3.2. Legal considerations by Melissa Castan
In 1768 the explorer Captain James Cook, on his first Pacific voyage, was given secret instructions to take possession of ‘a Continent or Land of great extent’ thought to exist in the southern hemisphere. Cook was specifically ordered that ‘with the Consent of the Natives’ he should ‘take possession of Convenient Situations in the Country in the Name of the King of Great Britain’. These instructions represent the first English statement of legal interest in the territory that would become known as Australia. They record the British quest for scientific discovery, exploitable resources and the expansion of Britain’s control of strategic trading posts around the globe; they represent the colonial enterprise and probably the first expression of Anglo-Australian public law.
But Cook did not discover Australia, and when he claimed possession of ‘New South Wales’, it was not with the consent of any of the Indigenous nations that populated the east coast. He, his successor Governor Arthur Phillip, and their legal successors asserted claims over the lands and waters without concern for proper legal relations with any of the hundreds of different tribal nations who had held legal and practical sovereignty for tens of thousands of years.
This set in place a deep fracture or fault line in Australian law, politely described as a legal fiction of ‘terra nullius’, meaning empty land, a concept that developed later, in the late nineteenth century. It imagined that Australia was unoccupied before Cook and Phillip asserted their claims. That fault line, that people were invisible at law, persisted in law until addressed explicitly in the High Court in 1992, in Mabo v Queensland (No 2).
There, Justice Brennan said:
Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted.
The majority of the High Court agreed with Brennan J, and together they rejected the legal fiction that the Australian territory was unoccupied before 1788. But the fault line was not repaired, it was not fully addressed, and its enduring impacts and dire consequences have not been remedied.
Nor did the legal milestones of Federation, in 1901, or the 1967 referendum to rectify the exclusion of Aboriginal people from Commonwealth power and in the counting of the population fix the fault line. The Australian nation has still not found a way to properly recognise, engage with and include Indigenous nations in the constitutional, legal and political functioning of the state.
Now, through the broad Indigenous community consultations that led to the Uluru Statement from the Heart, through the numerous Australian parliamentary committees and inquiries, through the affirmation of governments, many lawmakers, civil society organisations and the private sector, we have a proposal for an Indigenous-led advisory body, known as the ‘Aboriginal and Torres Strait Islander Voice’. That advisory body, it is proposed, will be included in our Australian Constitution by way of a referendum, the only way that the Constitution can be amended.
This essay addresses the proposal for constitutional recognition of Indigenous Australians by considering the Voice advisory body from a legal point of view. It looks at three different targets or goals: the goal of providing constitutional recognition, the goal of meeting the requirements of international human rights law, and the goal of upholding parliamentary supremacy and effective operation of the executive government.
The Voice fulfils the goals of constitutional recognition. First, the proposed Voice achieves constitutional recognition according to the priorities of First Nations peoples. The form of the Voice referendum proposal is the culmination of a considerable body of independent work on constitutional recognition, including the work of the Referendum Council, the Uluru Dialogues, and the Voice Co-Design Process. This work brought together First Nations people and non-indigenous experts and expresses a consensus position of First Nations people as to the form and goals of constitutional recognition. The specific form, membership and design of the Voice body itself will come later; design principles have already been mapped out in a significant report led by Dr Tom Calma and Professor Marcia Langton.
The proposed Voice and the referendum to amend the Constitution also address our Constitution’s silence by acknowledging Aboriginal and Torres Strait Islander peoples as the First Peoples of this land. This recognition affirms their status within the constitutive document. But it is more than merely symbolic; it gives substantive recognition by creating and entrenching an advisory body that directly addresses the systemic barriers facing First Nations peoples. It brings the experience of First Nations peoples into Australian governance structures by empowering Indigenous people to make representations to parliament and the agencies of the government. Just as we see with other representative institutions such as law reform commissions, advisory commissions, royal commissions and parliamentary inquiries, the Voice can enhance good governance by entrenching institutional processes informed by modern best practice consultation and community representation.
The Voice fulfils the requirements of international human rights law. International law anticipates and expresses the need for self-determination. International law already recognises that Indigenous peoples have particular rights as Indigenous peoples. Professor Anaya, the former Special Rapporteur on the Rights of Indigenous Peoples and legal expert, defined Indigenous peoples as the ‘living descendants of pre-invasion inhabitants of lands now dominated by others. They are culturally distinct groups that find themselves engulfed by other settler societies born of forces of empire and conquest’. They have special needs, status and rights in international law.
Human rights law embraces the right to self-determination and the right to free, prior and informed consent as fundamental to Indigenous peoples. These rights are recognised in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In 2009 Australia formally endorsed UNDRIP, which – as a declaration of the UN General Assembly – forms part of the body of international law to which Australia is a party, and to which we have obligations.
The rights that UNDRIP affirms are grounded in binding international treaties, such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Australia has signed and ratified these covenants, and they have a common article 1 regarding self-determination:
All peoples have a right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Self-determination should be understood as a constructive, inclusive concept, rather than a threat to the state. Anaya explained the ways Indigenous self-determination can manifest as both ‘constitutive’ and as continuing or ‘ongoing’. He proposed that ‘constitutive’ self-determination requires that the governing institutional order be created by processes that are ‘guided by the will of the peoples who are governed’; the political order should reflect ‘the collective will of the peoples concerned’. To meet that standard, there must be participation and consent of the governed peoples, particularly in times of institutional development and reform.
