An Indigenous Voice To Parliament: Not As Simple As Some Would Have You Believe

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3 February 2021
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Advocates for an Indigenous Voice to parliament see the proposal for a legislated option merely as a stepping stone to radical constitutional change rather than the compromise some conservatives think it could be 

The National Indigenous Australian Agency (NIAA) has now released to the public its interim report outlining a proposal of an Indigenous Voice to parliament. The interim report, produced as part of a co-design process launched by the federal Coalition government in November 2019, outlines how a Voice might be structured and what it might do in practice.   

The interim report fails to allay the fundamental concern that an Indigenous Voice body would be a parallel system of parliamentary representation conferring political rights to indigenous Australians that are not available to other Australians based solely on race. In effect, it would be a facsimile of a third chamber of parliament for indigenous Australians that would exercise an informal veto over policy debated in the parliament (as I and Daniel Wild have explained previously here). 

One aspect that has been controversial among Voice advocates is that the co-design process has avoided recommendations or consideration of constitutional change. The terms of reference handed to the Senior Advisory Group, the National Co-Design Group, and the Local & Regional Co-Design Group, who were responsible for developing the proposal, advised that constitutional change was outside the scope of their work.  

But this should not be interpreted as the end of the road for a constitutional Voice. As Deputy Vice-Chancellor and Professor of Law at the University of NSW George Williams explained in The Australian today the question of constitutional change is at the heart of the Voice:  

One important consideration is that Aboriginal and Torres Strait Islander peoples have only endorsed the Voice on the basis that it will be enshrined in the Constitution. This occurred in the Uluru Statement from the Heart in 2017, and there is no mandate from that community to create the Voice in any other form. 

Indeed, the legislated Voice is being promoted by many advocates as merely a precursor to constitutional change. This is not a fallacious slippery slope argument but a strategy that advocates have been forthright about. 

In October 2018, Jesuit priest, lawyer and academic Father Frank Brennan declared that legislation is a prerequisite for subsequent constitutional change. In a speech to the National Aboriginal and Torres Strait Islander Catholic Council, Fr Brennan rejected moving directly to constitutional change, instead insisting that legislation must come first:  

It’s not only sensible but also imperative first to legislate and road test any Voice… I doubt the wisdom of trying to get it up at referendum before you have first constructed the Voice, so voters can see what it sounds like.  

Professor Tom Calma, co-chair of the Senior Advisory Group responsible for developing the proposal in the interim report, noted in October 2019 that it was possible the federal government “might be minded” to consider enshrining the representative body in the constitution after a model had already been developed:   

I would like to get the opportunity to establish the bodies and the process and look at all the models and how they might work and then at a future time look at – and this is the government’s role – to look at constitutional enshrinement or whatever. 

Lawyer Mark Leibler, who has been intimately involved in the years-long campaign for a Voice, including stints as co-chairman of the Referendum Council and the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Australiansnoted in a forum to business figurein November 2019 that a legislated Voice would “neither preclude, nor substitute for, constitutional amendment down the track, once people have seen the detail. More recently in The Australian Leibler reiterated why constitutional enshrinement is so important, citing the scandal plagued Aboriginal and Torres Strait Islander Commission abolished by the Howard government in 2004: 

The fact that ATSIC, including its best features, was completely dismantled by the government at the time to overcome its worst features, after zero consultation with affected communities, illustrates why constitutional status for the Voice is so important. 

Noel Pearson, of the Cape York Institute and the man likely responsible for first floating the idea of a constitutional Voice to parliament in a 2014 Quarterly Essaymade the point in November 2020 that legislative change and constitutional change had to be linked. “I think we can have a really fruitful discussion about the constitutional enshrinement once we have the design.  

Columnist and member of the Senior Advisory Group, Chris Kenny, noted in an article in The Australian, published in December 2020:

If a Voice were to be legislated and we were to see it run successfully, it may well clear the way for a reference to be specifically mentioned in the constitution when we eventually vote on constitutional recognition. That is no certainty, but it is possible. 

Professor Megan Davis, who has provided considerable academic output writing about the Voice and was a member of the Referendum Council, wrote in The Australian’s ’Inquirer section earlier this month that the interim report is “an opportunity for all Australians to have a say and is a welcome next step on the inextinguishable road to constitutional enshrinement:  

The Interim [Voice] Report has its genesis in the Uluru Statement which calls for ‘the establishment of a First Nations Voice enshrined in the Constitution… The Uluru Statement sets out the vision, a Voice to parliament enshrined by the hands of the Australian people at referendum. There is nothing in the Interim Report that forecloses on this vision of unity. 

Any success in introducing a legislated Voice would inevitably be followed by pressure to commit to constitutional change. This is already occurring, despite the public consultation phase of the co-design process into a legislative option having barely started. Professor Gabrielle Appleby, a co-author of a joint submission by 43 members of the legal community noted that the “public law experts take a strong view that the question of constitutional enshrinement is so closely connected with the design that it must be determined now. 

The proposal for a legislated Voice is a fundamentally divisive idea that would establish a model for separatism in the federal parliament. But the danger is that, in the absence of immediate constitutional enshrinement, Australians will be lulled into a false sense of security and accept a compromise model on an issue that advocates have no intention of compromising on. 

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