The Uluru Statement from the Heart draws from the voice of 250 First Nations leaders and the spirit of those who came before them over 60,000 years ago.
It calls for an Indigenous Voice to Parliament to be enshrined in the Constitution and the establishment of a Makarrata Commission for the purpose of treaty making and truth-telling.1
A constitutionally enshrined Indigenous Voice to Parliament (the Voice) would operate as an advisory body to give First Nations an official channel for input concerning laws and policies affecting them. The positive impacts of an enshrined Voice are multifaceted and include resolving decades of powerlessness of First Nations peoples in their own lives and communities, working towards closing the Gap and uniting all Australians in the spirit of reconciliation.
“This is the torment of our powerlessness … When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.”2
Quite pleasingly in Queensland, on 29 November 2022, the Parliament passed a motion in support of the Uluru Statement from the Heart and a constitutionally enshrined Indigenous Voice to Federal Parliament. However, the Liberal National Party (LNP) has recently opposed the Voice, stating it would not genuinely “close the gap” and lacks “sufficient detail”.3
LNP Leader Peter Dutton has said there is “building bewilderment” at the lack of detail around the Voice to Parliament however, this is in contrast to there being significant consultation and research undertaken.4
For instance, the Voice Co-Design Final Report is a detailed proposal of the framework for the Voice and was provided to the Australian Government in July 2021.5 It outlines a framework made up of two parts that work together. Local and regional Indigenous Voices and a national Voice would operate as a collective and be able to focus and adapt to the different requirements of communities. The 272-page final report was formulated over two years with more than 9000 people, communities, and organisations taking part in the consultation phase.6 Also, there has been a draft amendment to the Constitution.7
Disappointingly, it has been reported that there has been minimal reference or discussion of the proposal by the media and government,8 which can be interpreted by many in the community as a seemingly deliberate attempt to mislead and influence the opinion of Australians into believing the Voice was a recent, impulsive notion.
Co-designers Professors Tom Calma and Marcia Langton are also disappointed by the argument that the proposal ‘lacks detail’. Professor Langton said they had had discussions and personally handed the report to LNP members, and it was “unfortunate that the Nationals have injected misinformation and vitriol into the debate so early on”.9
Mr Dutton’s comments on the Voice are discouraging, particularly in the context of effusion of time since the 2008 Apology to the Stolen Generations, where Mr Dutton now concedes he made a mistake in walking out during former Prime Minister Kevin Rudd’s address to Parliament.10
Now is an opportunity to continue inner reflection and, in representing all constituents, ensure the Voice of the world’s oldest living civilisation is provided the opportunity to apply a culturally appropriate engagement and empowerment in developing law and policy that affects its citizens’ lives.
Senator and Yawuru Elder Pat Dodson has said the Voice is not about politicians, but an invitation from First Nations to the Australian people.11 Senator Dodson encourages Australians to vote on “principle and not details” and the “finer details of the Voice would be decided after the referendum”.12
The impact of a failed referendum could have “serious implications” and “it’ll send a tsunami wave across the international spheres that we are still stuck in our colonial past,” Senator Dodson said.13
In supporting the Voice principle, the Indigenous Law Centre at the University of New South Wales has published three papers addressing critical matters in the lead-up to the referendum to constitutionally enshrine a Voice to Parliament.14 The analysis outlines the principles, structure and the importance of asking the Australian voters in the referendum a simply stated question of constitutional principle, fully informed about the primary function of the Voice, rather than a fully formed model.15
Will the Voice have veto powers?
It has been reported that there have been concerns that the powers of the Voice will derail the ordinary function of parliament and the executive.16 Former High Court Justice Kenneth Hayne spoke at a panel discussion hosted by Arnold Bloch Leibler (ABL), advising the Government on the legality of the proposed draft amendment.17
“The proposed amendment says nothing at all about the existing powers of the parliament or the executive,” Mr Hayne said. “…The proposal is about a principle. That’s why the proposal is as simple as it is. The principle is recognition and giving a Voice – not the machinery, not the structure, but the principle. Because it is to go into the Constitution, and you put principles about government and organisation of the society in your Constitution.”18
A constitutionally enshrined First Nations Voice is intended to be non-justiciable and does not have veto powers, therefore, the High Court cannot interpret provisions in unpredictable ways.19 Therefore, the Voice in intended to be an advisory body and make recommendations on policies and laws relating to First Nations.
