 Thanks Brian, I'm sorry my entrance was a bit premature but it's a particular and personal pleasure to offer this inaugural Faith Bandler Memorial lecture. I've been privileged to meet quite a few inspirational people in my life. The first of those exceptional people was Faith, a warm, remarkable island of woman who in 1967 when I met her was heading up, spearheading the referendum campaign to change the Constitution so that Aboriginal and Islander people would be countered as Australians and I'll have a word a little later on about how it ever came to pass that this country exterminated its own people, decided that Indigenous people were not to be countered as Australians. How did that happen? When we come to Macarata and truth-telling we have to tell a few truths about 1900, about names like Deacon and Barton that you see all around Canberra and what those men, the intense venomous racism of the people who wrote our Constitution and wrote Aborigines entirely out of it. Well Faith led the challenge that succeeded ultimately in the referendum and I met her when I was 19, I was head of the SRC at Sydney and she brought me on to Fikatsi, her group of the Federation of Aboriginal and Torres Strait Islanders in those days before there were Aboriginal law centres to argue that there should be Aboriginal law centres. Faith was born in 1918 at Tumble Gum and grew up in a farm near Mwilham Barn. Her father had been blackbirded from Vanuatu, a process that was very much akin to slavery. We like to think that slavery was abolished by the British in 1809. It went full steam in Northern Queensland on the sugar plantations in the 1870s and 80s. Australian ships would go to Vanuatu and the islands, they'd wave, the sailors would wave trinkets, the native men would come over the ships, they'd be lassoed and they would be then kidnapped and taken to Cairns and places in Northern Queensland and sold. Faith's father was sold for seven pounds as a slave to work in the sugar plantations. This dark period of Australia's history tends to be whitewashed by historians but it existed. Slavery existed in faith, I think, while she didn't remember much of her father. He died when she was five. Nonetheless, his story weighed on her and inspired her. The slave who, when Federation came, it was one of the ironies of Australian history. The slavery that was going on in Northern Queensland was stopped by politicians in the South who were so racist that they just hated the idea of slaves, of black slaves, of knackers. They wanted them deported so it was a tussle between the slave owners of North Queensland and the racists at Federation who wanted the knackers deported and Queensland did pass a deportation law and Faith's father escaped to New South Wales where he married a woman of Scottish Indian descent and Faith was born. Well, after working in the woman's land army during the war, she was talent spotted and mentored by that extraordinary Australian woman, perhaps the most significant woman in Australian history, Jesse Street. And she encouraged her to found for Catsey in 1957 and to be its general secretary. And as its general secretary, she worked nonstop for 10 years, lecturing, talking to churches, schools, along with her two friends who lived with her, Dulcy Flowers and Cath Walker. These three women are so important in the history of indigenous rights. They went around the country speaking, they enlisted Gordon Bryant who was the great Labour champion of the referendum. And then, although Robert Menzies never did anything and never cared about our indigenous people, Harold Holt was a decent man, a sensitive man, and agreed to put his party behind the referendum. So it had multi-party support and 91% of us Australians voted to get rid of the hideous racist claws that refused to allow aborigines to count as Australians and made another adjustment that, as Faith knew, was even perhaps more important in a real and practical way. It allowed the federal government to fund Aboriginal initiatives. And I met Faith. I went to her Redford meetings and I remember her own people saying, bugger this bloody referendum. We want homes. We want to stop the cops beating us up. And she would calmly and serenely explain to them that it was something to do with dignity, that they would achieve dignity from changing the constitution. That's an argument that still resounds with the changes that have to be made. Faith was sustained by her marriage to Hans Bandler, who had been an opponent of the Nazis in Austria before the war. And he spent three years in a concentration camp. It's wonderful to have their daughter, Lilon, here tonight. Faith would be very persuasive. I was at the time the most junior member and article clerk at one of Sydney's prestigious commercial law firms. But she soon persuaded me to act for families at La Peruse, who had declined to pay the rates on their land. So the Minister of Lands was amazed to find letters from Alan Allen and Hemsley, the most prestigious law firm in town, telling him that the Timberley family would pay their rates in good time when it suited them, which it never did. When Faith arranged for me to act for some Aboriginals who'd been arrested and framed by police at Redford, I did have to face the wrath of the senior partner and ask him whether the firm could act in criminal cases. And he sucked his pipe. And he explained to me, he said, well, lad, it's like this. We couldn't have Aboriginals in our waiting room alongside our corporate clients like Mr. Packer and Mr. Murdoch and the Board of Mineral Securities. This was the general approach to acting for Aboriginals in Sydney in the 60s. We just couldn't have them in the waiting room. Well, that was one reason for the establishment of Aboriginal law centres. But there were also terrible miscarriages of justice. Faith arranged for me to take up the case of Nancy