5.4. What is the significance of calls for more detail?
- ’Design Principles of the Aboriginal and Torres Strait Islander Voice’, https://voice.gov.au/sites/default/files/resource/download/design-principles-aboriginal-torres-strait-islander-voice.pdf.
- Anne Twomey, ‘Parliament, not the devil, should control the detail on the Voice’, The Sydney Morning Herald, January 1, 2023.
- Anthony Galloway, ‘”Nonsense and Mischief”: Pat Dodson slams critics of the Voice’, The Age, February 4, 2023.
- Maria Langton, ‘Fighting for a Voice’, Opinion, The Saturday Paper, January 7, 2023.
- Asmi Wood, ‘Voice, treaty, truth: Can we get to an affirmative 91.4 percent again?’, Law Society Journal 1 (2022).
- Greg Craven and Damien Freeman, ‘Guaranteeing a Grassroots Megaphone: A centre-right approach to hearing Indigenous voices’, Centre for Independent Studies Occasional Paper 195, January 2023.
- Megan Davis, ‘What happens next for the Voice?’ The Saturday Paper, August 6, 2022.
What is the significance of calls for more detail?
‘Design Principles of the Aboriginal and Torres Strait Islander Voice’
This fact sheet published by the Australian government lists eight key design principles for the Voice agreed by the First Nations Referendum Working Group. These principles are: the Voice will give independent advice to the Parliament and Government; the Voice will be chosen by Aboriginal and Torres Strait Islander people based on the wishes of local communities; the Voice will be representative of Aboriginal and Torres Strait Islander communities, gender balanced and include youth; the Voice will be empowering, community led, inclusive, respectful and culturally informed; the Voice will be accountable and transparent; the Voice will work alongside existing organisations and traditional structures; the Voice will not have a program delivery function; the Voice will not have a veto power.
‘What happens if the referendum passes?
After the referendum, there will be a process with Aboriginal and Torres Strait Islander communities, the Parliament, and the broader public to settle the Voice design. Legislation to establish the Voice will then go through standard parliamentary processes to ensure adequate scrutiny by elected representatives in both houses of Parliament.’
Anne Twomey, ‘Parliament, not the devil, should control the detail on the Voice’, Opinion, The Sydney Morning Herald, January 1, 2023
This article addresses calls for more detail regarding the Voice in the lead up to the referendum. Twomey asserts that the people are ‘agitating’ for details that will not, and do not need to be decided before the upcoming referendum. On the referendum, voters are asked their opinion on a ‘basic principle’; whether or not there should be a constitutionally entrenched Voice to Parliament. The details of the Voice’s structure will be decided on by parliament should the referendum succeed. None of the laws passed concerning the details of the Voice would be constitutionally entrenched. Therefore, they could be amended in the future according to ‘the democratic process and the will of the people’. Finally, Twomey notes that lack of detail has not been an issue in the lead up to past referendums and emphasises the need to ‘focus on the principle and purpose of the amendment’.
‘[The proposed amendment will] give parliament the power to make laws about the composition, functions, powers and procedures of the Voice. The detail that people are currently agitating for is not something that falls within the proposed amendment itself, but is something that parliament will enact in the future. Matters such as how many members the Voice might have, how they are chosen and how the Voice operates, are left for parliament to decide. The politicians currently demanding this detail are the ones who will vote on it in the future. This amendment will make them the decision-makers.
This is a sensible approach. Constitutions are not places where you want to freeze details. It is appropriate to leave it to parliament as this gives greater flexibility to adjust for future needs. If the Voice is not working well, its composition or procedures can be changed to improve it. If people don’t like what parliament has done, they can impose pressure to get change or exercise their rights at the ballot box. Ultimately, it is left to the democratic process and the will of the people.
Does this mean that voters will be “voting blind” in a referendum if they cannot know every way that parliament might exercise its powers in the future? No. Voters in a referendum will be voting on the basic principle — giving Indigenous Australians a collective Voice to seek to influence and inform the parliament and government by making representations to them. The power that they give to parliament will be confined to listed matters — the composition, functions, powers and procedures of the Voice. The people will vote, with eyes wide open, to let parliament decide these matters in the future.’
