, “The dispute was very deep and very serious, and in the event [my father] Mungurrawuy made the peace. It was my father, perhaps for the last time before the missionaries arrived, who had the responsibility to make this happen in a proper way, in a proper Yolngu way—to bring about reconciliation. After the makarrata my father was widely praised by the senior leadership throughout East Arnhem Land. So the quest for ‘peace and harmony’ in the world wasn’t anything new to Yolngu when the missionaries came and spoke of such ideals. They were already our words and our way of life. We had seen it through the actions of my father, who performed these duties in his time. And we still think in this way when we think about our future. How do we reconcile? What do we need to give, and what must be given to us for our loss, for our grievance? How do we balance the wrongs that have been done with a need to work together in the future?” Pp. 5

6. v Uluru Statement from the Heart (2017) The development of a proposal for suitable models for consideration to ensure that these are determined. In particular this Submission recommend models for consideration of the following sections of the Uluru Statement from the Heart (2017) [1] Seeking constitutional reforms to empower our people and take a 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 their country.

[2] We call for the establishment of a First Nations Voice enshrined in the Constitution.

[3] Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

[4] We seek a Makarrata Commission to supervise a process of agreement- making between governments and First Nations and truth-telling about our history.

[5] In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.

7. Other matters.

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7. i Emblems and Symbols of Australia see attached Recommendation 5. 8. Conclusion The Referendum Council (26th May 2017) recommends models for consideration of the following sections of the Uluru Statement from the Heart (2017) which are outlined in 1,2,3,4,5 above in this proposal. Further the (July 2018) Interim report of the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples 2.17 state the Technical Advisers reported that delegates at the dialogues echoed the sentiment that: There are Aboriginal people who have been elected to Parliament, but they do not represent us. They represent the Liberal or the Labor Party, not Aboriginal People. They represent the Liberal or the Labor Party, not Aboriginal People. The Interim Report, 3.3 further mentions that: In considering the recommendation to establish a Voice, the Committee has sought to consider the structure that any institution to give effect to The Voice might take. This consideration has raised a number of questions relating to the structure of the body, its functions and scope, and its establishment. Models for this Submission The above literature review examines different models for an Indigenous voice to parliament and an understanding on the ‘Aboriginal reconciliation’ in Australia. The Voice [Elements of a Suggested Model of Inclusion] This Submission’s recommendations aim to achieve the following elements as outlined below: 1. Constitutional reforms to empower a First Nations Voice enshrined in the Constitution. [Preamble] 2. Makarrata Commission 3. Australian Peace Summit 4. Treaty and or Makarrata 5. Emblems and Symbols of Australia

The suggestions for appreciate models for The Voice for Australian First Nations peoples can be provided as outlined above in and further in their recommendations included in 6.

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9. Recommendations [1, 2, 3, 4,5,6,7 and their accompanying address are outlined below]

The Recommendations Included in this Research Report will address the Topic “The contributions of Australian First Nations to Australian Civil Society” in the exploration, examination, and the consider different models for an Indigenous voice to parliament (as proposed in the Uluru Statement from the Heart) and gleaned from the Canberra Parliament of the Commonwealth of Australia (July 2018) Interim report. The Interim report address the issues raised in the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, and the Referendum Council (2017) proposed Uluru Statement from the Heart.

This author therefore intends that research, report and presentation outlined in the scope and sequence of the scholarship will consider the following Recommendations in addressing the Topic and Submission to the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islanders.

9. i Reports on Constitutional Reform

[Recommendation 1:]

That the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples consider the recommendations of the Referendum Council (2017), the Uluru a Recognition of Aboriginal and Torres Strait Islander Peoples (2015), and the Expert Panel on Constitutional Recognition of Indigenous Australians (2012), the ATSIP “MAKARRATA Options for Discussion”: Providing the detail and upholding the big ideas Submission SUMMARY to the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples 172 Attachment 3 Interim Report, (July 2018), the Canberra Parliament of the Commonwealth of Australia (July 2018) Interim report Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples © Commonwealth of Australia ISBN 978-1- 74366-860-3 (Printed Version) ISBN 978-1-74366-861-0 (HTML Version)

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9. ii Makarrata and Treaty for Australia’s First Nations Peoples

