Questions and answers about the proposed First Nations Voice to Parliament

palaver
Questions and answers about the proposed First Nations Voice to Parliament

5.3.    How would the Voice work?

  • Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander peoples, Final Report, (Canberra: Commonwealth of Australia, November 2018).
  • Megan Davis, ‘The Uluru Statement four years on’, The Saturday Paper, May 29, 2023.
  • Jason O’Neil, ‘Designing an Indigenous Voice that empowers: How constitutional recognition could strengthen First Nations sovereignty’, Alternative Law Journal 46,3 (2021).
  • Anthony Albanese, interviewed by Tom Crowley, February 5, 2023.
  • Gabrielle Appleby and Megan Davis, ‘This is Australia’s opportunity to reset its relationship with the Indigenous community’, Australian Institute of Company Directors, 2019.
  • Bronwyn Fredericks and Abraham Bradfield, ‘More than a Thought Bubble … : The Uluru Statement from the Heart and Indigenous Voice to Parliament’, M/C Journal 24,1 (2021). 
  • Dani Larkin and Kate Galloway, ‘Uluru Statement from the Heart: Australian Public Law Pluralism’, Bond Law Review 30,2 (2018). 
  • Lorena Allam, ‘How would an Indigenous Voice work and what people are saying about it’, The Guardian, August 28, 2022.
Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander peoples, Final Report (Canberra: Commonwealth of Australia, November 2018), 

https://www.aph.gov.au

Summary

This Report discusses and makes recommendations regarding the establishment of a Voice to Parliament to be co-designed with First Nations peoples and the Australian government. Constitutional amendments, the Uluru Statement from the Heart as well as recommendations for and the importance of truth-telling are also discussed.

The purpose of the Report is to consider and formulate recommendations regarding the potential amendment of the Australian Constitution; to examine the current involvement of First Nations people in formulating policies they are impacted by; and how to make progress in self-determination. It also seeks advice on how to constitutionally enshrine or legislate the powers of the Voice in a way which will be supported by Aboriginal and Torres Strait Islander communities, the Australian public and parliament.

Specifically, the Joint Select Committee recommends after the co-design process, that the government discuss ‘legislative, executive and constitutional options’ for the instatement of a Voice. The Committee also calls on the government to support a process of truth-telling, and to consider forming a ‘National Resting Place’ for First Nations people who have passed away. The report also includes recommendations to spread knowledge of Aboriginal and Torres Strait Islander history and culture and responds to questions issued in the Interim Report.

Excerpt

‘Why constitutionalise a First Nations Voice?

  1. The Committee identified broad stakeholder support for the enshrinement of a First Nations Voice to Parliament in the Australian Constitution, notwithstanding stakeholders’ differing views on how and when it should be implemented.
  2. As noted in Chapter 2, much of the evidence received by the Committee sought to illustrate how the constitutional enshrinement of a First Nations Voice would benefit Aboriginal and Torres Strait Islander peoples by providing a permanent avenue for input into the policy and legislation governing their affairs …
  3. … Professor Anne Twomey noted the potential of a constitutional First Nations Voice to provide meaningful symbolic recognition of Aboriginal and Torres Strait Islander peoples:

The inclusion in the Constitution of a mechanism by which Indigenous voices are heard therefore amounts to a form of recognition and respect that is accorded not just on a personal level, but at the very heart of Australia’s nationhood, in its Constitution. Most importantly, it is not just words on a page declaring respect for Indigenous Australians which may over time ring hollow or false. It is a form of living respect that is activated each time an Indigenous voice is heard by the Parliament.’

Megan Davis, ‘The Uluru Statement four years on’, The Saturday Paper, May 29, 2023

https://www.thesaturdaypaper.com.au/opinion/topic/2021/05/29/the-uluru-statement-four-years/162221040011758

Summary

This article examines the progress made towards implementing proposals outlined in the Uluru Statement from the Heart. Megan Davis advocates for a Voice to Parliament, noting that while treaties and representative governments have been established overseas, Australia has neither. The Uluru Statement from the Heart outlines the kinds of recognition deemed suitable by Aboriginal and Torres Strait Islander communities. The first of these, the Voice to Parliament, would ‘compel the state to listen’ to First Nations communities.