Young, who was an Aboriginal woman convicted of manslaughter and jailed for neglecting her baby on the Insanitary Aboriginal Reserve at Canamulla, wealthy cattle country in southwest Queensland. It was an outrageous prosecution. Her baby, Evelyn Young, had died because the hospital had not provided proper treatment. And when Nancy brought the child in from the squalor of the reserve in these country towns where Aboriginals were forced to live out of sight and out of mind. After the conviction, the fresh evidence from the state's top pediatrician showed that the child had died from disease. But unbelievably, the Court of Appeal just refused to hear it. This had been the problem with Rupert Mack Stewart 10 years before. Another massive miscarriage of justice where Stewart, who of course the premier of South Australia, played for tried to hang. And he had mean there was evidence of his innocence that came in inevitably after the conviction, which the appeal courts simply refused to hear. Well, we started a campaign and eventually Four Corners took it up. And it ended with the chairman of the local council saying this, Aboriginals have the motto of something for nothing. They don't get very much for nothing. I'll admit that. But I think if you poke around there in their reserve, they're pretty happy in their environment. That was the attitude. Rather, we did the freedom rides from Sydney University to expose it. And the Four Corners program ended with a photo of Evelyn's rough grave with Aboriginal infant mortality statistics superimposed six times more death than white children. The Queensland judiciary was shamed. They convened another court of appeal, declared her innocent and released her at the time her sentence would in any event have expired without, of course, compensation. So these cases showed that Aboriginals were not getting fair trials in the court, particularly because of aspects of European law. And it was, I think, the last time that we met in Canberra, I gave the lecture at the 1970 Fikatsi conference on Aboriginals and the law courts. And that was when I told Faith, I was going to England. And she sort of smiled and said, Have you heard of the story of Yerema Wani? I hadn't. Do you know the story of Yerema Wani? Yerema Wani, she said, try and bring him back. Yerema Wani was the first Australian expatriate. He was the cousin of Benelong. Arthur Philip, when he went back to Britain in 1792, took Benelong and Yerema Wani. Benelong was smart and he took the next ship home. Yerema Wani stayed and endured the English winter. Of course, he caught pneumonia. Philip was mortified. He actually helped to nurse him until Yerema Wani died. And he, Philip in huge sadness, bought him an enormously expensive tombstone, which is still there today in the Anglican church at Eltham in South London. The tombstone under which it is widely believed, and I thought when I found it that Yerema Wani lay. And it struck me. It was some dream, I suppose, I had in the 1990s when there was a lot of talk of reconciliation. Philip had died 10 or 15 years later. And of course, the British never honoured him. They didn't bury him in Westminster Abbey. He merely found it Australia for the whites. That wasn't a big deal for the British. They didn't even bury him in Bath Abbey where he lived. They stuck him in a pretty ordinary church yard by a motorway. And it struck me that it might be possible as an act of reconciliation to bring back Yerema Wani and bring back Arthur Philip. Put them in coffins, lay them at State Funeral at Sydney Town Hall, Yerema Wani under the Aboriginal flag and Philip under the Australian flag and bury them overlooking Port Jackson in the Botanical Garden as well. I put this concept to Bob Carr, who was Premier. His cultural advisor, one Bob Ellis, was very taken with it. And so I was appointed a secret government agent to negotiate with the bishops of Bath and Wells and of South London for the return of Yerema Wani and Arthur Philip. Well, it went very well at first. The bishop of Bath and Wells was so excited at the prospect, of course I promised him a trip to Australia. And he actually appointed the Church of England expert on exhumation. Was sent to this little church where Philip was allegedly buried. And the bishop of South London was particularly excited. He always wanted to visit Australia. And he said, I'll get onto it immediately. We'll arrange for Yerema Wani's bones to be uplifted. Well, a couple of weeks later, I got a call from the bishop of South London. He said, terribly sorry, he was really tears in his voice. He said that about 1830, the graves in the parish were needed for wealthy white parishioners. And we had to throw out a lot of bones. And amongst the bones they threw out was that of Yerema Wani. I said, we do have a lot of bones if you might be interested. I resisted the temptation. And then a week or so later, the Church of England exhumation expert reported that he couldn't find Arthur Philip's coffin, where it's said to be when Australian tourists visit. So the Church of England had lost the plot. In fact, they'd lost two plots. And I failed faith. I did not bring back Yerema Wani. And it's quite outrageous. You know, I see Aboriginal groups from time to time come out to do smoking ceremonies at what they think is Yerema Wani's grave, because it has this extraordinary tombstone that Philip had donated. And the Church pretends that he's still there. But he isn't. It's the story. Really, it's the symbol of how we treat our history, our Indigenous history. So I failed faith in that respect. But half a century later, I'm here to offer this lecture in what I hope is her spirit. I want to talk. Of course, I'm now a dual citizen class of species, a person whom a high court ruled last year could never stand for federal parliament, which came as a great relief. But I have kept in touch. And