2021 Walter Silvester Memorial Lecture

Australian Catholic University

Fr Frank Brennan SJ AO

Distinguished Fellow, PM Glynn Institute, ACU

Adjunct Professor, Thomas More Law School, ACU

26 October 2021

Watch at https://www.youtube.com/watch?v=nYn4hvKHrxc&t=604s

Listen at https://soundcloud.com/frank-brennan-6/walter-silvester-lecture-2021

I acknowledge that I am on the lands of the Wurundjeri people who have walked upon and cared for this land for thousands of years. I acknowledge the continued deep spiritual attachment and relationship of Aboriginal and Torres Strait Islander peoples to this country and commit myself to the ongoing journey of Reconciliation. I respect the Wurundjeri Elders past and present and extend that respect to other Aboriginal and Torres Strait Islander peoples present .

I am honoured to co-present this evening with Jason Kelly who attended the National Dialogue at Uluru culminating in the Uluru Statement from the Heart and who is the Member for the North West region of the First Peoples’ Assembly of Victoria. Having been a member of the Commonwealth Government’s Senior Advisory Group on the Indigenous Voice co-design process, I am happy to complement Jason’s insights on the novel Victorian processes for truth, treaty and transformation with some observations about the national debate on the Voice in the lead up to and in the aftermath of the Uluru Statement from the Heart.

I am delighted and humbled to have the opportunity to honour the memory of the Pallotine priest, Walter Silvester[1]. I never met Walter, but I have met a number of people whose lives were changed forever and for the better having met this larger than life character. Walter was a German U-Boat commander turned missionary who sailed into Melbourne just six years after World War II in company with three other extraordinary German Missionaries, including John Jobst who would later be the long-time bishop of the Kimberley. One of my favourite images of Silvester is the dashing young priest, ex U Boat commander, coming up the drive at Loreto Mandeville wearing his leather jacket riding his Harley Davidson motor bike ready to give the annual retreat to the Year 12 girls who were accustomed to the more soberly attired Jesuits who did not ride motor bikes of any make. He introduced the girls to a whole new idea of religion. They as young laywomen were told that they had vocations. They were called to live in the world, and not be concerned about religious and denominational differences. One day he cleared the table, produced a baguette and proceeded to celebrate the eucharist with the girls without any fanfare. He was not much interested in laws and regulations. He recognised the equal role of laity in the Church and to quote one of his admirers, ‘that was huge in Melbourne in those days’.

One of the fine myths about him was that he refused to torpedo a hospital ship during the war, so he was disciplined and sent on a suicide mission, and all his men stood with him. After the war he returned to the seminary. He arrived in Australia with little English. His first homily in Australia was very short: ‘You Australians are blooming people.’ And he sat down. As his English improved, he urged young people always to think for themselves and to imagine new possibilities in the Church and the world. Honouring him and the Pallotines for their generations of missionary work amongst First Nations peoples here in Australia, especially in the Kimberley, it is fitting that we reflect on the Uluru Statement from the Heart, asking what we as Church can and should do in response to this call from representatives of Australia’s First Nations Peoples.

At the first session of the Fifth Plenary Council of the Australian Catholic Church held this month, there was strong endorsement of the Uluru Statement from the Heart. On the eve of that council, Archbishop Mark Coleridge, the President of the Australian Catholic Bishops, called on ‘all people of goodwill and good intention to support the journey of Aboriginal and Torres Strait Islander peoples by endorsing the Uluru Statement from the Heart and putting it into action in every way possible.’[2]

Sovereignty as a Spiritual Notion

Before discussing the law and politics of our response to the Uluru Statement, I draw attention to the two sentences in the Uluru Statement which appear in italics. The architects of the Statement speak of their sovereignty as ‘a spiritual notion’. They tell us: ‘[The] ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty.’

These exact words appear in two of the judgments of the High Court of Australia in the Mabo Case[3], since immortalised by the movie The Castle as the vibe in the Constitution. Those judges were quoting Judge Fouad Ammoun from Lebanon who was a judge of the International Court of Justice determining a land dispute in the West Sahara[4]. Ammoun in turn was quoting the Congolese Mr Bayona-Ba-Meya who was intervening in the case for Zaire to argue that ‘Until the recent past, Europe believed itself to be the centre of the world: and still today there are living after-effects of this Europeocentrism. It is only gradually that Europe realizes that there are other forms of civilization, sometimes superior, whose moral and spiritual strength she admires and tries to imitate.’

