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Precedent (Australian Lawyers Alliance) |
Image: Country in Colour by Leah Cummins, ©Bunya Designs
‘Country in Colour is inspired by the country we grew up on and the interconnectedness we share with our environment and how the country and land we live on is absorbed into our being and fibres. The variation of colours captures and celebrates the many different colours on country.’
By Professor Asmi Wood
Prime Minister Albanese has promised a referendum on an Aboriginal and Torres Strait Islander Voice to the Commonwealth Parliament and the Executive Government (the Voice). The process is well underway, with the necessary preparatory legislation on track for the referendum to be held towards the end of this year. If the opinion polls are right, the referendum appears likely to receive the requisite majorities to become law, although this should not be considered certain and efforts to increase awareness of relevant facts and issues continue.
The Government, and particularly the Prime Minister, Attorney-General and Minister for Indigenous affairs, have shown unstinting support for, and expended significant political capital on, this ‘once in a lifetime’ opportunity to make progress on the road to giving Indigenous peoples a dignified place in their own lands. The perception that such a victory may bring its proponents a political advantage is perhaps a reason why other political parties have not wanted to give this Government an uncontested ‘win’ on the matter. Thus, if the referendum succeeds, it will do so in spite of not receiving multi-party support in a formal sense.
On the other hand, opposing parties are likely to experience dissention in their ranks, including by politicians not wanting to be seen to be on ‘the wrong side of history’ both by their current voters and posterity. These difficulties for the ‘No’ camp, and the mean-spirited nature of appearing to concede nothing, are clearly affecting this camp’s ability to cut through to the majority.
The history of contact is not a happy one. The treatment of Indigenous peoples under Anglo-Australian law has resulted in crushing oppression. These laws were based on and in turn created further fictions, including the myth of an empty continent, degrading Aboriginal peoples on the scale of human civilisation. Such legal fictions were intended to dehumanise, aiding with the conquest of land and other resources and permitting colonisers to take without recognition or compensation – the fruits of which are enjoyed by present electors.
Political goodwill to treat Aboriginal peoples more equally received a boost in 1967 with the rescission of s127, a constitutional provision that effectively denied their humanity by excluding them from the population count. More than 90% of Australians voted to amend the Constitution in the referendum that year.[1] In 1992, the majority decision of the High Court in Mabo v Queensland (No.2)[2] further recognised at law the existence of Indigenous peoples by denying that the Australian Continent was terra nullius. This was followed by statutory recognition of Indigenous peoples in the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013.
So far these legal developments have not translated into equality ‘for’ Aboriginal peoples. The constitutional power under s51(xxvi) that permits Parliament to act detrimentally against Indigenous peoples only is yet to be rescinded so that we can prospectively create a level legal playing field for all races (a notion present in the Constitution from its inception, but which some opponents of the Voice ignorantly or falsely claim will be introduced into the Constitution if the Voice becomes entrenched). Surely Parliament does not need to regulate by race, but it has done so, for example, by suspending the operation of the Racial Discrimination Act 1975, several times, but only in order to regulate the affairs of the three per cent of the population of Indigenous descent.
Times have changed and the coercive race-based powers of the past must be abandoned. The Voice does not do this, as claimed by opponents, but it will allow Indigenous peoples to highlight legislation adversely affecting them,[3] particularly potential laws based on broad race power.
The wording of the proposed constitutional provision is still to be finalised – the process is yet to be fully run – in practice, not so much because of the ‘No’ camp’s opposition, but because of intervention by the ‘Yes, but give them even less’ campaigners, discussed below. The specific referendum question for voters or electors is whether they will approve a constitutionally entrenched Voice, as set out in principle in the Uluru Statement from the Heart (Statement).[4]
The Government’s commitment, ultimately, is to give full effect to the content of the Statement – a beautifully crafted piece of prose-poetry, but one that should not be treated as a legal document. It describes the rightful place of the Indigenous peoples on the Continent now called Australia. This is a matter that non-Indigenous peoples have been grappling with for some time, only inching towards a reasonable position, one that will not seem utterly ungenerous or purely perfunctory.
The Government does not have a majority in the Senate. It therefore needed to build one as a preliminary step to passing the necessary legislation to get a referendum to the people. It appears to have done this, no mean feat, given the level of vitriol that has already crept into the campaign.