as an international lawyer, I have been concerned with Indigenous groups in Mauritius, Norfolk Island, and various places in looking at the way in which their rights have come to be recognized in international law. I want to talk a little about the racism that was embodied in the Australian Constitution in 1900, and how those rights that are there now in international law might be placed in it. The story of the development of Indigenous rights begins, of course, with acknowledging the rights of minorities. Then, then, much later, the realization that Indigenous people are a very special, indeed unique minority. All minorities need protection and a democracy where power is in the hands of the majority. But Indigenous people are entitled not just to protection, but to the right of participation in government, at least to make their voice collectively heard on matters that affect them. Now, minority rights go right back to the Treaty of Westphalia in the 17th century, but it wasn't until the advent of the League of Nations after the First World War that states that had been defeated in that war were required to enter into treaties which granted civil and political rights to their minorities, supervised by the first international court, it was called the Permanent Court of International Justice, and its decisions were remarkably progressive in the for the 1930s. They said, yes, minorities are entitled to preserve their own languages and traditions and cultures, but then after the Second World War came the idea of individual rights, and Eleanor Roosevelt said, we don't have to worry about minority rights anymore. Members of minorities will be entitled to assert their civil and political rights as individuals. Now, this was a great mistake. It was shared by Doc Everett and others of the time who thought that the advent of international rights would be individual rights, and that would take care of minorities other than the right not to be subjected to genocide. So the genocide convention was after the war, the one collective right that was agreed upon. And even today, you can't appeal to the Human Rights Committee as a group. I was acting for the Norfolk Islanders and made the mistake of at one point making the application on behalf of the chair of the indigenous group, and they rang me in horror and said, you've got to change it. It's got to be an individual. You've got to make clear that it's an individual claim. But gradually the idea of group rights came back in the 1960s. It was in 1966 that we had the international convention on the elimination of all forms of racial discrimination. In 1973, the punishment of the crime of apartheid states began to amend their constitutions to remove racist elements. It was a matter of shame that you had racism entrenched in your constitution. And that's when, of course, Australia made a start with the 1967 referendum. But it left two racist clauses there. I don't think, in fact, it was so outrageous, the disbarring of aboriginals from counting in the census, that this provision was there. Let's have a look at it. It's the first slide, Article 25, which is in the constitution today. Look at it. There's in our constitution, yours and mine. There is actually a in heavy type provisions as to races disqualified from voting. If by the law of any state, all persons of any race are disqualified from voting at elections, then in reckoning the number of people persons of that race shall not be counted. So it's there because it was thought in 1900 that the Queensland government would stop the canackers, would stop the black birdies from voting. It was thought that Western Australia would stop the Chinese from voting. It was a palpable racist provision. And it's still there disfiguring the Australian constitution. If state parliaments want to pass laws disenfranchising aboriginals or Vietnamese or New Zealanders from voting, it's there as an ugly description of power. So that's an example of one clause that has to be removed. I suppose indigenous peoples have been regarded by some academics as an emerging object of international law. I think it's more logical to regard them as one minority group which has a particularly strong claim for special treatment, including a community right to representation from a nation state with a majority of settler descendants. The strength of that claim derives not merely from sentiment, therefore bears would usually have been massacred or enslaved by settlers or cheated out of land or else have had it stolen, land to which they often retain a quasi-spiritual attachment. Our aboriginals, our aboriginal and tourist state island people are not alone. There are almost 300 million indigenous people from 5,000 groups in the world today defined by the UN's working group on indigenous populations as quote, descendants of the original inhabitants of conquered territories preserving a minority culture and recognizing themselves as such. That definition of course exactly fits our aboriginal and tourist state island people and they have a right to maintain that culture. International law itself is status, it tends to be what states consent to do and it wasn't until September 2007 that the General Assembly adopted crucially declaration on the rights of indigenous peoples to which Australia purported to adhere in 2009. Now the declaration on the rights of indigenous peoples was first important in the right to maintain religion and culture and in setting out the principle that decisions taken on the rights in which indigenous peoples were interested must be taken with their informed consent. Now this was a crucial principle in the case against the National History Museum. I got a call on a Thursday night from Michael Mansel saying the National History Museum on Monday is going to dissolve the skulls and bones of Tasmanian aboriginals that had been left to them. The