In 1885, the European powers had carved up large swathes of Africa for themselves on the basis that the lands were terra nullius – land belonging to no one, and land not subject to any form of political organisation. Mr Bayona-Ba-Meya invited the court to make some comparisons between the European and the African:

‘The peasant African does not have running water in his hut or thatched cottage; he has neither electricity nor telephone; perhaps he can neither read nor write; but on the other hand, he hardly suffers from hypertension nor chronic insomnia; he does not suffer heart attack nor liver failure; he has no problems with pollution of all kinds; when he feels a little uneasy, he goes into the forest nearby picking the right plant, which nature has endowed with powers that reveal themselves only to the man living in conscious contact with it.’ 

Mr Bayona-Ba-Meya was joined by Mr Mohammed Bedjaoui from Algeria who put arguments about native rights to land which were first put by the Spanish Dominican priest Vittoria in the sixteenth century. Judge Ammoun wrote: ‘Anyone familiar with the philosophy of Zeno of Sidon or Citium and his Stoic school cannot but be struck by the similarity between the ideas of that philosopher and the views of Mr. Bayona-Ba-Meya as to the links between human beings and nature, between man and the cosmos. Further, the spirituality of the thinking of the representative of Zaire echoes the spirituality of the African Bantu revealed to us by Father Placide Tempels, a Belgian Franciscan, in his work Philosophie bantoue. The author sees therein a “striking analogy” with “that intense spiritual doctrine which quickens and nourishes souls within the Catholic Church”.’[5]

Cases like the 1975 Western Sahara Case in the International Court of Justice and the 1992 Mabo Case in the Australian High Court brought and represented great changes – changes wrought by the imaginations, dreams, hard thinking, and basic decency of a line of individuals across the centuries, across cultures, and across disciplines, including theology – from the pre-Christian Stoic philosophers, from the sixteenth century Spanish Vittoria, to the eighteenth century Swiss Vattel, to the twentieth century Congolese Bayona-ba-Meya, the Algerian Badjaoui, the Lebanese Fouad Ammoun, the Belgian missionary Tempels, the Australian High Court judges, and the contemporary Aboriginal leaders. 

Contemporary Australian Catholics might detect a ‘striking analogy’ between the Uluru Statement from the Heart and the ‘intense spiritual doctrine which quickens and nourishes souls within the Catholic Church’, as the Belgian Franciscan missionary to the Congo once put it.

The Law and Politics of a Referendum

Now to turn to the law and politics. The Uluru Statement calls for ‘substantive constitutional change’ seeking ‘constitutional reforms to empower our people and take our rightful place in our own country’. The Statement calls for ‘the establishment of a First Nations Voice enshrined in the Constitution’.

As a nation, we need to concede that our constitutional arrangements are still inadequate given the failure of the Constitution even to mention Aborigines and Torres Strait Islanders and their history in this land, and the confusion of the key provision of the Constitution empowering the Commonwealth Parliament to make special laws affecting Indigenous Australians. That key provision was originally formulated at the nineteenth century Constitutional Conventions to allow the Commonwealth Parliament to make laws with respect to ‘the affairs of people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorise legislation with respect to the aboriginal native race in Australia’. Henry Bournes Higgins and his fellow constitutional founders envisaged that such laws would restrict unwelcome migrants like the Afghans and the Chinese. Australia’s first prime minister Edmund Barton told the 1898 Constitutional Convention in Melbourne: ‘I entertain a strong opinion that the moment the Commonwealth obtains any legislative power at all it should have the power to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth.’[6]

In 1967 we voted overwhelmingly to extend the operation of this racist provision to include the possibility that the Commonwealth Parliament could legislate with respect to the First Australians. As judges of the High Court have said, the amended provision was ‘was 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’[7] and ‘to mitigate the effects of past barbarism’[8]. The primary object of the power as amended to include Aborigines was beneficial, removing the fetter upon the legislative competence of the Commonwealth Parliament to pass necessary laws for the benefit of Aborigines.

Surely such special laws should be passed by our Parliament only if those citizens covered by those laws seek them or agree to them. How is that to be done? To answer that question and to place the answer in the Constitution, we need to work for agreement between the major political parties and with Indigenous leaders. Until such agreement is reached, we will not get to the first step amending our Constitution.

