By Luke Beck
John Farnham’s 1980s hit You’re the Voice opens with the lines ‘We have the chance to turn the pages over / We can write what we want to write.’ This nicely fits what Australians will do later this year when they vote in a referendum to enshrine an Aboriginal and Torres Strait Islander Voice in Australia’s Constitution.
The referendum will be a chance for all Australians to ‘make a noise and make it clear’ that Aboriginal and Torres Strait Islander Australians should be recognised in our Constitution and enshrine the idea that Aboriginal and Torres Islander Australians should have a voice on matters that affect them.
The idea for a Voice to Parliament comes from the Uluru Statement from the Heart. There are two important things to know about the Uluru Statement released in 2017.
The first is that the Uluru Statement is a grassroots document. It is the outcome of a series of regional dialogues involving ordinary Aboriginal and Torres Strait Islander Australians and community groups. It is not a statement from Aboriginal elites or self-appointed leaders.
The second thing to know is that the Uluru Statement is an invitation from ordinary Aboriginal and Torres Strait Islander Australians to other ordinary Australians to ‘walk with us in a movement of the Australian people for a better future.’ It is not an angry demand or an attempt to divide Australians.
Only ordinary Australians can change the Constitution by voting Yes in a referendum. And one group of ordinary Australians is asking all ordinary Australians to do so in the national interest. As John Farnham sings, ‘we know we all can stand together / With the power to be powerful / Believing we can make it better’.
A Voice to Parliament ‘fits’ the Australian system. The idea affirms and respects the supremacy of the democratically-elected Parliament.
The Voice will be an advisory body only. It won’t make decisions. It won’t get to veto government decisions. But it will ensure that Aboriginal and Torres Strait Islander Australians are heard on matters that affect them.
New Zealand’s approach of having special Maori seats in Parliament wouldn’t really fit Australia’s system. Australia is quite different to New Zealand on indigenous issues. Maori have a common language and a broadly shared culture. In Australia, there are literally hundreds of distinct Aboriginal and Torres Strait Islander nations and languages.
Our parliamentary systems are also different. Australia is a federation. New Zealand is not. And New Zealand’s modern parliamentary system has had Maori seats since 1867. Australia’s modern parliamentary system has not evolved with that kind of thing in place.
A Voice to Parliament also ‘fits’ the Australian system in another way. Parliament will decide what the Voice looks like and how it operates.
Multiple constitutional law experts have pointed out that Australia’s Constitution does not do policy details. The Constitution sets up systems and structures while giving Parliament power to decide the details and to change the details over time.
When the Constitution was first written nobody wanted the details about how many courts there would be or the details of what each court would do. Everybody knew that Parliament would decide those details and change them over time.
When Australians voted Yes in a referendum in 1946 to give Parliament power to set up a social security payments system nobody wanted the details of each type of payment. Everybody knew that Parliament would decide those details and change social security payments over time.
It is the same with the Voice. Parliament will decide what the Voice looks like and how it functions.
If at some point you don’t like the details of the court system, the social security payments system or the Voice, you can vote out the government and vote in a new one to change the details.
The only thing the referendum will set in constitutional stone is the idea that Aboriginal and Torres Strait Islander Australians should have a voice in matters affecting them.
A third way the Voice proposal ‘fits’ Australia’s constitutional traditions is that other Australians lose nothing from this proposal. Australians have voted Yes to change the Constitution only eight times since Federation. On those eight occasions ordinary Australians had nothing to fear and lost nothing.
John Farnham sings ‘We’re not gonna sit in silence / We’re not gonna live with fear’. When Australians voted Yes in 1977 to allow territorians to vote in referendums, other Australians didn’t lose anything. There was nothing to fear. It is the same with enshrining an Aboriginal and Torres Strait Islander Voice to Parliament in the Constitution. Other Australians will not lose anything.
Community discussion will ramp up this year. Australians will discuss and ask questions about how referendums work. Fair enough given Australia’s last referendum – the republic referendum – was held in 1999, almost a quarter of century ago!
Australians will also discuss and ask questions about the Voice to Parliament.
Good faith discussions and questions are a good thing. They are civic engagement. Australians take seriously their civic responsibility for changing the Constitution.
Politicians in Parliament will ultimately decide what a Voice looks like and how it operates. But in deciding whether there should be a constitutionally-enshrined Voice to Parliament, it is not politicians who will make the decision. It’s ordinary Australians. ‘You’re the voice, try and understand it.’
Professor Luke Beck is an Academic Member of the Castan Centre for Human Rights Law and is a Professor of Constitutional Law within the Faculty of Law at Monash University.
This article was originally published in the print version of the Herald Sun on 10 January 2023.