National History Museum in London got these skulls from Lady Franklin's estate, Lady Franklin, dreadful woman who would send the so-called protectors of aborigines out to rob graves so that she would get these skulls to put on her mantelpiece. And of course going to Tasmania, there were all sorts of effigies and statues of Governor Franklin and Lady Franklin, but they were grave robbers and the skulls ended up in the Natural History Museum which was about to put them in a prasic acid belt to dissolve them and do various experiments with them, but Michael Mansel and his Tasmanian aboriginal center had heard about. So we got an injunction on the Sunday and on the Monday they stormed it accordingly. We're just going to cut them about a bit, the skulls and bones of the ancestors. And I said, no, they're about to experiment on the victims of genocide because it was a genocide in Tasmania and the Black Wars of the 1830s, 8,000, all the tribe were wiped out with the exception of 45 women who were put on an island and subjected to the attentions of seal hunters. So in the end, we invoked the convention, the fact that this is being done without the approval of the descendants of the indigenous people of Tasmania. And eventually, after a hard fought mediation, the museum agreed to abide by the convention and to return the skulls and bones to the descendants of the Tasmanian aboriginals and not to experiment without their consent. And this principle that indigenous people must not be subjected to power without their consent is a principle that is behind the case for a voice. Well, the case for a voice is really made in the declaration by articles 18 and 19. Let's have a look. If we may, at article 18, indigenous people have the right to participate in decision making in matters which would affect their rights through representatives chosen by themselves, as well as to maintain and develop their own. So there you have in international law the makings of a right to a voice to participate in decision making in matters which would affect their rights. And then article 19 takes this a little further. States shall cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. So there again the indigenous peoples of Australia are entitled in international law to the voice that they demanded almost heart-rendingly in the statement from Uluru, a voice whether it's from the constitution or legislated in parliament that gives them the opportunity of making representations in order before parliament adopts any law that affects them. The right of indigenous peoples to a voice in the government on matters that affect them through their own representatives formally acknowledged by Australia in 2009. Well, I want to urge three aspects in which our country falls short of international obligations. Firstly, there are two racist clauses in its constitution that should be removed and must be removed by referendum because there's no other way. Secondly, that constitution fails to recognize and respect indigenous people and their culture and their connection with the land. It's got to be changed again. It has to be by putting a recognition clause in the constitution. And thirdly, with its failure to provide this could be in the constitution or more, I think should be simply as a matter of parliamentary legislation for the representative voice in government required by articles 18 and 19. Now, let's have a little bit of truth telling. I think there's been too much concentration on the question of the invasion of 1788. I think Arthur Phillip was the most extraordinary enlightened figure, his first law for Australia was that there must be no slavery, whether he was speared at manly, he insisted on reconciliation. I didn't find the arguments about invasion or not, particularly helpful. What we have to tell the truth about is the venomous racism of the founders of this constitution in 1900. And the men who devised it, whose names are celebrated throughout Canberra and statues are here, Edmund Barton, First Prime Minister, Tosspot Tobi, a drunken racist who said that government, the first power of government should be to regulate the affairs of inferior races. Then there's Sir John Forrest, the first premier of Western Australia, demanded to ban every Asian and African alien from the Goldfields. And he said the purpose of section 51-26, which is still there, is to repatriate persons of colored race, the Chinese laundremen, the market gardeners, Syrian hawkers, the Pacific Island people, the Canackers, like Faith's father. These men, they're all men, of course, who argued our constitution into its shape were deep-died racists. Sir, as were the best lawyers of the time, Henry Higgins, Isaac Isaacs, read their advice to the trade unions. They were thinking entirely about the dangers of not being able to repatriate the Chinese, and advising against any language in the constitution which might give a glimmer of hope to colored people. There was one, one only, Attorney General of Tasmania, oddly enough, who argued for a Bill of Rights in the American tradition, and he was left behind on the seashore when the Lucinda, the yacht in which they finalized the constitution, was set sail in Sydney Harbour. And of course, the very first law introduced by those men in that parliament was the Immigration Restriction Act of 1901, introduced by Alfred Deacon. I think his name resonates in Canberra, doesn't it? He was Attorney General and later three times Prime Minister, and he dubbed it the White Australia Policy. And he said, I quote, in a hundred years' time, the aboriginal race will die out. Australia will be a white continent with not a black or even a dark skin amongst its inhabitants. Other races are to be excluded by law if they are tinted in any degree. There you are. That was these men, and I read the constitutional debates. I was an eager beaver law