‘Winning’ the referendum means achieving the double majority mandated by the Constitution.[5] While there is some opposition, this may be the result of the confusion and doubt created by the ‘No’ and ‘Yes, but’ camps, arguably strategically. The public nonetheless largely appears to support the Voice. Polls show that 59 per cent of electors, including the requisite majority in four states, are in favour. This level of support will hopefully increase as the debate becomes more focused and the level of confusion stabilises.
The Voice will also provide recognition of Indigenous peoples in the Constitution, a position supported by all major political parties.[6] Entrenching recognition of Indigenous peoples in the Constitution will provide the most secure form of recognition available under the current Anglo-Australian legal system, while synchronising the Constitution with the common law and statute mentioned above. For the law and lawyers, this accord between the common law, statute and the Constitution will serve as a partial rebuttal of the unconscionable denial of Indigenous existence in law for nearly two centuries.
The authors of the Statement sought three elements from the non-Indigenous occupants of the Continent: Voice, Treaty and Truth. This is a fairly consistent request that various Indigenous peoples – individually and collectively – have made for recognition and equal treatment, before and since the common law recognised the Indigenous inhabitants of the Continent.[7] In acceding to the Statement’s requests, the current Government arguably sought to do the only decent thing it reasonably could do: give legal effect to the first element, the Voice, but do so as ‘a ‘modest proposal’,[8] as the Prime Minister fairly and accurately characterised it. This modest proposal is one that appears to be accepted by the majority of decent people seeking to make good for the benefits they now enjoy.
The Voice ‘may make representations to the Parliament and the Executive Government’,[9] again something that for lawyers is not remarkable or unprecedented in the Anglo-Australian system. Further, and contrary to the unsubstantiated claims of some, these are recommendations that the Parliament or the Executive may or may not take into account. Claiming, as some opponents do, that Aboriginal peoples will have a veto does not even stack up against the ordinary and natural meaning of the words in the present proposal.[10]
Some supporters of the Voice have sought to diminish even further the ambit of the Voice’s representations, by removing the reference to the Executive, or otherwise curtailing the scope of those who may receive the Voice’s representations. However, this is as the old expression goes much ado about nothing. It arguably seeks to either muddy the waters or exaggerate the nature of the Voice by inflating its character, something that lawyers usually term ‘puffery’. This is done by those who would normally otherwise claim to support the Voice.
Lawyers, particularly those in the Australian Lawyers Alliance who support the Voice, would have little, if any, difficulty with the legal effect of a Voice created by the current wording, which is clearly and unambiguously the creation of an advisory body. Some of those questioning the current form of the words appear to believe that reducing the scope of the Voice’s representations would increase the ‘Yes’ vote. This is akin to saying ‘if we give less, more people are likely to vote yes’, which intuitively rings true but is really a straw man. If the opinion polls are correct, the referendum in its current form is likely to gain the requisite majorities. Diminishing the scope of this already modest proposal, for no real gain, brings no real benefit to the Indigenous peoples the change is meant to positively impact.
The ‘No’ camp in this analysis is broadly examined in three sections:
1. those who oppose the Voice for their own subjective reasons;
2. those who do not support the Voice in its current form because it gives Indigenous peoples too little, and seek much more; and
3. those who say that the present scope is too broad and needs to be scaled down even more, in order to gain the support and acceptance of a currently vacillating, undecided segment of the voting population.
People who want to vote ‘No’ for any reason, including because they want to concede nothing, are clearly entitled to do so under current constitutional arrangements. A fairly broad and non-homogeneous group, this ‘No’ camp appears to make up around a quarter of the voting population, a percentage that is not fatal to the current proposal.
Those who want to vote ‘No’ because they want much more than is on offer in this proposal are not acting unreasonably in the ‘ideal’ sense but are doing so in a manner that is untenable, and is utterly unattainable in the current political environment. For example, according to some, it would be ideal to have a ‘treaty’ rather than a Voice at present. A fair and reasonable treaty under domestic political arrangements could be established as is envisaged under the United Nations Declaration on the Rights of Indigenous Peoples.[11] Such a treaty could perhaps be based on a constitutional amendment, but one creating real power for Indigenous peoples to act in their own best self-determined interests, largely independent of the coercive political power of non-Indigenous interests.[12] However, the change needed to effect such a treaty is likely to require a constitutional amendment modelled on s105A, a change that is unlikely to succeed in 2023. This assertion is based on the level of opposition and vitriol levelled against the change required to create a purely advisory Voice, opposition and vitriol that are making even this modest and uncontroversial change not entirely certain.
