Voice at risk unless enshrined in Constitution

Minister for Indigenous Australians Ken Wyatt released an interim report last month setting out models for the Voice. Picture: NCA NewsWire/Gary Ramage

Momentum and community support continue to build for an Indigenous Voice to parliament to advise on laws that affect Aboriginal and Torres Strait Islander peoples. The movement may have already reached the tipping point needed to achieve the reform. In a report released in late 2020, the Centre for Aboriginal Economic Policy Research examined three years of opinion polling since 2017. It found strong support across a majority of states for the Voice, with most polls indicating 70-75 per cent of voters have a committed position in favour.

What remains uncertain is the form the Voice should take. The Morrison government has yet to adopt a position, leaving open the possibilities of the Voice being left to legislation or entrenched via a referendum in the Constitution. The Prime Minister made this clear in his Closing the Gap speech in early 2020. He recognised that the issue should be resolved in the ongoing process to design the Voice.

That process has now reached a critical stage. Minister for Indigenous Australians Ken Wyatt released an interim report last month setting out models for the Voice. It again leaves open whether it will be in legislation or the Constitution. Australians have been given until the end of March to have their say before final recommendations are developed for the government. The form of the Voice is of critical importance. If it is left to legislation, it will confer parliament with maximum flexibility to control and adapt the Voice now and into the future. This will include the power to abolish the Voice altogether.

The legislative route will come at a high cost. It threatens to jeopardise what the Voice can achieve in giving Indigenous peoples a direct and effective say on new laws. One important consideration is that Aboriginal and Torres Strait Islander peoples have only endorsed the Voice on the basis that it will be enshrined in the Constitution. This occurred in the Uluru Statement from the Heart in 2017, and there is no mandate from that community to create the Voice in any other form. It would be a breach of faith with that group to proceed by legislation and would run counter to a central aim of the Voice to listen to and empower first peoples.

The Uluru Statement called for a Voice to parliament in the Constitution because of the power and authority that would stem from this. As a constitutional amendment, the Voice would be more than an advisory body. It would also be a belated act of nation-building. It would provide a long overdue structural mechanism in our democracy for Indigenous peoples to have a direct say on laws made for them.

The broader aims of the reform can only be achieved by Australians voting at a referendum to change the Constitution. A yes vote would both create the Voice and provide it with the community backing needed to ensure its effectiveness and legitimacy. A successful referendum would invest the Voice with a popular mandate, thereby distinguishing it from the many other advisory groups routinely created by legislation and so often ignored by the political process.

Finally, constitutional entrenchment would provide the Voice with a stability and certainty that has been sorely lacking in Indigenous affairs. As governments and ministers have changed, so has the pendulum swung, sometimes wildly, on Indigenous policy. This has prevented communities from building capacity and redressing disadvantage over the long term. The problem has been evident in the myriad Indigenous advisory bodies created by successive governments. This chopping and changing needs to stop. A guaranteed Voice to parliament in the Constitution is the right way to proceed.

It is important to recognise that constitutional entrenchment of the Voice is still consistent with having flexibility and giving parliament a say on the operation of that body. Indeed, the best approach is to entrench a broad and general framework for the Voice in the Constitution, while leaving details of its operation to parliament. Such an approach will ensure the existence of the Voice and a mandate for its work, while leaving more than enough room for adaptations over time. This will mean that lessons must be learnt from how the Voice operates, which over time can lead to changes so that the Voice evolves in line with community expectations.

The next few months will be telling as to whether Australia finally brings about an Indigenous Voice to parliament and the form this takes. It can only be hoped that the Morrison government will grasp the nettle and recognise the need for a referendum to bring about this important reform. The chances of success are very good; indeed, better than any other referendum proposal of the past two decades. As the Centre for Aboriginal Economic Policy Research concluded after analysing years of polling data, “a referendum enshrining a First Nations Voice to parliament could be carried, whichever major party is in government. With bipartisan support, the success of such a referendum is close to guaranteed”.

George Williams is a Deputy Vice-Chancellor and Professor of Law at the University of NSW.