Since 9 January, when Indigenous Australians minister Ken Wyatt released the interim report of the Indigenous Voice Co-Design Process, dismayed advocates of the constitutional recognition of Indigenous Australians have been wondering whether the Voice still has anything to do with constitutional change.
Wyatt has issued an invitation to the public to comment on several issues of Voice design. His three “co-design committees” will digest these comments at the next (second) stage of the Voice’s “co-design” process, leading eventually to a blueprint for a new structure of Indigenous political representation: a National Voice underpinned by a number of Regional and Local Voices.
Marcia Langton and Tom Calma, co-chairs of Wyatt’s senior advisory group, are credited as principal authors of the interim report, and they deserve much praise for the thoughtful way they advance the design while identifying certain questions for further discussion. But the terms of reference of Wyatt’s three committees have explicitly excluded constitutional recognition from the discussion.
Whatever Voice design eventually results from Wyatt’s process, the government has made no commitment to holding a referendum to entrench the Voice in the Constitution. It hasn’t ruled out a referendum “should consensus on a question be found,” but consensus on the design of a Voice won’t necessarily determine the form of constitutional recognition that may eventually be put to the Australian people.
In short, one of the agenda-setting effects of the interim report — an effect immediately contested by supporters of the Uluru Statement from the Heart — is to sever the debate about the Voice from the debate about constitutional recognition. While we talk about the possible design of the Voice, talk about constitutional recognition is at risk of being suspended, or at least such talk will be rendered marginal to the attention of those who accept Wyatt’s invitation to discuss the Voice as legislated “Indigenous recognition.” How did this come about?
In 2010, the Gillard government took seriously the argument that Indigenous Australians were entitled to be recognised in the Constitution. Gillard appointed an expert panel, jointly chaired by Patrick Dodson (not yet a senator) and Mark Leibler, to propose changes to the Constitution — amounting to “recognition” — that could be put to a referendum. In January 2012, after extensive public consultation and having received Newspoll’s reports on public opinion, the panel recommended four changes to the Constitution that could be presented to the voters as a single package.
Two of the four items were about section 25 and section 51(xxvi). Both were to be deleted, as each affords Australian governments powers to legislate about Indigenous Australians as a race, and not necessarily to their benefit. Section 51(xxvi) would be replaced by words recognising Aboriginal and Torres Strait Islander peoples and empowering the Commonwealth to secure their “advancement.” A third item in the package would prohibit discriminating against any group defined by race, colour, or ethnic or national origin; discriminatory laws would be permitted only if they were in the interests of the specified “group” (overcoming their disadvantage, ameliorating effects of past discrimination, or protecting their heritage). The fourth item would recognise Aboriginal and Torres Strait Islander languages as “part of our national heritage.”
Deleting section 25 and recognising languages turned out to be uncontroversial. Throughout 2012–14, though, the other two proposals were criticised by “constitutional conservatives” — some of them Indigenous — on the ground that each would turn the Constitution into a charter of minority rights, and Indigenous rights in particular.
These critics invoked a democratic constitutional principle: popular sovereignty. They wished to avoid giving the (unelected) High Court of Australia further constitutional grounds for invalidating legislation by the (elected) Australian parliament. If the Constitution obliged the Commonwealth to legislate for the “advancement” of Indigenous Australians, a litigant could argue in the High Court that a law passed by parliament was invalid because it was detrimental to Indigenous interests. And a litigant could also mobilise the constitutional prohibition on racial discrimination, arguing that a law was discriminatory but not advantageous to the disadvantaged, or not ameliorative or not protective. Constitutional conservatives argued that since the parliament is the expression of popular sovereignty, constraints on its decisions should be minimised.
In this perspective, judges should be restrained from “activism.” To put into the Constitution such words as the expert panel proposed would increase the possibility that High Court judges would play, in effect, an improperly political role.
For such critics, recent history provided an example of how much the political and legal order could be upset by judges who invoked principles forgotten or ignored by the legislature: the judgements in the second Mabo case and the Wik case, which had forced parliament to pass a law recognising “native title.” In December 2011 Philip Ruddock, the minister when the Howard government abolished the Aboriginal and Torres Strait Islander Commission, pointed out that it would have been much more difficult to repeal the ATSIC Act in 2004 and to legislate for the Northern Territory Emergency Response in 2007 had the Constitution included the words that the expert panel was about to recommend. But that, of course, was the very reason some wanted a constitutional right to Indigenous “advancement.”
