Voice of reason not beyond us

Australia’s national identity today encompasses many histories. There are the post-Federation histories of those who, from every part of the globe, have made this country their home. There is the history of the European colonisation of Australia and the creation of our constitutional representative democracy. Overshadowing all of those histories in its temporal sweep is that of Australia’s First Peoples. Their laws, traditions, stories, art and ceremonies form an intricate lacework over the whole Australian landscape. There are few if any places in the country that do not bear indigenous words, stories and songs to name them and to give them meaning. The density of environmental references in indigenous languages evidences their longevity.

Recognition of that history and of the special relationship of Australia’s First Peoples to the country is a part of knowing who we are as a nation. Recognition is a fact. It happens at hundreds, if not thousands, of events, large and small, across Australia, in welcomes to country and acknowledgments of traditional ownership. Recognition is embedded in the common law of ­native title and in statutes providing for indigenous land rights. The constitutions of all Australian states contain statements of recognition. For example, the Preamble of the Constitution Act 1889 (WA) since 2015 has included the following:

“Whereas the Parliament resolves to acknowledge the Aboriginal people as the First People of Western Australia and traditional custodians of the land, the said Parliament seeks to effect a reconciliation with the Aboriginal people of Western Australia.”

Recognition in the Australian Constitution would reflect an ­existing national growth of ­respect for our First Peoples and thus for the whole of the full, rich and long history of the people of this continent.

Recognition, and the respect that comes with it, can be given and made practical at a national level through the constitutionally supported mechanism of a Voice to the parliament that is representative of Aboriginal and Torres Strait Islander people. Former chief justice Murray Gleeson has recently spelt out with compelling clarity the case for the Voice, which is supported by the Uluru Statement from the Heart and by existing precedents for extra-­parliamentary advisory bodies.

The Constitution can provide for a Voice to the parliament in a number of ways. In theory, the Constitution itself could establish and spell out in detail its function, composition and means of selection. That kind of provision, however, would be likely to introduce undesirable and unworkable rigidity. Alternatively, and preferably, the Constitution should provide, in spare terms, for the existence of the Voice as an advisory body. It should be left to the parliament to establish its ­detailed design by legislation. Such a constitutional provision could incorporate a specific preamble containing a statement of recognition. It would not be merely symbolic recognition because it would be linked to the conferring of authority on the parliament to establish the Voice.

The parliament should determine, by legislation, the mode of selection, form and functions of the Voice. It should be able to ­adjust that legislation from time to time.

It is important that the legislative design of the Voice also ­reflect, so far as possible, a consensus of representatives of indigenous Australia, whether or not there may be disagreement on ­detail. The first recommendation in the Final Report of the Joint ­Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait ­Islander Peoples is for a process of co-design with Aboriginal and Torres Strait Islander people.

The product of that process of co-design may provide for the Voice to give advice not only in relation to legislation, existing or proposed, and law reform measures but also to give advice on present or proposed administrative policies and programs that have or may have an impact on indigenous peoples. For ultimately it is parliament to which the executive government, carrying out such policies and programs, is responsible.

The Voice would necessarily be a body of people elected or ­selected according to processes recognised as fair and conferring upon it the natural authority of representative legitimacy.

That said, co-design will not be without complexity. As the joint committee recognised, considerations will have to be given to the interplay of any Voice body with existing Aboriginal and Torres Strait Islander organisations at local and national levels and how they might work together.

There is also a case for legislative creation of a joint standing committee of the parliament to be a point of contact between the Voice and the parliament, to ­receive submissions and reports from the Voice and to review its operations annually. Funding could be made available by direct appropriation from the parliament subject to accountability standards applicable to public authorities generally.

There are many ways of ­approaching the creation of the Voice mechanism. There is much to be done. No doubt the devil will lie in the detail.

But given the existing support for and practice of constitutional and extra-constitutional recognition in many different ways throughout Australia, the creation of a national consensus should not be beyond our wit.