Our Indigenous voice is just waiting to be heard

The Uluru Statement, presented as an artwork

It is indeed a frenetic pace for a January that is normally dominated by Invasion/Survival day. Prior to the clock striking midnight on New Year’s Eve, the Prime Minister announced an alteration to the text of the national anthem, deleting the word “young” and recognising, by inference, the length of Aboriginal occupation on this continent. Then, not long after, the Minister for Indigenous Australians, Ken Wyatt, released his long-awaited 239-page Interim Report in response to the 2018 joint select committee on constitutional recognition led by Senator Dodson and Julian Leeser. Dodson and Leeser’s own report was responding to the Referendum Council’s recommendation for a constitutionally enshrined voice to parliament in 2017.

While most Aussies are holidaying, Indigenous communities, “co-designees”, now have 11 weeks to prepare a response. Even so, the Interim Report provides an opportunity for all Australians to have a say and is a welcome next step on the inextinguishable road to constitutional enshrinement.

It has gone unmentioned by most, but 2021 heralds the nation’s second decade of pursuing Indigenous constitutional recognition. Midway through the past decade a Referendum Council undertook the most comprehensive deliberative process in Australian history with Indigenous communities on the Constitution. As the council stated, this, “is the first time in Australia’s history that such a process has been undertaken. It is a significant response to the historical exclusion of First Peoples from the original process that led to the adoption of the Australian Constitution. The outcomes of the First Nations Regional Dialogues and the National Constitutional Convention are articulated in the Uluru Statement from the Heart”.

The voice to parliament is substantive and symbolic recognition. The option that received not one iota of support across the nation was symbolic constitutional recognition, a statement of recognition or a preamble. The appetite for symbolic gestures 10 years after not closing the gap is zero.

The Interim Report has its genesis in the Uluru Statement, which calls for “the establishment of a First Nations voice enshrined in the Constitution”. Following the Referendum Council’s final report, the Dodson-Leeser parliamentary committee was empowered to consider all proposals for constitutional recognition relating to Aboriginal and Torres Strait Islander peoples. They concluded that while it was asked to consider all that had come before, the Uluru Statement from the Heart was a major turning point in the debate: “Not only did it bring a new element, the voice, into the debate but it rejected much that had gone before in terms of proposals for constitutional recognition.”

Dodson and Leeser said more meat on the bones was needed before a referendum could be contemplated, and they recommended a “co-design” process with Aboriginal and Torres Strait Islander peoples. The Coalition policy at the last election was that the referendum will be held once a model has been settled. The ALP also committed to a referendum on an enshrined voice. Even so, the Minister for Indigenous Australians unilaterally announced that he would be designing a “voice to government” not a voice to parliament. And the Interim Report is true to his word.

The Australian reported last year that the Uluru Statement from the Heart and constitutional elements of a voice were expressly excluded from the terms of reference. Wyatt’s committees worked dutifully and tirelessly under difficult circumstances through a pandemic to design a voice to government. The fruits of their labour, the Interim Report, provides a solid insight into public administration in Indigenous affairs in Australia and of regional and local governance arrangements. It provides many options for people to contemplate. It studiously avoids talking about constitutional enshrinement throughout the whole paper, but that only amplifies the reasons why enshrinement is needed.

Most responses are that it is a good start and a stepping stone to a referendum. The NSW Aboriginal Land Council, the largest land council in Australia, says the Interim Report is a good start but falls short of the Uluru reforms because it is not protected from the whim of the government of the day and it does not compel our voice to be heard. NSWALC is correct. The options do not contemplate the driving sentiment of the grassroots dialogues which is to not be a political football, subject to the whim of the government of the day. These factors such as insecurity and uncertainty are key drivers in Indigenous disadvantage. And although it enlists the language of “voice to parliament” in the report, the measures and mechanisms suggested to provide that voice are either mediated by the government of the day or are based on existing parliamentary ways and means, which when assessed by their efficacy today in terms of accountability and voice, are arguably ineffectual.

Even if the “obliged to consult” or “expected to consult” was shored up by legislation, it could be easily disallowed by the government of the day. These matters are for the public consultation process.

It is a good thing to see engagement with the right to self-determination on a local and regional level and support for regional governance and, more generally, the consolidating of support for an effective national voice. These are positive policy settings that were not in train prior to Uluru. There is also provision in the report for communities to come together and create new entities of representation. This is a welcome approach and is in alignment with Uluru because it allows communities themselves to deliberate and design local and regional voice arrangements in a community-driven process according to their own aspirations. This is consistent with the dialogues that were emphatic that no single existing entity or body effectively represented their voice.

Self-determination is at the core of democratic governance. It is the will of the people speaking together that drives legitimacy and makes institutions enduring, like our Constitution. But we First Nations peoples, whose ancient polities are now recognised by inference in the national anthem, were not at the table in the 1890s or in 1901. And a decade ago, the government, on behalf of its people, invited us to tell them how we should be included. The Uluru Statement sets out the vision, a voice to parliament enshrined by the hands of the Australian people at referendum. There is nothing in the Interim Report that forecloses on this vision of unity. The Prime Minister has said he will contemplate the form of the voice after the co-design is concluded, and this is a judicious position and consistent with the Dodson/Leeser roadmap.

It would be a shame for this important consultation period to be distracted by those animating a “legislate first, enshrine later” debate. This is the least we owe to the men and women of the First Nations dialogues who worked so diligently on a constitutional future for all Australians. We would not have an Interim Report without their service to the nation.

Professor Megan Davis is a Cobble Cobble Aboriginal woman, the Balnaves Chair in Constitutional Law and was a member for the Referendum Council.