Conservative MPs were not alone in dreading any increase in the judiciary’s capacity to shape or prompt legislation, and nor were they the first to express such fears. In debating how the Constitution should be amended in 1967, Gough Whitlam (then opposition leader) had teamed up with prime minister Harold Holt to reject a proposal, very similar to the expert panel’s, that Liberal MP William Charles Wentworth had presented in March 1966. In a private member’s bill, Wentworth had proposed a referendum to make two changes to the Constitution: to replace section 51(xxvi) with words allowing the Commonwealth to make laws for the “advancement of the aboriginal natives of the Commonwealth of Australia”; and to add a new section 117A outlawing racial discrimination but allowing “laws for the special benefit of the aboriginal natives.” Agreeing with Holt that this was not a good idea, Whitlam pointed to the US Supreme Court (the Warren court, now famed for its liberalism) as an example of a bench troubling the executive’s smooth performance. Apprehension about rights-based litigation has many precedents in Australian politics.
When constitutional conservatives pointed to what they called the expert panel’s “overreach” in the years 2012–14, there was nothing overtly “anti-Indigenous” in their arguments. They were asserting a hallowed principle: let parliament, as the organ of popular sovereignty, govern. Another kind of constitutional conservative argument against the expert panel’s proposal was that a liberal-democratic constitution should not confer distinct rights on any named sub-population: for these critics, strict formal equality of rights was the ideal. These and other (perhaps less creditable) views were sufficiently influential in the Abbott government to prevent it from endorsing the expert panel’s four-item package. It came to be widely believed that if the panel’s proposed model of recognition were put to a referendum it would lose, as the conservatives would be able to mount a persuasive No campaign.
To break this political impasse, one member of the expert panel, Noel Pearson, began to argue in the second half of 2014 that the four-item package not be put to a referendum. Instead, we should vote on two recognitions: a declaration of recognition that would stand outside the Constitution (and not be subject to High Court intervention); and a new constitutional power to create an “Indigenous Voice to Parliament” that would comment on, but not overrule, the decisions of parliament.
From the second half of 2014 to the first half of 2017, Pearson gathered allies for his proposal, moderate conservative MPs such as Julian Leeser and constitutional experts such as Anne Twomey and Megan Davis among them. The “Declaration plus Voice” package gained ground among other influential Indigenous Australians as well, though it is clear that some regretted the cost of Pearson’s conciliation of the constitutional conservatives. Many saw, and continue to see, that there is much to be gained for Indigenous Australians by empowering the judiciary to judge whether laws conform to the panel’s proposed new constitutional rights.
But the Pearson package had the virtue of “triangulating” (in the coinage of Dick Morris, Bill Clinton’s strategist) — conceding to the conservatives that parliamentary sovereignty would not be impaired while offering something genuinely new and substantial to those who want more than “symbolic” constitutional recognition of Indigenous Australians.
Pearson’s reformulated package won the endorsement, first, of the national Indigenous constitutional assembly at Uluru in May 2017, and then of the Referendum Council (appointed jointly by the government and the opposition in 2015). After almost seven years of public consultations by the expert panel and by a series of parliamentary committees, the Turnbull government was faced with one option in June 2017 — a referendum on the Voice, or no referendum on recognition. In October 2017, it chose the latter, explaining that it would not campaign for a constitutional change that (Turnbull said) would be rejected by the voters.
It soon became clear that in much of the Australian parliament, and in “civil society” (including some major corporations), there remained an unmet hunger for constitutional recognition of some kind. What Pearson calls the “radical centre” was not going away; it had adherents in every party room. So, over the summer of 2017–18, the government made an agreement with the opposition to conduct yet another joint parliamentary inquiry, co-chaired by Patrick Dodson (now a Labor senator for Western Australia) and Julian Leeser, an open ally of Pearson and his “Voice.”
The Dodson–Leeser committee, appointed in March 2018, issued its final report in November. While its task was to review all of the proposals for Indigenous constitutional recognition proposed since 2012, it found that a great many submissions were about “the Voice to Parliament” — mostly in strong support, but diverse in their conception of its design and role. The Dodson–Leeser committee did not issue a Voice blueprint, calling instead for a process of “co-design.”
Submissions to Dodson–Leeser smashed any presumption that Voice advocates want only one Voice. Australia is a federation: should there not be a Voice speaking to each state and territory legislature? And Indigenous Australia has many “nations,” so is not each entitled to speak for itself?