You don’t get to amend the Australian Constitution unless you have all major political parties on board. In the twenty-first century, there is no point in asking the major political parties to endorse a proposal relating to First Nations Australians unless the leaders of the First Nations have first sought and endorsed the proposal. Prior to the Uluru Statement, there was a range of possible options for constitutional recognition being discussed. Now that the Uluru Statement has won such significant support by key Aboriginal leaders, there is no point in pursuing any other option at this time.

STEP ONE: In the months ahead, those leaders who undoubtedly will include people like Noel Pearson, Megan Davis, Pat Anderson, Dean Parkin and Thomas Mayor (author of Finding the Heart of the Nation) will need to put some flesh on the bones of the proposal for constitutional recognition of the Voice. People need to know what they are being asked to vote for.

STEP TWO: Once there is some clarity about the proposal, there will be hard work to be done trying to convince the Liberal and National Parties to come aboard. To date, the Labor Party has indicated in-principle agreement with the Uluru Statement. The last three Liberal Prime Ministers have stayed resolutely outside the tent.

To facilitate Step Two, we church members could contribute in two ways. First we could use whatever influence we have with friends and associates to convince our fellow citizens that constitutional recognition is desirable. In a democracy, elected politicians do like to follow the lead of the people when a proposal is popular. Second we could marshal the arguments to convince members of the Liberal and National Parties that they should be aboard. That might include suggestions of constitutional reform which search for a match between Indigenous aspirations and Liberal-National philosophical constraints. Unless Steps One and Two are taken, there is no point whatever in proceeding with a referendum. Step One is the sole province of Indigenous Australians. Step Two is the responsibility of all of us.

Let’s remember that no one under 75 years of age voted in the successful 1967 referendum which deleted the two arguably adverse references to Aborigines in section 51(26) and 127[9]. No one under 62 years of age has ever voted in a successful referendum. Some people take heart that there may be a change of government next year and that the Labor Party might be more proactive in proposing constitutional change. Don’t forget that the last successful referendum proposed by the Labor Party was in 1946, and that was a provision allowing the Commonwealth to provide social security payments such as maternity allowances and child endowment. You would have to be 96 years of age or older to have voted in a successful Labor referendum. Constitutional change does not come often or easily in Australia. Each step of the way has to be well planned. 36 of the previous 44 efforts have failed.

We’ve now had three Liberal Prime Ministers in a row rule out the possibility of constitutional entrenchment of a Voice. They are Tony Abbott, Malcolm Turnbull and Scott Morrison. For his part, Tony Abbott has indicated that he is open to some recognition of Indigenous people in the Constitution, while asking: ‘[B]ut does this really entail the constitutional entrenchment of a new entity giving some, but not others, their own unique “voice” to parliament?’[10] Towards the end of his prime ministership when Noel Pearson was first floating the idea of a constitutionally recognised Voice, Abbott gave an interview to the respected journalist Michael Gordon who reported:

‘Tony Abbott has warned advocates of strong constitutional recognition for Indigenous Australians they will ‘‘probably end up with a proposal that won’t pass’’ if they go for everything they would like in the referendum question. The Prime Minister has also made plain that he does not support Noel Pearson’s proposal for an Indigenous advisory body to be enshrined in the Constitution, saying the Parliament could establish such a body if it was deemed necessary.’[11]

In his biography A Bigger Picture, Malcolm Turnbull vividly recalls the meeting he hosted with Aboriginal leaders including the four Aboriginal members of Parliament and Labor leader Bill Shorten on 25 November 2016 when Noel Pearson ‘said that he was expecting the Uluru conference to recommend that there be a change to the Constitution to establish “a Voice”, which would be a national advisory assembly composed of and elected by Aboriginal and Torres Strait Islander peoples’[12]

According to Turnbull: ‘A general discussion followed and there wasn’t a lot of support for the Voice around the room. Shorten and I both expressed the same view: we weren’t comfortable with the Constitution establishing a national assembly open only to the members of one race, and moreover we both said we thought it would have no prospect of success in a referendum. “A snowball’s hope in hell,” as Bill had previously said to me.’[13]

