5.5. What is the history of calls for a Voice?
- Shireen Morris, ‘The argument for a constitutional procedure for Parliament to consult with Indigenous peoples when making laws for Indigenous affairs’, Public Law Review 26 (2015).
- Dani Larkin and Kate Galloway, ‘Constitutionally entrenched Voice to Parliament: Representation and good governance’, Alternative Law Journal 46,3 (2021).
- Francis Markham and Will Sanders, Support for a Constitutionally Enshrined First Nations Voice to Parliament: Evidence from Opinion Research Since 2017 (Canberra: Centre for Aboriginal Economic Policy Research, ANU, 2020).
- Marcia Langton, ‘Fighting for a Voice’, Opinion, The Saturday Paper, January 7, 2023.
What is the history of calls for a Voice?
Shireen Morris, ‘The argument for a constitutional procedure for Parliament to consult with Indigenous peoples when making laws for Indigenous affairs’, Public Law Review 26 (2015), pp. 176-177
This article argues for a constitutionally guaranteed Indigenous body, to ensure Indigenous peoples a voice in laws and policies made with respect to Indigenous affairs. It explores issues of constitutional drafting, non-justiciability, and comparisons with the Inter-State Commission and the Aboriginal and Torres Strait Islander Commission (ATSIC).
‘Indigenous advocacy for a better democratic voice
The Council for Aboriginal Reconciliation (CAR) in 1995 reported a widespread view amongst Indigenous Australians that “the structures of governments … do not provide adequately for Indigenous peoples to exercise legal powers over matters that were of concern to them nor influence major decision-making processes”. A demonstrable hope in Indigenous calls for constitutional rights has been for greater Indigenous authority in Indigenous affairs. Accordingly, a key aspect of Indigenous rights advocacy has focused on ways of achieving a greater Indigenous voice and participation in Australia’s democratic system:
• In 1927, Fred Maynard, President of the Australian Aboriginal Progressive Association, wrote to the New South Wales Premier calling for the control of Indigenous affairs to be transferred to an Indigenous board;
• In 1933, King Barraga called for Indigenous representation in federal Parliament;
• In 1937, William Cooper in Victoria echoed the call in a petition to King George;
• In 1949, Doug Nicholls wrote to Prime Minister Ben Chifley arguing for Indigenous representation in federal Parliament;
• In 1975, the Aboriginal Treaty Commission recommended a national agreement on the “right of Indigenous Australians to control their own affairs and to establish their own associations for this purpose”;
• In 1979, the National Aboriginal Conference called for a Makarrata agreeing to, among other things, “the reservation of several seats in the Commonwealth, State and local governments”;
• ATSIC was the result of Indigenous advocacy for a national Indigenous “consultative organisation”;
• There were many calls in the 1980s, including submissions to the 1988 Constitutional Commission, for Indigenous reserved seats;
• In 1995, ATSIC suggested its chairperson be granted observer status in Parliament and the ability to speak to both Houses on Bills affecting Indigenous interests;
That Indigenous Australians have consistently sought mechanisms for their representation, consultation and a voice in their affairs is unsurprising. It is now well established that proper consultation with Indigenous people is key to effective Indigenous policy and integral to closing the gap. There is widespread acknowledgment that without proper Indigenous input, government measures for Indigenous people will continue to be ineffective and inefficient at best, and unjust and discriminatory at worst. Davis suggests that a racial non-discrimination clause was supported by Indigenous people largely because it was hoped that the clause would lead to better consultation before and in parliamentary action concerning Indigenous affairs. Perhaps this can be achieved without a racial non-discrimination clause, taking into account objections to judicial review. It could be achieved through political and procedural limitations, rather than substantive and justiciable, limitations on Parliament’s power to legislate for Indigenous affairs. This could be an Australian democratic expression and recognition of the principle of Indigenous self-determination, and the related Indigenous right to be consulted.’
Dani Larkin and Kate Galloway, ‘Constitutionally entrenched Voice to Parliament: Representation and good governance’, Alternative Law Journal 46,3 (2021), p. 194
This article argues that an enshrined rather than a legislated Voice would improve representation for Aboriginal and Torres Strait Islanders and increase the body’s ‘contribution to good governance’. Rejection of symbolic representation by First Nations people in 1999 is discussed, as are events leading to the Uluru Statement from the Heart. Larkin and Galloway also examine the term ‘representation’ and how the Voice could contribute to the representation of Aboriginal and Torres Strait Islander people, criticising certain suggestions made in the Interim Report of the Co-Design Process. The article argues that ‘representation … has its authority in cultural identity’, and that certain suggestions do not reflect this.
The article proceeds to discuss ‘good governance’, outlining how the Voice could increase the effectiveness of policies made by government. It notes that since it does not have sufficient knowledge of First Nations cultures, ‘Parliament lacks both the ability and the legitimacy’ to create effective legislation impacting these people. Larkin and Galloway note recent appeals for ‘accountability’ from the government regarding the impacts of their policies on First Nations communities and they advocate for a Makarrata Commission. The article also notes that Constitutional enshrinement would guarantee that resources would be allocated for the Voice. The article resolves that in order to achieve the objectives of an Indigenous Voice to Parliament, the body should be enshrined in the Constitution.