student at 19. I couldn't believe it. They treated colored people with the racist views of the times, but for aboriginals, they regarded them as animals. They spoke of them in the same way as they spoke of kangaroos that threatened the crops. They regarded them as subhuman. There's no other word for it. They regarded them as subhuman, and that's why, of course, they weren't to be counted as in the census. And it's a shock to realize the ingrained racism of our founding fathers, the men whose statues adorn the public parks and whose names are imprinted on public buildings and streets. And it's even more shocking, I think, that no one at the Constitutional Convention so much as mentioned any place in this new nation for aboriginal people. There was no place for them, not a single delegate spoke about it. They were excluded on the basis that they were hardly human. So how should we deal today with that racism in the Australian Constitution that infected the founding fathers? I suppose we could make excuses. We could look at the photographs and say, oh, well, they're not really Australian. They were unevolved Australians. They were British from their bowler hats to their brogue shoes. But that wouldn't work, because the British, by this time, had abolished slavery in the early 19th century. They were welcoming refugees from the pogroms in Eastern Europe. And it was the British Anti-Slavery Society, actually, that started to kick up a fuss about the slavery of the Canackers. So I don't think that really excuses them. And I think an exercise in truth telling that the statement from Uluru, statement from the heart demanded, has to start by telling the truth, not perhaps by tearing down statues, but by putting a little truth on the plinth. In America, this is taken very seriously. The Charlotteville case, where Americans were concerned to move the impediment of triumphalist civil war statues, even poor old Robert E. Lee, who wasn't even in favor of slavery, but who fought for those who were removed. But there doesn't seem to be any interest in Canberra, even in ANU, in moving statues and changing names and actually bringing to the fore what is essential for people to understand about the Australian Constitution. It was really formed by people who regarded Aboriginals as likely to die out, and that is a very good thing. Well, after the 1967 referendum, we had 20 years later the Constitutional Commission, which recommended repeal of section 25. It is no longer appropriate to have a provision which contemplates disqualification of a race from voting, and the whole of section 51, 26, because it was inappropriate to have. Do we have section, yes, there it is, Parliament shall have power to make laws with respect to the people of any race for whom it is deemed necessary to make special laws. We should have an anti-discrimination clause and not a clause that permits discrimination against. That was the interpretation the High Court and the Hindmarsh Bridge case gave to that section. It should be replaced by a simple provision empowering the Federal Parliament to make laws for the Aboriginal and Torres Strait Island people as Robert French has put it, not because of their race, but because of their special place in our history. Well, in the, in about eight years ago, the Gillard government set up an expert panel to look at changes to the Constitution, not just section 25 and 51, 26, but also the idea of recognising in the Constitution the Indigenous people. And then, so we had this proposal that this should be inserted by referendum in the Constitution, recognising that Continent and its island, now known as Australia, thanks to Matthew Flinders, were first occupied by Aboriginal and Torres Strait Islander people, acknowledging the continuing relationship of ATI people with the traditional lands and waters, respecting the continuing culture, language and heritage of Indigenous people. Parliament should have power that went on. Parliament should have power to make laws with respect to them. Well, it's not an inspiring declaration, is it? Doesn't trip off the tongue. It acknowledges this and that, but not the basic degradation and colonisation, for which it's quite unapologetic. It's not something that children can recite in school, as no person wants. And, but at least it's the first positive statement in the Constitution about our first people. And the irony of the success of the 1967 referendum was the two sections it rightly abolished, the early sections that mentioned Aboriginal people. So, there is no mention of our Indigenous people in the Constitution. And it would be at least a positive mention. There is another version that I attempted which tried to get the idea across in a different way. Do we have it? Ah, yes. In my book, The Statute of Liberty, I propose this in the course of a preamble for a charter of rights that the Australian people could declare in the Constitution that they're humble in acknowledging the first owners and occupiers of this unique continent, whose ancestors walked on its earth for tens of thousands of years before a British settlement, sorrowful for the dispossession and discrimination and degradation they've endured, and resolved hereafter to respect their relationship with the land and to atone for past wrongs by future equity. I prefer to do something like that because it does try to express sorrow and humility for the time past and a more genuine hope for the future. But drafting constitutional clauses can be hit and miss. The greatest statement begins, we hold these truths to be self-evident that all men are created equal. Jefferson knocked that up overnight and came down to read it to John Adam as in Ben Franklin. And his first draft, which he read, said, we hold these truths to be sacred and inviolable. And shook his head, sacred and inviolable, smacks of the pulpit. Mr. Jefferson smacks