The forthcoming referendum is potentially a game-changer for Australia. For too long we’ve told First Nations people where and how to live, We’ve applied white fella thinking to them and spent billions trying to make our ideas work. The Closing the Gap report shows how unsuccessful we’ve been and that it can’t go on. First Nations people have to have a Voice and I reckon that we have to listen.
Re the referendum, this is the nub of the matter, as of February 6 2023. More information will follow to allow us all to make an informed decision.
In 2023, Australians will be asked if there should be constitutional recognition for Aboriginal and Torres Strait Islander people.
There will be a referendum on recognising Australia’s first people in the Constitution.
Aboriginal and Torres Strait Islander people have asked for this recognition to be in the form of a Voice to Parliament.
A referendum is needed to change Australia’s Constitution.
The proposed change is as follows:
- There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
- The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander people.
- The parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.
Referendums don’t occur often and we should consider carefully what is in front of us. To this end, I attended ‘The Voice Town Hall’ that local politician Peter Khalil, MHR, hosted. These are my notes.
Marcia Langton, Co-Chair, Senior Advisory Group, Indigenous Voice to Parliament
Marcus Stewart, Co-Chair First People’s Assembly of Victoria
Peter Khalil, MHR, Member for Wills
Brunswick Town Hall, Feb 1, 2023
From Marcia Langton:
Uluru Statement from the Heart involved 250 indigenous people from across Australia. It is a statement to all Australians and is based around the concepts of Voice Treaty Truth.
1967 referendum empowered Parliament to make laws, both positive and negative, for indigenous or First Nations people. In the negative, an example is the NT intervention by Howard and Brough. The Constitution still contains two problematic clauses. These are Section 25, a racist clause that allows the states and Commonwealth to prohibit indigenous people from voting and Section 51 (26) that was used in the Hindmarsh Island bridge business. In this case, the Federal Court upheld Traditional Owner rights, the High Court overruled the judgement based on Section 51 of the Constitution.
In 1996, the 2nd Reconciliation Council, chaired by Patrick Dodson, organised a Reconciliation Convention. It opened the day before the report into the Stolen Generation was to be tabled. John Howard made the comment ”they weren’t stolen, they were rescued’.
PM Howard addressed the Reconciliation Convention and became more and more angry as he spoke. He was insulting the delegates, international and national alike, and they were shocked.
By 2000, the term of the Reconciliation Council expired and to mark this, Corroboree 2000 was held. This discussed a recommendation from the Council for Parliament to investigate constitutional reform to recognise First Nations people. Howard rejected the recommendation. He also refused to apologise for the Stolen Generation. The apology was delivered in 2008 by PM Rudd. It was a healing event, Marcia Langton spoke to a number of people present, it was highly significant to them.
PM Gillard appointed an expert panel, chaired by Mark Leibler and Noel Pearson, involving First Nations people, constitutional lawyers and business people. They delivered a 500 page report on the need for recognition and a process for achieving it.
PM Abbott was elected and the process ceased. Abbott and Shorten acting together sent ‘em back to the drawing board, saying that constitutional recognition wasn’t going to happen. Marcia Langton noted that the Constitution doesn’t confer rights, in this our Constitution is unlike that of the US.
Nonetheless, the conversations continued, led by Pat Anderson and Megan Davis, the Co-Chairs of the Uluru Dialogue.
Tom Calma and Marcia Langton led a group to develop a proposal for a Voice within the spirit of the Uluru Statement <ulurustatement.org/the-statement/> . The group they led contained 52 representatives, some non-indigenous. The proposal involved up to 35 regional voices, working within 9 principles. These matters are canvassed at https://voice.niaa.gov.au/ . They elect the national Voice to make recommendations to a Parliamentary (Standing?) Committee for consultation to lead to legislation on matters that affect First Nations people. The referendum is to approve the creation of the Voice. The referendum Working Group and Constitutional Working Group will be meeting on Feb 2 and 3 to develop the matter further.
The Voice must precede Treaty as the latter provides the structure and a process through which the Treaty can be framed. That Lidia Thorpe takes a different public view on this merely shows that there are differing views within First Nations people, as there are within all communities.
In Victoria, the First People’s Assembly (FPA), led by Marcus Stewart and Aunty Geraldine Atkinson, is providing advice on a Victorian treaty. Qld is achieving good progress on a treaty there, SA had such a process that was interrupted by the election of the Marshall Liberal government but has since resumed and will feed into the national Voice. The NT has just suspended their activity on a local Voice. Most states now have recognition of First Nations people, the national constitution does not.
