The accepted means by which governments provide justice and adjust the conditions under which people live is through legislation, backed up by financial support. With the exception of the 1967 referendum, which removed the prohibition against the Commonwealth passing laws ‘for the aboriginal race’, the Constitution has not been seen as a vehicle to give justice to Aboriginal and Torres Strait Islander peoples on land return, the sharing of power and wealth, and self-determination. These are matters for governments and parliaments.
I might shudder at the thought that after all that has happened to Aboriginal people, the best remedy on offer is an advisory body. But I must also acknowledge the effect of propaganda. The biased reporting for the so-called Voice to Parliament has swayed many people to support it, mainly on emotional rather than rational critical thinking grounds. In the context of the so-called Voice to Parliament, rational people have accepted the irrational, and the wise have become lax and uncritical.
Selling a mere advisory body as a ‘seat at the decision-making table’ takes some gall. The Yes camp cannot give detail about the Voice proposal because the sell is dependent on emotion—and, yes, on guilt. Last year Senator Pat Dodson said only racists would oppose the Voice. Minister Linda Burney argues this is a once in a lifetime opportunity. Noel Pearson and others keep referring to Aboriginal disadvantage as a reason why the Voice should be supported. They fail to explain exactly how an advisory body will overcome this disadvantage when many other advisory bodies have failed. Exaggeration and absurd claims by both sides indicate the type of debate we will have leading up to the referendum, if indeed it goes ahead, with polls heading in the wrong direction—The Guardian’s Essential poll found support, previously at a level of 60 per cent for and 40 per cent against has, at the time of writing, slipped to 47 per cent for and 43 per cent against, and News Ltd polling is worse, showing three states against and national support slipping to 41 per cent. By 7 August, Newspoll showed the Yes vote ahead only in NSW and SA, below the threshold of a majority of states to win.
How can such a weak proposal as an Indigenous advisory body convince governments and many Aboriginal supporters that a budgeted $365 million should be spent on a campaign to put an advisory body into the Constitution?
The 2017 Aboriginal gathering at Uluru was not only about the Voice proposal. The emphasis in the Uluru Statement was that Aborigines are a sovereign people and our rights flow from that status. Accordingly, Treaty and Truth-telling took priority over constitutional recognition. However, the pro-Voice camp manipulated the stage-managed gathering at Uluru to make sure the Voice proposal was supported and prioritised. Since then, arguably, the pro-Voice group has used the Uluru Statement for its own ends.
The pro-Voice camp makes many dubious claims (as does the No side) about the effect of a Voice to Parliament: racism will be diminished, the face of Australian politics will change forever, Aborigines will finally have a voice (despite ten Aborigines being currently elected to federal parliament, of whom one, Linda Burney, is the Minister for Indigenous Australians). The problem isn’t that we don’t have a voice: the problem is we cannot get anyone to listen. For example, the Productivity Commission Report on Closing the Gap, released on 26 July 2023, condemned failed government action. In response, Minister Burney said another layer of bureaucracy in the form of the advisory body was needed. If her government ignores the Productivity Commission, what hope is there of an advisory body making a difference?
If the federal government were serious about wanting to reduce Aboriginal imprisonment rates and wanted to understand the cause of the underlying issues leading to wildly disproportionate incarceration rates, it would read the 339 recommendations from the 1991 Royal Commission into Aboriginal Deaths in Custody. The Commission concluded that Aboriginal disadvantage is the product of two hundred years of domination of Aboriginal people by non-Aboriginals, to an extraordinary degree. The thrust of the report was that ‘the elimination of disadvantage required an end of domination and an empowerment of Aboriginal people; that control of their lives, of their communities must be returned to Aboriginal hands’. An advisory body that reinforces the role of whites being to govern and of Aborigines to be governed, as advisers, completely misunderstands the problem and misrepresents the solutions at hand.
