Despite the political acrimony over the Voice referendum, what is most striking is the similarities between the positions of the coalition and the Labor government.
Both agree that Aboriginal and Torres Strait Islander peoples should be recognized in the constitution. Both agree that practical results are needed to improve the lives of Indigenous Australians. Both agree that parliament and the executive government need to be better informed about the laws and policies they make, and to hear the voices of those in the field who are affected by those laws and policies.
Given this agreement on what should be done, why is there disagreement about the referendum?
Recognition and practical results
The main bottleneck seems to be the relationship between constitutional recognition and the achievement of practical results. The Albanian government proposes to achieve practical results by establishing a constitutional means by which Aboriginal and Torres Strait Islander peoples can influence the laws and policies that apply to them.
This is the form of constitutional recognition supported by Aboriginal and Torres Strait Islander peoples in consultations held across Australia by the Referendum Council, culminating in the Uluru Statement from the Heart. It was not invented and imposed from above by the Albanian government.
The coalition, on the other hand, proposes to separate constitutional recognition from practical outcomes. It would instead legislate to create local and regional Voices, but not national Voice.
It is unclear what kind of constitutional recognition the coalition is proposing. But it seems like a symbolic recognition, like a reference in a preamble. This can be done either in the existing preamble to UK law containing the Australian Constitution or in a new preamble incorporated into the constitution itself.
However, such an approach was rejected by the Aboriginal and Torres Strait Islander representatives at the Referendum Council consultations and in Uluru.
Read more: The Voice: what is it, where did it come from and what can it achieve?
Constitutional recognition needs the support of those who are recognized
History and common sense teach us that there is no point in recognizing a grouping in the Constitution in a way they reject. Voters will rightly wonder why they should vote for a form of recognition that the persons to be recognized oppose.
The 1999 preamble referendum shows us the futility of engaging in a top-down process. Then Prime Minister John Howard decided to put a second question during the republic referendum that would insert a new preamble into the constitution. He ignored the elements of a preamble agreed upon by the 1998 Constitutional Convention. Instead, he prepared his own draft, in consultation with the poet Les Murray.
The draft exposure of that preamble contained the words:
From time immemorial, our land has been inhabited by Aborigines (sic) and Torres Strait Islanders, who are honored for their ancient and enduring cultures.
Aboriginal and Torres Strait Islander groups criticized this formulation. In particular, the word “inhabited” was not considered a respect for the relationship between Aboriginal and Torres Strait Islander peoples and their lands and waters.
A new design was then developed by Howard in conjunction with Australian Democrat Senator Aden Ridgeway, who was the only Aboriginal member of parliament at the time.
in honor of Aborigines (sic) and Torres Strait Islanders, the first people of the land, for their deep affinity with their land and for their ancient and enduring cultures that enrich the life of our country.
But the lack of wider consultation with Indigenous leaders and the inappropriate use of the word “kinship” led some Indigenous groups to campaign against it.
The preamble referendum failed. It received support from only 39% of the people and fared poorly in seats with a high indigenous population.
Aboriginal and Torres Strait Islander Commission Chairman Gatjil Djerrkura welcomed the defeat of the referendum. He said that while the preamble was intended to unite the nation, it was drafted without any meaningful discussion with the Australian people – Indigenous and non-Indigenous alike. He said this lack of consultation was a clear lesson for future referenda.
A Coalition commitment to Indigenous constitutional recognition will be hollow if it does not cover the Aboriginal and Torres Strait Islander peoples and provide some form of recognition acceptable to them.
A voice without a head?
The other pillar of the coalition’s policy is legislation to establish local and regional voices.
Opposition leader Peter Dutton rightly noted that most laws pertaining to Aboriginal and Torres Strait Islander peoples are state or local laws. But the Commonwealth creating local and regional votes has no effect whatsoever on those state and local laws.
Commonwealth law can only relate to how the statements of these votes affect Commonwealth policies and laws. It is a matter for the states to create their own votes, as South Australia has done, or seek representation from Commonwealth agencies.
Second, creating local and regional Voices is a recipe for chaos if there is no way to channel their representations to parliament and the executive government in an orderly manner.
Is it really wise for a national decision-maker to receive 72 different representations directly from local Voices saying different things? How effective is that and what are the administrative burdens of such a cumbersome system? Wouldn’t it be more rational to have a national body that gets input from all local and regional Voices and can provide comprehensive and well-considered advice?
The Albanian government’s current proposal is to have a national voice that receives input from local communities so that it can make practical and informed statements to the Commonwealth.
Whether separate local and regional Voices are established, or whether existing Aboriginal and Torres Strait Islander agencies are used to provide that local input, will be a matter for Parliament.
Such an approach is expected. The Referendum Working Group asked the Constitutional Expert Group for advice advice affirming that parliament would have the power “to establish sub-national voices”.
Read more: The Liberal Party’s ‘no’ stance on Voice indicates it is primarily interested in speaking to a nation that no longer exists
The campaign is likely to be rancorous, but the similarities between the major parties’ policies should negate some of the arguments.
For example, it would be difficult for the coalition to make arguments that Aboriginal and Torres Strait Islander peoples should not be treated differently in the constitution, or given special powers to influence parliament and the executive branch. This is because the federal Liberal Party has said it supports constitutional recognition and supports local and regional voices to influence Commonwealth laws and policies.
While the referendum vote itself will be between the status quo and the proposed change, people now have a clearer view of the political alternatives and can judge for themselves which would lead to better results.