‘The journey of Indigenous constitutional recognition and the Voice
In 1999, then Prime Minister John Howard endorsed Indigenous constitutional recognition by way of a proposal for symbolic words of acknowledgment in the Preamble to the Australian Constitution. The proposal, lacking in any substantive constitutional change, failed to gain support from Aboriginal and Torres Strait Islander communities. It was already apparent from long-running assertions by First Nations of their status as such. And it was certainly clear from that point that Indigenous Australians would not support tokenism, minimalism or symbolism in recognition in law and policy reform as First Peoples.
Since 1999, movement towards substantive constitutional recognition has gained traction. In 2012 the Expert Panel on Constitutional Recognition of Indigenous Australians was created. However, rather than adopt the recommendations of the Expert Panel, the government established the Referendum Council in 2015. It was the Referendum Council that led to the First Nations Regional Dialogues and the National Constitutional Convention at Uluru in 2017. The Regional Dialogues process, a grassroots engagement of Aboriginal and Torres Strait Islander people, resulted in a consensus that constitutional recognition could only comprise a constitutionally enshrined Indigenous Voice to Parliament. This conclusion was affirmed in the Uluru Statement from the Heart 2017.
A First Nations constitutionally enshrined Voice to Parliament is a contemporary, conservative and sophisticated Commonwealth law and policy reform proposal. It arises from consultation during 2016–17 with Indigenous Australian delegates who participated in 12 regional dialogues culminating in a National Constitutional Convention at Uluru. The process of consultation was instigated by the work and aspirations of the Referendum Council. This was the first time Australia had ever engaged in consultation with Indigenous Australians on this scale and for such issues surrounding their political and cultural empowerment.
The Uluru Statement from the Heart centres itself with three core pillars of law reform proposals which are thematically and purposefully sequenced as Voice, Treaty and Truth. The Voice proposal reflects a justified call for Indigenous political inclusion in law and policy decision-making processes. Dialogue delegates and founders of the Uluru Statement from the Heart intended the Voice proposal to be an Indigenous representative body, constitutionally enshrined, with the key function of directly advising both chambers of Parliament on laws and policies that affect Indigenous people and affairs.
Delegates were also open to the Voice taking on an additional advisory function that would make recommendations on the effectiveness of Indigenous service-delivery agencies. Importantly, the Uluru Statement from the Heart is directed to the Australian people. It is not an appeal to government only to be put on display in Parliament alongside previous entreaties.’
Francis Markham and Will Sanders, Support for a Constitutionally Enshrined First Nations Voice to Parliament: Evidence from Opinion Research Since 2017 (Canberra: Centre for Aboriginal Economic Policy Research, Australian National University, 2020), p. 3,
This paper discusses research into the public’s opinion on the Voice to Parliament. There are 12 different results discussed in the paper. Conclusions drawn from the research reveal that most Australians who have a decided opinion on the referendum are in support of a Voice. An important factor in forming their opinion is revealed to be ‘party voting intention’; people’s decisions reflect the views of the political parties they support. Thus, ‘the differing responses of party leaders … has increased the divergence of opinions’ in the general public. Since the Coalition has been a significant voice of dissent against the Voice, Markham and Sanders predict that should Coalition leaders show support for a Voice, this would greatly increase the chances of a successful referendum. The article also notes fewer numbers of voters who are undecided about the referendum, which would suggest that the ‘scope for campaign effects’ is increasingly reduced. Markham and Sanders also discuss the efforts of prominent Voice activists Noel Pearson and Megan Davis. They analyse their methods of advocacy, with Noel Pearson focussing on ‘persuading conservative political leaders’, and Megan Davis ‘fostering a people’s movement’. The article argues that these two strategies work well together.
‘Levels of support for a Voice since 2017 among the Australian public have been considerable, substantially higher than levels of opposition and neutrality. Most polls indicate that 70–75% of voters with a committed position on the matter support a First Nations Voice to Parliament. Over time there may have been an increase of a couple of per cent in levels of support relative to levels of opposition among committed voters. However, this has not been a uniform shift towards support for a First Nations Voice to Parliament among all sections of the population.
It appears that party leaders have had an important role in shaping the opinions of party followers, and that the differing responses of party leaders to the Voice proposition has increased the divergence of opinions on the issue. In the section of this paper on attitudes to a Voice by party voting intention, we have discussed how some Coalition voters followed their party leaders into a position of opposing a Voice during 2018 and 2019, after being initially supportive in 2017. Labor and Greens voters on the other hand have followed their leaders and consolidated their support over time … The implications of this “follow the leader” process in public opinion formation are clear. Had the Coalition leadership supported the idea of a Voice in 2017, rather than rejected it, a majority of their party followers were open to supporting the idea, and more could well have followed over time. There was in the public opinion of 2017 the basis for a successful bipartisan constitutional alteration referendum on a First Nations Voice, had the Coalition leadership come out in support. This did not happen in 2017 and it has not happened since.’
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 to dignity for all’.
‘It is the duty of Australians who want to build a nation that recognises 65,000 years of human history, who want to accord First Peoples a rightful, honourable place in the nation’s fabric, in the warp and weft of its foundational document, to convince their family members, friends, neighbours and colleagues to vote ‘Yes’. We have asked people to imagine the days after the referendum when the votes are counted: Will our nation continue to be founded on colonial theft and brutality towards Indigenous people, or will its people agree to a new accord, one based on the right to dignity for all?’