The article continues to explain why a Voice to Parliament is necessary. Davis notes that in a liberal democracy, which conforms to a ‘majority rule’, it is difficult for a small portion of the population to influence political decisions. The Voice to Parliament is ‘the only way’ to improve this inequality and is also consistent with international laws regarding the rights of Indigenous peoples. The article then acknowledges confusion and discontent over the placement of treaty after Voice in the Uluru Statement. Davis notes that having a Voice would help treaty negotiations.

The article then further discusses progress made since the Uluru Statement was read, including the co-design process, and debates over whether to legislate or constitutionally enshrine the Voice. It is argued that a legislated model rather than a constitutionally enshrined one would not give the Voice the ‘authority, legitimacy and stability’ the body should have.  

Excerpt

‘The Voice to Parliament is a structural reform. It will create 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 in decision-making. The concept of a Voice derives from the experience of many Indigenous peoples around the world who seek to find pragmatic and functional ways of influencing government. After all, many Indigenous peoples are vulnerable to the state — the laws and policies of which shape how their lives are lived …

… Liberal democracies are a numbers game. But this game is stacked against action on Indigenous peoples’ issues. Majority rule means it is difficult for the voice of 3 per cent of the population to be heard and for First Nations people to influence the very laws that are made about them. For more than a century, we have argued for political representation and fairer consultation.

The idea behind a Voice to Parliament is that Aboriginal and Torres Strait Islander peoples need to be engaged in the development and implementation of laws, policies and programs that affect them and their rights. This is the only way to achieve higher-quality policy and laws, and a fairer relationship with government. And it is consistent with the United Nations Declaration on the Rights of Indigenous Peoples, particularly article 18, which states that “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions”.’

Anthony Albanese, interviewed by Tom Crowley, February 5, 2023

https://www.pm.gov.au/media/podcast-interview-daily-aus

Summary

In this podcast the Prime Minister Anthony Albanese is interviewed by a journalist from ‘Daily Aus’ an Instagram-based news service oriented to younger readers, www.thedailyaus.com.au.  Albanese outlines the referendum proposal, why it can be regarded as a good idea, and how it will or won’t affect parliament.

Excerpt

‘We will be very clear in the lead up to the vote that this is about recognition and consultation. That’s all it’s about. The words that I put forward last July at the Garma Festival were very clear, that it begins with recognition of Aboriginal and Torres Strait Islander peoples as Australia’s first peoples, and then goes through the three constitutional clauses. One, there shall be a Voice. Second, the Voice shall make representation on issues which affect Aboriginal and Torres Strait Islander peoples. And thirdly, that there will be legislation from the Parliament that will determine the structure and the activity of the Voice, that is, it is subservient to the Parliament. So this is about just that. We should be proud that our Constitution should reflect that we share this continent with the oldest continuous culture on Earth. And secondly, that where matters affect Aboriginal and Torres Strait Islander peoples, we should ask them, we should consult with them. That’s good manners. But it won’t be a funding body. It won’t be a body that is able to overrule the Parliament or veto what the Parliament does. It’s subservient to the Parliament, which is why that detail will be legislated. And of course, that legislation can be changed from time to time.’

Jason O’Neil, ‘Designing an Indigenous Voice that empowers: How constitutional recognition could strengthen First Nations sovereignty’

Alternative Law Journal 46,3 (2021), p. 201, DOI: 10.1177/1037969X211009628

Summary

This article considers how a First Nations Voice to Parliament, if carefully designed, could strengthen the land-based sovereignty and autonomy of First Peoples in Australia. It critiques proposals presented in the Indigenous Voice Co-Design Process’s Interim Report released in January 2021 (https://nla.gov.au/nla.obj-2903871390/view) for its emphasis on the role of government and existing structures. It responds to Indigenous critiques of the Uluru Statement from the Heart, while arguing for a constitutionally enshrined Voice to Parliament that respects and defers to First Nations’ Country-based authority.

Excerpt

‘Despite how the “Indigenous Voice” is depicted in the Interim Report, engaging with all levels of government in policy design and advocacy, no proposed model for the Voice can replace the authority and expertise of First Peoples. Governments will have the same obligation to develop genuine relationships with the First Peoples on whose Country they operate, and it is an obligation that a First Nations Voice should encourage them to take more seriously. As an example, Dubbo City Council or NSW Health should not be asking a Local/Regional Voice for the authority to do something on Wiradjuri Country. They should ask the Wiradjuri People, in recognition of their right to self-determination and connection to Wiradjuri Country. The role of the Voice should be to amplify First Nations’ Voices, and advocate for governments to defer to the expertise of First Peoples in designing and implementing relevant law and policy.’

