How has the defeat of the Voice referendum affected public debate about Indigenous affairs? One way to answer this question is to look at what’s been said since October 2023 by Indigenous leaders for whom the referendum vote was a victory rather than a defeat: Senator Lidia Thorpe for example.
In the Senate in December that year, Thorpe gloated about the No campaign’s triumph, referring to “this year’s referendum for constitutional recognition — that no one wanted — and a Voice to Parliament — that no one wanted.” What did she want instead? During the Voice campaign she argued for two measures she considers more important for social justice: a treaty recognising Indigenous sovereignty, and legislation incorporating the UN Declaration on the Rights of Indigenous People, or UNDRIP.
Voters’ rejection of the Voice has eliminated the only body with which an Australian government could negotiate a treaty. So what about legislating the UNDRIP?
The Rudd government signed Australia up to the UNDRIP in 2009, but no government has put that recognition into domestic law. Its four key principles, as spelt out by Greens senator David Shoebridge in a recent parliamentary debate, are self-determination, participation in decision-making, respect for and protection of culture, and equality and non-discrimination. The Albanese government says that all four principles already inform its conduct towards Indigenous Australians and, hence, there is no need to legislate.
The UNDRIP principle that Thorpe most often refers to is “free, prior and informed consent.” Indeed, one of her frequently expressed arguments against the Voice was that the authors of the Uluru Statement violated that principle. “There are many clans and nations around this country that were not consulted and did not provide their free, prior and informed consent,” she claimed on 12 May 2023. According to her (on 31 March 2023), “we have 500 nations who have had a formal structure since before colonisation.” Every one of them, she implies, must be asked to consent to laws and policies of national scope such as the Voice.
Thorpe’s first attempt to give the UNDRIP legislative teeth came in March 2022. In the final weeks of the Morrison government she introduced into the Senate the United Nations Declaration on the Rights of Indigenous Peoples Bill, which would oblige the federal government to do three things: “ensure consistency between Commonwealth law and the Declaration,” “prepare and implement an action plan to achieve the objectives of the Declaration” and report annually “on the progress of those actions.”
The Senate immediately referred Thorpe’s bill to its Legal and Constitutional Affairs References Committee. Parliament was prorogued in April 2022, a new government was elected in May, and the inquiry resumed soon after, though now under the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs, chaired by senator Patrick Dodson. It got to work on 2 August 2022 with terms of reference including “options to improve adherence to the principles of UNDRIP in Australia.”
After meeting during 2022–23, Dodson’s committee tabled its report in November 2023, six weeks after voters had rejected the Voice. It recommended that the Human Rights (Parliamentary Scrutiny) Act be amended to include UNDRIP’s provisions in the definition of the “human rights” to which the parliament’s Joint Committee on Human Rights must refer.
When parliament considers legislation, it routinely asks the Joint Committee on Human Rights to determine a bill’s compatibility (or not) with Australia’s human rights obligations under a range of conventions and treaties. In practice, though — as Dodson’s committee observed — this leaves “no formal mechanism to consider the impact for the unique experience of First Peoples” (emphasis added).
Could this expanded definition of “human rights” produce a process akin to an Indigenous Voice? Why not follow the Dodson committee’s recommendation and mandate the Joint Committee on Human Rights to consider a bill’s compatibility with Indigenous rights? Surely this would be, as the Dodson committee put it, “a simple and fast reform”?
In making this recommendation, Dodson’s committee was keeping alive a prospect that had seemed to disappear only weeks before, on 14 October 2023: that a mechanism could be created for parliament to receive formal advice from an Indigenous perspective.
In response, Thorpe introduced a bill more limited in scope and more precisely targeted than the one she had proposed in 2022. Picking up on the Dodson committee’s majority view, her new bill sought only to ensure the UNDRIP was among the international conventions that the parliament’s human rights committee would refer to when assessing a bill.
But her original, more ambitious bill remained before the Senate and was debated on 6 December 2023. As David Shoebridge reminded the chamber, this law would have required a “full audit of our existing laws, policies and practices to ensure they are UNDRIP compliant, which means consulting with First Peoples about how these laws, policies and practices can become compliant with UNDRIP and then actually following that advice.”
