First the Voice, Then Comes the Treaty

Prime Minister Anthony Albanese is leading a ‘small target’ approach to the referendum aimed at enshrining race in the Constitution via an indigenous Voice. He calls it no more than ‘a simple courtesy, a common decency’ — a mere advisory body, if you take him at his word, that will recognise indigenous Australians in our nation’s ‘birth certificate’. He’s hoping Australians buy a bill of goods when he tells us it’s no big deal.

Prominent pro-Voice journalist Chris Kenny, who was a member of the Voice Co-Design Senior Advisory Group, argues that because the Constitution allows the Parliament to make special laws for indigenous people, it’s only fair they have a constitutional right to be consulted about them.[i] Implied is that the scope of the Voice would be limited to legislation involving Section 51(xxvi), the so-called ‘race power’, and perhaps also ‘special measures’ under the Racial Discrimination Act.[ii] Examples would include the Native Title Act, or special rent assistance to increase indigenous participation in tertiary education. Yet Kenny, who has begun to express reservations about the little information so far released about the Voice, may have a wider mandate in mind, as do Voice advocates more generally.

The Langton-Calma report says parliament would be obliged to consult the Voice on a defined and limited range of matters. These are yet to be detailed. There would be an expectation of the Voice being consulted on a wider range of matters based on principles that are, again, yet to be detailed. But Langton-Calma does not limit what the Voice may wish to advise on.[iii]

The wording Albanese proposes for the Constitution is that the

Voice may make representations to parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples.

Minister for Indigenous Affairs Linda Burney talks about matters like health, housing and education.[iv] Even so, it’s not clear whether she means all health, housing and education policies or only those that specifically target indigenous Australians. Other Voice advocates have much longer lists, including criminal justice matters. Foreign Minister Penny Wong’s intention to appoint an “Ambassador for First Nations People” to “embed Indigenous perspectives, experiences and interests into our foreign policy” suggests an agenda for the Voice that is much broader than practical measures to improve indigenous health, education and housing.[v] Will we also have indigenous perspectives on defence, the economy, science, the environment and every other matter? Former High Court judge Kenneth Hayne, for one, views the ambit of the proposed clause as broad.[vi]

Albanese says the scope of the Voice is a matter of detail that will be sorted out by the parliament after the referendum. Others, such as columnist and lawyer Janet Albrechtsen, citing former High Court judges Kenneth Hayne and Ian Callinan, point out that it is the High Court that will decide on the interpretation of ‘matters relating to’ and the constitutionality of any constraints Parliament might place on it.[vii]

Many Voice proponents focus on the claim that it would deliver practical outcomes and help close the gap. For example, Ben Wyatt says governments need a credible source of advice and engagement with the most marginalised to ensure policy is more effective, “to ensure the taxpayer dollar is spent with better outcomes”.[viii] How the Voice would achieve this is nothing if not a mystery. Such Voice advocates have diagnosed the problem as a lack of good advice from indigenous people about their needs and how they should be addressed. The Voice, apparently, will bring to light some profound new insights or delivery mechanisms that will transform the situation, with ‘empowerment’ a magic cure-all.

Langton-Calma talks of local and regional voices working with existing institutions in a ‘co-design and partnership’ model involving ‘shared decision-making’ with all levels of government. Yet the Coalition of Peaks, an existing body of over 80 indigenous community organisations, says it already works for indigenous communities through partnerships and shared decision making with governments at all levels.[ix] The National Indigenous Australians Agency, with over 1,300 staff, says its focus is on

on working in partnership and place to deliver on programs under the Indigenous Advancement Strategy (IAS). First and foremost, we work with First Nations peoples to share decision making to achieve better outcomes. We also work closely with our Commonwealth colleagues, state and territory governments and peak organisations to ensure a joined-up approach.[x]

We already have organisations taking the sort of approach Langton-Calma claim for their local and regional voices.

Of course, none of this ‘getting advice’ to deliver ‘better outcomes’ requires the Voice to be enshrined in the Constitution. The Parliament already has all the authority it needs to legislate for any advisory or deliberative bodies it sees as necessary or desirable.

