Draft, last updated 30 Jan 2023
Note: I am sharing here the results of a personal attempt to understand the issues related to the proposed Indigenous Voice to Parliament. I am not representing the views of any group or organisation. The views expressed here, and any errors, are mine alone.
Most of the quotes below are from Megan Davis & George Williams, Everything you need to know about the Uluru Statement from the Heart (UNSW Press, 2021).
Towards the end of 2023 or in early 2024 Australians will vote in a referendum on whether or not to accept an amendment to the Constitution which creates a Voice to Parliament for the First Peoples of this continent.
What exactly are we voting on and how much detail do we need?
Key points:
We are voting to accept or reject a proposed amendment to the Constitution.
The proposed amendment is to add three sentences to the Constitution as follows:
- There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
- The Aboriginal and Torres Strait Islander Voice 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.
The sentences will be placed in the body of the Constitution and not in the Preamble.
The details are for future Parliaments to work out and those details will change as circumstances change.
The idea of leaving the detailed design of an institution to Parliament to work out later was used by the drafters of the Constitution when they created the High Court of Australia. They enshrined the Court in the Constitution and it was designed and passed in legislation a few years later (Davis & Williams, p.159).
Read more in this article in The Conversation.
How do we know that this is a priority for Indigenous Australians?
On 7 Dec 2015, Prime Minister Malcolm Turnbull and Leader of the Opposition Bill Shorten established a Referendum Council. The Referendum Council had 15 members: Pat Anderson AO, Mark Leibler AC, Megan Davis, Andrew Demetriou, Natasha Stott Despoja AM, Murray Gleeson AC, Tanya Hosch, Kristina Keneally, Jane McAloon, Noel Pearson, Michael Rose AM, Amanda Vanstone, Dalassa Yorkston, Galarrwuy Yunupingu AM, Denise Bowden. Full details are provided in Appendix A of the Final Report of the Referendum Council which you can download below.
The Council decided that it was essential to hear the views of Indigenous communities. Non-Indigenous Australians would be consulted as well but it was considered important that those ‘to be recognised’ participated equally in the process and achieved consensus on the form that recognition should take.
The consultation with Indigenous communities was managed by a sub-committee of the Referendum Council comprising Aboriginal and Torres Strait Islander members of the Referendum Council.
The sub-committee came up with some ideas on how to go about the consultations and before implementing these the Referendum Council held a series of meetings with Aboriginal groups and organisations around Australia to check that they agreed with the ideas proposed by the sub-committee. Meetings were held in Broome, Thursday Island and Melbourne. Agreement was reached.
The consultation process was Indigenous designed and Indigenous led. It involved 12 regional dialogues, held in Hobart, Broome, Dubbo, Darwin, Perth, Sydney, Melbourne, Cairns, Ross River, Adelaide, Brisbane and Thursday Island respectively and in that order. The dialogues each lasted 3 days and were ‘structured as a deliberative decision-making process that engaged participants in a discussion’ (Davis & Williams, p.137). The key question asked of participants was ‘What is meaningful recognition to you in your region?’. A consensus was sought from each dialogue. To ensure the results had cultural authority for a collective culture based upon the authority of elders, which is what Aboriginal culture is, the sub-committee made sure that for each dialogue 60 per cent of invitations to participate were sent to traditional owners and elders, 20 per cent to local Aboriginal organisations and 20 per cent to Aboriginal individuals such as Stolen Generations, youth or grandmothers (Davis & Williams, p.133).
The Dialogues involved a sample of Aboriginal and Torres Strait Islander peoples from a sample of regions in Australia. The deliberative decision-making nature of the Dialogues meant that the numbers had to be capped and the agenda structured. Each First Nations Regional Dialogue was delivered in partnership with a local host organisation with an understanding of the region. Oversight of the process was conducted by the Referendum Council which, together with the Australian Institute of Aboriginal and Torres Strait Islander Studies, worked with the host organisation at each location to ensure the local community was appropriately represented, including a reasonable spread across age and gender demographics. As relevant and appropriate at each Dialogue, interpreting services were offered in the local languages of the region (Final Report, p.111-112).
A National Constitutional Convention attended by representatives from each of the dialogues was then held at Uluru from the 23rd to the 26th May 2017, resulting in the Uluru Statement from the Heart. Around 250 delegates attended from around Australia. The purpose of the Convention was to hear the findings from each of the regional dialogues and to see where there was a clear consensus. The Convention found that the Regional Dialogues ranked a Voice to Parliament as the first reform priority.
A number of delegates left the Convention because they disagreed with the outcome. The majority however, more than 200 (over 80 per cent), endorsed and respected the work of the Regional Dialogues and drafted and adopted the Uluru Statement from the Heart.
The Referendum Council handed down its final report on 30 June 2017. In the Council’s words: ‘The Dialogues engaged 1200 Aboriginal and Torres Strait Islander delegates — an average of 100 delegates from each Dialogue — out of a population of approximately 600,000 people nationally. This is the most proportionately significant consultation process that has ever been undertaken with First Peoples. Indeed, it engaged a greater proportion of the relevant population than the constitutional convention debates of the 1800s, from which First Peoples were excluded’ (Final Report, p.109).
Do any Indigenous Australians disagree with the Uluru Statement from the Heart?
Yes, of course they do. Every community has its differences of opinion. Some of the questions they have raised are listed below.
Was the process leading to the Uluru Statement from the Heart truly representative of Indigenous views?