In a half-empty chamber, Labor and the Coalition combined to defeat the bill by twenty-seven votes to ten. Four Indigenous senators — Dorinda Cox, Patrick Dodson, Kerrynne Liddle and Jacinta Price — were absent, but Malarndirri McCarthy was present and voted with her party. The one Labor speaker (the government’s deputy leader in the Senate, Don Farrell) assured senators that “self-government and participation in decision-making remain at the heart of policy development and legislative change for matters of Indigenous affairs” for the Albanese government.
The defeat of Thorpe’s first bill meant that any hope of legislating the principles of UNDRIP now rested on the government’s response to Dodson’s committee. Would Labor agree to a more limited legislative expression of the UNDRIP by adding it to the list of human rights instruments that guide parliament’s scrutiny of bills?
The idea of strengthening Australia’s parliamentary commitment to human rights has been gaining momentum since 2019, with the Australian Human Rights Commission developing a legislative reform agenda through its “Free and Equal” consultations and a series of discussion papers and reports.
Labor MPs who believe in a human-rights approach to public policy got their chance to do some policy thinking when, in March 2023, the Albanese government asked the Joint Parliamentary Committee on Human Rights, chaired by Labor MHR Josh Burns, to consider “the scope and effectiveness of Australia’s Human Rights Framework.”
A little over a year later, the Burns committee’s seventeen recommendations gave priority to a new federal Human Rights Act that would invoke a variety of rights under international law, among them the UNDRIP. In arguing for a strengthened role within parliament, the committee drew heavily on the Human Rights Commission’s 2023 paper Free & Equal: A Human Rights Act for Australia.
Perhaps anticipating that the Albanese government might not commit to a whole new Human Rights Act, Burns’s committee proposed a fallback option: that the Human Rights (Parliamentary Scrutiny) Act be amended to include the UNDRIP and the Refugee Convention in its definition of “human rights.” This echoed the Dodson committee’s November 2023 recommendation and added to the credibility of what Thorpe was proposing in her second attempt at an UNDRIP-inspired bill.
Whether “human rights” should include distinct “Indigenous rights” is perhaps the most contentious issue in the discussions fostered by the Human Rights Commission. Many MPs oppose distinct Indigenous rights in principle; others have become prudently wary of the concept since observing the No campaign’s successful use of the words “equality,” “divisive” and “unity” against the Voice. Indigenous advice on bills and draft bills is what advocates of the constitutionally enshrined Voice were hoping for, but 60 per cent of voters said No.
When Dodson’s committee reported six weeks after the referendum, three of its Coalition members — Melissa Price (Durack), Llew O’Brien (Wide Bay) and SA senator Kerrynne Liddle — issued a minority report opposed to adding the UNDRIP to the instruments parliament’s human rights committee must consider. The committee is already taking account of the rights of Indigenous Australians, they claimed, because those rights are not distinct from other “human rights” Australia recognises.
Labor’s position on “Indigenous rights” has shifted since its 2021 platform pledged support for the Voice, a Makarrata Commission for agreement-making and a national process of truth telling. Two years later it promised to place its Indigenous heritage policies within the UNDRIP framework, “particularly the principle of self-determination, and consistent with our commitments to the National Agreement on Closing the Gap and the Uluru Statement from the Heart.”
On 13 February this year, Labor and Coalition senators combined to oppose taking Thorpe’s new bill to a second reading, with only the Greens and some other crossbenchers supporting her.
Lidia Thorpe professes to champion distinct Indigenous rights. She has used every opportunity to invoke “genocide” and other concepts from international law in her efforts to have the UNDRIP expressed in legislation. Her first bill sought comprehensive assessment of government against the principles of the UNDRIP; her second bill more modestly empowered the parliamentary human rights committee to assess new legislation from an UNDRIP standpoint.
While Thorpe persists in thunderous overstatement (“for over 200 years the human rights of First Peoples in this country have been violated every single minute of every single day”), the sequence of these two bills suggests a more political realistic approach. It is a pity that her modest promotion of the UNDRIP didn’t get Labor’s support in February.