Anaya also explained that self-determination has an ongoing aspect, it needs the establishment and maintenance of institutions ‘under which individuals and groups are able to make meaningful choices in matters touching upon all spheres of life on a continuous basis’. In Australia, this means there is an obligation to develop institutional frameworks that include First Nations in the decisions, processes, lawmaking and administration that impact upon their lives.
The Voice proposal does this and reinstates self-determination rights in three key ways.
Firstly, it will create a statement in the Constitution that Aboriginal and Torres Strait Islander peoples are the First Peoples of Australia. These words recognise the status of Aboriginal and Torres Strait Islander peoples as Indigenous peoples within the fabric of Australia’s constitutional framework.
Secondly, the Voice manifests the self-determination of First Nations peoples, providing an institutional mechanism through which First Nations people can exercise autonomy in matters relating to Indigenous affairs and ‘participate in decision-making in matters which would affect their rights’ through representatives they have chosen for their own Indigenous decision-making institutions. These are standards set out in the UNDRIP (articles 3, 4 and 18). Through this advisory body, the polity can engage in good faith with First Nations people ‘to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them’ (UNDRIP article 19).
Thirdly, the various processes and consultations leading to the proposal, particularly the Uluru Dialogues and the Uluru Statement, are of themselves exercises of self-determination by First Nations peoples. The Voice proposal is not generated by government, it results from the express invitation of First Nations people themselves through the Uluru Statement.
There are other human rights standards and treaties besides UNDRIP that are applicable to this obligation to guarantee participation and consent, such as the ICCPR: article 25 guarantees rights of political participation, article 27 addresses the protection of minority rights, and articles 2, 3 and 26 guarantee non-discrimination. These are all of importance, given the binding nature of these treaty obligations.
The Voice upholds parliamentary supremacy and efficient functioning of the executive.
Importantly for the integrity of Australia’s system of government, the Voice operates within the institutional framework of the nation state, it does not present any threat, it does not take anything from others. Parliament, and the government, can ignore the advice or recommendations of the Voice. As a matter of law and statutory and constitutional interpretation, the proposal presents no challenge or threat to territorial integrity or established norms of governance.
The power of the Voice is to make representations: it is merely a permanent advisory body. This is now made evident in the plain language of the amendment law (the Constitution Alteration Aboriginal and Torres Strait Islander Voice 2023 bill), and the supporting explanatory memorandum and second reading speech. The proposal is ‘a form of constitutional recognition that is practical and substantive’ and which is called for by First Nations people in the Uluru Statement (2nd Reading Speech). The proposal does not have any power of a house of parliament, such as the ability to make laws or appropriate funds. The Voice maintains parliamentary supremacy and the proper functioning of the executive government.
Representations to the executive government at the early stages of the development of a bill or policy and representations suggesting legislative or policy reform enhance governance. Firstly, representations to the government provide the opportunity to consider relevant data, information and advice to enhance the policy or law before legislation is passed. Secondly, much of what is relevant to Aboriginal and Torres Strait Islander people occurs through policy and its administration, funding and implementation. Representations from the Voice to government provide the opportunity for improvement of service delivery and outcomes according to identified needs of the relevant communities.
The Voice is a legitimate, effective and legally coherent means of responding to the Uluru Statement. It fulfils the requirements of international human rights law, recognising in particular the right to self-determination and right to free, prior and informed consent of First Nations peoples. It fulfils the goals of the independent work on constitutional recognition leading up to this moment, including the work of the Referendum Council, the Indigenous Voice Co-Design Process, and the Uluru Dialogues. The Voice upholds parliamentary supremacy and the efficient functioning of the executive. It is a representative body which maintains the role and powers of the parliament and which does not confer any veto or other powers on the Voice.
Indigenous peoples’ claims are often expressed as calls for a treaty, for ‘sovereignty’ or for self-determination, in order to address the fault line initiated by Cook and his successors; these calls should not be dismissed as unfeasible. Our common-law cousins have found their own institutional processes for establishing proper lawful relations with Indigenous communities, whether it is as ‘domestic dependent nations’, tribes, or citizens. These have not caused disruption or interfered with democratic processes; they have undoubtedly enhanced them.
As a representative advisory body, and with popular approval by way of the referendum, the Voice can be understood as embedding a genuine legal recognition and relationship between Indigenous communities and peoples and the nation state. The very point of that recognition is to preclude Indigenous people from being controlled and coerced unilaterally by the state. This then shifts the relationship between First Nations peoples and the state from a monologue to a dialogue, from unilateral actions to multilateral relations, and from a majoritarian agenda to a consultative and participatory one. This recognition and relationship is not just essential for First Nations, it is part of a just process to address the fault line, and fundamental to Australia as a constitutional democracy.
Professor Melissa Castan is the director of the Castan Centre for Human Rights Law at the Law Faculty, Monash University.
This essay is based on a collective body of research, most recently summarised in Submission 88 to the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum with K. Galloway, K. O’Bryan and S. Walker, April 2023. An expanded version of this essay is forthcoming in Time to Listen: An Indigenous Voice to Parliament, Castan M and Russell L, (Monash University Publishing, 2023).
The author thanks Associate Professor Kate Galloway, Dr Katie O’Bryan, Scott Walker and Professor Luke Beck for their input and feedback on earlier work.