NAIDOC Week 2021: The Wording is Not the Problem
This week, for NAIDOC week, the Indigenous Law Centre, UNSW, and the Uluru Dialogues are very excited to bring you a special blog series. Every day this week, we will bring you a short blog from legal and political experts from across the country to answer some of the trickier questions about the constitutionally enshrined First Nations Voice to Parliament.
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06.07.21
One challenge on the path to a successful Voice referendum is to get the wording right for the constitutional amendment. The most important thing is clarity: a well-defined purpose, and clear and simple words that give effect to that purpose. The work here is largely done. The vision for practical reform that emerged from the Regional Dialogues and at Uluru supplies the purpose for this constitutional amendment. The delegates at Uluru called for a representative First Nations institution that would give them a voice – particularly to the nation’s chief law-making body, the national Parliament. They wanted that Voice protected in the Constitution, having seen their previous representative institutions abolished by politicians, through legislation or a stroke of the pen. And they wanted the Voice to be capable of adjustment over time to meet changing circumstances.
The evidence to a Joint Select Committee on Constitutional Recognition in 2018 showed that lawyers can devise different forms of wording to bring a constitutionalised Voice into being. But for all that superficial impression of variety, there is a substantial consensus about what this straightforward amendment needs to say. To give effect to the vision and purpose expressed at Uluru, the constitutional amendment needs to:
establish the First Nations Voice, as an enduring form of recognition for Aboriginal and Torres Strait Islander peoples, protected by the Australian Constitution
describe its primary function of conveying the views of Aboriginal and Torres Strait Islander people to the national institutions of law-making and government, and
ensure that Parliament can legislate the detailed design of the First Nations Voice and make necessary amendments over time, to adapt to changing circumstances.
The constitutional amendment does not need to spell out all the details of the Voice. Indeed, that would be a mistake. The Voice may need new functions or procedures in 50 or 100 years, as Australian democracy continues to evolve. The membership structure might need to be fine-tuned, after people have worked with it for a while. The point of the referendum is to invite Australian people to support the constitutional principle of First Nations people having a say through a representative institution over the laws and policies that affect them. The details can and should be left to legislation.
One proposal that captures these elements went forward to the Joint Select Committee in a submission from Pat Anderson AO, Noel Pearson, Megan Davis and technical advisors to the Regional Dialogues process and has since been further refined in constitutional drafting workshops run by the Indigenous Law Centre with the Gilbert + Tobin Centre of Public Law at UNSW. It proposes adding a new section 129 to the Australian Constitution:
Section 129 The First Nations Voice
(1) There shall be a body, to be called the First Nations Voice.
(2) The First Nations Voice
(a) shall present its views to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples; and
(b) may perform such additional functions as the Parliament provides.
(3) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the First Nations Voice.
Work can continue on the finer technical details of individual words and phrases. But this proposed section 129, or something very like it, will get the job done. It presents a simple idea in clear and straightforward language to the Australian public who will vote in a referendum. It means that Parliament can keep the Voice well-tuned to changing circumstances, for decades to come. It also avoids giving politicians too much discretion to undermine this important reform down the track and return to the status quo. It does that by affirming the institutional presence of the First Nations Voice as a representative body established in the Constitution.
There are still challenges in the path to a referendum that enshrines a First Nations Voice in the Australian Constitution. Chief amongst those are building a sufficient groundswell of community support in the cities, towns, rural and remote areas of Australia, and persuading the politicians in Canberra to put the referendum question to the Australian people. For that, we need political will. The wording of the constitutional amendment is not the problem.
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Sean Brennan is an Associate Professor at the UNSW Faculty of Law and Justice and member of the Gilbert + Tobin Centre of Public Law.
