Co-editor, Monique Westcott, delves into this highly topical issue.
Indigenous Australians have a long and continuing connection to the lands and waters of Australia. Aboriginal and Torres Strait Islander cultures are rich in knowledge, passing stories from generation to generation, and hold a unique and enduring place in our nation’s story. No First Nations representatives were included in discussions of the Constitution.
Following the 2017 Uluru Statement to the Heart, there has been a clear shift in the landscape at a political, legal and moral level, heightening the importance of Indigenous rights. In recent years, the debate about Indigenous constitutional recognition in Australia and how best to achieve First Nations empowerment through a constitutionally guaranteed voice has become more prominent.
What is the Voice to Parliament?
The Voice was one of the key recommendations of the Uluru Statement from the Heart. The Uluru Statement was signed off by some 250 Aboriginal delegates who gathered in central Australia at the First Nations national constitutional convention. The three key recommendations were to develop a Voice, a treaty, and a Makarrata Commission.
Previous Prime Minister John Howard was the first prime minister to promise constitutional recognition of the special status of Aboriginal and Torres Strait Islander Australians over 15 years ago. However, this was not delivered.
The 2020 global COVID-19 pandemic and the biggest economic crisis since the Great Depression pushed many pressing issues off the political stage. However, following the backdrop of the Black Lives Matter protests, First Nations’ issues and rights were brought back into sharp focus in Australia. Following the Labours victory in May 2022, new Prime Minister Anthony Albanese has been determined to seal the historic reform.
The Voice is to be co-designed in that it must be equally informed by Indigenous knowledges and methodologies. The Voice and its structure must be reflective of Indigenous peoples’ priorities. The structure of the Voice requires creative thinking, careful constitutional drafting and dynamic legislative design to ensure that the concerns of all stakeholders are addressed.
In the designing process, drafters not only looked at the constitutional recognition of First Nations peoples in the United States, Canada and New Zealand but also from Australia. For example, lessons can be learnt from the Land Councils Aboriginal and Torres Strait Island Commission (ATSIC) which was dismantled in 2004 by Prime Minister John Howard in the aftermath of corruption allegations and a litigation. The aim of the Voice is to give self-determination and agency rather than symbolism to make a real difference to Indigenous lives.
Prime Minister Anthony Albanese proposed the wording of the amendment in July 2022 during a speech at the Garma festival in Arnhem Land. He stated that the question should be as simple as ‘Do you support an alteration to the constitution that establishes an Aboriginal and Torres Strait Islander Voice?’. Following this, the proposed three sentences to be put in the Constitution are:
There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
It may make representations to parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples.
The parliament shall, subject to this constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.
This proposal followed the Indigenous Voice co-designed report by Professors Langton and Calma, which was the result of 18 months’ worth of consultation with 9,478 people and organisations, including 115 communication consultations in 67 locations, 2978 submissions, 1127 surveys, 124 stakeholder meetings and 13 webinars.
What will the Voice actually do?
The Voice relates to the social, spiritual, and economic wellbeing of Australia’s First Nations peoples.
A summary of the Voice’s functions is as follows:
Provide independent advice to Parliament and Government
Be chosen by First Nations people based on the wishes of local communities
Be representative of Aboriginal and Torres Strait Islander communities
Be empowering, community led, inclusive, respectful, culturally informed and gender balanced, and includes youth
Be accountable and transparent
Work alongside existing organisations and traditional structures.
A summary of the Voice’s principles is as follows:
Non-duplication links with existing bodies
Respectful long-term partnerships
Transparency and accountability
Data and evidence-based decision making
Just like with human rights in Australia, having a Voice means that Parliament and bureaucrats know that they will have to answer to someone in the future and must justify any racist or non-progressive laws. The Voice would not be a third chamber of Parliament as it does not have a decision-making role. Subsequently, all elements of the Voice would be non-justiciable.
To be representative of the breadth of Indigenous needs, there will be a National Voice and a Local and Regional Voice.
The National Voice will be the mechanism to ensure that First Nations peoples have a direct say on legislation and policies that affect them. They will provide advice and input on decisions, laws, politics, programs and services that are important to them. The proposed structure of the National Voice is 24 members, with two members from each state and five members from remote areas due to their unique needs. Each member will have four year terms with two co-chairs of different genders. There will also be two permanent advisory groups representing youth and disability separately. The National Voice would advise on issues determined by consulting with the Local and Regional Voice.