Confronted by the Voice’s myriad possibilities, Ken Wyatt, sworn as the Indigenous Australians minister in June 2019, addressed the National Press Club on 10 July 2019. He committed to convening a co-design process “with my ministerial and parliamentary colleagues, relevant departments and Indigenous communities, organisations and leaders.” He said he was seeking “enhanced local and regional decision-making through expanding Empowered Communities and other regional governance models.” Could this apparatus be recognised in the Constitution? Wyatt said he would “develop and bring forward a consensus option for constitutional recognition to put to a referendum during the current parliamentary term and that means working through until we reach a point in which there is consensus across all the relevant groups that have a stake in this.”
At that time, it was reasonable to suppose that Wyatt was referring to a consensus about the design of the Voice(s). Since then, though, it has become clear that he distinguishes between designing a credible Voice and coming up with a form of constitutional recognition that the Morrison government would back in a referendum.
The Turnbull government, and subsequently the Morrison government, had already hinted that this distinction was central to its thinking. One of those hints was Wyatt’s reference to expanding Empowered Communities, a Turnbull government program initiated in 2016. Empowered Communities had begun to feature in government statements about the possibilities of Indigenous Voice in 2018.
According to its website, Empowered Communities “recognises the diversity of cultures and circumstances of Indigenous Australians” and “aims to increase Indigenous ownership and give Indigenous people a greater say in decisions that affect them” by seeking to cultivate “true” government–community “partnerships” in eight regions: Cape York, the NSW Central Coast, East Kimberley, Murray Bridge, Goulburn-Murray, Inner Sydney, North-East Arnhem Land, Ngaanyatjarra Pitjantjatjara Yankunytjatjara Lands, and West Kimberley.
In each region “robust governance structures” and “backbone organisations” have been “surfacing priorities” of “families, individuals and community,” thus enabling “our development and investment planning.” The relationship of these structures to the Commonwealth government and “corporates” is described as “partnership,” and other partnerships with state and territory governments are being sought. Empowered Communities analyse data, build “baselines” and “understand service delivery gaps” in order to produce “long-term Regional Development Agendas.”
When parliament established the Dodson–Leeser committee on 1 March 2018, Angus Taylor, one of Morrison’s ministers, said that he looked forward to seeing it report on how to bring about “stronger local voices and empowerment of local people.” He added: “Our work on Empowered Communities is a good example of our commitment to a place-based approach to empowerment.” People involved in Empowered Communities projects appeared before the Dodson–Leeser committee, extolling it as one way to give “voice.” In its submission to the committee, the Department of Prime Minister and Cabinet argued that the Empowered Communities meant that the government, without any change in the Constitution, was already well along the path of co-designing regional representative structures.
If this was so, it became plausible — from the government’s perspective — to question whether it was necessary to make any change to the Constitution in order to improve Indigenous Australians’ local and regional representation to government. The Dodson–Leeser committee’s interim report found in July 2018 that while submissions strongly supported local and regional structures, “it is hard to establish whether there is community and bipartisan support for a constitutional voice or voices.” The formation of some kind of Voice, from the ground up, was not contingent on writing a new authority into the Constitution, if executive action already had this matter in hand.
Liberal MP Tim Wilson went even further. Arguing against constitutional entrenchment of the Voice(s) the following month, and speaking from what he imagined to be the standpoint of Indigenous Australians, Wilson suggested that if the Voice(s) were authorised by constitutional amendment they would lack legitimacy. (He seemed to be appealing to the idea that, for many Indigenous Australians, the Constitution, as a problematic colonial artefact, lacks legitimacy.) A stronger form of legitimacy would derive from Voices being “truly representative” and carrying “the weight and voice and representation of Aboriginal and Torres Strait Islander people.”
In other words, the federal government was already anticipating that the Voice, when embodied in local and regional structures, would resemble and build on the “partnership platforms” of the Empowered Communities program.
Marcia Langton and Tom Calma envisage between twenty-five and thirty-five Local and Regional Voices. One task for Stage 2 of the co-design process is to decide on their number and boundaries; each region will then develop its Local and Regional Voice. When describing what these could look like, Langton and Calma draw inspiration from Empowered Communities. Their interim report emphasises that “communities across each region [should] decide how best to organise themselves,” building on extant organisations and political structures. This means that Local and Regional Voices will emerge more quickly in some regions than in others. “Some communities or regions with local and regional decision making arrangements already in place, such as ‘partnership tables,’ will be well placed to commence shared, cross-government work in line with the framework relatively quickly.” They give an example: “New South Wales Local Decision Making and Empowered Communities regions are already working in a way similar to that envisaged for Local and Regional Voices.”