On 26 October 2017, five months after the publication of the Uluru Statement, Malcolm Turnbull issued a joint statement together with his Attorney-General and his Minister for Indigenous Affairs. The Cabinet (which included Turnbull’s successor, Scott Morrison) had overwhelmingly indicated their opposition to the establishment of a Voice to parliament in the Constitution: ‘The Government does not believe such an addition to our national representative institutions is either desirable or capable of winning acceptance in a referendum. Our democracy is built on the foundation of all Australian citizens having equal civic rights – all being able to vote for, stand for and serve in either of the two chambers of our national Parliament – the House of Representatives and the Senate. A constitutionally enshrined additional representative assembly for which only Indigenous Australians could vote for or serve in is inconsistent with this fundamental principle.…[T]he Government does not believe such a radical change to our constitution’s representative institutions has any realistic prospect of being supported by a majority of Australians in a majority of States.’ [14]

On 17 March 2021, Noel Pearson delivered a significant address at the National Museum, appealing to the better instincts of the Liberal Party and invoking their senior statesman, John Howard. He put this question to his national audience: ‘What is it that we are engaged in, and have been ever since Prime Minister John Howard made the commitment at the beginning of the 2007 Federal Election campaign?’ Pearson recalled that John Howard had told the Sydney Institute back in 2007: ‘The Australian people want to move. They want to move towards a new settlement of this issue. I share that desire which is why I am here tonight. I announce that, if re-elected, I will put to the Australian people within 18 months a referendum to formally recognise Indigenous Australians in our Constitution – their history as the first inhabitants of our country, their unique heritage of culture and languages, and their special (though not separate) place within a reconciled, indivisible nation.’[15]

Pearson conceded that Howard had never signed up to an Indigenous Voice recognised in the Constitution. Howard was merely proposing what the advocates would now describe as symbolic recognition. Pearson acknowledged: ‘John Howard proposed recognition in a preamble to the Constitution. He said in 2007: “My goal is to see a new Statement of Reconciliation incorporated into the Preamble of the Australian Constitution. If elected, I would commit immediately to working in consultation with Indigenous leaders and others on this task.”’

Whatever hopes there were that this National Museum Address might open the Liberal National Party Government to a new round of meetings were short-lived. For his part, Scott Morrison has been quite unyielding. At a press conference the day after Noel Pearson’s keynote address at the National Museum, Morrison was asked: ‘Are you willing to consider going to a referendum to enshrine a voice into the Constitution or do you rule that out?’ Morrison answered: ‘We already have. It has never been the Government’s policy to have that process enshrined in the Constitution. That never has been the Government’s policy. I think that is pretty clear. It is not the Government’s policy.’[16]

So there is a lot of work ahead for any of us wanting to convince the Liberal and National Parties to get aboard with this proposal. Noel Pearson seems to have put considerable faith in John Howard. On 21 April 2021, Pearson told the ABC audience that Abbott, Turnbull and Morrison had dropped the ball. Harking back to earlier times, Pearson said, ‘It’s 13 years since John Howard launched constitutional recognition as an agenda. He said on the eve of the election that his party if re-elected would act within 18 months of the election. So had Howard won in 2007, this would all be history.’[17] But like his three successors, Howard has never endorsed the idea of the Voice to Parliament being inserted into the Constitution. If he were to do so, that would be a real game changer.

Senator Andrew Bragg is one of a new breed of federal politicians who has a commitment to Aboriginal rights across party lines and beyond the old contours of debate. This year, he has published his book Buraadja: The Liberal Case for National Reconciliation. Senator Bragg has been impressed by the plea of Chris Sarra, who chaired the Turnbull government’s Indigenous Advisory Council, that governments stop doing things to Indigenous people and start doing things with them.[18] When Sarra retired from the Council, he said, ‘We shifted from the rhetoric of doing things to Indigenous people to a strength-based approach and doing things with people.’[19]

Bragg confronts the difficulty of achieving constitutional reform in Australia, knowing that his Liberal Party has been much more successful than the Labor Party amending the Constitution. We’ve had only eight successful referenda out of 44 attempts in 120 years. Change doesn’t come unless all major political parties are on board. When it comes to any constitutional change related to Indigenous recognition, Bragg acknowledges: ‘Ultimately, the drafting of the constitutional amendment needs to ensure that the Constitution requires consultation with Indigenous people.’[20] How is this to be done when it comes to the Uluru demand for ‘the establishment of a First Nations Voice enshrined in the Constitution’ ?

