Opinion

Megan Davis
What happens next for the Voice?

Curiosity and impatience for referendum detail is unsurprising. This is the second decade of the constitutional recognition journey in Australia, and it is Australia’s first referendum since 1999. It is worth pointing out, however, that much of the early mainstream media discussion is consciously or subconsciously mimicking the republic referendum debate.

The new government is barely 10 weeks old and the media are already referring to the “No campaign” when a referendum bill has not even emerged. The framing of the discussion is being done in a mostly adversarial and acrimonious way. Even at the Garma Festival of Traditional Culture, the majesty of the event and Anthony Albanese’s speech contained caveats: But what if this fails?

This is not 1999. This is not the referendum on a republic, which required more than 80 amendments to the text of the Australian Constitution. The republic and the Voice are apples and oranges. The Voice to Parliament is a single enabling provision that is both symbolic and substantive recognition. The method of amendment that was always contemplated for a Voice was a deferral approach. As a constitutional principle, the decision to defer is important.

It is not about hiding information from the Australian people as some have suggested. We have worked on this reform because Australia is failing to improve the wellbeing and health of First Nations peoples. This fact is in plain sight. We want this to succeed. And there is a constitutional risk in having a fully-fledged model of something like a Voice designed prior to a referendum. One of the virtues of deferral is it permits flexibility of the model to change over time. The final constitutional amendment that will be put to the people sets up the power to create a Voice and the detail follows via consultation and legislation supervised by the parliament.

The republic referendum was constitutionalising a new governance structure and a head of state so that the detail, including repeal and insertion of new text, meant the model had to be voted on. The detail was the amendment. The model was the amendment. The detail was being inserted into the constitution.

The Voice referendum is different. It is establishing a power and intentionally deferring the detail to allow First Nations people to design it. People are asking for detail of something not being voted on. As Dr Gabrielle Appleby, a professor at the law faculty of UNSW Sydney, puts it: “There is a conflation occurring between the need for specificity, detail and certainty on the constitutional amendment, and the specificity, detail and certainty of the model that will follow that amendment. The former is what Australians will vote on in the referendum, while the latter is the process of how the Voice will be implemented through legislation.”

Despite the prime minister releasing a draft amendment and question – a significant day in the recognition journey, five years on from the Uluru Statement from the Heart – not a breath was taken before journalists started demanding, “Where’s the detail?” The lack of scrutiny of the drafting was telling. The noise right now is performative. The 1999 referendum was acrimonious and adversarial and was sunk on the model. Therefore it is assumed uncritically that this is how referendums must proceed in Australia. In 2022 the Australian people have just voted for less acrimony and better governance. This is not 1999.

No amount of detail will defuse the clamouring for “detail” from those pundits who are disingenuous and predictably opposed to the Voice. The almost hysterical quest for detail from a 10-week-old government comes from the same people who, by way of example, turned a blind eye to the failures of the previous Coalition government to reduce violence against Indigenous women or act on the Indigenous Advancement Strategy and ignored the successive Australian National Audit Office reports on the IAS that list the failure of bureaucrats to properly manage billions of taxpayer dollars.

Indeed, who among us really has the knowledge, skills and expertise to objectively assess a fully-fledged Voice model before or after a referendum? The best people to judge are the end users. And those people are not the Indigenous and non-Indigenous people opining on TV or in op-ed columns hidden behind paywalls most ordinary folk cannot afford to cross. They are the mums and dads and grannies and aunties and uncles who participated in the First Nations Regional Dialogues, whose hard work led to the Uluru Statement from the Heart, and their Nations and communities and families and friends.

It is a reasonable proposition that if the nation agrees that First Nations peoples in communities should have a more direct say in laws and policies about their lives, because currently they do not, then they should also have a direct role in the design of the Voice to Parliament. And any student of politics would know that the legislation for the Aboriginal and Torres Strait Islander Commission was one of the lengthiest parliamentary debates in Australian history.

We are now as a nation at the tail end of a recognition exercise. Recognition is a complex pursuit in any liberal democracy, but it is common. It is common because in modern-day ballot-box democracies, majoritarianism trumps all and it means that the most vulnerable or culturally distinct are excluded from the decision-making of the political class. Small-numbered peoples in impecunious communities cannot influence the ballot box in any meaningful way. Westminster parliamentary systems are predicated on the mediation of tension between two versions of the good life. It creates a system that is dominated by two professional political parties, and it creates a system that is adversarial.

The last federal election shows, with a low primary vote for both parties and increasing vote for both the Greens and the teal independents, that the Australian appetite for the two-party status quo, and the associated rancorous, negative and combative politics, is rapidly diminishing. The political pundits and elites failed to read the temperament of the nation. The way the nation voted cannot be dismissed as an anomaly. People want change: they want climate action, they want integrity in federal politics and they want the Uluru Statement from the Heart to be implemented.

The dialogues were led by an Aboriginal and Torres Strait Islander subcommittee of the referendum council that I chaired. We sought advice from a sample of Nations and communities via a structured, deliberative process that walked representatives, chosen by local Indigenous community organisations, through a tightly structured, intensive civics program and an assessment of legal options for reform from the expert panel and the joint select parliamentary committee. Prior to the dialogues we spent a year in communities seeking permission, refining the process and running a trial dialogue. This was a very serious constitutional process. The question of meaningful recognition led to the Voice to Parliament being the primary reform across all dialogues. Agreement-making or treaty and truth-telling were non-constitutional but highly regarded as meaningful recognition. They were included in a framework of change known as Voice Makarrata.

In my 12-year career as a United Nations Indigenous rights expert, I have seen most UN member states with substantial populations of Indigenous peoples adopt mechanisms that ensure the proactive participation of Indigenous peoples in lawmaking and policymaking. This is a pedestrian reform. But it is one that will enhance the democratic functioning of Australia by recognising the agency of Indigenous Australia.

The hysteria over detail is shielding from view the incredible journey this nation has been on. It is ignoring the men and women of the constitutional dialogues who should be regarded as the heavy lifters of Australian democracy, who invested energy and effort to imagine that the nation that has let them down so many times can change. While media pundits have 1999 as their only reference point for the tenor of a national conversation, our dialogues privileged traditional owners and elders who experienced the 1967 referendum. Although they are not Pollyannas about the difficult road ahead, they believe earnestly in the goodwill of the Australian people. It is they who decided not to hand a bark statement or bark painting to the nation’s leader in the vain hope it may change Australian retail politics. They decided, in all their collective wisdom, to read out a plain statement to the Australian people instead.

It was a simple A4 piece of paper with an invitation to the Australian people to meet us at the Rock and walk with us in a journey of the Australian people for a better future. It was an invitation to compel politicians in Canberra to act. The federal election result confirmed Australians want a new way of doing things. On Indigenous affairs, the election result is the acceptance by the Australian people that there is a better way of doing things, and the Uluru Statement from the Heart provides a road map.

This article was first published in the print edition of The Saturday Paper on August 6, 2022 as "What happens next for the Voice".

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Megan Davis is a Cobble Cobble woman from Queensland, and pro vice-chancellor and Balnaves chair in constitutional law at UNSW Sydney.

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