Introduction
The Uluru Statement from the Heart called for a referendum to provide constitutional recognition for a representative body that gives First Nations peoples a Voice to the Commonwealth Parliament. The Greens wholeheartedly support the establishment of such a constitutionally-enshrined Voice to Parliament. It would be a critically important means of ensuring that First Nation peoples have a voice in decisions that affect them, and a significant say in their future. The Greens reiterate in this Minority Report that we support the Uluru Statement from the Heart in full.
Constitutional recognition of a First Nations peoples’ Voice to Parliament is a step towards self-determination. Self-determination is a key part of justice and healing for First Nations peoples, in closing the gap and addressing intergenerational trauma.
The Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples (The Committee) heard evidence that a common theme among First Nations’ communities is the desire to be part of the decision making process, and their concerns that First Nations peoples are easily sidelined. Paternalistic policy approaches imposed on First Nations peoples by former Governments , like, the Northern Territory Intervention, the cashless welfare card and the Community Development Program have not been done with the consent of communities. A Voice to Parliament will go some way to addressing the damaging top-down approaches of successive Governments.
The Greens thank Committee members for bringing a spirit of genuine desire for collaboration and consensus to this inquiry process. We also thank those who took the time to make submissions and to provide witness testimony, and we thank the Secretariat staff.
Constitutional Enshrinement
Recommendation 2 of the Final Report states that:
Following process of co-design, the Australian Government consider, in a deliberate and timely manner, legislative, executive and constitutional options to establish the Voice.
It is the Greens’ view that the Voice must be enshrined in Australia’s constitution, although we recognise that some witnesses expressed their discomfort with the idea of being included in a document that they feel has been instrumental in their dispossession.
Aboriginal members of the Referendum Council set out the importance of constitutional recognition of the Voice in their submission:
The Uluru Statement from the Heart called for ‘a First Nation Voice enshrined in the Constitution’. The call for a Voice was the culmination of a process aimed at eliciting from Aboriginal and Torres Strait Islander peoples what meaningful constitutional ‘recognition’ is to them... Constitutional enshrinement is important for three reasons. It is the only reform that respects the consensus of Aboriginal and Torres Strait Islander peoples as expressed in the Uluru Statement From the Heart. It provides certainty and security for the Voice. It secures enduring popular legitimacy and accords the Voice its proper place in the constitutional system, which will provide it with the necessary legitimacy and status to pursue its role.
They further stated:
The call for a Voice to Parliament was an unambiguous affirmation of the importance of constitutional enshrinement, and the only proposal put forward for recognition of Aboriginal and Torres Strait Islander peoples in the Constitution… A constitutionally enshrined First Nations Voice would implement a practical improvement that respects Australia’s system of parliamentary democracy and the right of First Nations peoples to self-determination, as expressed in the United Nations Declaration on the Rights of Indigenous Peoples.
They also outlined the deeply consultative process that led to a consensus outcome on the issue of constitutional recognition at the Uluru Convention:
Many hundreds of people participated in good faith, working through the pros and cons of different proposals in working groups and plenaries, before arriving at the consensus outcome supported by the Uluru Convention. In particular the dialogue participants considered the potential for legislative, administrative and other forms of change to achieve structural reform, as compared with constitutional change, before emphatically embracing a constitutionally enshrined First Nations Voice.
In their view, constitutional enshrinement of the Voice would prevent any uncertainty, and would provide legitimacy:
To date, there has been no protection against unilateral abolition of First Nations representative structures or against the instability, disempowerment and lack of certainty that follows… During the dialogues people repeatedly emphasised they wanted to escape this instability and uncertainty and achieve enduring structural change by constitutionally entrenching the Voice…. Popular approval at a referendum will seal the legitimacy of the Voice and allow all Australians to participate in this unifying act of constructive reform.
A Priority Referendum
The Greens’ acknowledge that witnesses expressed diverse views regarding the process and timing of a referendum. However, on balance we favour the importance of proceeding to a referendum as soon as First Nations peoples are ready (and balancing the need for urgency with the likelihood of any referendum’s success).
