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This article investigates the Referendum Council's second, rarely discussed and under-explored, extra-constitutional recommendation: a symbolic and inspiring Declaration of Recognition ('Declaration'), enacted concurrently by all Australian Parliaments, alongside a referendum on a First Nations constitutional voice. The article explores the legal possibilities and potential symbolic power that could be enlivened using variations of Australia's federal unanimity procedure to enact such a Declaration. It argues that, under Australia's constitutional arrangements, federal unanimity procedures may enable 'semi-entrenched' legislation - legislation subject to an effective manner and form requirement rendering it more stable and enduring than ordinary Commonwealth legislation but more flexible than clauses entrenched in the Constitution via s 128. It explores three ways of using federal unanimity to create a sense of moral and political entrenchment - one of which, through inserting the Declaration into the covering clauses of the Commonwealth of Australia Constitution Act 1900 (UK), also arguably enables legally effective semi-entrenchment. If Indigenous assent was added to the concurrence of all Australian Parliaments, such a Declaration (depending on its agreed content) could be a historic reconciliatory agreement of enduring significance.
IIntroduction
In June 2017, the Referendum Council tasked with advising on Indigenous constitutional recognition endorsed the historic Uluru Statement from the Heart ('Uluru Statement') and recommended a singular constitutional reform: a constitutionally guaranteed First Nations voice.1 Since then, the proposal for a First Nations voice in the Constitution has garnered the vast majority of public, political and scholarly attention.2 However, the Referendum Council also made a second, extra-constitutional recommendation which has engendered little attention. It proposed that a symbolic, inspiring and unifying Declaration of Recognition ('Declaration') should accompany the recommended constitutional change. The Referendum Council also recommended that the Declaration should be enacted concurrently by all Australian Parliaments.3
This innovative extra-constitutional recommendation raises intriguing legal and political questions. What are the possibilities for a Declaration of this kind? Would a Declaration enacted by federal concurrence carry elevated and enduring moral and political importance in Australian life? Might it also be enacted to be semi-entrenched? This article explores the legal possibilities and potential symbolic power that could be enlivened utilising variations of Australia's federal unanimity procedure, as alluded to by the Referendum Council. Cooperative federal action in 1986 enabled Australia to update its relationship...