Building on the the Mabo judgement and the Native Title Act, the Aboriginal and Torres Strait Islander Commission produced the 1995 Recognition Rights and Reform: A Report to Government on Native Title Social Justice Measures, which made proposals in dollar terms and was capable of being acted upon. Its focus was on institutional, structural, collaborative and cooperative reform. The reform package, which was never implemented by subsequent governments, was about a fundamental shift from welfare to basic rights, from dependence to autonomy, from government assistance to power. Central to the social justice agenda was self-determination.
The Voice to Parliament or advisory body proposal is a massive backward step from these two reports, both of which emphasised Aboriginal decision-making along self-determination lines. The advisory body is completely at odds with self-determination and the acknowledgement at Uluru of Black sovereignty, which implies Aboriginal decision-making and self-control. The Voice model cannot return land and will not deliver services, raise revenue or distribute money: it can only comment on federal political matters. The Voice cannot pass laws or prevent racist laws from being made, or even save itself should a future government decide to dump it. It is a toothless tiger.
Another limitation of the Voice is its scope of operation. Being a creature of the federal parliament and not of the states, the advisory body is restricted to commenting on federal matters. Day-to-day issues affecting Aboriginal people—land, policing, courts, gaols, health, hospitals, housing, education, child protection and child welfare—are primarily state and territory matters. They are outside the jurisdiction of a federal advisory body.
A treaty (or treaties), on the other hand, regardless of how strong or weak it was, would bind Commonwealth, state and territory governments, as well as local governments, courts and police, mining companies, businesses and the public, because it would confer rights on Aboriginal and Torres Strait Islander people and impose obligations on institutions and people with the force of a federal law, in the same way the federal Racial Discrimination Act 1975 and Native Title Act 1993 do. Whereas the Voice is advisory only, a treaty would deliver a practical bundle of rights that could resurrect Aboriginal pride of place.
Why a referendum?
According to both the Yes and No camps, a successful referendum will make the advisory body permanent. This is misleading and constitutionally wrong. Under the doctrine of parliamentary supremacy, one parliament cannot bind another. Under Australia’s Constitution, so long as a law is within parliament’s competence, it is free to make or unmake any law.i It may be that a friendly parliament and government fund and retain the legislation which establishes an advisory body, but that cannot stop a future government withdrawing funding support or rescinding the legislation. A good example is Section 101 of the Constitution, which with very clear wording states, ‘There shall be an Inter-State Commission’—but none exists, and none has existed since 1950, after government and parliament abandoned it.
Former Chief Justice Murray Gleeson warned against unrealistic expectations in trying to use the Constitution as a vehicle for ‘rights’. Gleeson pointed out that, unlike the United States of America, Australia’s constitution was not born of a revolution or a struggle for social justice. It is a dry legalistic charter, divvying up powers between the Commonwealth and the states, and establishing the High Court as arbiter in disputes about which law is valid when federal and state laws conflict. Human rights issues are usually dealt with by legislation.
The Whitlam government enacted the Racial Discrimination Act in 1975. Whitlam did not put the issue to a referendum. The Fraser government enacted the NT Aboriginal Land Rights Act in 1976, without a referendum. In 1993, the Keating government shored up native title through legislation, not a referendum. Why on earth put any perceived form of Aboriginal advancement to a referendum, instead of parliament acting on its responsibility and legislating? South Australia has already legislated its own ‘Voice to Parliament’.
The Constitution originally contemplated that only whites would vote for their political representatives to the national parliament. So the 1902 Commonwealth Franchise Act excluded ‘Aboriginal natives’ from voting. Thus constitutional arrangements guaranteed the collective right of whites to always elect people who shared their values and aspirations to federal parliament. Aborigines were eventually able to vote, but the collective will of Aborigines, due to our smaller numbers, is not guaranteed—we cannot possibly know in advance that our people, sharing our values and aspirations, will always be elected to federal parliament. Individual Aborigines or Islanders can stand or vote, but that is not the same as providing for our collective will to be guaranteed in the same way as it is for white voters.