Gabrielle Appleby and Megan Davis, ‘This is Australia’s opportunity to reset its relationship with the Indigenous community’, Australian Institute of Company Directors, 2019

https://www.aicd.com.au/corporate-governance-sectors/indigenous/business/first-nations-voice.html

Summary

This article opens by documenting increasing support for the Voice from a variety of different sectors — from politicians, the Australian public, unions and within the Aboriginal and Torres Strait Islander community. The article also recounts recent history leading up to the Uluru Statement from the Heart, specifically, the Kirribilli Statement and the rejection of symbolic gestures in favour of a different form of recognition. This led to the Referendum Council and the dialogues which contributed to the Uluru Statement. The article details the three reforms called for in the Statement, voice, treaty and truth, and asserts that ‘the strength of Aboriginal and Torres Strait Islander cultural authority sits behind the statement’. The authors also explain why constitutional enshrinement of the Voice is necessary and debunks common misconceptions, stating that the Voice will not have veto power and that details on the Voice will be decided after a referendum takes place. The article concludes by describing the Voice as ‘an opportunity … to shift the relationship between First Nations people and the government’.

Excerpt

‘Despite being dismissed by then Prime Minister Malcolm Turnbull in October 2017, the Statement’s reforms are mature. The First Nations Voice is at once deceptively simple and a highly sophisticated tool to achieve Indigenous self-determination in a way consistent with Australian constitutional traditions. Despite attempts to label it such, the Voice is not a third chamber of parliament. It respects the ongoing sovereignty of parliament through providing a political mechanism for First Nations people to inject their views and knowledge of their own communities into the development of policy and laws affecting them. Unlike previous reform recommendations to insert race-based rights protections into the Constitution, this reform respects and continues the political dimensions of our constitutional system.’

Bronwyn Fredericks and Abraham Bradfield, ‘More than a Thought Bubble … : The Uluru Statement from the Heart and Indigenous Voice to Parliament’, M/C Journal 24,1 (2021)

https://journal.media-culture.org.au/index.php/mcjournal/article/view/2738

Summary

This article discusses political reactions to the Voice, the way the media portrays the referendum, the need for a Voice and further reforms in the form of a treaty and truth-telling commissions. According to Fredericks and Bradfield, the Uluru Statement from the Heart was originally treated as a ‘thought-bubble’ by government, but should be considered a ‘gift to the nation’. The article denounces misinformation spread by the media and claims from Scott Morrison and Barnaby Joyce that the Uluru Statement is not a viable proposal. The article emphasises the ‘decades of work’ that has gone into the formation of the Statement, and explains the effectiveness of the Voice, despite its inability to veto legislation.

Fredericks and Bradfield also describe parliament as existing within a ‘self-referential bubble’, where discourse revolves around non-Indigenous members. For this reason, they argue, parliamentary structure must be altered; the inclusion of a Voice would mean greater and more informed discussion of the views of and issues facing Indigenous peoples. Despite ongoing debates about the structure and details of the Voice, the establishment of a Voice to Parliament is still a popular proposal among Indigenous communities.  

The establishment of a Voice would mean a clearer and more effective path to treaty, wherein Indigenous voices would be better heard by parliament. The article discusses the Yolngu word ‘Garma’, meaning ‘knowledge is attained from a point where differences converge’ as an explanation of how the Voice may be benefit future discussions,Fredericks and Bradfield conclude by emphasising the need for Aboriginal and Torres Strait Islander people to be included in discussion and decisions that directly impact the livelihoods of their communities.

Excerpt

‘The Voice would be the mechanism through which Aboriginal and Torres Strait Islander interests and perspectives may be strategically placed within parliamentary dialogues. Despite accusations of it operating as a “third chamber”, Indigenous representatives have no interest in functioning in a similar manner to a political party. The language associated with our current parliamentary system demonstrates the constrictive nature of political debate. Ministers are expected to “toe the party line”, “crossing the floor” is presented as an act of defiance, and members must be granted permission to enter a “conscience vote”.