of the pulpit. These truths are self-evident, are they not? Jefferson said yes, I suppose they are, and struck out sacred and inviolable and put in self-evident, amended his draft and the rest is history and American history anyway. In Australia, look, the problem is not only in the drafting, it's in getting accepted at a referendum. A referendum was thanks to, what is it, section 128 of the Constitution, you have to get four states as well as a majority of the population beside it. But a news poll in October 2011 found that 80% of people were in favour of constitutional recognition, at least for first peoples and their culture. There was a bit of opposition to any mention of their language on the basis there were too many. But there was an 80% support and the expert panel was a bit nervous about the referendum. It warned about the lack of knowledge about the Constitution and the ease with which well-intentioned propositions can be distorted by fake news. I think there was a hangover here, some recollection of the 1988 Constitution when Lionel Bowen and Gareth Evans tried to get a referendum in favour of, section in favour of freedom of speech. And Begelki Peterson was Premier of Queensland and managed to convince a lot of people that this would lead to homosexuals running down the street naked. And so it was defeated, a motherhood provision. But that hangs in section 128, isn't it, that requires that double majority. But you know, after the gay marriage, I don't suppose, what was it, a plebiscite? Sorry? Yeah, non-vining postal vote. It was still a pretty good result for common sense and decency. And you see this in the Irish referendum, you see this with vast and massive majorities of young people. And so I wouldn't be so doubtful that if it was all party support as it was in 1967 that you couldn't get up a referendum that excluded the racist clauses and inserted a recognition, even if it's in the Stumblebum recognition draft of the expert panel. And I think that it's, of course, what happened was then there was, everyone thought the 2015 Joint Committee reported and it seemed to be agreed between Turnbull and Shorten that there would be a referendum. And they set up a referendum council to actually work out how the referendum was going to go through. But the referendum council started talking to aboriginal groups. And it reported back that they weren't so keen. They weren't bothered. They said it was a, Section 25 was a dead letter. And they said, oh, well, this lax as no person said, it can't be recited by children of school, maybe a parliamentary declaration. And it reminds me so much of those meetings that Faith Bandler held in 1967. We don't want your bloody constitution. We want homes and freedom from police harassment. And Faith's answer, it's a matter of dignity. You must have it in your basic law. And so I think that that is the answer, surely, to those who feel that it's just a dead letter. Well, the voice was even more controversial. Those two racist provisions should simply be abolished. And it's not actually a matter for decision by indigenous people. It's a matter for all Australians. We should be ashamed, I'm ashamed, that you've got Section 25 we have in our constitution. We should get rivet whether indigenous groups think that it's worth bothering about or not. We should think it's worth bothering about because it shames us. Well, there were a question then of the voice. There were a lot of ideas that the expert panel thought were too radical. Reserved seats in parliament for Aboriginal people was a bridge too far. Although, of course, the Māris in New Zealand have seven. That, of course, comes from a treaty. And other legal experts thought that we should have an amendment so that a treaty can be negotiated. But it doesn't need a constitutional referendum to allow parliament to negotiate a treaty. It can negotiate one tomorrow. Well, likely to confuse Australians, said the expert panel. So they didn't want it either. But the simple reason is it's not necessary parliament can reach a treaty tomorrow. And although I'm not talking tonight about treaties, it is heartening to see a number of state governments in Victoria, South Australia, and in the Northern Territory progressing negotiations for a treaty. Ultimately, that must come. But it's a slow business. The expert panel wanted simple changes, agreed by all parties. And of the 44 proposals that have been put in our history, only eight have been successful. The last successful proposal was as long ago as 1977 to ensure that High Court judges retired at 70. Having just hit that mark, I find that I can't be appointed to the High Court either. So it's hard to believe, and I don't believe, the proposals to amend, abolish the racist clauses in the Constitution and recognize our first people if supported by every party could fail. And the plebiscite postal vote on gay marriage, I think, gives an indication that scare mongering is no longer going to be taken much notice of. And I think we must enhance our concern for Aboriginal people, not with the cleft stick kind of referendum saying, oh, the changes are only of symbolic importance. It will cost nothing to show goodwill. That kind of negative campaigning would betray the real significance of the reform. After 118 years, it's not an inconsiderable achievement to get rid of racism and to give our Indigenous people recognition, recognized and dignified place in a Constitution that upholds racial equality. But that won't give them a voice. How are we going to give them a voice? And in 2015, the Joint Select Committee reported, it said, go for recognition, go for abolition of racist clauses. But it set up a referendum council that, as I say, surprisingly found that a lot of the regions thought that it wasn't. They were really dead letters not to be worried about. And we needed a declaration, a