Has a Voice been done before?
The Waitangi Tribunal in New Zealand was established under a treaty in 197520 as a permanent commission of inquiry that makes recommendations and investigations on claims brought by Māori Peoples relating to Crown actions.21
This has been a positive advancement in New Zealand society with submissions to Australian Parliament in 2014 by the Cape York Institute on what can we learn from New Zealand for Constitutional Recognition of Indigenous Peoples in Australia.22 The Cape York Institute observed that “the Treaty was crucial to the development of institutional structures to recognise and give Maori a voice in New Zealand’s political system”.23
Closing the Gap report
The annual report on Closing the Gap has been released and shows limited progress, with only four targets on track and another four going backwards – incarceration rates, suicide rates, child removal rates and children’s school-readiness.24 The other eight targets do not have data to assess their progress.25
This report further highlights the imminent need for an Indigenous Voice in Parliament since there have been too many failed or incomplete programs, policies and corroded justice systems with an extensive history of poor outcomes. There have been appalling outcomes since the Royal Commission into Aboriginal Deaths in Custody 1991 and Bringing them Home Report 1997, with alarming rates for child removals, highest incarceration rates and continued deaths in custody which reveal the Gap is increasing.26
Also, prior to 2020, there were voting restrictions on all prisoners in Queensland.27 Since 2020, the voting restrictions have lifted on prisoners serving less than three years, but those serving longer sentences, do not have an opportunity to participate in state and federal elections. As First Nations make up 27% of the national prison population,28 there is a significant number of the underrepresented population that do not get a say in the referendum about matters that will positively impact them and the wider Australian community.
The Voice is fundamental to working with communities and providing expert knowledge and feedback about issues and policies that affect them. The Voice, founded in the principles from the Uluru Statement from the Heart, promotes and supports autonomy which, in my opinion, is the crucial piece to closing the Gap.
The importance of an Indigenous Voice to Parliament
The importance of an Indigenous Voice to Parliament goes beyond political debate, and in my view forces us to confront the original sins of dispossession and oppression. The current policies and political structures have a long way to go to truly address intergenerational-trauma, lack of self-determination, loss of identity and systematic racism. These disadvantages are directly linked to the effects of colonisation in a Westminster system that has certainly not advanced First Nations by silencing their voice.
Dr Dani Larkin, a Bundjalung, Kungarykany woman from Grafton, New South Wales, and Dr Kate Galloway in their analysis of the Voice, identify that the Voice is a cultural collective, seeking not to overtake the tenets of parliamentary processes in the Westminster tradition, but rather to legitimise a place for First Nations people within Australian Government through constitutional enshrinement and to manifest cultural self-determination within that tradition.29
Dr Shireen Morris, in addressing the vulnerability and powerlessness experienced by First Nations, observes that it is closely connected to Indigenous constitutional vulnerability.30 This vulnerability, Dr Morris writes, is cyclical, systematic and embedded, and this results in policies and laws that are not as effective as they could be in addressing disadvantage, because First Nations are not fundamentally positioned to influence and improve laws and policies that are intended to assist them.31
The successful 1967 referendum – which amended the wording of the Constitution excluding First Nations from being counted in the population and voting – had 91% support from the nation, and was the most successful national campaign in Australia’s history.32
Since 1901, 19 referenda have proposed 44 changes to the Constitution and only eight changes have been successful.33 History illustrates that bipartisan support is usually required for a successful referendum.34 Pleasingly, there are currently 73% of Australians who are supportive of an Indigenous Voice to be constitutionally enshrined.35
The understanding and awareness of the Voice continues to grow, and although bipartisan support is desired for a referendum, ultimately, progressive conversations with Australians will be the key to a successful referendum.
The Voice, if enshrined, will be a source of national pride and unification for Australia, and a significant stride on the journey towards reconciliation.
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Heather Ferris is the First Nations Legal Coordinator at Queensland Law Society.
29 Dani Larkin and Kate Galloway, ‘Constitutionally Entrenched Voice to Parliament: Representation and Good Governance’ (2021) 46(3) Alternative Law Journal 4.
30 Shireen Morris, ‘The Torment of Our Powerlessness’: Addressing Indigenous Constitutional Vulnerability through the Uluru Statement’s call for a First Nations Voice in their affairs’ (2018) 41(3) UNSW Law Journal 643.