This author’s perspective of the Yolngu version of a Makarata process is based on ones lore according to identity and culture and country determined Governance in the practice of law in respect of its people and their country, in coming to terms with those issues of exclusion which prohibit Australia in its efforts of working towards a legal binding agreement of a Treaty for Australia’s First Nations peoples. Extracts from the submission ATSIP. “MAKARRATA Options for Discussion”: Providing the detail and upholding the big ideas SUMMARY to the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples Submission 172 Attachment 3 Pp. 5 Executive summary Pp. 5-6 maintains that:

“This is not merely a process of historical inquiry, but one which aims at strengthening Australia as a whole. As a result of settling differences, Australia will be strengthened by a renewed conception of itself as having progressed towards a final settlement, and reconciliation between Indigenous and other Australians. To this end, it is useful to focus on five aspects of makarrata:

1 Recording the history of Indigenous peoples; 2 Preserving the culture of Indigenous peoples; 3 Empowering Indigenous peoples to take responsibility for their communities; 4 Creating commercial opportunities for Indigenous people; and 5 Concluding agreements between governments and Indigenous peoples that address the four criteria above.” Recognition that Australia’s First Nations people were the only peoples in the world not offered a treaty. It is generally noted that the provisions for any such treaty is recognised, acknowledged and automatically considered within any overarching legislation accompanying governance for and by the people of any government. This same provision should be applied for a Treaty between the Australian Government and enshrined within Australia’s legislation identified as the Australian Constitution. It should be noted that generally all countries of the Commonwealth of which Australia is a member ensures that their operational conditions for such alliances is based on the treaties and compacts of respective governing infrastructure for individual countries who are members which apply

19 The information, photos, and images if deceased persons may cause distress in the process of sorry business. within the body of the Commonwealth Heads of Government. Gussen, B. F. (2017) suggests that such a model would provide: “…….constitutional recognition is about accepting as valid the claim or title of Aboriginal and Torres Strait Islander peoples to their heritage, their traditional lands and waters, and, most importantly, their claim for self-determination.15 Such recognition is intended to further national reconciliation and to guard Australia’s reputation internationally vis-à-vis Indigenous Australians’ wellbeing. To secure such results, (political) structural protection would be required, probably either in the form of division of powers between the Commonwealth and Indigenous Australians,16 or in the form of parliamentary seats reserved for Aboriginal peoples at the national and/or sub-national level.1 A constitutional recognition would see Australia move closer to the position in other former British colonies, including Canada and New Zealand, where the state enters into treaties with Aboriginal peoples to the end of conferring a wider margin of autonomy on them.18 Under this approach, regional agreements would be negotiated between the Commonwealth and Indigenous regional representative bodies.(Pp. 6-7)

[Recommendation 2:]

That the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islanders objectively examine the consideration for a Treaty within the Constitution of Australia.

Therefore in keeping with the Joint Committee’s requirement of ensuring that any recommended options are consistent with the four criteria of referendum success set out in the Final Report of the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution being to: i. contribute to a more unified and reconciled nation; ii. be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander Peoples; iii. be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and iv. be technically and legally sound;

[Recommendation 3:]

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That the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples examine and consider Recommendation one mentioned above in developing strategies to benefit an Australian National Identity that is inclusive of Australia’s First Nation’s peoples.

9. iii Preamble of the Australian Constitution:

The following aspects discussed within the submission and this paper of that unified identity and subsequent recommendation/s is/are outlined below: The Uluru Statement from the Heart further maintains that: “With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood,” In noting the above comment of The Uluru Statement from the Heart, the following perspective suggests that Aboriginal Dreaming Philosophy based on a concept of sharing and caring for oneself, others and those things that ensure our survival, governance and prosperity. Therefore identity with respect to Australia’s first Nations is based on cultural values and belief systems, acknowledging and recognising the diversities of its peoples, and, embraces the concept of one’s existence on the continuum of life. Whether one has a personal perspective of their ‘Belongingness’ or whether this sense of ‘Belongingness’ provides identity and nationhood for all in ‘our Australia’ is really saying the same thing. If everyone realised and understood, perhaps there could be a unified Australia which would indeed stand out as our national Australian identity. “We are, after all, a point of existence on our continuum of life.” The First Nations people belief of their philosophy is based on the ‘Dreaming’, and believe that this concept of their ‘Dreaming’, can be embraced by all Australians. For it is this belief which provides a sense of ‘Belongingness through Identity’, practiced by Indigenous peoples. In doing so, allows everyone to have a sense of an Australian Dreaming based on the collective thoughts, hopes and aspirations of every individual. Australians can therefore be challenged to live their ‘Dreaming’ by:  Asserting their rights and determining their destiny