As well as the Regional and Local Voices there will be a National Voice, consisting of members (either sixteen or eighteen) elected from each of the eight jurisdictions (six states, two territories) and from the Torres Strait. If the National Voice and the federal government agree, it may also have two appointed members. While the co-chairs (different genders), elected by National Voice members, will be full-time employees, the other members will be part-time. Members will serve terms of either three or four years (a Stage 2 decision) with a maximum of two consecutive terms. The National Voice will also have the power to establish and be advised by committees of experts, and it will establish “youth” and “disability” advisory groups.
In Stage 2 of the co-design process the government is seeking suggestions about how members of the National Voice should be selected. One option is by direct election by Aboriginal and Torres Strait Islander voters in each state/territory/Torres Strait. The other is to have members chosen by the Regional and Local Voices. The advantage of the second method is that it removes the possibility of the disputes that plagued ATSIC, at times, about who is an Aboriginal or Torres Strait Islander and eligible to vote.
When the Voice to Parliament was advocated, from 2014, it was imagined that parliament would be obliged to take notice of it: to refer issues to it for advice and to respond to any advice that the Voice sent back or offered unilaterally. In the interim report and accompanying “fact sheets” issued by Ken Wyatt in January 2021, the obligations of parliament are not yet clearly spelled out.
To grasp the significance of this aspect of the Voice it is necessary to recall the words of Patricia Turner, chief executive of the National Aboriginal Community Controlled Health Organisations, lead convenor of the “Coalition of Peaks” (representing the major Indigenous government and NGO-funded service-delivery organisations) and a member of Wyatt’s senior advisory group. When Turner addressed the National Press Club in September last year she warned Australians not to confuse “voice to government” with “voice to parliament.” It would not answer the call for a Voice to Parliament, she insisted, if Wyatt’s design process merely came up with a voice (or voices) speaking to governments.
Turner was not opposed to “voice to government” processes: the Coalition of Peaks’ recent negotiation of revised Closing the Gap targets was an example of “voice to government” — a productive and necessary relationship. But a Voice to Parliament would be something else, an additional mechanism of recognition and representation in which an assembly of Indigenous leaders would engage in public dialogue with parliament. In effect, Turner was saying: we already have a voice to government: look what it has just achieved. Let’s now design a Voice to Parliament.
Turner was worried that the specificity of the Voice to Parliament concept was being lost in Wyatt’s co-design process, discussions to which she was party. It is possible to trace, textually, a drift of attention from the “Voice to Parliament” to the “Voice to Parliament and Government” in some public statements about the Voice. In the Dodson–Leeser committee’s November 2018 final report, the phrase “Voice to Parliament” occurs frequently when the committee quotes submissions that had something to say about it. But the phrase is not to be found in the committee’s recommendation of a co-design process: “outline and discuss possible options for the local, regional, and national elements of The Voice, including the structure, membership, functions, and operation of The Voice, but with a principal focus on the local bodies and regional bodies and their design and implementation.”
Acting on this recommendation, Wyatt’s co-design committees certainly did focus on “the local bodies and regional bodies.” But the co-designers’ attention to the Voice’s relationship with “governments” (federal, state/territory and local) means that clarity about the relationship between a National Voice and the Parliament of Australia has been lost.
The interim report admits that “there has been significant discussion regarding whether the National Voice was a voice to the Parliament, Australian Government or to both.” The interim report explains that the co-designers were prompted to think about both parliament and governments as the interlocutors of the Voice by the Dodson–Leeser committee when it “proposed an Indigenous Voice not only to Parliament but also to the Australian Government, and not only to the Australian Government but also to state and territory governments.” The first half of this sentence, which I have italicised, is misleading: the Dodson–Leeser committee certainly discussed the possibility that the Voice should talk to both federal parliament and to all governments, but its recommendations about the Voice don’t use the interim report’s phrase “parliament and government.” To make this phrase explicit and to use it throughout the interim report was the senior advisory group’s decision.
Their interim report explains why a National Voice should be dealing with both parliament and the government:
The primary focus of the National Voice must be to provide advice to the Parliament. At the same time, it was recognised by the Senior Advisory Group that early engagement provides the best opportunity to reflect the needs and aspirations of Aboriginal and Torres Strait Islander peoples in the development of legislation. This partnership would in turn also require the National Voice to engage with the Australian Government, preferably at the early stages of policy development. In fact, it would be inconceivable if it did not engage with the Australian Government.
Accordingly, the interim report envisages that the National Voice will send and receive two kinds of communication: it will “generally issue public advice, with discretion for informal discussion where appropriate.”
This makes sense. Why would anyone want the National Voice to be excluded from discussion with government officials drafting bills? But when we bracket parliament and the government as the interlocutors of the National Voice we are at risk of conflating them and so obscuring two important distinctions.