How can the collective right of Aborigines and Islanders be guaranteed, even proportionately, in the political system? One solution is to have six designated Aboriginal seats in the Senate—one for each state—the effect of which would be to guarantee that Aborigines will always be able to elect our own. By comparison, the proposed Voice referendum will not give Aborigines and Torres Strait Islanders access to the decision-making table at all. An advisory body advises. It is not a decision-maker. Imagine if white people were told they could only elect advisers, not decision-makers. Why should Aborigines be treated less favourably?
Advisory body, or Treaty?
Prime Minister Albanese set the ball rolling in the 2022 budget with $5.8 million being set aside for a national treaty convention. Shortly after, the long-awaited Northern Territory Treaty report by Tony McAvoy SC was delivered. McAvoy recommended land be returned (there could not be a treaty without land), along with autonomy in some communities over health, housing, education, land use and planning. McAvoy’s report also dealt with topics ranging from fishing and hunting to cash reparations. Here was a template for a national treaty. Aborigines were at the starting gate.
But suddenly Albanese declared his government would only deal with a voice or a treaty during his first term of office, but not both. The shock announcement by the prime minister divided Aboriginal opinion to either campaign for a treaty or voice, but not both.
Whereas an advisory body merely comments on policy and decisions that others make, a treaty confers practical rights on its beneficiaries. If the Albanese government declines to amend the Commonwealth electoral laws so that six designated seats are set aside in the Senate for Indigenous people elected by Indigenous people, perhaps that topic too could be dealt with under a treaty.
For the thousand plus discrete Aboriginal communities, a treaty can give responsibility over land use and planning (not just collecting rubbish), education (including use of local languages in schools), health, housing, and child protection, and law and order and policing (including customary law where appropriate), and raise revenue from commercial use of Aboriginal lands.
Should the referendum be abandoned?
As noted above, polling at the time of writing shows a dramatic decline in support for the proposed Voice referendum. For reasons of political gamesmanship, the prime minister might continue supporting his referendum in the immediate future, but what should be done if the polls continue to show that a majority of people in the majority of states do not support it? Quite foolishly, Voice advocates and the government have turned a debate about how best to empower Aboriginal people into a plebiscite on Aboriginal rights. Aboriginal advancement will be the big loser in a lost referendum. A ‘crash or crash through’ approach is clearly designed to sway public opinion towards supporting the Voice. No voters have been and will be labelled racists by the Yes camp and blamed for setting Aboriginal progress back decades. But who must really take responsibility—those who are opposed to token gestures and misguided use of the Constitution or those who insist the nonsense proceeds?
Returning to Australia from overseas, actor Ruby Rose said in The Weekend Australian:
One thing that has sadly not changed in the 10 years I’ve been away is our inability to appreciate, let alone treat our Indigenous community fairly. Or even acceptably. It is such a crime, deep shame and missed opportunity for connection, healing and change. There is still potential for us to have one of the most meaningful relationships of our existence and to correct thousands of wrongs in the process and yet here we are once again spending a ridiculous amount of money to hold a vote where a majority is voting on a minority’s rights. This is worse than when we held the referendum [plebiscite] to allow gay people to get married. Sure, having straight people vote on who you love is brutal, but somehow it’s 2023 and we are spending hundreds of millions of dollars to see what white people think about what the Indigenous folk need. No ma’am. That’s messed up.
With those sentiments, I agree.
i The Kartinyeri Hindmarsh Bridge case (Kartinyeri v The Commonwealth  HCA 22) is a good example. The Aboriginal plaintiffs argued that the parliament could not undo a law made for the benefit of Aboriginal people if the new law was to the disadvantage of Aboriginal people. This was rejected by the majority: see Patrick Keyzer, Principles of Australian Constitutional Law, 3rd edition (Sydney: LexisNexis Butterworths, 2010), 1.08.