Indigenous Australia Opinion

Indigenous Voice in the Constitution is the only meaningful option

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The Uluru Statement from the Heart is a momentous event in Australian history (image via YouTube)

The Government has made little progress on enshrining an Indigenous Voice to the Federal Parliament. It's clear the Voice must be incorporated into the Constitution, writes Ronahi Demirbag.

THE AUSTRALIAN STORY began long before the arrival of the First Fleet. We Australians all know this. We have always known this. However, it wasn’t until the 1967 referendum that Aboriginal and Torres Strait Islanders were counted as part of the Australian population. And the fact remains that they are yet to truly have their voices heard.

The call for truth emerges

In May 2017, more than 250 Aboriginal and Torres Strait Islander peoples gathered at the First Nations Constitutional Convention near Uluru. This Convention was the culmination of an Indigenous designed and led process of regional dialogue across the nations to elicit from First Peoples an understanding of what meaningful constitutional recognition would look like to them.

Over four days of deliberation, an informed consensus was reached between Indigenous leaders to generously gift the ‘Uluru Statement from the Heart’ to the Government. The vision was that of a constitutionally enshrined Voice on policies and laws that have a significant impact on First Peoples.

Retail politics and the Voice

However, four years on, a political bait and switch is occurring. The Morrison Government is succumbing to "retail" Australian politics and has, in the lead up to a likely 2022 Election, exclusively talked about “legislating a Voice”.

The Federal Minister for Indigenous Affairs, Ken Wyatt, has recently claimed that the advantage of co-designing a legislative Voice, as opposed to a constitutionally enshrined Voice to Parliament, is that it gives the voter an opportunity to “see how the proposal works in practice” and “make any changes needed to be adopted in the light of the experience gained”.

Yet, this apparent "advantage" carries within it the seeds of its own disadvantage. Authored by the Morrison Government’s handpicked ministerial committee, the legislative Voice would be naturally afflicted by one-sided bias and subsumed into the Western democratic institutions and liberal ideology continually imposed by the Government upon First Nations peoples.

This takes a dagger to the Heart in three ways.

First, it re-produces the existing constitutional conversation wherein institutional listening is qualified by pre-designed processes for listening and expectations about what is being listened to. This isn’t immediately obvious due to the Morrison Government budgeting $7.3 million for the regional consultation process and $160 million for a referendum.

Ostensibly, this suggests a commitment to meaningful cross-cultural dialogue. However, three days after the Uluru Statement was presented to the public, Deputy Prime Minister Barnaby Joyce labelled it as a “radical idea that just wouldn’t fly”.

Hardly allowing time to pause and reflect, he had erroneously claimed that it would “establish a third chamber” in Parliament and “give Indigenous members the right to examine every piece of legislation”. This statement severely and insidiously mischaracterises the Uluru Statement as an irreconcilable challenge to parliamentary sovereignty.

Plainly, the Voice will not have a power to veto or delay the passage of bills so as to impinge on legislative decision-making.

Andrew Dobson warns against the introduction of institutional listening relationships that continue and indeed replicate previous tools of colonial domination. Such relationships between government, Parliament and First Nations offer the appearance of listening in a way that forecloses the possibility of the dialogue opening space for constitutional reform and reproduces existing power structures rather than challenging them.

Christopher Mayes describes this as a dialogue with Aboriginal and Torres Strait Islander peoples according to the 'norms of the polemic', which is not really a dialogue at all, but a monologue that causes further loss and trauma to First Nations peoples who have, once again, been ignored.

But this cannot come as a surprise. We saw the concern of compounding abandonment with silence reflected in the words of the delegates at the Constitutional Convention: expressed as the need to be “heard” and the need to be taken “seriously”. These simple phrases brood with significance. They were repeated to the point of fatigue and placed the weight of responsibility on the Morrison Government to engage with the idea of a constitutionally enshrined Voice in good faith.

Jill Stauffer articulates how other forms of listening might be institutionalised politically to counter the polemic and begin the process of doing justice to those mistreated. In doing so, she emphasises the need to do more than simply enjoin politicians to listen “better”.

It cannot be that we have to wait for Jenny Morrison to explain the significance of a constitutionally enshrined First Nations Voice to her husband, the Prime Minister. Rather, politicians need to be taught and institutional structures changed so that pre-established categories of meaning centres Aboriginal and Torres Strait Islander perspectives and speakers.

