2569

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Submission Number
2569
Participant
Dulwich Centre Foundation
Submission date
Main Submission Automated Transcript

30th April, 2021

To whom it may concern,

My great-great grandfather, Sir Samuel Griffith, was one of the primary authors/drafters of the
Australian Constitution. This submission in support of enshrining an Indigenous Voice to Parliament
in the Constitution is written as a letter to Sir Samuel Griffith.

It is an extract from the book ‘Unsettling !ustralian histories: Letters to ancestry from a great-great-
grandson’.

Yours sincerely,

David Denborough
Dulwich Centre Foundation https://dulwichcentre.com.au/product/unsettling-australian-histories/
Dear Samuel,

Your name is most often mentioned these days in relation
to the Australian Constitution, and your role in drafting and
redrafting it.

Handwritten comments on Samuel Griffith’s first proof of the
Australian Constitution. State Library of New South Wales.

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In 1891, while the shearers’ strike was in full swing in
Queensland, you were intensely involved in creating a draft of
the Australian Constitution. From 23 to 25 March, in what has
been described as ‘an astonishing spurt of creativity, working
late into the night’, you produced a significant draft.112

there were no focus groups, no research papers,
no staffers, no public servants, no secretaries, no
proofers, no parliamentary counsel, no research
assistants. A determined and able man simply picked
up his pen, examined his colleagues’ models, and
wrote … Of the Bill, Deakin remarked: ‘as a whole
and in every clause the measure bore the stamp of
Sir Samuel Griffith’s patient and untiring handiwork,
his terse, clear style and force of expression.’ 113

Subject to other changes made in 1897–1898, it is
true to say, as J. A. La Nauze said, that the ‘draft
of 1891 is the Constitution of 1900, not its father
or grandfather.’ Like Griffith’s contemporaries,
La Nauze considered that the major force behind
the 1891 draft was Griffith. For his own part,
Griffith praised Clark’s draft as laying the ‘original
groundwork’, and praised as well the drafting of
Barton and Kingston. 114

The reason the Constitution is under discussion now is
because it’s a matter of conscience:

At Federation in 1901, Aboriginal and Torres
Strait Islander peoples were excluded from the

156
Constitution because we were considered to be a
dying race. But in more recent times, Australia’s
conscience has begun to stir. 115

Samuel, the last time our nation collectively engaged with the
Constitution you drafted was in 1967. That was when the ‘race
powers’ that you included in the Constitution were removed:

During the 1897 debates, the provision that came to
be known as the races power was referred to as ‘Sir
Samuel Griffith’s clause. He had a special knowledge
of the matter,’ and it was Griffith who proposed the
inclusion of the provision.116

These provisions ensured that Aboriginal people were not
counted in the populations of the states and that only the states
(and not the Commonwealth Government) could legislate in
relation to Aboriginal people.

The legislative power which remained exclusively
with the States was utilised by a number of States,
including most notably Western Australia, to pass
appalling and egregious laws which discriminated
against Aboriginal people. Those laws had many
disastrous consequences, including the separation
of Aboriginal children from their parents – a
phenomenon which has become known as the
Stolen Generations.117

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Of course, as Helen Irving described:

there is no reason to believe that Commonwealth
governments over this century would have passed
more progressive laws in respect of the Aboriginal
people than did the states (since they controlled the
Northern Territory and still failed to do so until the
1970s). 118

Samuel, three years before I was born, in 1967, the Australian
people had a chance to vote on changes to the Constitution in
the hope of improving the lives of Aboriginal people. As Larissa
Behrendt has described, the result was overwhelming:

one thing that remains true is that never has a
referendum had such an overwhelming ‘yes’ vote.
The fact that 90.77 per cent of Australians voted
for a change they believed would improve the
lives of Indigenous people is something we should
celebrate. 119

After the 1967 referendum, the only two places where
Aboriginal people were mentioned in the Constitution were
removed. Which leads us to where we are now, Samuel: a
national Constitution that is completely silent in relation to the
original peoples of this land. It’s a situation that cannot last, and
now, for the first time, a constitutional convention has been held
by Aboriginal and Torres Strait Islander peoples. The result of
this convention was the creation of the Uluru Statement from the
Heart. 120 I think the best way for me to convey its significance is
by quoting Thomas Mayor, a Torres Strait Islander man:

158
The Uluru Statement from the Heart was
made through a process that imbued it with
unprecendented cultural authority. 121

The Referendum Council ran thirteen regional
constitutional dialogues. The dialogues were
managed, chaired and facilitated by locals. Dialogue
participants were invited in accordance with a
formula that required 60 per cent to be Traditional
Owners for their cultural authority. 122

After travelling the country and involving over 1200
Aboriginal and Torres Strait Islander delegates, a national
convention was convened:

Importantly, each dialogue would elect delegates
to attend the culmination of the dialogues, one big
national constitutional convention in the heart of
the country at Uluru. 123

It was at this convention that the Uluru Statement from
the Heart was endorsed as representing the views of the First
Nations people of this land.