Anthony Galloway, ‘”Nonsense and Mischief”: Pat Dodson slams critics of the Voice’, The Age, February 4, 2023
This article examines Senator Pat Dodson’s reaction to opposition to the Voice to Parliament proposal. Dodson aims to debunk ‘nonsense and mischief being peddled’ involving the Voice and is quoted criticising calls for more detail from ‘wrongheaded’ opponents of the Voice. He states that details will be decided by parliament should the referendum be successful and urges the public to disregard critics who press the government for more details prematurely. Dodson also urges the public to ‘respond generously to this very simple request’, which he believes will encourage reconciliation and limit ineffective policymaking regarding Indigenous Australians.
‘”It’s a principle matter … the Constitution is about principle, it’s not about detail”, said Dodson, who is Prime Minister Anthony Albanese’s special envoy for the implementation of the Uluru Statement from the Heart. “The Parliament deals in detail. We do that every day of the week. That’s why we have oppositions and arguments and committees and reviews etc. That’s where detail is done”.
“There are some out there who are pressing for more detail. They will never get enough … our political process is in the parliament, and that’s where the detail is always settled and proposed. So don’t get distracted by the call for more detail”.’
Marcia Langton, ‘Fighting for a Voice’, Opinion, The Saturday Paper, January 7, 2023
Public discussions about the Voice have been distracted by calls for more ‘detail’, despite the availability of extensive information from multiple comprehensive reports and the basic fact that the Constitution focuses on principles that are subsequently implemented into law by the parliament. In this piece Marcia Langton expresses her frustration and anger at the long history of attempts to block reconciliation in Australia, while nonetheless affirming her personal commitment to a new accord that is ‘based on the right and dignity for all’.
‘Former minister for Indigenous Australians Ken Wyatt said he brought the reports I prepared with [Tom] Calma to cabinet while in government and asked his former colleagues to consider them. He even offered those in parliament now the exact page numbers of the summary to help them out. “What is obvious with the National Party”, he said, “is that they have not read the report and not given an Aboriginal Voice to Parliament an opportunity to be aired and listened to … There’s no excuse to say you do not know the detail …’
Asmi Wood, ‘Voice, treaty, truth: Can we get to an affirmative 91.4 percent again?’, Law Society Journal, 1, (2022), p. 82
This article discusses various aspects of the proposal for an Indigenous Voice, including potential benefits, limitations and obstacles. Professor of Law Wood examines political reactions to the proposal, particularly focussing on those of the Greens and Teal independents. These reactions are significant since, as Wood notes, the powers of the Voice ‘will depend on the will of the current Parliament’. Wood proceeds to discuss what the proposal for a Voice entails, including its purpose to augment ‘equality and equity’ and the way in which it would be controlled by Australian law and principles of governance.
The article goes on to discuss the limitations of the proposal of constitutional reform to better the lives of Aboriginal and Torres Strait Islander peoples. Wood then recounts ‘a brief history of recognition’ which tracks the treatment of First Nation’s people from the invasion of the British, to mid-1950s assimilation policies, international focus on the rights of Indigenous people worldwide and current difficulties in establishing new policies in the area. These issues are discussed in further detail, as are recommendations from the Uluru Statement from the Heart and their potential benefits.
‘Limits of Constitutional reform
Changing the Australian Constitution is a two-step process as set out in section 126 of the Constitution. The founders arguably sought to ensure that the Grundnorm of Anglo-Australian law would change and evolve with the passage of time but ensured that change would be quite gradual by requiring a double majority to effect change to the Constitution. That is, change would only occur if a majority of the voters in a majority of the states would approve the constitutional changes put to the people.