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 Embracing their identities and practicing their cultural lifestyles  Accepting those influences of change that fit within their cultural framework  Practicing their faith with dignity for it provides hope  Providing leadership through their philosophies of their values, mores and beliefs in life and living Anne Twomey∗ (September 2011) Preamble of the Constitution Pp. 42-44 discussing various opinion of the defeat of the Preamble question in the 1999 Referendum. Twomey discusses various models for a Preamble considered by many country which provide examples of models for their respective countries and situations. The Preamble question defeated in the 1999 Referendum when considered with the yes or no question of whether Australia should become a Republic, relinquishing the Monarchy and thus the position of the Australian Governor General in Australia’s political structure. The question calling for a yes vote on the Republic, would have automatically required the preamble, would have been automatically considered in any constitution for Australia if the question for a Republic was a successful yes vote for that 1999 Referendum. Chesterman, John (2008) suggests that “The failure of the 1999 preamble referendum meant that the Australian Constitution contains, as it has since the 1967 referendum, no reference to Indigenous Australians.” The 1967 Referendum amendment to the constitution meant that Indigenous Australians are no longer mentioned specifically in Australia legislation, but are considered generically as subjects of the crown. Therefore if the requirement is to enshrine “With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood,” captured within The Uluru Statement from the Heart, is based on the importance of an Indigenous voice within the Australian Constitution and the Government’s Committees on constitutional reform mentioned throughout this report about Indigenous recognition in a preamble to the Constitution and do so would need the Australian people’s approval through a Referendum. A Preamble based on the unified principles which respect the difference of all Australian people whilst ensuring that the philosophical fundamental principles of our core values and beliefs as Australians can ensure that our Constitution provides a legislative framework for our and municipal laws.

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Any other constitutionally amendments required to eliminate racism, and prejudices which generate exclusion rather that inclusion of all peoples of Australia and their interests can be addressed through the following Preamble considered by the people of Australian and decided upon by way of a yes or no vote in a Referendum. The defeated Preamble in the 1999 Referendum as outlined by The Australian Electoral Commission (cited Sept 2nd 2108) states that:

‘The question on the republic put to electors at the 1999 referendum was whether they approved of: A proposed law: To alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and Governor-General being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament. Electors were also asked to vote on a second question at the 1999 referendum which asked whether they approved of: A proposed law: To alter the Constitution to insert a preamble. Electors were also asked to vote on a second question at the 1999 referendum which asked whether they approved of: A proposed law: To alter the Constitution to insert a preamble.”

Section 128 of the Australian Constitution requires a "double majority" to pass a constitutional amendment—a majority of states (four or more), and a majority of all the electors voting. Voters in the territories only counted towards the second of those majorities.

Considering all of the above this author suggests the following can be an example of such a proposed Preamble. If Recommendation 4 is considered the following example for a ‘yes’ vote for the addition of a preamble to Australia’s constitution, could be included in the materials distributed by the AEC pre-Referendum if not considered on the Voting form for the Referendum. Below outlines this author’s perspective of a suggested Preamble: WE THE PEOPLE of Australia, embrace our sense of ‘Belongingness’ of our Australia’s ‘Dreaming’, in acknowledgement of Australia’s First Nations as this strengthens the foundation of our Nation’s Constitution for all Australians, in respecting, justifying and

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maintaining domestic pride in our defence of the diversities of our people’s cultures, identity and country, ensuring Liberty, and Posterity.

[Recommendation 4:] That the Committee calls for Constitutional amendments need to address  Preamble and or include introductory words to the Constitution that includes the principles for inclusiveness, purpose and context, respecting continuous occupation of Indigenous peoples on this continent.  The repeal of section 25.  The repeal and replacement of section 51(xxvi), A general power to make laws in respect of Aboriginal and Torres Strait Islander peoples, which do not discriminate adversely against Indigenous peoples.  Other matters include; Australia’s identifying national symbols and emblems.

A Referendum to inset a Preamble in the existing Australian Constitution which legally recognises Australian First Nations people’s prior occupation and governance by ownership of their countries within Australia be accepted as a model option for consideration for substantive constitutional change and structural reform. It should be noted too that how the Constitution is interpreted has also changed and evolved, without a referendum. These changes have occurred by the Federal Governments legislative processes and the High Court. The Uluru Statement from the Heart, is based on the importance of an Indigenous voice within the Australian Constitution this can automatically be achieved in the existing Australian Constitution by interpretation of Indigenous peoples and further under the powers of the Australian Governments powers on external affairs and in particular concerning ‘Treaties’ can be applied, and not necessarily through a Referendum. The Commonwealth's power implementing international treaties would therefore be recognised internationally, nationally and aligned and applied to states. Constitutional reform in the consideration of sovereignty of both the crown and the First Nations peoples can be considered with the alignment of legislation of the existing Australian Constitution, other legislative rulings such as the High Court’s decision on Mabo 1992 and subsequent Federal, States and Territories on Native Title Acts.

