NAIDOC Week 2021: Why a legislated voice is not a “constitutionally enshrined voice to parliament”?
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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05.07.21
Creating an Indigenous Voice in ordinary legislation is creating a fundamentally different thing to establishing it, or “enshrining” or “protecting” it, in the Constitution. And if we consider what the intention of the Voice is, only constitutional enshrinement makes sense.
The First Nations Voice called for in the Uluru Statement from the Heart is intended to be an institutional vehicle through which First Nations peoples can speak to government and Parliament. To succeed in this objective, it must be stable, and it must be independent. That is, it must come into existence and then operate outside those government institutions that it is supposed to advise.
A Voice that is established only through ordinary legislation is simply a creature of parliament: with no special status, and with no special input from the Australian people. It has no special stability or independence. So, if a voice were legislated, it could be removed or amended by Parliament, without any particular barriers. Legislation is designed to be flexible: any government with a majority in the lower House, together with enough support in the Senate, could simply amend the Voice, or extinguish it entirely, without having to engage with Aboriginal and Torres Strait Islander people.
In contrast, enshrining a First Nations Voice to Parliament in the Constitution means making a change to the Constitution to insert a new section that establishes the Voice, and sets up its core function of advising the Parliament on matters that affect Aboriginal and Torres Strait Islander peoples. What that new section would look like is the subject of tomorrow’s post.
For our purposes, what is important to know is that to insert a Voice into the Constitution, both the Parliament and the Australian electors must be involved. Section 128 of the Constitution sets out the only way in which the Constitution can be changed. First, the Parliament must pass a law proposing the change. Then, that proposal must be put to the electors at referendum. If a majority of the electors across the country, as well as a majority of electors in a majority of States, vote in favour of the proposal, the Constitution is changed.
Keeping in mind its intentions, the Voice must have sufficient legitimacy and authority for it to be able to speak to and be listened to by the government and Parliament. If enshrined in the Constitution, the Voice would have the legitimacy which comes from the Australian electors – the very people who choose the Parliament and can decide on constitutional amendments. It would have the authority that comes from being created with the approval of those people, and the consequential security of existence to perform its role.
It would also have the authority that comes with being part of the Constitution. Our Constitution is the foundational document regarding the exercise of public power in Australia. Constitutional enshrinement of the Voice recognises First Nations people through a structural institutional reform. Legislation merely indicates that one Parliament thinks it’s a good idea. A future Parliament could just as easily abolish it.
In summary, the key difference between a First Nations Voice established by legislation alone, and one enshrined in the Constitution means that only a constitutionally enshrined Voice is stable, guaranteed, independent from government and Parliament, and therefore likely to be effective.
If we are truly committed to the objectives of the Voice, only a constitutionally enshrined Voice offers the way forward. The delegates who issued the Uluru Statement from the Heart knew these things. They asked for a constitutionally enshrined Voice. It is what we should do.
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Dr Elisa Arcioni is Associate Professor at the University of Sydney Law School.