I detect in Thorpe a deep ambivalence about the parliamentary system. For her, the defeat of the Voice was not a setback but an opportunity for Australia to take what she believes to be a better path: parliamentary commitment to progressive international law. She scorns the colonists’ assertion of sovereignty but invests hope in parliament — the locus of popular sovereignty and (she is a senator) of the residual sovereignty of the six colonial-era states that federated in 1901. As she said in the Senate not long after the referendum:
You all bow to the Queen and bow to the King and bow to everybody in here and follow the processes of the colonial institution. Yes, I’m a part of this, but I’m only here to rattle and shake every one of you into understanding that you are complicit in genocide and that the genocide continues in the most sophisticated way in 2023.
Among those who rejoice in the Indigenous Voice’s defeat, Thorpe is unique in preferring that a parliamentary committee becomes the vehicle for an Indigenous appraisal of legislation. Let’s recall that, unlike the Voice, the human rights committee — the body that she would like to appraise legislation — is under no obligation to include Indigenous people among its members. It is a committee of MPs of various political affiliations mandated to take “human rights” seriously.
Thorpe’s strong preference for parliamentary representation of Indigenous interests goes even further than her opposition to the Voice. She also invokes the UNDRIP — and in particular free, prior and informed consent — as the standard by which Australians should judge the Indigenous Sector, which takes in the thousands of publicly funded corporations that deliver services, including political representation, to Indigenous Australians.
This was apparent in her participation in the Dodson committee’s public hearings in 2022–23. Not only did she ask federal, state and territory officials about the concordance of Australian law and policy with UNDRIP, she commented critically on how Indigenous views are represented. For example, she derided the First Nations Assembly of Victoria, elected in 2019 by a process in which only 7 per cent of eligible voters participated. “How do we ensure that we get everyone to the table?,” she asked on 10 March 2023.
Invoking free, prior and informed consent has become the basis of Thorpe’s populism. Her rhetorical use of the principle is the key to her maverick identity as her people’s tribune. It is never not a winning card; she can always speak for “the Aboriginal and Torres Strait Islander grassroots population out there.”
Hansard records a particularly revealing exchange with Patrick Dodson during his committee’s hearings on 26 October 2022. Thorpe asked a government official if the process of appointing Indigenous ambassador Justin Mohamed and two committees to advise the government on the referendum had reflected “free, prior and informed consent.”
Dodson intervened from the chair to say that the government was indeed talking to “people who are representative of large numbers of the population”:
They’re either chairs or they’re directors or they’ve been approved by their constituencies to be in this. So it’s not just an ad hoc —
THORPE: I don’t agree with that.
DODSON: You mightn’t agree, but that’s how come to be where they are [sic].
THORPE: They’re closed memberships. They don’t represent our people. They don’t represent me.
In similar vein, on 10 February 2023, Thorpe said, “We have an issue here with peak bodies who say they represent those grassroots people but don’t actually — they’re not members of those organisations and sometimes it’s hard to get into those organisations.” In March 2023, she said that native title bodies, of which she has been a member, “don’t care about the traditional owners. It’s the board that runs the show. As a result, there’s no free, prior and informed consent.” Later that month she alleged people were “locked up” at the formulation of the Uluru Statement in May 2017. “I saw elders put in the back of divvy wagons because they didn’t agree.”
Thorpe invites us to distrust all the “organisations and corporations” that have come to comprise the Indigenous sector. But at least one representative process does meet her standard: that which made her and several other Indigenous Australians members of parliament. Speaking from that office she invokes free, prior and informed consent to discredit rival platforms of Indigenous representation.
“Everyone” will never be “at the table.” The politics of Indigenous peoplehood can’t survive Thorpe’s “free, prior and informed consent” test because the collective representation (and thus the collective rights) of Indigenous Australians depend on their developing faith in the political forms of the Indigenous Sector, the government-funded civil society bodies and the statutory bodies created by land rights and native title legislation.
For these bodies to be effective and legitimate, Indigenous Australians will have to develop a higher tolerance for being represented by people who may be socially distant from them. Thorpe’s populist invocation of free, prior and informed consent is an opportunistic and self-serving use of an international law concept, and it converges with the position taken by the Coalition’s two Indigenous senators, Liddle and Price, who have repeatedly accused Indigenous sector bodies of failing to act in the interests of Indigenous Australians. •