Bragg writes: ‘An amendment for a detailed body that is set out in the Constitution has no chance of being passed at a referendum.’[21] He favours the ‘setting out (of) an obligation to consult with Aboriginal and Torres Strait Islander people’ together with the establishment of the Voice by legislation.[22] He concludes, ‘It may well be the case that the only way to get a Voice up and running – and guaranteed in the Constitution – is through a gradual approach.’[23]

Following upon these remarks, I suggested one possible modest but substantive constitutional change: ‘Instead of allowing the Commonwealth Parliament to make laws with respect to “the people of any race for whom it is deemed necessary to make special laws”, how about a power to make laws with respect to “Aborigines and Torres Strait Islanders for whom it is deemed necessary to make special laws after consultation with them”?’[24] Given that it is special laws on matters such as land rights and heritage protection which are most likely to interfere with the Aboriginal spiritual notion of sovereignty, the Parliament with its untrammelled legislative power needs a constitutional check on itself to ensure that respect is maintained at all times for that spiritual sovereignty. Australian citizens with diverse religious beliefs have a real interest in maintaining the spiritual patrimony of ‘our Aboriginal and Torres Strait Islander tribes’, ‘the first sovereign Nations’ of our land[25]. Provided we act respectfully I don’t see that there is anything to be lost by church people of good will floating ideas about what might be that sweet spot where Indigenous aspirations and Liberal Party constraints meet. That will be the only spot worth considering for constitutional referendum. To date, despite all the good work being done by Indigenous leaders to promote the idea of the Voice, the leadership of the Liberal Party has not moved an inch. It’s not so much that they have dropped the ball; they have not picked it up in the first place. So there is plenty of work for everyone to do.

To date, the present government has a commitment only to legislating a Voice. Aboriginal leaders like Professor Megan Davis who played a key role at Uluru says that ‘if you legislate, it’s like a pinprick in a balloon; you will deflate entirely the constitutional recognition momentum.’ Professor Davis is adamant: ‘The idea that you can just road test this for five years and all of a sudden go to referendum is simply not true. If the body is successful, there is no government that is going to want to enshrine something that keeps it accountable. If the body is not successful, then people simply won’t see any point to enshrining a Voice in the Constitution. There is no good logic for legislating first.’[26]

The road ahead to constitutional recognition is difficult. What’s essential is that intelligent committed actors of good will work co-operatively for a strength-based approach, trusting each other and doing things together. Liberal Senator Andrew Bragg believes ‘that the Australian people will support the Parliament establishing a voice and that they will support an amendment to the Constitution that obliges the Commonwealth to ensure that Indigenous peoples are heard.’ He does not believe ‘that the Australian people will support an amendment to the Constitution, however, that is highly complex and explicitly creates a new entity in the Constitution.’[27] Liberal backbencher Julian Leeser has acknowledged: ‘For some, Uluru went too far. For others it was too modest. Wherever you sit, Uluru’s effect on the debate about Indigenous affairs was momentous.’[28] Along the political and philosophical spectrum, those like Professor Davis, Noel Pearson, Julian Leeser and Senator Bragg will have distinctive contributions to make to the public discourse. Davis and Pearson will have a better sense of what their people want; Bragg and Leeser will have a better sense of what their political colleagues and masters will agree to. Trusting dialogue within agreed contours is essential. This requires individuals well formed in the art of politics developing and working with ideas which cohere not just as principles, but also as criteria for judgment and guidelines for action. The suffering and dispossession of the past might then be a shadow from the light of a future national life in which the First Australians will always be assured a place at the table of deliberation when laws and policies affecting them distinctively are contemplated or made. This would be a distinctively Australian instance of policies, laws and constitutional arrangements posited on human dignity, the common good, subsidiarity and solidarity. 

Many of us who vote for such a proposal will be able to find resonance and guidance in the principles of Catholic Social Teaching which would delight the ex-U-Boat-commander and priest Walter Silvester whom we honour tonight. There’s lots of work to be done. It’s time we all got on our Harleys and spread the good word. Keep attentive to Indigenous voices like Noel Pearson, Megan Davis, Pat Anderson, Dean Parkin and Thomas Mayor. They are the prime translators of the Uluru Statement to the Australian public. Keep the leaders of the Liberal and National Parties in your sights, encouraging the new bloods like Andrew Bragg and Julian Leeser. And talk to your neighbours constantly about how we might put things right both in our Constitution and in our daily relations in this Great South Land of the Holy Spirit. 