Much advocacy for a constitutionally enshrined Voice appears fuelled by resentment that the Aboriginal and Torres Strait Islander Commission (ATSIC) was abolished in 2005 by John Howard’s government with, it should be noted, Labor’s support. It is a key reason for rejecting the option of a legislated Voice. The Australian’s Paige Taylor explains that inside the Yes campaign,

thinking goes something like this: the first time there is a problem with a [legislated] Voice member or the body itself – and that is entirely possible – a government could opt to abolish the body rather than fix it. If the voice was in the constitution, future parliaments would be obliged to reform it in response to scandals or flaws and to suit the circumstances of the day.[xi]

The clear implication is that ATSIC should have been reformed, not abolished. Putting the Voice in the Constitution, rather than legislating it, is a tactic to take abolition off the table once and for all. Albanese says it “means a willingness to listen won’t depend on who is in government or who is prime minister”; a voice, in the Prime Minister’s words, that “cannot be silenced”.[xii]

CONSTITUTIONAL recognition of indigenous Australians came to prominence following the 1992 Mabo land rights decision although it has a longer history. But the then prime minister, Paul Keating, and the Australian Republican Movement, led by Malcolm Turnbull, were wary about it appearing integral to their push for a republic.[xiii] The Constitutional Convention of 1998 and the ATSIC-organised Indigenous National Constitutional Convention supported ‘a Constitutional preamble recognising Indigenous Australians and the fact of their original occupation’. John Howard commissioned poet Les Murray to help draft a new preamble, which was amended through the parliament before being put to a referendum along with the republic in 1999. Both changes were comprehensively rejected by Australians.

Since then, ‘minimalist’ recognition in the preamble has been dismissed by indigenous leaders as merely ‘symbolic’ with the related insistence that recognition must be “substantial” recognition.[xiv] In his 2014 Quarterly Essay, A Rightful Place: Race, Recognition, and a More Complete Commonwealth, Aboriginal leader Noel Pearson proposed that recognition take the form of a new indigenous body to ensure that “indigenous peoples get a fair say in laws and policies made about us”; “to ensure that indigenous peoples have a voice in their own affairs”.[xv] Indigenous leaders also proposed a process of building an indigenous consensus around recognition. In 2015, then prime minister Tony Abbot rejected it, concerned that proposals would emerge from an indigenous-only process that would be unlikely to receive general support. He wrote “I am in favour of building consensus, but strongly believe that this should be a national consensus in favour of a particular form of recognition rather than simply an Indigenous one”.[xvi] Later that year, new prime minister Malcom Turnbull in concert with opposition leader Bill Shorten established a referendum council co-chaired by Pat Anderson and Mark Leibler to, among other things, “lead the process for national consultations and community engagement about constitutional recognition, including a concurrent series of Indigenous designed and led consultations”.[xvii] It culminated in the gathering of indigenous leaders at Uluru in 2017 that produced the Uluru Statement from the Heart.[xviii]

The Uluru Statement talks about ‘indigenous sovereignty never ceded’ and asks for a constitutionally enshrined Voice to Parliament together with a Makarrata process of “truth-telling” and “agreement-making”. Voice, truth, treaty. Morrison’s government supported a legislated approach to the Voice, not one in the Constitution. Linda Burney, however, rejects the legislated approach, saying it “ignores wishes of the more than 1200 First Nations leaders who took part in nationwide consultations that led to the Uluru Statement from the Heart”. We have come to the difficulty Abbott worried about. An indigenous consensus on recognition, not a national one, that Prime Minister Albanese has committed to put to the Australian people and which risks rejection.

But Albanese has not just committed to a referendum on the Voice. He’s committed to implementing the Uluru Statement from the Heart in full: Voice, truth, treaty. And all the while he soft-soaps Australians that this referendum is all about courtesy. That is belied by its status as ‘substantial’ recognition. Marcia Langton says the referendum will determine whether our nation continues to be “founded on colonial theft and brutality” or “a new accord”[xix].

Opposition Leader Peter Dutton has written to Prime Minister Albanese seeking answers to 15 basic questions about the proposed Voice.[xx] One of them strikes me as a serious misunderstanding of what’s at stake in asking whether the Prime Minister will rule out using the Voice to negotiate a national treaty. This query utterly mistakes the situation because Albanese has already committed to implement the Uluru Statement from the Heart in full.

An agreement, a treaty, would be a matter that relates to indigenous people, and it follows the Voice would make representations on it — including, of course, its terms, its acceptability and its implementation.

Right now, before the referendum, Dutton should be pressing Albanese on his plans for the whole Uluru Statement from the Heart, voice, truth, treaty, not just the voice. As former UK Supreme Court judge Lord Jonathan Sumption wrote regarding the Brexit vote, a referendum “must be held after and not before a contingent agreement has been reached on the terms”.[xxi]

Albanese wants the opposite – have the referendum first and, if the Yes case gets up, establish how the Voice will operate. After that, ‘truth-telling’ and, the inevitable treaty.

Make no mistake, the Uluru Statement from the Heart is about creating a constitutionally enshrined indigenous representative body and the supporting governance structures that would amount to a de facto government for a quasi-independent indigenous nation that would have a treaty-governed, co-governance relationship with the Commonwealth of Australia. This referendum is about the very foundations of Australia. Aboriginal leaders know it, and Albanese pretends otherwise. Dutton and his Liberals need to wake up. Albanese is proposing a revolution.