Gabrielle Appleby advocates for parliamentary debates to involve structured silences and the introduction of a 'listener whose role is to listen, pick up key notes' and work them into on-going political and collective agendas. Only then will there be a moral bond between First Nations’ speakers and listeners that gives them time and space to debate on their own terms without assumptions of what needs to be told, how the telling will transpire, what needs to be repaired, how to repair it and who gets to answer those questions.

Second, the legislated Voice renders First Nations peoples as mere political playthings who have been promised a Voice by the Government in a manner that "accommodates" Indigeneity without compromising Western democratic institutions themselves.

Stemming from a Eurocentric idea of settler-liberalism, the presumption – or perhaps, better, the conceit – of Australian politics is that the historical and ontological priority of the First Peoples of this land can be meaningfully recognised through accommodation.

What is less often admitted is that the accommodation of First Peoples is a restrictive inclusion. It requires First Peoples to perform "acceptable" forms of cultural distinctiveness to be entitled to the subjecthood of Indigeneity.

Consider, for example, the terms of reference for the National Co-Design Group providing advice to the Morrison government on the legislative Voice. These were structurally determined by and in the interests of one party – the state party – to the conversation. Accordingly, there is much focus in its recent report to the Federal Government on the detail of the Voice: its membership, its internal processes and the availability of support and expert input.

However, there is little – in fact no – detail on constitutional recognition; the referendum question and deliverables. This severely limits the advisory remit of the First Nations Voice. Indeed, as the National Co-Design Group co-chair Tom Calma recognises, the panel was fenced in to make it clear that that accommodating the cultural distinctiveness of First Peoples through the legislative Voice did not involve recognition of alternative Indigenous forms of political authority.

Instead, the Government insisted that any institutionalised accommodation of Indigenous cultural difference be reconcilable with one political formation: namely, colonial sovereignty. This ensured that any government with a majority in the Lower House, together with enough support in the Senate, could simply amend the Voice, or abolish it entirely, without having to engage with Aboriginal and Torres Strait Islander peoples.

Further, in facing the on-going possibility of abolition, the Voice would be restricted in its capacity to speak necessary truths to government and parliament and thereby properly represent the views of Aboriginal and Torres Strait Islander peoples. As John Borrows explains, First Nations Peoples must repeatedly navigate constitutional institutions that require them to justify themselves according to the limited legal, political and social categories offered by the State.

This denudes the uniqueness and authority of First Nations’ claims which are centred in and spoken from a position of continuing political sovereignty and the right to exercise self-determination. Indeed, without constitutional enshrinement, the institutions of Western democracy will gradually absorb the ongoing presence of Aboriginal and Torres Strait Islander peoples into the body politic until they become "fully-Australian".

Third, the legislated Voice stalls momentum on substantive reforms by providing an inflated illusion of the impact of a legislative Voice.  Incrementalists, such as Ken Wyatt, who argue that it will “pave the way” for further changes “in 20 years’ time” should consider the history of this approach in the Australian Indigenous policy context.

Kevin Rudd’s 2008 symbolic apology was an incremental step which did not translate into a national restitution scheme for victims. Thus, it is disingenuous to suggest that legislating an Indigenous Voice would “well and truly” lead to constitutional change in the future. Momentum for constitutional change is not something we can simply flick on and off like a switch, waiting to see if reform is palatable for politicians.

Constitutional enshrinement

If we are truly committed to the cultural re-orientation of Parliament, only a constitutionally enshrined First Nations Voice offers the way forward. This is so for two reasons.

First, constitutional enshrinement will affect cultural representation through formalised consultative processes to inform Parliament directly of the economic, social and cultural needs of Aboriginal and Torres Strait Islander peoples in relation.

Second, constitutional enshrinement will confer popular legitimacy on the Voice. Indeed, a referendum both educates the public about the Voice’s importance and, if successful, obtains their endorsement for it.

Heeding the call for truth telling

Colonial relations of power operate primarily by excluding the perspectives of Indigenous peoples from the discursive and institutional sites that give their rights content.

The Voice called for in the Uluru Statement from the Heart is intended to be an institutional vehicle through which Aboriginal and Torres Strait Islander peoples can meaningfully speak to the Government and Parliament.

To succeed in this objective, it must be stable and it must be independent.

That is, it must come into constitutional existence and then operate outside those government institutions that it is supposed to advise. Only then can the struggle for recognition of cultural differences and the contestation of cultural narratives take place without domination.

Ronahi Demirbag is a third-year law student studying at the University of Sydney.

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