Let’s always be attentive to the poetry and the symbolism at play in this area of legal and political discourse. The Western Sahara Case was heard by the International Court of Justice in the Hague in the spring of 1975. Let’s relish the closing submission by Mr Bayona-Ba-Meya:

‘When you travel through this city of The Hague, you cannot fail to notice that everywhere the natural surrounds you and keeps you company; the flowers, of fairy beauty, fighting over the balconies of houses and hotels, not to mention those that sing along the houses and villas, and even in the most unsuspected corners of the city; groves and lush green gardens are scattered throughout the city, providing real natural lungs for the inhabitants. The impression of rest, calm and inner peace one feels when living in this city is therefore not surprising. And, it is in this city, which practises with so much fervour the cult of nature, and therefore of life, that the International Court holds its hearings, precisely at this time of the year when all nature is in full bloom. One could not wish for a better omen, for I have full faith and confidence in the wisdom of the Court which, in giving its advisory opinion on the two questions put to it by the General Assembly of the United Nations, can only hear and speak the language of nature, which is none other than that of authenticity.’[29]

Is it any wonder that Indigenous Australians gathered at Uluru decided to quote him as they did. In the demanding political days ahead, Walter Silvester would want us to keep a discerning eye for the ‘striking analogy’ between the Uluru Statement from the Heart and (as the Belgian Franciscan missionary to the Congo once put it) the ‘intense spiritual doctrine which quickens and nourishes souls within the Catholic Church’. Let’s speak the language of nature and authenticity to each other.


[1] The Australian Pallottine Family is part of a worldwide Pallottine Family called The Union of Catholic Apostolate (UAC). The Family is made up of people from all walks of life who have chosen to live their lives in accordance with the Charism of St Vincent Pallotti to reawaken faith and enkindle love in the world. In Australia the Pallottine Family comprises a community of priests and brothers called The Society of Catholic Apostolate (SAC), a community of lay women called Mariana and many lay individuals who have committed to live their lives in the general community in accordance with St Vincent’s charism.

[2] See https://catholicleader.com.au/news/qld/brisbane-archbishop-backs-uluru-statement-and-an-indigenous-voice-in-the-constitution/

[3]Mabo v Queensland (No 2) (1992) 175 CLR 1 at p. 41 (Brennan J, with Mason CJ and McHugh agreeing) and p. 181 (Toohey J)

[4]Advisory Opinion on Western Sahara [1975] ICJR, at p.85

[5] [1975]ICJR at pp. 77-8

[6] Edmund Barton, Official Report of the National Australasian Convention Debates (Third Session): Melbourne 1898, pp. 228-9

[7] Justice Brennan in The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 242

[8] Justice Deane in The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 273

[9] Back in 1965, aware that the Labor Opposition was wanting to propose the ultimately successful amendment to section 51(26), Prime Minister Menzies told Parliament that it was curious to regard it as a discriminatory provision: ‘In truth, the contrary is the fact.’ He said that the unamended section 51(26) could not work adverse discrimination upon Aborigines. Being a constitutional lawyer, he offered this analysis: ‘The words are a protection against discrimination by the Commonwealth Parliament in respect of Aborigines. The power granted is one which enables the Parliament to make special laws, that is discriminatory laws in relation to other races – special laws that would relate to them and not to other people. The people of the Aboriginal race are specifically excluded from this power. There can be in relation to them no valid laws which would treat them as people outside the normal scope of the law, as people who do not enjoy benefits and sustain burdens in common with other citizens of Australia.’ (Hansard pp.2638-9, 11 November 1965) The new attorney-general, Nigel Bowen, put a submission to Cabinet proposing the removal of those words in the Constitution that were ‘alleged to be discriminatory against aboriginal people.’ Bowen, like Menzies, was a very accomplished lawyer, and thus his qualification that the offending words in the Constitution were ‘alleged to be discriminatory.’ Cabinet members were adamant that this constitutional change would not strike a new balance of power between the Commonwealth and the states when it came to dealing with Aborigines living within state borders. Though favouring the amendment, Cabinet still thought that the public had widely misinterpreted the existing provision and that it did not work adverse discrimination upon Aborigines. Cabinet ‘took the view that if the referendum was carried the Commonwealth role should not be to legislate itself but rather to participate with the states in the forming of policy.’ (Cabinet minute quoted in Bain Attwood and Andrew Markus, The 1967 Referendum, Aboriginal Studies Press, 2nd edition, 2007, p. 42)

