NAIDOC Week 2021: It’s Time.
09.07.2021
It is common practice in constitution making around the world that detail of a particular constitutional institution is deferred to the parliament at a later date. Indeed, this was the case with Australia’s High Court. The Court was established and its core functions set out in the Constitution in 1901, but it was set up two years later in legislation by the Parliament.
The same idea applies to the First Nations Voice. As Sean Brennan’s post explains, constitutional enshrinement of the Voice will guarantee its existence, its core function and give it constitutional status. It is normal – and appropriate that the bricks and mortar is determined by the Australian Parliament, our democratically elected representatives, after the moment of enshrinement. This is far from creating a “gotcha!” moment in the future drafting.
When this is understood, it becomes clear that there is ample understanding of the concept to go to a referendum. What is being constitutionalised is the existence and core function of the body. On these issues, there is consensus. The Uluru Statement from the Heart, the Referendum Council, the Leeser-Dodson Parliamentary Joint Select Committee and the government’s most recent Co-Design Process Interim Report, all agree that what is needed is a national body with a primary function of speaking to Parliament and the government on issues that affect Aboriginal and Torres Strait Islander people. Indeed, on these issues the Co-Design Interim Report did not veer far from previous iterations of the design of a Voice that have been put forward before.
But, as we enter the second decade of constitutional recognition in 2021, a political bait and switch is occurring. The Government and Opposition are succumbing to retail Australian politics and talking about legislating a Voice.
Legislating a Voice will end the constitutional recognition project, a project that has had multi-party support since the republic referendum in 1999. Although, it wasn’t until the Uluru Statement from the Heart that the nation heard from First Nations people: that they wanted meaningful constitutional recognition, and this meant a constitutionally protected Voice:
“We call for the establishment of a First Nations Voice enshrined in the Constitution.”
The Uluru Statement does not call for a legislated voice. And there is no way that a legislated voice will lead to the constitutional Voice. A legislated Voice is not a “road test” on the model because a legislated voice and a constitutional Voice are apples and oranges; two very different creatures. A legislated voice, the product of the government’s handpicked ministerial committee passed as an ordinary piece of legislation by the Parliament is utterly different to a constitutional Voice that is created by all Australians voting “yes” at referendum.
The fact that the Minister is saying the Voice will be legislated demonstrates why First Nations asked for a constitutional Voice in the first place: governments do not listen to First Nations peoples through the current processes.
This failure would be further exacerbated if the government were to pursue a symbolic, minimalistic form of constitutional recognition in the future. Uluru categorically rejected symbolism in 2017; and it had been rejected by Aboriginal and Torres Strait Islander leaders in the Kirribilli Statement in 2015.
The government has consistently failed to listen to First Nations people on this issue. And there is no longer any good reason not to constitutionally enshrine a Voice. With the detail of the Voice discussed in the Regional Dialogues that led to the Uluru Statement, the Leeser-Dodson Parliamentary Joint Select Committee, the Co-Design Interim Report and soon the final report, there is ample “meat on the bones” of what a Voice may look like. Four years after Uluru there is plenty of information, if presented in a coherent way, for the Australian people to make an informed decision at the ballot box on whether to enshrine this body. The series of blog posts this week should give great comfort to those who have wondered what the question on the ballot paper might be, or how a referendum might be run in the 2020s.
90 per cent of the more than 2500 public submissions to the Co-Design process want a referendum to enshrine a Voice. Successive polls over 4 years have Australians voting “Yes” in a referendum on this question. There’s never been more positive indicators of a successful referendum. The work is done. We’re ready. It’s Time.
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Professor Megan Davis is Pro Vice-Chancellor Indigenous UNSW, and Balnaves Chair for Constitutional Law, UNSW Law & Justice.