Samuel, I find it poignant to contrast the care and the inclusive
process of the generation of the Uluru Statement from the Heart
with the process of voting to determine whether Federation took
place. That was an overwhlemingly white male affair. In the
Federation referendums of the late 1890s, the only women and
the only Aboriginal people who voted were in South Australia.

159
Several hundred Aboriginal men and women at Point
McLeay Mission (now restored to its original name, Raukkan)
were the only Aboriginal people to vote at the Constitution
Bill referendums in the late 1890s.124 I wonder if some of their
descendants participated in the constitutional convention at
Uluru?

No other Aboriginal people participated in any way in the
process of generating the original Australian Constitution and
issues pertaining to Indigenous Australia were hardly even
discussed.

But now, over a century later, the First Nations of this land
have spoken, and The Uluru Statement from the Heart makes
three calls:

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

We seek a Makarrata Commission to supervise a
process of agreement-making between governments
and First Nations

and truth-telling about our history. 125

Three ways forward: voice, agreement-making and truth-
telling.

Samuel, if you are wondering how we got to this place, let
me tell you about how the High Court, which you presided over
as its first chief justice, has provided leadership far beyond that
offered by political leaders.

160
I think about the Mabo decision and Wik decision. Samuel,
I wish you could have been around on the days of those
decisions. I would love to talk with you about both of them.
I can almost imagine taking a walk with you out of the High
Court and along the shores of Lake Burley Griffin in Canberra
and hearing your reflections on those two monumental legal
decisions.

Perhaps I can catch you up through the words of Henry
Reynolds, the historian whose research assisted Eddie Koiki
Mabo’s case. From Henry Reynolds’ perspective, the High
Court’s Mabo decision in 1992 was a ‘legal revolution’:

[The Mabo decision] overturned 200 years of settled
jurisprudence … The judgment was of crowning
importance because it looked both forward and back
… The decision of the British Government to regard
Australia as terra nullius was one of the most portentous
in Australian history. The reverberations reached
everywhere. The courts in both Britain and Australia
maintained the fiction that Australia was acquired
as a desert and empty land. It had not been gained by
conquest or by cession and transfer of sovereignty by
way of a treaty. All of this was to change in 1992 …

The impact of [the Mabo decision] … was manifest
and immediate … The Aboriginal tribes, the judges
determined in a six-to-one majority, owned their

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traditional lands. When they met invading settlers they
were engaging in legitimate defence of their property
rights. The settlers were not moving onto empty land.
They were initially trespassers and ultimately usurpers.
Aboriginal attacks were a means of legitimate resistance
to theft …

On land that had not been alienated from the Crown
– and there was a great deal of it – Aboriginal rights
could be presumed to exist as long as the traditional
claimants could establish that they had maintained
their association with the land. The Wik case of 1996
established that vestigial property rights could exist on
land held under pastoral leases, which covered much of
the great grasslands that had seen the enduring scenes
of bloodshed during a large part of the 19th century.126

Now that the High Court has established that this land was
not terra nullius, and that Aboriginal and Torres Strait Islander
people’s legal rights were not extinguished by colonisation,
having a Constitution that has no reference to First Peoples
makes no sense*.

