Anglo-Australian law has disenfranchised Indigenous Australians for decades. Enacting a Voice to Parliament would provide secure recognition in the Constitution.
ANU College of Law
Prime Minister Anthony Albanese has promised a referendum on an Indigenous Voice to Federal Parliament and committed to hold it sometime during the 2023-24 financial year. The wording is still to be finalised, but the specific referendum question for voters is whether they will approve a constitutionally entrenched Voice as set out in the Uluru Statement from the Heart. The government does not have a majority in the Senate and will therefore need to build one as a preliminary step to reaching this goal.
‘Winning’ the referendum means achieving the double majority mandated by the Constitution, allowing changes to become effective. Historically, the double majority — a majority of voters in a majority of states, and a national majority — has proven difficult to secure, particularly without multi-party support. However, while there is opposition, the public appears to support this change. Polls show 60 per cent of Australians are in favour of a Voice to Parliament. This level of support will hopefully increase as the debate becomes more focused.
The government’s commitment, ultimately, is to give full effect to the content of the Uluru Statement — a beautifully crafted piece of prose using poetic language, but one that should not be treated as a legal document. It deals mainly with what must be recognised as the rightful place for the First or Indigenous Peoples both in law and in society, a matter non-Indigenous people have been grappling with for some time.
The history of contact is not a happy one and the treatment of Indigenous Peoples in Anglo-Australian laws resulted in crushing oppression. These laws created many myths, including the myth of an empty continent and degradation of Aboriginal peoples on the scale of civilisation. Such legal fictions set out to dehumanise and aided the conquest of land and other resources without recognition or compensation.
Political goodwill to treat Aboriginal people more equally received a boost in 1967 with the rescission of section 127, a constitutional provision that effectively denied their humanity by excluding them from the population count. The majority decision of the High Court in Mabo v Queensland (No.2) further recognised Indigenous People in 1992 by denying the Australian continent was terra nullius. This was followed by statutory recognition with the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013.
These developments have not yet translated into legal equality ‘for’ Aboriginal people. The constitutional power under section 51 (xxvi) that permits parliament to act detrimentally against Indigenous Peoples only must be rescinded so we can create a level legal playing field on race. Australia does not need the coercive ‘races power’ to regulate the three per cent of the population of Indigenous descent. Times have changed and the coercive powers of the past must be abandoned.
Importantly, entrenching recognition of Indigenous Peoples in the Constitution will provide the most secure form of recognition available under the current Anglo-Australian legal system, while synchronising the Constitution with the common law and statute. This synchronisation also serves as a rebuttal of the unconscionable denial of Indigenous existence in law for nearly two centuries.
There are several key elements to the Uluru Statement, but the referendum mostly concerns establishment of the Voice. The Voice will be given shape and form through legislation. It promises to be a useful platform to ensure parliament hears from a diversity of First Peoples as well as Indigenous politicians.
However, entrenchment in the Constitution alone will not guarantee a useful place for a Voice in the parliamentary system. The Inter-State Commission, for example, was designed to adjudicate interstate trade matters and is entrenched in the Constitution. Now defunct, it could provide a precedent on keeping the Voice useful and functional for the future.
In keeping with British parliamentary norms such as Parliamentary Supremacy, the Voice would be advisory only and have no coercive impact on parliament. Its power and scope would also be limited by common law.
Consequently, Indigenous Peoples would be dependent on the goodwill of future parliaments to keep the Voice operational. Multi-party support before the referendum is necessary to provide some level of comfort for Indigenous Peoples as to parties’ future intentions and commitment to the proper functioning of the Voice.
The three key demands of the Uluru Statement, Voice, Truth and Treaty, will help redress historical wrongs. Actualised in good faith in the order preferred by First Peoples, in time they will create a fairer society. It is up to voters to ensure that this happens in the near future.
Top image: Professor Asmi Wood. Photo: Jamie Kidston/ANU
The Uluru Statement is an opportunity for meaningful change to restore a voice taken more than 250 years ago.
Enacting the Uluru Statement will progress Australia towards correcting colonial concepts that dehumanised Indigenous Peoples and denied their rights.
The Uluru Statement must be owned by all Australians — not only the opportunity for a constitutionally enshrined Voice, but also the risk of failure.