It is important to note that the notion of who votes in such referenda remains Parliament’s prerogative. People such as “aboriginal natives”, coloured inferiors and women — all groups not eligible to vote under the initial franchise provisions at Federation — are now part of a broader group of voters who will determine the success or otherwise of the amending provisions of the form of words the Parliament puts to the people. By its nature, a constitution needs to state matters of principle at a higher level of abstraction. The prescription of matters at greater levels of detail is likely to prove too temporally “bound” and or condemn posterity to the limits of the visions and constraints of today.’
Greg Craven and Damien Freeman, ‘Guaranteeing a Grassroots Megaphone: A centre-right approach to hearing Indigenous voices’, Centre for Independent Studies Occasional Paper 195, January 2023
This essay published by the Centre for Independent Studies comprehensively sets out the ‘centre-right’ arguments for supporting the Voice to Parliament and for how it should be designed for the best practical outcomes for Aboriginal and Torres Strait Islanders. Authors note the role of several Liberal-Coalition governments in building the process towards the Voice. In response to more conservative responses to the Voice proposal, the authors envision the Voice as a ‘grass-roots megaphone’ not as a ‘black cabinet’. They argue for the need for draft legislation to be made available to the public before the referendum in order to achieve the widest support; and that if ‘the Indigenous Voice is designed as a grassroots megaphone, it will be something that conservative and liberal voters can support’.
‘The government is yet to articulate the elements of Marcia Langton and Tom Calma’s report from the co-design process it will adopt to give effect to an amendment of the kind the Prime Minister has proposed. The report contains a number of options from which the government will need to pick and choose when it comes to the “detail” for the model. The respected Yawuru man, Peter Yu, and his team in the First Nations Portfolio at Australian National University, have written a paper that identifies the tensions that will need to be resolved. They note that “public processes have added substance and detail to the proposed Voice, even if significant issues remain uncertain or subject of debate”. And yet, “Despite broad consensus on key elements of the Voice, several issues remain uncertain and contested”. They explain that “The Langton and Calma report is significant and should be respected, but more work is needed”. Although “Developing legislation prior to holding a referendum is problematic”, they conclude that “The government will need to be clear on how it intends to design a model and draft legislation to establish a Voice”.’
Megan Davis, ‘What happens next for the Voice?’ The Saturday Paper, August 6, 2022
This article critiques calls for more detail and explains some of the reasoning behind the lack of specific information about potential legislation. Davis describes a ‘hysteria’ over details and the deliberately ‘adversarial and acrimonious’ manner in which the Voice is discussed in the media. Media reporting on the Voice is largely guided by a misconception that this referendum will operate in a similar way to the referendum for a republic. However, the Voice is different to the republic referendum, where many details would have to be written into the Constitution. The Voice referendum seeks to enable the creation of a Voice to Parliament and would require minor editing of the Constitution; the two referendums are ‘apples and oranges’.
The article goes on to explain the benefits of holding a referendum before deciding on the exact structure and powers of the Voice. Through this process, details concerning the Voice will be determined by legislation, which may be changed by government as it needs to be. Davis also suggests that determining specific functions of the Voice has been deferred to allow Aboriginal and Torres Strait Islander people to have more input. If Indigenous communities have a right to contribute to the formation of legislation that impacts them, they should logically be closely involved in designing the Voice, Davis reasons.
Calls for more detail are therefore useless and misleading, and, according to Davis result from those who ‘are disingenuous and predictably opposed’ to the reform. The article asserts that these are the same people who have ‘turned a blind eye’ to issues facing the Indigenous population in the past, and they are obscuring the progress being made towards reconciliation.
‘… who among us really has the knowledge, skills and expertise to objectively assess a fully-fledged Voice model before or after a referendum? The best people to judge are the end users. And those people are not the Indigenous and non-Indigenous people opining on TV or in op-ed columns hidden behind paywalls most ordinary folk cannot afford to cross. They are the mums and dads and grannies and aunties and uncles who participated in the First Nations Regional Dialogues, whose hard work led to the Uluru Statement from the Heart, and their Nations and communities and families and friends.’