Dr Michael Green has a PhD in Systems Engineering

[i] See, for example, Chris Kenny, “Indigenous voice to parliament embodies fair go paves practical way for reconciliation”, The Australian, 4 June 2022.
https://www.theaustralian.com.au/commentary/indigenous-voice-to-parliament-embodies-fair-go-paves-practical-way-for-reconciliation/news-story/587a0983a3aa61346e19bf476610c1cb

[ii] Human Rights Commission, Special Measures.
https://humanrights.gov.au/quick-guide/12099#:~:text=The%20Racial%20Discrimination%20Act%20permits,students%20is%20a%20special%20measure.

[iii] Australian Government, National Indigenous Australians Agency, Indigenous Voice Co-Design Final Report, (aka the Langton-Calma Report), July 2021.
https://voice.niaa.gov.au/sites/default/files/2021-12/indigenous-voice-co-design-process-final-report_1.pdf

[iv] Linda Burney, The Australian, 16 January 2023.
https://www.theaustralian.com.au/commentary/linda-burney-voice-our-next-historic-and-proud-chapter/news-story/c3ac4c188388141ca1ee1d7fb00cdc5d

[v] Senator Penny Wong Media Release, “Ambassador for First Nations People”.
https://www.foreignminister.gov.au/minister/penny-wong/media-release/ambassador-first-nations-people

[vi] Kenneth Hayne, “Fear of the voice lost in the lack of legal argument:, The Australian, 28 November 2022.
https://www.theaustralian.com.au/commentary/fear-of-the-voice-lost-in-the-lack-of-legal-argument/news-story/9696d03a566d3d946a74b7035175a9e4.

[vii] Janet Albrechtsen, “Get better advice on voice and go back to the drawing board”, The Australian, 21 December 2022.
https://www.theaustralian.com.au/commentary/get-better-advice-on-voice-and-go-back-to-the-drawing-board/news-story/0010a29ede5e3228ddd3261f661f71cc

[viii] Ben Wyatt, “Time for us to vote for the legislation on a voice”, The Australian, 10 January 2023.
https://www.theaustralian.com.au/commentary/time-for-us-to-vote-for-legislation-on-a-voice/news-story/28684bebbe1d4ff6068022dc2200a83e

[ix] Coalition of Peaks.
https://coalitionofpeaks.org.au/

[x] NIAA Annual Report, 2021-22.
https://www.niaa.gov.au/sites/default/files/publications/annual-report-2021-22.pdf

[xi] Paige Taylor, “On the details of the voice, Anthony Albanese’s answers sounded worse than the reality”, The Australian, 18 January 2023.
https://www.theaustralian.com.au/nation/on-the-details-of-the-voice-anthony-albaneses-answers-sounded-worse-than-the-reality/news-story/94af6a6240eb7547da7a933dd571df5c

[xii] Anthony Albanese, quoted by Michelle Grattan in “Albanese releases draft wording for indigenous voice to parliament referendum”, The Conversation, 29 July 2022.
https://theconversation.com/albanese-releases-draft-wording-for-indigenous-voice-to-parliament-referendum-187933

[xiii] Mark McKenna, First Words: A Brief History of Public Debate on a New Preamble to the Australian Constitution 1991-99, Parliamentary Library Research Paper, 2000.
https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/pubs/rp/rp9900/2000RP16#Pre

[xiv] Referendum Council Final Report, 2017, p5.
https://www.referendumcouncil.org.au/sites/default/files/report_attachments/Referendum_Council_Final_Report.pdf

[xv] Noel Pearson, A Rightful Place: Race, Recognition, and a More Complete Commonwealth, Black Inc., 2014. 

[xvi] Michael Gordon, “Tony Abbott scuttles Indigenous plan on constitutional recognition”, The Sydney Morning Herald, 3 August 2015.
https://www.smh.com.au/politics/federal/tony-abbott-scuttles-indigenous-plan-on-constitutional-recognition-20150803-giq6bs.html

[xvii] Referendum Council Final Report, 2017.
https://www.referendumcouncil.org.au/sites/default/files/report_attachments/Referendum_Council_Final_Report.pdf

[xviii] Uluru Statement from the Heart, 2017.
https://fromtheheart.com.au/uluru-statement/the-statement/

[xix] Marcia Langton, “Fighting for a Voice”, The Saturday Paper, 7 January 2023.
https://www.thesaturdaypaper.com.au/opinion/topic/2023/01/07/fighting-voice?cid=88257d7c5f40133dfc91932501fc4fa1#mtr

[xx] Peter Dutton, Letter to Prime Minister Anthony Albanese, 7 January 2023.
https://twitter.com/PeterDutton_MP/status/1611919809880666112/photo/3

[xxi] Jonathan Sumption, Law in a Time of Crisis, Profile Books, 2022.