[10] Tony Abbott, ‘Teaching for best selves not governments’, in Greg Craven, Shadow of the Cross, Kapunda Press, 2021, p. 64

[11]The Age, 29 August 2015. The ABC’s Elizabeth Jackson then asked Noel Pearson about Michael Gordon’s report in The Age: Elizabeth Jackson: ‘He says that he won’t support your idea of an Indigenous advisory body to be enshrined in the Constitution. What’s your reaction to that decision?’ Noel Pearson: ‘Yeah, I found that very strange, Elizabeth, because only last week we agreed on a process of Indigenous conferences and consultations with Australians, a proper process over 12 months where nothing was to be ruled in and out. And then I find this puzzling commentary from the Prime Minister, ruling some models out even before we’ve started the consultation.’ Elizabeth Jackson: ‘So you’re suggesting that he’s told you one thing and told the journalist something else?’ Noel Pearson: ‘Well, that’s the way I read it. And I think Michael Gordon’s piece in The Age makes very clear where he stands on the issue.’ (ABC, AM, 29 August 2015 (http://www.abc.net.au/am/content/2015/s4302446.htm)). 

[12] Malcolm Turnbull, A Bigger Picture, Hardie Grant, 2020, p. 566

[13] Ibid, p. 567

[14] Joint Media Release of Malcolm Turnbull, George Brandis and Nigel Scullion, 26 October 2017, available at https://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/5596294/upload_binary/5596294.pdf;fileType=application%2Fpdf#search=%22media/pressrel/5596294%22

[15] Noel Pearson, It’s time for constitutional recognition, 17 March 2021, available at https://capeyorkpartnership.org.au/its-time-for-true-constitutional-recognition/

[16] Transcript, Press conference, 18 March 2021, see https://www.pm.gov.au/media/press-conference-australian-parliament-house-act-36

[17] Noel Pearson, ABC TV Breakfast, 21 April 2021

[18] Andrew Bragg, Buraadja: The Liberal Case for National Reconciliation, The Kapunda Press, 2021, p. 86

[19] See https://www.abc.net.au/news/2018-06-28/prime-minister-indigenous-adviser-chris-sarra-resigns/9919920

[20] Andrew Bragg, Buraadja: The Liberal Case for National Reconciliation, The Kapunda Press, 2021, p. 167

[21] Ibid, p. 168

[22] Ibid.

[23] Ibid, p. 171

[24]Frank Brennan, Letters, The Australian, 10 June 2021, available at

https://www.theaustralian.com.au/commentary/letters/there-is-an-easy-way-to-include-indigenous-australians-in-our-constitution/news-story/532cdc5db95a0b74823bc8b565f2fa08. This provision could be ‘the hook’ in the Constitution of which Noel Pearson speaks. Parliament would need to legislate a ‘Voice’ with which the government and Parliament would need to consult before making laws with respect to Aborigines and Torres Strait Islanders for whom it is deemed necessary by Parliament to make special laws. That would be the ‘Voice’s’ constitutional function. The ‘Voice’ could be given additional functions in relation to other laws and policies. Professor Anne Twomey has put forward a couple of options with more constitutional structure to ‘the hook’, first in 2015 at https://theconversation.com/putting-words-to-the-tune-of-indigenous-constitutional-recognition-42038 and then in 2020 at https://theconversation.com/there-are-many-ways-to-achieve-indigenous-recognition-in-the-constitution-we-must-find-one-we-can-agree-on-142163

[25] Uluru Statement from the Heart

[26] ABC, Law Report, 29 June 2021,

 available at https://www.abc.net.au/radionational/programs/lawreport/overwhelming-support-for-indigenous-voice-in-constitution/13401840

[27] Andrew Bragg, Address to the Sydney Institute, 8 June 2021, available at https://www.andrewbragg.com/post/address-to-the-sydney-institute-buraadja-the-liberal-case-for-national-reconciliation

[28] Julian Leeser, The Australian, 18 January 2021, available at https://www.theaustralian.com.au/commentary/community-input-must-be-at-heart-of-the-voice-process/news-story/8a8041b5d9eb2a8692761580c8da3276

[29] International Court of Justice, Pleadings, Oral Arguments, Documents, Western Sahara, Volume IV, Oral Statements, p. 447 (12-16 May 1975)

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