parliamentary declaration, containing inspiring and unifying words, articulating Australia's shared history, heritage and aspirations. Well, amen to that. I think there should be inspiring words in a Constitution. But more important than the referendum council report was the statement from the heart, which emerged from a convention on the Constitution held at Illaroo. And it was a passionate semi-spiritual report which transformed the debate. It talked of powerlessness. It called for substantive constitutional change. It called for truth-telling about our history and a First Nations voice in government. By the force of its language, the honesty of its meaning, it threw down a gauntlet that no previous commission had picked up. It did not, of course, descend to detail, which was left to the Joint Select Committee in its interim report on July the 30th of this year. In that report, it asked hundreds of questions about how the voice would be constructed, this representative body envisaged by Articles 18 and 19 of the Indigenous Rights Treaty. How should it be structured? Should be set up in the Constitution or by Parliament? What powers should it have? Should those powers be confined to advising and only on Aboriginal issues or only on laws made under Sections 122 and 51? There are hundreds of questions. And the committee says almost in despair, and I quote, at this stage, four months, mind you, before its final report is due on November the 30th, it is hard to establish whether there is community and regional support for a constitutional voice or voices, especially as there is as yet no agreement as to how such a body would be structured. Well, I have long thought that there is a very simple way of giving our Indigenous people a voice, allow them to elect four senators. There are 660,000 Aboriginals and Torres Strait Islanders, more than Tasmanians, there are only half a million Tasmanians, and they can elect six. That would require constitutional change, of course, and no matter how convincing your proof that Indigenous senators would be more intelligent and conscientious than those elected from other states. It might fail the referendum test. The most stupid man I've ever met in my life was a man called, it was a senator called Herodine. And he was a senator in the 80s and 90s. He basically decided what Australia would do, held the balance of power. And I just think how much better make Dodson or Marcia Langton or those great Aboriginal thinkers would be. But Parliament, it might fail the referendum test. Parliament can legislate tomorrow to set up a representative body whose advice can be tabled in Parliament. Of course, the problem is that advice can be ignored. So how do we find a way to take it into account without becoming too powerful? One way that the Select Committee doesn't consider, which is odd because it's been tried and tested in Britain, is to give the Indigenous body a power that is similar to the appointed house of Lords. The power to delay legislation so as to force the elected Parliament to think about it again, but not to overturn the elected Parliament's decision to send back for further debate a proposition that concerns Indigenous people that is not acceptable or they want Parliament to think about again. So that's a power the voice should have, a power to say, think again about laws that will impact on Aboriginal and Torres Strait Island people. It doesn't have to be a constitutional power. Parliament could adopt this device as a convention, as a self-denying audience, a procedure that would assist any debate relating to the interests or rights of Aboriginal people. A lot of the submissions to the Joint Committee have suggested that the voice, this representative body, should be confined in its advice to laws impacting directly on Aboriginal people. Well, I disagree with that. If you set up an elected Indigenous body with a direct line to Parliament, it should be free to advise, if it wishes, on other governmental matters. Its advice on those matters wouldn't delay legislation or wouldn't require further debate, as would its advice on laws directly affecting Indigenous people. But it would be there on the table to be taken account of during debate on laws. It's patronising, it's insulting to think that a body of Indigenous people, a representative body, might have nothing to say on refugee policy, for example, or on matters of community health or care for the elderly. I think their perspective should be welcoming and should be welcomed through the establishment of the voice. So I hope the final report on November the 30th does go full steam ahead and design a parliamentary extra-constitutional structure that will give our Indigenous people a real say in policies that affect them directly and the opportunity, at least, to be heard on other governmental issues. What should it say about the proposal so emphatically endorsed by previous committees to have a referendum to rid ourselves of the two racist clauses in the Constitution? Well, they're not dead letters. Nothing in a Constitution is ever dead for a start. And as I say, more importantly, this is not a matter for Indigenous people to decide. It's a matter for all Australians who should be ashamed to have racist elements in our basic law. So for the dignity and respect of white Australians, of all Australians, they should be expunged. And what about the recognition clause, recognizing our first people, acknowledging their relationship with traditional lands and waters, respecting their culture, language, and heritage? Referendum Council consultees, a lot of them, said they didn't want it. They preferred a more inspiringly written declaration made by Parliament. I fully understand the desire to have something inspiring that kids can recite in school, but that's really the function of a charter of rights, a different if overlapping