Those in the third group above are arguably no different to those proposing a ‘Yes, but give Blacks even less’ category. This includes people suggesting a further narrowing of the scope of recipients of the representations of the Voice because such a diminution might win more people over to the ‘Yes’ camp. While it may be true that the less that is conceded or given to indigenous peoples in the referendum, the more people are likely to vote ‘Yes’, this is a slippery-slope argument in the reverse and is arguably counterproductive, particularly when an effective majority is apparently happy to vote ‘Yes’ at present. In reality this third approach appears to be a muddying tactic by those who really want the campaign to fail but cannot or will not openly oppose the Voice, perhaps because of previous statements of support for Indigenous peoples.
There are three key elements to the Statement, but the present referendum only concerns the establishment of a Voice. The Voice, if entrenched in principle, will be given specific shape and form through legislation, a process that is unremarkable for lawyers. Its power and scope are also to be circumscribed by statute. The Voice will have no coercive impact on Parliament. The Voice as proposed and as a first step promises to be a useful platform to ensure that Parliament hears from the diversity of Indigenous peoples, which will add to or temper the voices of Indigenous politicians and others elected to the Parliament.
However, entrenchment alone will not guarantee a useful place for a Voice. The Inter-State Commission, for example, was designed to adjudicate interstate trade matters and is entrenched in the Constitution. Now defunct, it could nonetheless provide lessons on keeping the Voice useful and functional for the future. However, Indigenous peoples would be dependent on the goodwill of future parliaments to keep the Voice usefully operational. Multi-party support before the referendum would have provided some level of comfort to Indigenous peoples as to parties’ future intentions and commitment to the proper, effective functioning of the Voice.
The legal issues are fairly straightforward for lawyers and few, if any, reasonable fair-minded lawyers will deny that in its current shape the Voice is a modest concession to Indigenous peoples. However, as lawyers, you will have many family and non-lawyer friends in your circles and this appeal is to them through you as lawyers able to help clear some of the confusion created by those opposing the Voice. Please ask your circles not to vote ‘No’ only on the basis that they do not understand, or alternatively, have not taken the opportunities to inform themselves, of the salient issues. While their ‘No’ vote will have no impact on themselves it will adversely impede even these small steps settler society is willing to take towards justice for Indigenous peoples. They will lose nothing with a ‘Yes’ vote but will be able to take some pride in acting to ameliorate some of the disadvantages that Indigenous peoples face. Please ask them to treat this referendum as their own 1967 moment.
Professor Asmi Wood is a barrister teaching at Australian National University (ANU) College of Law. His immediate past position was Interim Director of the National Centre for Indigenous Studies. He supports the ANU College of Law Indigenous Programme and works closely with the Tjabal Indigenous Higher Education Centre. His areas of research and teaching include legal ethics, constitutional law, humanitarian law, international law and the treatment of Indigenous peoples within legal frameworks other than their own normative systems. EMAIL <asmi.wood@anu.edu.au>.
[1] M Thomas, ‘The 1967 Referendum’, FlagPost, Parliament of Australia (25 May 2017) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2017/May/The_1967_Referendum>.
[3] Proposed s129(ii) of the Constitution.
[4] Uluru Statement from the Heart, First Nations National Constitutional Convention (26 May 2017).
[6] The heading of the proposed new Chapter IX in the Constitution is ‘Recognition of Aboriginal and Torres Strait Islander Peoples’.
[7] Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1.
[8] J Butler, ‘Emotional PM reveals question Australians will be asked for constitutional change on Indigenous recognition’, The Guardian (23 March 2023) <https://www.theguardian.com/australia-news/2023/mar/23/indigenous-voice-to-parliament-referendum-question-australia-constitution-change-pm-anthony-albanese>.
[9] Proposed s129(ii), ch IX.
[10] Ibid.
[11] GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007).
[12] Please see forthcoming paper on this topic by the author. Such a constitutional change is akin to the limitations imposed on the parties named by the 1928 Referendum (through the insertion of s105A, which in that instance clearly and explicitly restricts the power of the Commonwealth and the states vis-à-vis each other). A constitutional change requiring all parties to concur on changes is in fact a much stronger formulation on power-sharing than is contained the present Voice proposal.
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2023/26.html