A referendum is coming soon, and we need to educate ourselves
From September-October this year, four social justice interns joined us on the Uluru community education project, hosted at the Indigenous Law Centre, the Gilbert + Tobin Centre of Public Law and the Australian Human Rights Institute. Over the course of five weeks, they sifted through publicly available information on the Uluru Statement and the proposal for a First Nations Voice, and in this special IndigConLaw blog series, they explain to you what they have found, and what we need to know about the First Nations Voice proposal. Greta Parker and Claudia Saywell provide a critical review of the public information and debate on the Voice. Daen Phillips looks at the orientation of the Voice to practical outcomes through a number of contemporary examples. Isabel Cruz Aroca argues that a citizens’ initiative review would provide a democratic process for Australian voters to speak to Australian voters about the issue in a fair and informed way.
Greta Parker & Claudia Saywell
09.11.2022
The Uluru Statement from the Heart’s call for constitutional enshrinement of a First Nations Voice to parliament is a modest request for Aboriginal and Torres Strait Islanders to be consulted in the decision-making processes which affect them. We know this because we have undertaken an extensive search: trawling through news and political statements to understand all of the political objections, hesitations and concerns regarding the Voice.
The two of us have just completed a social justice internship co-hosted across the Indigenous Law Centre, Gilbert + Tobin Centre of Public Law and the Australian Human Rights Institute, to support the community education program which will precede the referendum. We have spent five weeks collating a huge database of all the sources of information we could find on the Uluru Statement and the First Nations Voice.
This research was comprehensive but not difficult: the arguments are all there for the public to see. The challenge, however, was separating fact from fiction. Constitutional recognition of our First Nations people is politically, legally, socially and emotionally complex. Public discussion has been infected with misunderstanding and misinformation, which will prevent voters from making an informed decision at the referendum.
We have a rare opportunity to make meaningful change to the everyday lives of Aboriginal and Torres Strait Islander people. To give First Nations people a fair go at achieving powerful constitutional reform, we must listen to their call for a Voice to Parliament and focus our discussions – and decision – on fact.
The Political Moment
A referendum is on its way. Anthony Albanese’s acceptance speech at the May 2022 election affirmed his commitment to addressing long-stalled policies on First Nations issues. He outlined the incoming Labor government’s agenda stating their “commit[ment] to the Uluru Statement from the Heart in full.”
The new Minister for Indigenous Australians, Linda Burney, is the first Aboriginal woman to hold this position. Her chief priority is to embark on the unfinished “nation-building project” of the Uluru Statement from the Heart. Alongside Senator Patrick Dodson, Burney has established a working group of over 20 First Nations leaders focusing on passing a successful referendum. The working group will partake in discussions with the government to determine appropriate timing for a successful referendum, refine the proposed question and begin a community education program. A second community engagement group has also been commissioned to educate Australians on the meaning and importance of the Voice and to spread support for the ‘yes’ campaign.
It is important to remember that constitutional recognition of Aboriginal and Torres Strait Islander people is not a new topic of public debate: it can be traced back to the Social Justice Report following the Mabo decision in the 1990s, and includes support across the political spectrum, from John Howard to Julia Gillard. The turning point for the current debate was in 2015, when a Referendum Council was appointed. The Council established twelve Regional Dialogues, designed and led by First Nations people, to consider options for constitutional recognition. A consensus was reached by delegates from each Regional Dialogue at a National Constitutional Convention at Uluru in 2017. That agreement is encapsulated by the Uluru Statement from the Heart and its call for Voice and Makarrata (Treaty and Truth).
The damage to the referendum caused by misinformation
It has been 23 years since Australia last held a referendum, and 45 years since we had a successful one. The rarity of an opportunity for such substantial constitutional reform means the process must be conducted with integrity and transparency.
We must show fairness and respect to Aboriginal and Torres Strait Islander people by taking their requests seriously and doing our own due diligence to make an informed decision. We must be critical consumers of information, we must only share facts and not spread misinformation about the Voice with our friends and families.
The reform has the potential to have an incredible impact on the everyday lives of First Nations people by generating a relationship with Parliament and ensuring their interests are heard. Information which morphs, overstates or undermines this potential impact could lead to misinformed votes. Focusing on the facts will deliver Australia a fair referendum.
This blog post will highlight the key arguments for and against the Referendum campaign and address recurrent concerns and misinformation to help you make an informed decision.
A ‘third chamber’ of Parliament
The argument that the Voice would be a ‘third chamber’ of Parliament is a fundamental misunderstanding of the role that the Voice will play. It was originally asserted by then Deputy Prime Minister Barnaby Joyce and Prime Minister Malcolm Turnbull. Both have now admitted they were wrong.
For those continuing to use this language, it serves as a fear mongering tactic with no factual basis. Unlike Parliament, the Voice will have no power to initiate, pass or reject bills. Its role is to be a First Nations-run advisory body giving recommendations on proposed bills which impact the lives of Aboriginal and Torres Strait Islander peoples. This will give First Nations people a seat at the table, allow ministers to make informed decisions and ultimately lead to better outcomes for First Nations people, whose interests have historically been misrepresented or ignored.
Lack of detail
We do not know exactly what the Voice will look like yet. This concerns some people; they feel like they do not know what they are voting for. The detail, however, is intentionally not in the constitutional amendment. Detail will be contained in legislation so that the Voice can be amended in the future and survive changing times. This is not to say that we have no idea what the body will look like: there have been a number of key reports, including the Referendum Council Report, a parliamentary joint select committee, and a government inquiry, that gives us a good idea of the general shape of the Voice. The Indigenous Law Centre has set out a proposed set of design principles that can be drawn from these processes.
