Indigenous Law Centre released Issues Papers to guide way to the referendum
Megan Davis, Gabrielle Appleby & Sean Brennan
09.09.2022
As part of accepting the invitation for reform in the Uluru Statement from the Heart, the Australian government will soon put the question of whether to recognise Aboriginal and Torres Strait Islander Peoples in the Constitution through an enshrined First Nations Voice. On 30 July 2022, the Prime Minister Anthony Albanese released a draft constitutional amendment and referendum question.
This week, the Minister for Indigenous Australians Linda Burney announced the creation of a working group to provide advice to the Government on successfully implementing a referendum, including considering questions of timing, the proposed amendment and question, and the information on the Voice required for a successful referendum.
Today, the Indigenous Law Centre (UNSW) has released three issues papers, addressing these critical matters in the lead up to the referendum to constitutionally enshrine a First Nations Voice:
1. Issues Paper 1: The Constitutional Amendment
In each issues paper, we set out the background to the issues covered in the paper, the principles by which these issues should be resolved, and some proposals for further discussion that seek to satisfy those principles. These issues papers have been designed to develop public discussion at an important moment prior to these matters being finalised by government in the lead up to the referendum.
Issues Paper 1: The Constitutional Amendment:
In this issues paper, we address issues that must be resolved prior to settling the constitutional amendment to be put to voters at a referendum. To do that, we identify a set of principles. These include that the provision must be drafted with its purpose in mind, and use clear and simple words to give effect to that purpose. The purpose of the provision is to constitutionally recognise First Nations people, in the manner sought in the Uluru Statement from the Heart. The provision must also be drafted with constitutional prudence and coherency in mind. Using these principles, we respond to the issues identified and set out a draft constitutional amendment for further consideration that builds upon the draft amendment released by the Prime Minister on 30 July 2022.
Issues Paper 2: Referendum Question
In this issues paper, we consider the legal and constitutional requirements for setting the referendum question, and the issues that they raise. We offer two principles to assist in resolving these issues: constitutional prudence, and ensuring voters have sufficient information to fulfil their constitutional functions. Drawing on these two principles, we offer a proposal to amend the Referendum (Machinery Provisions) Act 1984 (Cth). This would empower a parliamentary committee, informed by an Independent Referendum Panel of relevant experts. The committee’s task would be to recommend a question that is easily understood and that captures, in a neutral way, the essential nature of the reform.
Issues Paper 3: Finalising the Voice Design
In this issues paper we consider the question of how and when to finalise the design of the model of the Voice. We propose that these issues should be resolved by reference to three principles: respect for the Australian people as voters in the referendum, assurance to First Nations that the design of the Voice will not be imposed on them by the Parliament without their input, and flexibility in the future design of the Voice. We recommend, in advance of a referendum, the release to the voting public of a set of design principles and a timetabled process for finalising the Voice design in accordance with these principles should a referendum be successful.
The Indigenous Law Centre and the Uluru Dialogue
Behind these papers sits more than five years of work. That work was initially led by the Indigenous Steering Committee of the Referendum Council, and since May 2017 and the delivery of the Uluru Statement to the Australian people, by the Uluru Dialogues, a group of First Nations people and non-Indigenous supporters who are committed to pursuing the reforms of the Uluru Statement from the Heart. This work has been undertaken out of the Indigenous Law Centre, at the University of New South Wales, and has also engaged constitutional, public law and Indigenous experts from across Australia and the world, as well as leading practitioners. It has also reckoned with public contributions from former Chief Justices of the High Court, parliamentary committee submissions and reports, and other aspects of the public debate on constitutional reform.
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Megan Davis is a co-chair for the Uluru Dialogue. Gabrielle Appleby & Sean Brennan were part of the pro-bono legal team that supported the Regional Dialogues and First Nations Constitutional Convention.