The first distinction is between parliament formally dealing with matters raised by the National Voice and the government engaging the National Voice in a conversation. Both exchanges are likely to be productive, but they differ in the ways that they will be valuable to the political process. When parliament speaks, it is a public action, and it would be expected that not only the government but also the opposition would have something to say. When parliament apologised to the stolen generations in February 2008 both the leader of the government and the leader of the opposition spoke — each apologising in his own terms. Such actions by parliament are public and formal, and they create the possibility of debate in each chamber if a motion is moved about the issue in question. There is also the possibility (one would hope) that members of the National Voice would be invited to address either or both chambers of parliament.
Interactions between the National Voice and the government, by contrast, are not subject to any framework of obligations and conventions; they may be as informal and as private as a telephone conversation or email exchange between two officials.
A summary fact sheet, “Aboriginal and Torres Strait Islander National Voice,” issued with the interim report makes the important point that there will be “two-way interaction between the National Voice and the Parliament and Government” because “the National Voice may ask for advice and information.” But the summary is not as clear as it could be about the proposed guarantees of “transparency” in these communications.
“Transparency mechanisms are proposed to help demonstrate the National Voice has been appropriately consulted and engaged,” says the interim report. “Examples include tabling the National Voice’s formal advice in Parliament, having the National Voice’s advice considered by a parliamentary committee, and including a statement about the National Voice’s formal advice and consultation when a proposed law is introduced in the Parliament.” But what are we to make of these words in the summary fact sheet: “Advice must be tabled on issues that have been referred to the National Voice. Informal advice is not tabled”? “Tabled” by which side — parliament, the National Voice, or both? And who is to decide when advice is “informal,” and so not “tabled”?
The second important distinction effectively obscured by the recurrence of the phrase “parliament and government” is between the National Voice and all other Indigenous organisations. The interim report says that the Voices (National, Regional and Local) will not replace existing Indigenous organisations that are already channels of representation. In the words of the summary fact sheet, “The Parliament and Government is [sic] expected to continue engaging with stakeholders, and the National Voice will not be a gatekeeper.”
It is undeniable that the federal government should be free to talk to whichever Indigenous organisations it chooses; it will be up to the National Voice to persuade the government that what it has to say is worthy of focused attention. But what about parliament? Is it to be equally free (via its committees, for example) to engage with any Indigenous “stakeholder” whether or not it is the National Voice? What if the National Voice cannot persuade parliament that it has something that parliament must listen to? Will the National Voice not be diminished if parliament addresses Indigenous Australia over the heads (as it were) of the National Voice?
If the National Voice is to be a special body, it will be necessary to treat it as the legitimate gatekeeper — the pre-eminent representative of Indigenous Australia to parliament. The bracketing of “parliament and government” by Wyatt’s co-designers risks diminishing the National Voice by failing to specify contexts in which its status is rightly unique.
These two obfuscations — of the difference between parliament-talking and government-talking, and the difference between a National Voice and all other channels of Indigenous representation — have arisen partly because the case for an Indigenous Voice has increasingly become functional: arguments seek to justify a Voice on the grounds that it will lead to better policy rather than because it will constitute a form of recognition, give Indigenous Australians a distinct voice, or embody a “right.”
It is platitudinous to say that any government that wishes to be effective in governing Indigenous Australians (for example, closing the gaps more rapidly) must maximise the opportunity for Indigenous Australians themselves to shape the policy. I do not wish to contest this view. Indigenous participation in government is a means to an end: more effective government. I wish merely to point out that the more the case for a Voice emphasises the utility of the Voice to policy-making, the more that the couplet “parliament and government” is conflated to mean just “government.”
The value that the Indigenous Voice would add to Australia has increasingly been evoked in instrumental terms, as a means of communication with governments at all three levels. What is increasingly obscured is the value of understanding the National Voice, constitutionally entrenched, as a substantive and symbolic recognition of the distinctive position of Indigenous Australia as a respectful and respected interlocutor of the nation’s popularly sovereign body, the Parliament of Australia.
This noble idea has been further distanced by the minister’s insistence that the three co-design committees not make “recommendations as a Group through this co-design process on constitutional recognition, including determining the referendum question or when a referendum should be held.”
Since 2014, advocates of constitutional recognition have made incremental concessions to constitutional conservatives and to a series of unwilling conservative governments. The risk of such a conciliatory strategy is that we will end up with a legislated Indigenous Voice, adjunct to governments, that has little capacity to call parliament publicly to account. But this now seems to be the only way forward contemplated by the government. What it has in mind for constitutional recognition is anyone’s guess. •