An Indigenous Voice to Parliament would be an advisory body that works alongside, but remains external to, political ideologies. Their priority is to seek and implement the best outcome for their communities. Negotiations would be fluid, with no floor to cross, whilst a conscience vote would be reflected in every perspective gifted to the parliament.’

Dani Larkin and Kate Galloway, ‘Uluru Statement from the Heart: Australian Public Law Pluralism’, Bond Law Review 30,2 (2018), p. 342

https://blr.scholasticahq.com/article/6796-uluru-statement-from-the-heart-australian-public-law-pluralism

Summary

This article explains the importance of the Uluru Statement from the Heart and its potential to generate change from a legal perspective. The article begins with the history of sovereignty in Australia and links this to continuous ‘entreaties’ to the state for the constitutional recognition of Aboriginal and Torres Strait Islander communities.

Despite repeated attempts to have their voices heard, Indigenous communities have historically had their proposals and recommendations rejected by Government, and colonial forms of law remain dominant. However, the Uluru Statement is different to past proposals. It ‘walks in two worlds’, adhering to both the wishes of First Nations peoples and to the principles of representative democracy. The Statement can therefore be interpreted as a combination of two different legal systems, which would recognise the sovereignty of the Indigenous population whilst adhering to the Australian legal system. The article discusses the recommendations of the Uluru Statement and the government’s original rejection of ‘the proposal of its own body’ [the Referendum Council]. This response has been interpreted as a governmental failure to understand the significance of the Uluru Statement for Indigenous Australians.

While the Voice has been criticised for giving greater representation to a select number of the Australian population, the proposal for a Voice only exists to remedy the ‘unequal representation’ which already exists in Australian politics. Larkin and Galloway observe that Indigenous voting participation is significantly lower than in other communities. This can be traced to a ‘confluence of factors’ including disproportionately high incarceration rates.

Initial rejections of a proposal written by and for the benefit of Aboriginal and Torres Strait Islander people indicate a repetition of past mistakes with regard to legislation impacting Indigenous peoples. The Uluru Statement from the Heart is an ‘elegant and legally viable’ proposal, which should be seriously considered by government.

Excerpt

‘In the first place, the Voice would be no “third chamber of parliament”. It would simply allow the government to hear the voice of Indigenous Australians in matters concerning them — an idea less radical than the Expert Panel recommendations and certainly less radical than Nigel Scullion’s suggested takeover of his Ministerial office. [Scullion was Minister for Indigenous Affairs in Abbott, Turnbull and Morrison governments]. It is true that the Voice would be constitutionally protected, but its precise role would be determined by Parliament itself.

Secondly, the [then] government’s response ignores the dispossession, inequality and lack of civic rights that Indigenous Australians continue to experience. The Prime Minister [Malcolm Turnbull] is correct to state that institutions of governance built upon democratic principle are obliged to represent the interests and rights of all who are governed, and to do so equally … however, this does not occur in practice. This negative experience accounts for the long-standing, resolutely expressed desire among indigenous groups for self-determination. The Uluru Statement is itself an expression of self-determination, which embodies principles of equality, and derives its legitimacy from Indigenous Australian processes: for the first time, a state mechanism, the Referendum Council, adopted the Aboriginal tradition of storytelling to influence the hard-edged contours of the Australian state that has for too long resisted the footprint of the cultural authority of this country and has been the poorer for it.’

Lorena Allam, ‘How would an Indigenous Voice work and what people are saying about it’, The Guardian, August 28,  2022

https://www.theguardian.com/australia-news/2022/aug/28/how-would-an-indigenous-voice-work-and-what-are-people-saying-about-it

Summary

This news article published in The Guardian discusses how a national Voice to Parliament would operate, recommendations from the Indigenous Voice Co-Design Report, what the government is doing to promote the Voice and the opinions of various politicians. The article begins with recommendations for the alteration of the Constitution from Prime Minister Albanese and an introduction to the Report [https://voice.gov.au/resources/indigenous-voice-co-design-process-final-report]. The article draws on the Report to answer questions regarding how the Voice would work, its structure, how local and regional voices would be included and how disputes would be handled. It affirms that the Voice would provide guidance on issues that ‘overwhelmingly relate’ to Indigenous communities and that the government would have an ‘obligation’ to hear their advice. It clarifies that the Voice would not have the power of veto to overturn laws. The article concludes with a discussion of the perspectives of Peter Dutton, Tony Abbott and John Howard. It also details rebuttals of their positions from Marcia Langton, described as ‘clearly frustrated’ by requests for more detail on the Voice even after the publication of the Co-Design Report, and from Linda Burney, who critiques John Howard’s previous stances on attempts to introduce reconciliation processes.  

