At its heart, the proposal for Indigenous recognition through the Voice is about respect. As in any relationship, respect requires listening.
The Aboriginal and Torres Strait Islander Voice would be a powerful new impetus to tackle Indigenous disadvantage precisely because it emerged from Australia’s First Peoples.
The proposed amendment to the Constitution would enact proposals from the ‘Uluru Statement’, which was adopted by a constitutional convention bringing together over 250 Indigenous leaders. Polls indicate that a large majority of Indigenous people support the Voice.
The amendment would write ‘recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia’ into the Constitution. It provides for this recognition by establishing the Voice because to be genuine, recognition cannot be just words on a page.
The Voice would institutionalise listening to Indigenous Australians at the levels of the Commonwealth Parliament and government: the Voice ‘may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples’.
By listening to Indigenous peoples in this way, Parliament and government can improve Indigenous policy outcomes.
However, listening does not mean obeying. The government has stated that the Voice’s representations would be ‘advisory in nature’, with neither Parliament nor government obliged to follow them.
However, listening does not mean obeying. The government has stated that the Voice’s representations would be ‘advisory in nature’, with neither Parliament nor government obliged to follow them.
Recognition through the Voice has potential to reframe reconciliation with Australia’s First Peoples on the basis of respect. Spelled out in Australia’s highest law. With a practical and permanent mechanism for Indigenous input into decisions affecting them. It would be a way of empowering Australia’s Indigenous peoples. In doing so, it would strengthen Australia.
This is also why the referendum’s defeat would be profoundly negative. The No campaign has been dominated by scare campaigning against the Voice, in an extended riff on Hanrahan’s lament (‘We’ll all be rooned’).
The No claims don’t stand-up
The No claims don’t hold up to scrutiny. Among the most remarkable claims is the assertion that the High Court, like some runaway AI algorithm, could interpret the Voice’s ability to ‘make representations to … the Executive Government … on matters relating to Aboriginal and Torres Strait Islander peoples’ in such a way that the everyday functions of government would grind to a standstill.
In the more than 120 years since Federation, the judiciary has shown itself eminently capable of crafting pragmatic answers to thorny legal questions.
This is the genius of the common law tradition which Australia exemplifies.
The lead judgment in the Indigenous land rights case Mabo – compulsory reading in any Australian law school – is a case in point.
Some are even warning of ‘positive discrimination’, as if Indigenous people already have it too good and the Voice would further tilt the playing field in their favour. But far from discriminating against non-Indigenous Australians, a Voice that helped to close the obscene gap in human development outcomes would be doing a service to all Australians.
Others maintain that the Voice’s aims can be achieved without constitutional amendment. Obviously, to the extent that these aims include ‘to recognise the First Peoples of Australia’ in the Constitution, this is incorrect. It is equally incorrect in that the aims include having a Voice which cannot simply be abolished by Parliament every time political winds change.
More broadly, the notion that practical reconciliation could be pursued equally well, or better, if recognition through the Voice is rejected is misguided. Yes, measures to address Indigenous disadvantage can be pursued without a Voice – just as they have been for decades.
But is it really respecting Indigenous peoples to refuse their proposals for reconciliation and just continue with more of the same? And what would the consequences of this rejection be for practical cooperation and for the direction of Indigenous policy debate?
There are reconciliation advocates who would have preferred a slightly or radically different reform proposal. (To their credit, some in this category support Yes despite their preferences.) Some claim that the federal government has been insufficiently non-partisan in the referendum process. Debate has defaulted to a familiar ‘red team’ versus ‘blue team’ dynamic. The politics of division have taken hold of what should be a process to forge a new national consensus on reconciliation. But whatever the path that led us to the referendum, here we are. The only question that matters is the one on the ballot paper:
‘A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.
‘Do you approve this proposed alteration?’
Let’s avoid a tragic outcome
Right now, the referendum is heading for a tragic outcome. Polling indicates that Indigenous recognition through the Voice is likely to be rejected.
I don’t doubt that people who vote No will do so for various reasons: preoccupation with other issues; wariness about what the Voice would mean in practice; dislike of the Albanese government. Probably very few No voters will be actively hostile to Indigenous Australians.
Nevertheless, the referendum result will be a mirror held up to Australia and its unfinished journey of reconciliation. If No wins, Australians may not like what they see.
The largely bipartisan Apology of 2008 will have been eclipsed by a new ‘Sorry not sorry’ moment. A majority of voters will have rebuffed Indigenous Australia’s proposal for reconciliation. This rejection would come with social, political and diplomatic costs.
This outcome is not yet inevitable. The votes of undecideds and soft No’s are still up for grabs.
But changing the trajectory will require much more cut-through and – from some – political courage. It is late, but not too late for some of those who have opposed the Voice to recognise the gravity of the moment and rise to the occasion. To paraphrase St John Chrysostom, those who come at the eleventh hour are just as welcome as those who have toiled from the first
Australians will vote on 14 October. The stakes, one month out? Thirty days to save reconciliation.
Stephen Minas is a legal academic, writing here in a personal capacity.