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Electors were also asked to vote on a second question at the 1999 referendum which asked whether they approved of:

A proposed law: To alter the Constitution to insert a preamble.

(Perhaps the time is Right Now)

9. iv A representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice If Recommendation 4 above addresses Constitutional Reform by all Australian peoples, The Referendum Council (2017), recommendation for a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament, would exist, and could either be addressed in amendments to the existing Constitution or as an administrative action by the Government of the day without holding a Referendum.

[Recommendation 5:] That the Committee considers the proposal for a Voice by way of an advisory body/advocacy/peak body and or Makarrata Commission to Parliament, and explore, examine and determine whether provisions exist under present Parliamentary legislation.

Further amendments to the Constitution is overdue in addressing inclusion for Australia’s First Nations people. The Referendum Council suggests that one of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.

1. That the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples deliberations note the recommendation of Referendum Council (2017), 2. That Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples deliberations note the recommendation for an Independent administrative body within the Australia’s Government such as a Commission to oversee the recognition and implementation of legislative changes relating to Aboriginal and Torres Strait Islanders within the Australian Constitution.

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It is noted that such a recommendation aligns legislation, policy and procedures on behalf and for Aboriginal and Torres Strait Islanders, and addresses issues of exclusion whilst focusing on inclusion for all Australians. 3. That an extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian Parliaments, ideally on the same day, to articulate a symbolic statement of recognition to unify Australians. 4. Such a declaration of such a symbolic statement of recognition to unify Australians would be considered as an affirmation of not just Australian peoples but would align Australian Federal, States and Territories Government’s commitment to the forging a unified National identity of inclusion for all Australians. Therefore the examination and considerations for the following tenants of Australian culture and therefore identity are outlined below:

9. v Australia’s National Emblems and Symbols

Australia’s National Emblems and Symbols contribute significantly to the inclusion of the presence of Australia’s First Nation’s peoples in such important elements of Nationalism could either embrace all or by exclusion continue to acknowledge all citizens as Australians except Australia’s First Nation’s peoples and reaffirm cultural superiority, biases experienced in the proclamation of Terranullus. Therefore these need to be readdressed so that all are inclusive of all Australian citizens accordingly.

The Australian National Anthem has been an ongoing hot issue that needs resolution from its beginnings of “God save the King and or Queen”, suggested themes of “Waltzing Matilda”, the present National Anthem of “Advance Australia Fair” and other suggested considerations such as “The Spirit of Australia” capturing the emphasis of our future through our children.

Discontent with the design of the Australian flag has been at crescendo pitch by Australia’s First Nation’s peoples, in demonstrations, and opportune times grabbed by ordinary Australian First Nation’s peoples, and their great champions, in a few examples such as sports, science, art, education, business, are documented through the archives of history.

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Non-Indigenous supporters of Indigenous causes have joined the campaign for change towards a unified Australian National identity too. Therefore the issues of exclusion in the design of the flag must be the focus of a suggested design of a new Australian flag which addresses the inclusion of all Australian peoples.

Inclusion of Australia’s First Nations presence (colours of the Aboriginal and Torres Strait Islander flags) on The Australian Flag: The acknowledgment of an Australian identity and culture occurred through the process of the Federation in the birthing of the Australian Government. This birthing of a Nation is identified as such in the present design of the Australian flag which was officiated with its endorsement of the Constitution, and subsequent Official Flag’s Act. The current Australian flag reflects the political infrastructure modelled on Britain’s existing political structure. The presence of the Union Jack over the 8 point star of Federation, promotes the birthing of Australia’s Federal Parliament (which excludes Indigenous peoples), and includes the Southern Cross constellation as an identifiable mark, of its history of ‘discovery’, in the navigation and expedition to Australia by Captain Cook. The uniqueness of design captures the uniqueness of Australia’s political structure of the Governor General’s appointments and reflects unity and loyalty in acknowledgement of the monarchy (traditionally so) through the crown, and the statehood of its contributing citizens. The above clearly recognises and accept exclusion and invisibility of Australia’s First Nations and their history of continuous occupation of this continent in Australia’s colors. Indigenous Australians are calling for representation in an important symbol of the Australian Nation in righting the wrongs of exclusions through inclusion.