* I don’t mean to romanticise the Mabo and Wik decisions. As Irene Watson (2015) describes,
they left a great deal unanswered:
Post-Mabo there remains a limited understanding of the law-filled Aboriginal relationship
to the natural world. While the High Court recognised an Aboriginal relationship to land,
that recognition was translated at being at the lowest end of the property rights hierarchy,
simply a beneficial right to use the land, and one which is open to extinguishment by the
state. The High Court did not consider the sovereignty of Aboriginal law. (Watson 2015, 37)

162
But these realms are not only about logic or sense. The Uluru
Statement from the Heart represents something much more to
me. It represents an invitation to partnership, as Galarrwuy
Yunupingu conveyed:

What Aboriginal people ask is that the modern
world now makes the sacrifices necessary to give
us a real future. To relax its grip on us. To let us
breathe, to let us be free of the determined control
exerted on us to make us like you. And you should
take that a step further and recognise us for who we
are, and not who you want us to be. Let us be who
we are – Aboriginal people in a modern world – and
be proud of us. Acknowledge that we have survived
the worst that the past had thrown at us, and we are
here with our songs, our ceremonies, our land, our
language and our people – our full identity. What
a gift this is that we can give you, if you choose to
accept us in a meaningful way.127

Samuel, I experience the Uluru Statement from the Heart as
an invitation to partnership:

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.128

This invitation, I believe, is a chance for those of us alive to
do our duty in relation to you, our ancestors. It is a chance for

163
us to work to redress histories, and we can’t do this without
partnerships.

The partnerships that shape all the work I am involved with
are influenced by the ideas of Taimalieutu Kiwi Tamasese and
the Just Therapy Team from Aotearoa, New Zealand:

we have developed partnerships across issues of
culture and gender … These are partnerships that
are based on values of humility, respect, sacredness,
reciprocity and love. They are also based on structures
of accountability … we have found it helpful to agree
to creative forms of accountability that address our …
histories and consequent biases.

… These relationships sustain me. Sometimes there
are difficulties but we all know that these are long­
term committed relationships to one another. We
know that in time the difficulties will be sorted out …

These partnerships are urgently needed. Throughout
the world, women and men from Indigenous cultures
and from less developed countries are creating lives
severely restricted by the effects of racism and grossly
unjust distribution of resources … Creating working
partnerships across culture and gender is one way
forward.129

Such partnerships mean the world to me. As does the
collective invitation offered by the First Nations of this land in
the form of the Uluru Statement from the Heart.

164
Samuel, what’s actually more confronting than facing the
actions of my ancestors are the times when we, in the present,
show complete lack of respect to First Nations people. It is beyond
my comprehension that our government of the day – having
established a process to explore constitutional recognition
and requested Indigenous people to consult over its direction
– completely disregarded the Uluru Statement from the Heart.
What’s more, this act of brutal disrespect was not done through
a justification that Aboriginal people are a ‘dying race’, and nor
was it done in any genuine fear – as my settler ancestors lived
in genuine fear during the times of Frontier War. No, this act of
banal racialised violence had little justification other than it was
not seen by the Government as desirable or capable of winning
acceptance at referendum.130

Fortunately, the First Nations people of this land are wise, as
Rachel Perkins explained:

The one thing we have learnt is not to give these
statements to the government. They haven’t earned
the respect to receive them. When they rise to the
aspirations in the Uluru Statement, then it may be
given to them.131

The Uluru Statement from the Heart was not addressed to
political leaders; it was addressed to us – the Australian people.
So it is up to us to embrace it and accept its offer of partnership.

In doing so, perhaps we can leave different legacies for the
future. Some are now dreaming of a new republic. Aboriginal
historian Victoria Grieve-Williams has written about this dream
in a journal, Griffith Review, that bears your name:

165
The time is ripe for a shift in activism to the
achievement of a new Republic of Australia based
on the sovereignty of Aboriginal people, the values
and ethics embedded in their philosophy and
the inherent value of their ways of living on this
continent.132

Samuel, at this time of profound opportunity, I will end this
letter with two quotes. First, a quote from the Uluru Statement
from the Heart. Second, a transcript from the National
Australasian Convention Debates of 1891.

2017:

Our Aboriginal and Torres Strait Islander tribes were
the first sovereign Nations of the Australian continent
and its adjacent islands, and possessed it under our own
laws and customs. This our ancestors did, according
to the reckoning of our culture, from the Creation,
according to the common law from ‘time immemorial’,
and according to science more than 60,000 years ago.
This sovereignty is a spiritual notion: 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. It has never been ceded or extinguished,
and co-exists with the sovereignty of the Crown.133

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1891:

Sir SAMUEL GRIFFITH: We have to devise a
constitution that will work, that will have within its
bounds sufficient scope to allow of any developments.

… it is well to have a constitution so elastic as to allow of
any necessary development that may take place.

Mr DEAKIN: Capable of being amended!

Sir SAMUEL GRIFFITH: Everything is capable of being
amended.134

Your words echo down the ages.

Your great-great-grandson, David

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