Fri Jun 10

First Nations people shouldn't have to wait for a referendum to get a Voice to Parliament

Written by: Emma Lee, Associate Professor, Indigenous Leadership, Swinburne University of Technology

The new Labor government has promised to make a significant change in the life of Aboriginal and Torres Strait Islander Peoples, with a full commitment ^[1] to the Uluru Statement from the Heart. But rather than waiting for a referendum to enshrine the Indigenous Voice to parliament, Labor should do it now.

The authors of the Uluru Statement have suggested May 2023 or January 2024 as likely dates ^[2] for a referendum to be held. The Minister for Indigenous Affairs Linda Burney has stated it is a “goal ^[3]” to have the referendum in the first term and will push ahead regardless of bipartisan support.

However an act of parliament could see Indigenous Voice implemented in the next few months. And with a majority in the lower house, Labor has the capacity to negotiate it through the upper house.

An Indigenous Voice to parliament and government does not require a referendum. This is only needed to make it a part of the Constitution.

The advantage of enacting a Voice now is Australians will be able to see how it works in practice and gain a better understanding of its value and importance.

The limitations of a referendum

Democratic literacy ^[4] and trust ^[5] is low in Australia, and of 44 referenda held since federation, only eight ^[6] have passed.

If the process is rushed, failing to secure a “yes” majority would be incredibly traumatic for Indigenous Peoples. Many Indigenous people disagree their fate should be put to a popular vote at all, where it would be a majority of non-Indigenous people determining their rights.

This proposed referendum would not be like the plebiscite for same-sex marriage ^[7], where most people have an understanding of what marriage is and why same-sex couples might want to have recognition in a formal ceremony.

An Indigenous Voice ^[8] is a new form of advice-giving to parliament and government that is hard to imagine without seeing it in action. But if it simply becomes a regular part of the political system - as a way to receive advice from Indigenous Peoples on Indigenous issues – there will no longer be confusion about the process.

The state example

At the state level, we already have some precedent for opening up ways for First Nations Peoples’ to have a voice in political processes, without a referendum.

The Victorian Aboriginal Assembly ^[10] was created in December 2019 from an act of parliament for a democratically elected Aboriginal body to discuss Treaty. In effect, this has seen an Aboriginal body become part of a state’s decision-making relationships. The Assembly is successful without enshrinement and has progressed Treaty through the increased use of legislation. This includes the historic bill currently with the Victorian government to establish a separate and independent Treaty Authority ^[11] to deal with disputes and oversee negotiations.

Establish a voice now, hold a referendum later

It is understandable some Australians might want to support the Indigenous Voice ^[13] to parliament, but want more information ^[14] in what it might look like.

For example, the Guardian Essential Poll shows ^[15] that while support is steadily growing, 47% of surveyed Australians still do not support the Voice being enshrined in the Constitution.

Australians should know going into a voting booth exactly what they’re getting in exchange for their support. The more clarity, the better.

In the 1999 referendum loss ^[16] for a republic, even while urban areas voted in favour of it, former prime minister Bob Hawke said “it was clear that a majority of Australians wanted a republic but there was confusion about the model”.

Possum skins are draped over seats in Victorian parliament house for First People's Assembly of Victoria's meeting.

First Peoples’ Assembly of Victoria has been established without constitutional enshrinement. James Ross/AAP Image ^[17]

If the Indigenous Voice were to be enacted now, this would indicate the new government is serious about healing relationships between Indigenous Peoples and other Australians.

It would ensure Australians are aware of what the model looks like and mean Aboriginal and Torres Strait Islanders would not have to wait for a referendum for their democratic rights.

This way, even if a referendum failed, the Indigenous Voice would still stand.