We agree with the assertion of the National Congress of Australia’s First Peoples, that we can proceed to a referendum on a provision which provides for the fundamental characteristics of a First Nations Voice, without being overly prescriptive. This would imbue the representative body with both stability and flexibility.
The Greens are very concerned that finalising the design of the Voice before a referendum would effectively entrench the form of the Voice, making it very difficult to change into the future as the role of the Voice evolved.
While it is important to set out a co-design process before any referendum, detail of the Voice should be determined after the referendum, through a First Nations-led consultation process that could then be subject to Parliamentary oversight.
As former Chairman of ATSIC Bill Gray noted in his evidence, a co-design process must not be rushed if it is to be viewed as authentic and legitimate by First Nations peoples.
Furthermore, as suggested by the Cape York Institute, holding a referendum on the principle of the Voice would likely increase the chance of success:
The referendum can in this way be won on the readily digestible principle that Indigenous peoples should have a fair say in political decisions made about them, their rights and their affairs, without getting bogged down in highly complex institutional design detail which is properly a matter for legislation, not the Constitution.
Several submitters noted that the establishment of the High Court of Australia followed this model.
No constitutionally-mandated institution exists where the legislation has preceded the creation of the power. All institutions created by a power have been constitutionally mandated. Why would the establishment of the Voice be the one exercise of a power where the institution will be created prior to the power? That’s been the way with the High Court of Australia or even the Inter-state Commission.
Legislating a body is not the creation of a Voice. It is not an exercise of a power to give rise to a Voice. A legislative approach would likely be the exercise of the existing race power with all of its jurisprudence and limitations of “race”. It would be the establishment of a Voice by the race power with its capacity to discriminate. The capacity to discriminate would be embodied in a Voice created by Parliament. This is not a Voice that is envisioned by First Nations peoples.
The temptation to legislate first and test drive the model is obvious. Legislating the Voice before enshrining it in the Constitution is forcing First Nations peoples to audition and prove themselves. This would potentially restrict the Voice and prevent people from doing things with the Voice for fear that it won’t be constitutionally enshrined.
Presenting to the Australian public a definite model/legislation setting out with certainty the model of what the Voice might look like would mislead the public. The referendum would only be about the constitutional words and not the legislative detail. That legislative detail will likely change and evolve. This would make the amendment vulnerable to litigation because the people voted on a model. They would be asked to vote on an institution. It sets up legal uncertainty.
There is support for a Voice. Polling indicates a majority of people are ready to support a Voice to parliament. The many ideas of the Voice in the community can be managed in a detailed process after the referendum.
It is the Parliament that hasn’t been able to show leadership on this issue. First Nations peoples have been – the Uluru process reached consensus after an extensive consultation process.
Process for designing a Voice
The Greens support calls for the process to design the First Nations Voice to:
Provide sufficient certainty for all parties prior to the referendum, and to form part of the referendum’s public education campaign;
Respect Aboriginal and Torres Strait Islander peoples’ right of self-determination;
Enable significant and appropriate non-Indigenous input into the end result.
As Aboriginal members of the Referendum Council noted in their submission:
The process for designing the First Nations Voice is just as important as the form that the Voice ultimately takes. To be legitimate and effective, the process cannot be rushed or imposed upon Aboriginal and Torres Strait Islander peoples. Above all, the process must be underpinned by respect for Aboriginal and Torres Strait Islander peoples’ right to self-determination… To respect Aboriginal and Torres Strait Islander peoples’ right to self-determination, the creation of a First Nations Voice must come about through an Indigenous-led process that involves extensive participation and deliberation by representatives of First Nations from around the country.
Conclusion
The Greens do not agree that the design of the Voice should be finalised prior to a referendum on the concept itself.
We have sought through the years of discussion on constitutional recognition to get multiparty support for constitutional recognition in a form that is supported by First Nations Peoples and capable of being supported by an overwhelming majority of Australians. Through this process we have worked for consensus. However we are unable to achieve consensus at this point because we disagree that the design of the Voice should come first and are disappointed that the Majority report is unable even to agree to support constitutional entrenchment of the Voice despite the clear support by First Nations Peoples for the Voice and constitutional change.
Senator Rachel Siewert
26 November 2018