Excerpt

‘How would disputes be resolved?

The [Indigenous Co-design] report recommended mediation in the first instance. If that failed, matters would go to an independent review. The report suggested there be an agreed list of people with appropriate experience to conduct such reviews, and at least one of the reviewers should be an Aboriginal or Torres Strait Islander person. It suggested the final decision-maker could be the relevant minister, alongside two respected, independent Aboriginal or Torres Strait Islander people.’

Melinda Hinkson and Jon Altman, ‘Rupture in Remote Australia’, Arena Quarterly 13, March 2023, pp. 3,4.

Summary

In this essay Hinkson and Altman caution that the Voice to Parliament should not be assumed on its own to be able to bring about changes that would address the dire state of first Nations communities especially in remote areas. The authors argue that the history of successive government responses does not support this assumption, and that ‘remote communities need a great deal more than a Voice’. At the most optimistic, the ‘Voice could establish a holding place for a genuine reworking of governance in partnership’ which would bring about a ‘comprehensive reorientation of governmental practices’.  They also argue that a rhetoric of ‘governing for all Australians’ misses the point of Indigenous difference, especially the ‘specific conditions and meanings of Country that shape the orientations of First Nations communities’. 

Excerpt

‘… in the most negative scenario and as narrated diversely by both conservative and progressive proponents of the No campaign, it [the Voice to Parliament] could function as a body that adds yet another administrative mechanism to the existing workings of government — a First Nations lobby group with a platform to speak but little chance of effecting significant change. If the Voice is to have an advisory role to both parliament and the executive — something that is not yet resolved — there is the distinct possibility that it will be toothless. While this is not mentioned by the constitutional legal experts now offering adaptive running commentary, the Voice may provide little more than a distinct First Nations perspective on the current institutional arrangements for reporting to parliament on the human rights compliance of proposed laws. It is timely to recall that the Human Rights (Parliamentary Scrutiny) Act (2011) has not been effective in stopping discriminatory laws such as compulsory income management, which the Parliamentary Joint Committee on Human Rights identified as contravening Australia’s commitments to uphold agreed international standards.

In a second scenario, the Voice is conceived as a kind of magic bullet, as suggested by prominent Yes advocates who are anxious to disrupt the No campaign. The Minister for Indigenous Affairs Linda Burney, for instance, said that a Voice to Parliament would have prevented the Alice Springs crisis, a claim swiftly taken up by others. Such a claim presumes the Voice would have an unrivalled capacity to influence the direction of policy-making, in turn possibly opening the way to legal contestation if ignored. This scenario overlooks the well-entrenched tendency of governments to selectively enlist expert advice to back in whatever approach they have already committed to take.

To see the Voice as anything like a magic bullet is also to load it with the same kind of impossible responsibility for problem solving in remote Aboriginal Australia as land rights were saddled with four decades ago. Or the Aboriginal Employment Development Policy a decade later, which looked to deliver statistical equality in employment, income, education and welfare dependence by the year 2000. Or the Council of Australian Government’s National Indigenous Reform Agreement, which was going to reduce disparities between Indigenous and other Australians in a decade to 2018. Or the most recent National Agreement on Closing the Gap, “co-designed” by all Australian governments and the Coalition of Peaks, which looks to deliver improvements across seventeen targets by 2030 but is already showing signs of failing at the national level, let alone regionally. The outcome of the Voice in this second scenario would likely be the same as before: First Nations people will be blamed for its failure to deliver.

In a third scenario the Voice could establish a holding place for a genuine reworking of governance in partnership. This is the potential with which the referendum vote is being heavily invested by agencies working closest to those whose Indigeneity is entwined with an enduring deep poverty and the anomic situation unfolding across many parts of rural and remote Australia.’

Scroll to Top