The deferral of detail in a referendum proposal for future determination by Parliament is conventional constitutional practice. The Constitution will not prescribe exactly what the Voice looks like because this would create an inflexible body, incapable of adapting to changing times. It is Parliament’s job to make laws, and we trust them to do that with almost every aspect of our life, every single day. Why shouldn’t we trust them in this instance?
Once the referendum is passed to enable the existence of a constitutionally protected Voice, Parliament can debate over the details. This will also prevent people from disagreeing with small details of the Voice and voting no. To give the referendum proposal a better chance of success, people should focus on this core question: whether they want to enable First Nations people to advise Parliament on laws that affect them.
Mere symbolic reconciliation as against structural, practical reform
There is concern that the Voice may be used as a symbol to support the appearance of progress but will not create better outcomes for Aboriginal and Torres Strait Islander people. Those making this argument rely on the lack of detail known about the Voice and the fact that the government has not proven that the Voice will deliver practical outcomes.
The Voice would be a powerful milestone of Australian law, recognising the unique status of First Nations people and offering a vital opportunity to integrate Indigenous politics and law into an otherwise colonialist, settler legal system. In addition to symbolic reconciliation, constitutionally enshrining the Voice will likely lead to practical outcomes because it compels the government to listen to First Nations people. As our fellow Social Justice Intern argues in his post, the Voice means that laws and policies will be more likely to be targeted and tailored to community needs.
Constitutional protection establishes political legitimacy in the Voice by ensuring that it cannot be destroyed at the whim of the government of the day. Its core advisory and advocacy functions will be retained forever, and the public support required to pass a referendum would create the foundation for parliamentary respect of First Nations perspectives.
Lack of First Nations support
Some Aboriginal and Torres Strait Islander people may not support the Voice. This doesn’t undermine its symbol as a collective statement from First Nations, a diverse and complex community, but rather, is inevitable in a representative democracy.
What must be remembered is that the Voice has come as a result of a deliberative, representative, democratic process led by First Nations people. All participants in the Dialogues and Convention were Aboriginal and Torres Strait Islander people, and they were selected by locals to represent cultural authority and Indigenous organisations. A consensus was reached at the Uluru Convention; a constitutionally enshrined Voice to Parliament was the only proposal endorsed by every Dialogue.
While there may be disagreement with the outcomes of the process, it was a robust, representative and deliberative process that is the best signifier to date of the consensus views of First Nations people from across Australia.
Does the Voice cede Sovereignty?
Some people express concern that inserting First Nations people into a Constitution which asserts Crown sovereignty will necessarily extinguish First Nations sovereignty. This is a real concern because sovereignty is inherently a very complex legal and political notion. It was debated at length during the Dialogues and at the Convention. The Uluru Statement from the Heart contains a powerful assertion of ongoing, unceded sacred and spiritual sovereignty over cultural lands and waters and explains that this can co-exist with the legal conception of the Crown’s sovereignty.
Behind this assesstion lies the facts: sovereignty has never been ceded by Aboriginal and Torres Strait Islander people. It has been maintained since 1788, it has not faltered against Federation in 1901 or the amendment to the races power in 1967. If sovereignty has continued despite the imposition and operation of British colonial institutions for over 200 years, it is unlikely the Voice will extinguish First Nations’ sovereignty. The Uluru Statement asserts sovereignty, and seeks to use the Voice as a mechanism to express that sovereignty.
Division of the nation on the basis of race
There are statements that the Uluru Statement will oppose aims of reconciliation and self-determination. The concern is that it will treat First Nations people as ‘other’ so they will never feel welcomed as equals in society. A similar argument is that the Voice divides people on the basis of race and violates principles of equality by giving unfair political power to First Nations people in our democracy.
Again, this misrepresents the function of the Voice. It is an advisory body which has no power over Parliament. The Voice ensures that Aboriginal and Torres Strait Islander perspectives are accounted for in legislative decision-making, but does not make those decisions itself. First Nations’ needs will be heard through the Voice and it will afford respect to their distinct status: as traditional custodians of the land. This distinct status has been recognised by our High Court. The Voice also offers a practical solution to the complex, ongoing and unresolved structural policy failures of the Australian system, to which ongoing policy initiatives, and funding, continue to be addressed with little success.
Sequencing of reforms in the Uluru Statement
The Uluru Statement from the Heart calls for Voice, and through this, Makarrata (Treaty and Truth). Some people argue that Treaty or Truth should come first. Reasons for such positions include disillusionment with constitutional reform, a preference for treaty and wanting truth-telling to commence immediately.
A constitutionally enshrined Voice to Parliament comes first in the sequence to establish political legitimacy and consistent representation of First Nations’ views. Negotiating a treaty is a long-term goal, but is dependent on resources and leverage.
The Voice provides a more immediate form of substantive justice, and it would also allow First Nations people to guide treaty-making. That is, it will ensure Aboriginal and Torres Strait Islander people can partake in deciding the framework through which a treaty can be fairly negotiated in the future. Modern treaty-making, including in Victoria, demonstrates the importance of this initial step. Ultimately, the sequence was determined by a deliberative process and consensus at Uluru, and we should respect the Indigenous right to self-determination.
So there you have it: a taster of the gritty arguments you might have seen on the Uluru Statement, and our critical assessment on where the truth lies. If you want to learn more, there are resources to help you. The Uluru Statement FAQs website is a great place to start. So is subscribing to this blog.
__
Greta Parker and Claudia Saywell were Social Justice Interns on the Uluru Education Campaign, hosted by the Indigenous Law Centre, the Gilbert + Tobin Centre of Public Law & the Australian Human Rights Institute in 2022.
