Reflections on the Referendum Council

By Tess McPhail

The Referendum Council on Constitutional Recognition of Aboriginal and Torres Strait Islander Australians handed down its final report in June. Mark Leibler AC, Senior Partner at Arnold Bloch Leibler and Co-Chair of the Council, passionately believes an Indigenous ‘voice to parliament' is the right way forward.

Amending the Australian Constitution is no easy task and is often met with some hesitancy.

But for Mark Leibler AC (LLB(Hons) 1966, LLD 2014), changing the nation’s principal legal document to recognise Indigenous Australians is a top priority.

“Until we right the wrongs of the past that we are in a position to right, the potential of a better, more unified future is undermined,” he says.

Leibler has a long history of supporting Indigenous rights. In 1993, Arnold Bloch Leibler acted as lawyers and advisers to the Yorta Yorta people during their native title claim.

“Early on in our now 25-year relationship with the Yorta Yorta, I learned that in 1938, Yorta Yorta leader William Cooper led a march from his home in Footscray to the German consulate to denounce the persecution of the Jewish people by the Nazis,” Leibler says.

“As a Jewish man, I like to think that the relationship I have, and my firm has, with Aboriginal people is built on a foundation of empathy and shared humanity established by William Cooper.”

The Referendum Council on Constitutional Recognition of Aboriginal and Torres Strait Islander Australians was established in 2015, with Leibler as Co-Chair. It was created to advise Prime Minister Malcolm Turnbull and Leader of the Opposition Bill Shorten on the steps needed to achieve a successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution.

In June 2017, the Referendum Council delivered its final report, putting forward just one recommendation for constitutional change – that it should provide for a national representative body that gives Aboriginal and Torres Strait Islander peoples “a voice to the (Federal) Parliament”, and the right to be consulted on legislation and policies that affect them.

“The Indigenous ‘voice to parliament’ would be enormously unifying because the body itself has the potential to turn around our dismal record of policy failure in Aboriginal and Torres Strait Islander affairs,” Leibler says.

The Referendum Council also recommended that a separate declaration of recognition containing “inspiring and unifying words articulating Australia’s shared history, heritage and aspirations” be enacted by legislation.

A key feature of the Referendum Council’s work was a series of Indigenous-designed and led consultations that provided an unprecedented opportunity to genuinely engage with, and learn from, Aboriginal and Torres Strait Islander peoples. The process culminated in the National Constitutional Convention at Uluru in May, where the ‘Uluru Statement from the Heart’ was presented.

“The Indigenous consultation process influenced me enormously,” Leibler says.

“It makes no sense to me to offer a form of recognition that Indigenous Australians don’t value.”

The Referendum Council considered several proposed reforms to the Constitution, including a preamble that acknowledged Aboriginal and Torres Strait Islander peoples as the First Australians. Ultimately, it was the consultation and the Uluru Statement from the Heart that became the “primary source material” for the Referendum Council’s report.

“I have been involved in this process for a decade in various roles but none of the earlier bodies consulted, as the Referendum Council did, to ascertain the wishes of Aboriginal and Torres Strait Islander Australians themselves – the people we seek to recognise,” Leibler says.

Although the recommendations have been described by Prime Minister Turnbull as being “short on detail… but a very big idea”, Leibler stands by the Council’s findings.

“That Aboriginal and Torres Strait Islander peoples want a greater say in their own affairs should not have come as a surprise to anyone,” he says.

“Yes it’s a big idea, but it’s not a new idea and it’s clearly a moderate and reasonable idea.

“My sense is that there is broad support across different sectors of the community – it’s really only the politicians who are easily distracted as other issues come up.”

Advocating for change is a responsibility Leibler feels both professionally and personally.

“Now that my job as the Council’s Co-Chair is done, my next role in this extended national discussion will be as Mark Leibler, private citizen, who passionately believes that the nation must respond to the Uluru Statement from the Heart,” he says.

As the Government and Opposition consider the Referendum Council’s recommendations, Leibler remains confident that the path set out in the report will be followed.

“I believe the politicians will follow the people on this one, and I believe the people want what’s right.”

Banner image: Mark Leibler was Co-Chair of the Referendum Council on Constitutional Recognition of Aboriginal and Torres Strait Islander Australians.

Credit: supplied.

This article originally appeared in MLS News, Issue 18, November 2017