The Treaty process starts with the Voice, which provides the representative process for its development. The regional Voices will take various forms. They can be democratic in places such as Victoria where L-A-W law prevails, but in communities that operate within customary lore, a different means of creating the regional Voice to give it cultural authority will be followed.
The national and state Voices will advise government at these levels on legislation at the relevant level. The national Voice will not direct state activity, even in the case of incarceration as this is a responsibility of government at state level. Even so, the national Voice can raise matters to recommend a national consistency of approach. For this reason, regional Voices do need to be legislated at the state level. In SA, a Voice has been legislated, in Victoria the FPA is advising on legislation currently.
The Statement from the Heart does call for representation to parliament on decisions that affect First Nations people, it doesn’t include a call for sovereignty to be recognised in the constitution. Sovereignty is a contextual concept and can mean different things to different people, it is not a straightforward concept.
In western countries sovereignty is vested in the nation state. Ukraine’s sovereignty within this framing is being tested currently.
To Marcia Langton, sovereignty is ‘domestic dependent sovereignty’, where it is based in an unbreakable spiritual connection to land and to ancestors. The High Court affirmed a definition of sovereignty of this kind in the Mabo decision and when it rejected the deportation of the two indigenous citizens about to be deported. There were First Nations people born here and so could not be considered aliens. Sovereignty may well be quite different in Lidia Thorpe’s mind.
The achievement of the Voice is of such importance to First Nations people and will confer a degree of self-determination that it could also be considered a social determinant of health.
As politics is the art of the possible, it is also the art of the impossible. The Voice must be added to the Constitution so that it is next to impossible to turn back.
I also attended the Voice Picnic. at Euroa. Here are my notes from that gathering.
Voice Picnic
Euroa, Taungurung country
4 February, 2023
Approximately 250 people in attendance
Jill Gallagher, AO Gunditjmara woman, Victorian Treaty Advancement Commissioner
Chair, Treaty Working Group
In the 1967 referendum, we were able to be counted. The simple question was:
Do you approve the proposed law for the alteration of the Constitution entitled ‘An Act to alter the Constitution so as to omit certain words relating to the people of the Aboriginal race in any state and so that Aboriginals are to be counted in reckoning the population’?
The detail of the proposed law that the success of the referendum allowed was subsequently determined by Parliament. Referendums do not work on detail, that is the role of Parliament in giving effect to the Constitution.
In 2023, with the Voice referendum, it is time we were heard.
The order in which progress is to be made is as follows: Voice, Treaty, Truth. Victoria already has legislated for Voice, the First Nations Assembly has developed the Treaty and the Yoorook Justice Commission is the process for formal truth-telling. In this, Victoria is ahead of the game.
Barry Jones AC, ex-Minister and fellow of almost every learned Academy in Australia, spoke compellingly of the need for the Voice. The 1967 referendum didn’t grant citizenship, it simply allowed aboriginal people to be counted in the census. It, however, was a step in our maturing as a nation.
It was followed by the High Court’s rejection of terra nullius in the Mabo Decision, in 1992. In 1996 the Wik Legislation held that native title rights were not extinguished by pastoral leases, whatever Tim Fischer, Deputy PM and leader of the National Party, might say.
The next step in the process is the Voice referendum of 2023. Currently, we have a constitution for white Australia, it cannot remain as just this. It must be in the Constitution rather than merely in legislation. The ATSIC experience showed how a hostile government can wind back progress with a legislative majority.
Success in referendums is hard to achieve with compulsory voting. Voters say Yes when they have thought about the change which they want and so vote to bring it about. No voters either have thought about it and don’t want it or are simply apathetic, ignorant or resistant to change and so vote No. Yes is a conscious decision, No is not necessarily so.
Where there is detail, there can be confusion as to the question. The Republic Referendum was voted down even by people that wanted a republic. The model was cannily included in the question by John Howard who wanted it to fail. He knew that by including detail he could split the question into two; do want a republic that is led by a popularly-elected President or one led by a President selected by a 2/3 majority in Parliament. The simple question ‘do you want a republic was the threshhold question, the detail should be worked out later, typically through legislation by Parliament. Howard’s ploy led Malcolm Turnbull to observe ‘that John Howard was the PM that broke a nation’s heart’.