Keep it simple: how best to design a voice referendum

The challenge is a stark one for the government.

Commendably, the Albanese government has committed to the implementation of all elements of the Uluru Statement from the Heart, including the early conduct of a referendum to enshrine a voice in the Constitution. If it is to meet its commitment, the government is going to have to demonstrate that it has the capacity to address more than the Uluru statement during the life of this parliament.

While public polling shows a growing majority support for a constitutionally embedded Indigenous voice to the parliament, it remains unclear to the wider voting public as to how this will be done.

Indeed, it is an issue on which the government’s newly appointed envoy with responsibility to oversee the preparations for the referendum, senator Patrick Dodson, has urged early and decisive action to identify the proposition that will be put to the people, ­supported by a broad educational effort to enhance the public understanding of the question(s) that would be put at the referendum.

In considering the referendum, however, it is important for the wider public to understand that it is not necessary to have a detailed or agreed model of a voice finalised or legislated before going to a referendum.

Those who authored and advocate the Uluru statement did not advocate the constitutional entrenchment of a specific model of a voice. Rather, they seek a constitutional right to have an Indigenous voice that would be heard by the parliament.

In suggesting the need to proceed with the referendum before the finalising of a model for a national voice, we emphasise that there would be no reason to pause the extensive work already undertaken by the working group co-chaired by professors Marcia Langton and Tom Calma. Their report, given to the previous government in 2021, sets out a series of options and recommendations designed to operationalise a national voice. The Albanese government has yet to make known its position in relation to that report, but it may well follow all or some of the proposals contained in the report as it moves to implement the Uluru statement.

We suggest that whatever model or mechanism may emerge from a process of negotiation and co-design, that model will inevitably need to change as circumstances evolve. No model will be perfect and will require tweaking and amendment going forward. By way of example, the Aboriginal and Torres Strait Islander Commission model and its legislation was the subject of many amendments and reviews during the 15 years of its lifetime. That reality alone makes it impractical and undesirable to entrench a detailed model within the Constitution.

In addition, the cost of holding a referendum – currently around $170m – to amend a specific model each time it needed to be modified, is another clear reason it would be impractical and unachievable. We cannot hold a referendum every time there needs to be a change to the model.

No model will be perfect and will require tweaking and amendment going forward.

What can and should be entrenched in the Constitution is an obligation that would require that a national representative body of First Australians be available by which the First Nations can advise and be heard by the Australian parliament on matters of legislation and policy that impact predominantly on the interests of First Nation communities.

The referendum question need not canvass the detail of any specific mechanism or model but rather confine itself to embedding the constitutional obligation and right to have an Indigenous voice.

The referendum should not become a vote for a particular model but rather a vote that endorses the principle and obligation to have an Indigenous voice. The referendum question(s) put to the people must be kept simple and direct. The more complex the question, the less likely it will be supported.

Once the obligation is embedded in the Constitution, the voice can be made operational by way of further negotiation between First Australians and the parliament. Such negotiations would proceed on a constitutionally endorsed basis rather than relying on the goodwill of political parties and the government of the day. This would provide a much more secure and empowered base from which First Australians could negotiate with the parliament. It is important to note that the form of the voice will be as laid down by parliament. Unless an obligation of this kind is embedded within the Constitution, any legislated model will be no more secure or lasting than ATSIC proved to be.

It is high in the minds of First Australians that ATSIC, after 15 years of operation, was arbitrarily struck down by the then prime minister and the leader of the opposition without any reference to, or consultation with, those most directly impacted by their decision – namely, First Australians.

It is this history, not only of ATSIC but other representative bodies before it, that drives First Nations to demand that they have the protection of the Constitution. By embedding an obligation within the Constitution, Australia would be ensuring a lasting and enforceable obligation upon the parliament to have an Indigenous representative mechanism in place by which First Australians can have their voice heard on legislative and policy issues that impact directly on their interests.

A legislated model of a voice on its own is not a sufficient or acceptable response to those who offered up the Uluru Statement from the Heart. Nor should it be acceptable to those Australians who support the hopes and ambitions of our First Australians.

Such a constitutionally embedded obligation would not challenge the sovereignty of the parliament. Two previous Chief Justices of the High Court, Robert French, and Murray Gleeson have said as much. First Australians would not have a veto over legislation. But their voice would be heard by the parliament. Embedding an obligation for an Indigenous voice within the Constitution is the only way to provide the level of security and trust that First Australians can rely on.

While strongly supporting the Albanese government in its commitment to holding a referendum, we believe it will be fundamental to the success of such a referendum for the government to demonstrate that it can, at the same time, deal with the serious and immediate issues facing Indigenous Australians.

The government will need to take early action to address those long outstanding matters within the field of Indigenous affairs which cry out for immediate and substantive action which go to closing the gap of disadvantage. It is already clear that there is going to be considerable parliamentary and public attention on the significant problems within the Aboriginal communities relating to domestic and sexual violence. Opposition Leader Peter Dutton and the newly elected CLP senator for the NT, Jacinta Nampijinpa Price, have recently pointed to the need for decisive action in this area. Indigenous leaders such as Marcia Langton and June Oscar have also advocated for urgent action to address the scourge of domestic violence in communities. The opposition, along with the broader community, will no doubt scrutinise the government’s response to those concerns when considering their support, or otherwise, for a referendum.

The government must move to address the historic failure to meet the needs of remote communities which have been damaged by decades of government neglect. The commonwealth’s withdrawal from the funding of housing and municipal services, and the failure to provide basic infrastructure for the administration of remote communities all impact on the civil order in those communities. The removal of Aboriginal agency by the Northern Territory intervention and since, combined with the local government reforms in the NT which ­undermined local community governance, unworkable and punitive work for the dole schemes implemented by the commonwealth, and with the prospect of alcohol controls in remote communities being lifted within the coming months, all contribute to the prospect of things becoming even more harrowing than they are now.

If the government is seen only to be addressing the important Uluru Statement from the Heart but fails to address concurrently the life-and-death issues facing the communities on the ground, particularly in remote Australia, it risks being seen as fiddling with constitutional recognition while the communities burn. If this were to happen, it would likely see the broad public support for a referendum that presently exists dissipate to a point of no return.

The challenge is a stark one for the government. It must demonstrate that it can and will move to tackle the immediate needs of the communities on the ground, including making adequate financial provision after decades of neglect, at the same time as it moves to implement its commitment to hold a referendum to entrench the right to have an Indigenous voice within the ­Constitution.

Fred Chaney is a former minister for Aboriginal affairs in the Fraser government and inaugural co-chairman of Reconciliation Australia. Bill Gray is the founding chief executive of ATSIC and former Australian Electoral commissioner.