This suggestions from this author is offered to the committee for consideration:

The minor change to Australia’s present flag would only require the star of Federation under the Union Jack to be encircled by the colours of the Aboriginal flag. The circle represents our ‘Dreaming’ noting and respecting the importance of those colours on the Aboriginal flag by its designer Harold Thomas. We are after all a point of our existence on our continual ‘Dreaming’ O’Chin, H. (2013) exhibition “Our Australia”, Musgrave Park NAIDOC. The acceptance of our Aboriginal and Torres Strait Islander flags flying with the

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Australian flag provides recognition, acknowledgement, acceptance, salute and tribute to everything and everyone that represents Australia’s continual ‘Dreaming.’

Representation of the Torres Strait Island’s colours on the Australian flag. The Torres Strait Island’s colours can be said to be represented in the design of the existing Australian flag. The five pointed star in the Southern Cross, reflects the five pointed star of the Torres Strait Islander flag which in turn is inclusive of the five language groups of its peoples.

Representation of the Aboriginal colours on the Australian flag. It would therefore be fitting that the colours of the Aboriginal Flag surrounding the star of Federation under the British flag would seem to be the obvious amendment to the design of the current Australian flag if the Australian flag is seen to be inclusive of the Aboriginal Nations of Australia’s First Nation’s peoples.

Therefore the recommendation for the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islanders is to consider

[Recommendation 6:] That any approved new design for the Australia flag must be inclusive of Australia’s First Nation’s peoples. That the committee considers this author’s suggestion for amendments to Australia’s current flag in that an Indigenous presence could prevail by ensuring that the colours of the Aboriginal Flag encircles the star of Federation and the recognition of the five point star of the Southern Cross be acknowledged as inclusive of the Torres Strait Islander peoples and their language groups.

[Recommendation 6:] That the above recommendations compliments all Australian Governments legislation, policies and procedures, including recommendation 5 above within the Australian flags Acts.

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[Recommendation 7:] The committee considers the recommendations above in final report on or before 29 November 2018 to present to Parliament.”

10. REFERENCES for the Submission

REFERENCES

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Canberra Parliament of the Commonwealth of Australia (July 2018) Interim report Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples © Commonwealth of Australia ISBN 978-1-74366-860-3 (Printed Version) ISBN 978-1-74366-861-0 (HTML Version) http://creativecommons.org/licenses/by-nc-nd/3.0/au/. Canberra Parliament of the Commonwealth of Australia (July 2015) “The Report of The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples”; © Commonwealth of Australia

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Demozay Marion, (2001) “Gatherings”: Contemporary Aboriginal and Torres Strait Islander Art from Queensland Australia; Keara Press, Southport Queensland printed in Brisbane by Merino Harding

Demozay Marion (2006) “Gatherings II” Contemporary Aboriginal and Torres Strait Islander Art from Queensland Australia; Keara Press, Southport Queensland printed in Brisbane by Merino Harding.

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Dobson, M. (1997)) Dobson, M. (1997) “CITIZENSHIP IN AUSTRALIA”: An Indigenous Perspective VOL. 22, NO. 2, APRIL Pp 57-59 Law and Literature Conference. Brisbane http://classic.austlii.edu.au/au/journals/AltLawJl/1997/23.pdf

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Farrar, Adam & Inglis, (1996) “Keeping it Together”; State and Civil Society in Australia; Pluto Press Australia Ltd, NSW Gussen, B. F. (2017) ‘A Comparative Analysis of Constitutional Recognition of Aboriginal Peoples’ 40(3) Melbourne University Law Review (advance)

Hegarty, Ruth), (1998) “Is that you Ruthie”; University of Queensland Publication Langton,

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Loos, Noel (1989) “Queensland Frontier 1861-1897 (1982)”: Succeeding Against the odds; Townsville’s Aboriginal and Islander Teacher Education Program;

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30 The information, photos, and images if deceased persons may cause distress in the process of sorry business.

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The Report of the Expert Panel (January 2012) “Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution” Commonwealth of Australia The Uluru Statement from the Heart (2017),

Twomey, A. (September 2011) “Constitutional Reform Unit Sydney Law School Report No 2, 2011 Constitutional Recognition of Indigenous Australians in a Preamble”; Sydney Law School, University of Sydney