The Regional Dialogues were not a census or a sample in the statistical sense. They employed a ‘deliberative democracy’ methodology, which has been recognised and respected in academic circles for decades but is not well understood in the wider community, black or white. Basically it entails taking a cross-section of the community and getting them to work together on solving a problem. Numbers are usually kept small, from 25 to 100 participants, because the process is time-consuming and expensive to run.
Those who are not selected to participate always feel left out and ‘not consulted’. Advocates of the method argue that we should trust and respect the people who do get to participate and also assume that if we were in their shoes we would work through the process and come up with the same solutions they did.
I have seen some claims that the participants in the Regional Dialogues were duped or intimidated or threatened or picked because they already had certain views. Little evidence accompanies such claims. The Regional Dialogues were overseen by the Referendum Council, the Australian Institute of Aboriginal and Torres Strait Islander Studies and local Aboriginal organisations. The Referendum Council comprised Indigenous and non-Indigenous members, all from across the political spectrum. If anything dodgy went on one would expect the Referendum Council to know about it and report it. In its Final Report, p.11, the Council in fact said: ‘The integrity of the process is evidenced in the fact that the exhaustive deliberations and informed participation of participants in the First Nations Regional Dialogues led to consensus at Uluru. The outcome captured in the Uluru Statement from the Heart was a testament to the efficacy of the structured process, which allowed the wisdom and intent of the representatives of the First Nations Regional Dialogues to coalesce in a common position.’
Isn’t it more important to have a Treaty before a Voice?
To negotiate a Treaty you need 1) a negotiating team and 2) the agreement of the other party to the Treaty to negotiate with you. The Voice to Parliament is an attempt to create both of these conditions. It creates ‘an institutional relationship between governments and First Nations that will compel the state to listen to Aboriginal and Torres Strait Islander Peoples in policy- and decision-making’ and ‘The Voice will be an enabling mechanism for First Nations people in any treaty negotiations’ (Davis & Williams, p.152).
Read more in this article in The Conversation.
Will an Indigenous Voice to Parliament give ‘special rights’ to Aboriginal peoples?
No. ‘The idea that a Voice could scrutinise or monitor the Commonwealth’s use of power as it relates to Indigenous peoples is not new in Australia’s constitutional system. There are many mechanisms that inform and advise the federal Parliament on such matters. The Productivity Commission, the Australian Law Reform Commission, the Auditor-General and the Australian National Audit Office are examples’ (Davis & Williams, p.156).
Read more in this article in The Conversation.
Will a Voice be a third chamber of Parliament?
No. It would have no legislative functions. It could not introduce, vote on, or reject legislation.
Will a Voice to Parliament be just symbolic?
No. Symbolism requires no action by the state. ‘A substantive form of recognition like a Voice to Parliament compels the state to have First Nations peoples at the table when making decisions that affect them’ (Davis & Williams, p.138).
Will having the Voice to Parliament amount to Indigenous peoples ‘ceding sovereignty’?
No. The Uluru Statement from the Heart makes it clear that Aboriginal people never ceded their sovereignty and none of the changes proposed by the Statement mean that Aboriginal people are submitting to the colonial power or surrendering their claims to self-government (Davis & Williams, p.183).
Read more in this article in The Guardian.
Wouldn’t effort be better spent on fixing Indigenous health, housing etc?
We have been hearing from Indigenous people for decades that programs meant to help them are designed by out-of-touch bureaucrats who conduct tick-the-box consultations with them but who ultimately think they know what is best for Indigenous peoples. Most of these programs consequently fail.
A Voice to Parliament in the Constitution will compel governments to have First Nations peoples at the table when making decisions that affect them, making it more likely that programs intended to benefit Indigenous Australians will succeed.
Conclusion
I’ll be voting YES in the referendum for several reasons.
Australia and New Zealand are among the last bastions of European colonialism in S E Asia. New Zealand has its Treaty of Waitangi. Australia has no such Treaty and retains a colonial arrogance towards the First Peoples it displaced and whose lands it stole. Not a good look to have in a part of the world, East Asia / S E Asia, that has bitter memories of European colonisation and a growing military strength in various countries in the region. A colonial settler state established and maintained on the sole basis of force of arms is not easily defensible in the propaganda war that always accompanies military conflict.
Norway, Sweden and Finland all have something similar to an Indigenous Voice to Parliament with varying degrees of authority granted to such bodies.
I trust and respect the work of the 1200 Indigenous delegates who participated in the Regional Dialogues, most of them being traditional owners and elders.
I trust and respect the work of the Referendum Council, the Australian Institute of Aboriginal and Torres Strait Islander Studies and the local host organisations in running and overseeing the Regional Dialogues.
To get an Occupying Power to negotiate a Treaty with you, you usually need 1) military might and/or 2) a lot of money to run a media campaign or bribe politicians and/or 3) a powerful mass movement. None of those conditions exist in Australia. I admire the courage and determination of the people who put together the Uluru Statement from the Heart.
Worth reading / viewing:
Rachel Perkins in her 2019 Boyer Lectures
Noel Pearson in his 2022 Boyer Lectures
and then, if you want to support the YES campaign, contact From the Heart.
What is the NO campaign saying?
Advance Australia claims that “By creating an Indigenous ‘Voice to Parliament’, our nation will be divided by race.” Not true. Creating a communication channel between coloniser and colonised is a process of unification not division. Enshrining the Voice in the Constitution will mandate that communication channel. If negotiations subsequently lead to a Treaty, that will be yet another step towards unification.
The Guardian provides a summary of the NO campaign to date.
… to be continued.
watchandact.net 