battle. I have to say, a parliamentary declaration is not worth the paper on which it's written. It has no legal force. It can be withdrawn by the very next Parliament. But there is a more positive reason that Faith Bandler understood to put these quite ordinary straightforward words in the Constitution. Because for the very reason they're in the Constitution, they must be accepted and applied by all courts, by all state parliaments and local councils in the tens of thousands of decisions that are made about Indigenous rights and issues. For the very reason they're in the Constitution, they become part of the background values that inform and sometimes decide adjudications. They get taught in schools, in law and government courses, at universities. They must be accepted by decision makers as given in a declaration, no matter parliamentary declaration, no matter how inspiring the language. They're empty rhetoric in a Constitution, however boring the words they live and they breathe. And don't imagine for a moment that adopting them by referendum will set back demands for sovereignty or whatever. If placed in the Constitution, they will be the first building blocks for power sharing. And this is not, again, a matter on which Indigenous voices should have a monopoly. It is a matter for all Australians as to how we want our Constitution to recognize our first peoples. Well, as I'm sure you'll remember, last October the Liberal Country Party, National Party, what does it call itself now? Country Party or National Party? National, all right. That's a pity because I've got to make a joke about them, that the cabinet considered and rejected the proposal for an Indigenous voice. Malcolm Turnbull said, quote, it would inevitably be seen as a third chamber of parliament and it would not pass at a referendum. But of course, a voice constructed by parliament with a power to delay laws affecting aboriginals would not need a referendum and could not sensibly be perceived as a third chamber. So both his objections are beside the point, as of course is he. I always think of him as little Malcolm because when he came up to Sydney University in the 70s we were doing that play, little Malcolm and his struggle against the Unix. And Malcolm Turnbull always seemed to be struggling against Unix. And finally the Unix got him. And let me make this point. Look, I never want to make party political propaganda. I'm not a member of any Australian political party and hypotheticals I was scrupulous to have all sides represented. I've only been best man at two weddings. One was Malcolm Turnbull, the other was Nick Griners. So I can't be accused, I hope, of partly political bias. But I did read and I did analyse the appendix to the interim report in July the 30th. It gave a list of Aboriginal and Torres Strait Island parliamentarians with their party affiliation. There are 19 of them currently in federal and state parliaments. The national party has none. Maybe it's not called the country party, I'd say there's no welcome to country in the country party. But it is shameful. The liberal party has only three. The Greens have one and there are two independents. The Labour party has 13. Now we all know how political parties can manoeuvre, pull strings, manipulate to get candidates of choice into seat, see the Wentworth by-election. But if they want to, it seems obvious from these statistics that the AOP does want to give Indigenous people some representation. The national party does not. And the Liberals have made only a token attempt. Not that Ken Wyatt is token, but he is unique. So if you want an Indigenous voice, basically you have to vote Labour and the knowledge that they will arrange for some Indigenous people to be representative in state and federal parliament. But maybe the choice will not be so stark. Who knows? The present government has no kind of values. It doesn't, maybe it will latch on to a referendum proposal to abolish racist clauses and to assert a general anti-discrimination clause and a paragraph in the Constitution acknowledging and recognising our first people, if the first people can only agree on the wording it would be easier. These proposals are likely to succeed. An untried proposal for a voice probably would not or might not, but as I've sought to explain, there's no reason why at this stage it should be submitted to a referendum. Parliament has the power to set up an elected body to represent Indigenous people as soon as its leaders can agree on its structure and to give it the power to advise on legislation that affects them and to delay that legislation until their advice is debated. So in the absence of a treaty that would be a start in giving back to Indigenous people the precious right we have taken from them in the past 230 years, the right to decide their own destiny or at least to participate in any decision about it. It's their international law right under Articles 18-19 of the UN Declaration. It's their right as Australia's first people. His contribution to multicultural Australia has been immense. They have, after all, taught us to dream, to suffer adversity stoically, to find our way through the bush. They're entitled in a word to dignity, the dignity that comes from living in a country that recognises their unique contribution to its culture and permits them to join in decision making about their own future. And I would add about the future of this country. Dignity is the word that comes to mind when I think back to Faith Bandler in 1967. Not only her own dignity, but the answer she gave to those in Redfern who said, forget the bloody constitution, we want homes. No, she said, a constitution gives us our dignity. So it is time in the spirit of Faith to keep Faith with her work by finishing it, by ending the racist clauses of the Constitution, by recognising our first people for the first time. Thank you.