The Local and Regional Voice will allow local priorities to be addressed at the local level and evolve in line with the capability of local communities and governments. There will be 35 Local and Regional voices with a two way flow of advice and communication to the National Voice.
The biggest challenge to Indigenous self-determination is institutional racism. The Voice will help to combat this issue by ensuring that First Nations have a direct, formalised say in how services are delivered to them in the future. The Voice will empower First Nations peoples to improve their communities by active participation in decisions about housing, education, employment, welfare, wealth creation, incarceration rates, family violence, and their participation in the economic lifeblood of Australia. It will greatly facilitate their collective ability to claim their social and economic future as their own.
Additionally, the Voice will assist Indigenous Australians to tell their story, to learn how to use their voice, to engage in effective discourse and to engage with the political system in a more effective way.
Most importantly, the Voice would give constitutional recognition to First Nations Australians, the oldest living civilisation on Earth. As Minister for Indigenous Australians, Linda Burney, states “This voice is about making sure that what happens in the federal parliament is going to be a positive step forward both in terms of us as a nation, but also the life outcomes for First Nations people in Australia.”
Opposition to the Voice
The Nationals were the first political party to oppose the Voice, saying it would not effectively represent Indigenous Australians outside the capital cities. They have also raised arguments such as it may cost up to $180-$200 million to complete the referendum and change the Constitution. Further, they claim that the Voice also has the potential to inhibit legislation, policy, and government decision-making abilities by acting like a road-block to Parliament.
Opposition leader, Peter Dutton, has concerns about the breadth of issues the Voice may claim is part of public policy affecting Indigenous Australians as this could potentially be spread to areas such as defence. However, report writer Langton raises her frustration stating that “when people say they want more detail, all that tells me is that they refuse to read our report”. Further, Tony Abbott argues that an entrenched race in the Constitution will drive Australia further apart.
There has also been a number of Indigenous oppositions. Senator Jacinta Nampijinpa Price stated ‘Why should I, as an Indigenous Australian, be governed under a separate entity than the rest of Australia because of my race?’. It is also argued that the treaties should be the priority as this will be an actual transfer of power and resources from the government. Victoria is among jurisdictions currently negotiating to sign a treaty.
There are some Indigenous groups that are concerned that this will be another example of ‘kicking the can down the street’ in that the Voice will be weighted to the government’s favour, maintaining the status quo and ignoring the people’s mandate for constitutional change. It has also been argued that the Voice is not Aboriginal culture so it should not pretend to be representative.
There have also been questions whether whatever agreement is created should be enshrined in the Constitution or just be put in legislation. Burney debates that the Voice may become tokenistic if not enshrined.
Contrastingly, many of Australia’s biggest corporations are in support such as BHP, Rio Tinto, Qantas, Woodside, Lendlease and IAG. The most recent Essential Poll had 63% in support and 37% in opposition to the Voice. Half of the opposition group opposed because the Voice gives Indigenous peoples ‘special powers that other citizens do not have’.
Where to now?
Parliament is currently in the consultation phase of this nation-building project. Current Prime Minister Anthony Albanese has promised to deliver a referendum regarding the Voice late 2023.
In September 2022 Burnley, announced that there are three working groups developing the Voice and its proposed referendum This is the FIrst Nations Referendum Working Group, First Nations Referendum Engagement Group, and the Constitutional Expert Group which provides legal support. Additionally, there are currently three key groups advocating for the Voice nationally - Uluru Dialogue, From the Heart, and Uphold and Recognise.
It should be noted that there have been 44 referendums in Australia’s history and only 8 have resulted in changes as it must be approved by a double majority meaning a national majority of voters in the states and territories as well as a majority of voters in a majority of states.
As the Uluru Statement declares itself - ‘in 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future’. It’s 2023. It’s time to listen and create Australia’s better future.
Monique Westcott is a third year student studying Law and Global Studies, specialising in International Relations.
She is a member of The Reasonable Observer subcommittee, collating articles for the Monash legal community.
Monique has a passion for international human rights law, particularly the topics of First Nations justice and how all lawyers are responsible to act in accordance with sustainability and equality.