It feels odd 'having my say' when I am not of an Aboriginal or Torres Strait islander background. I am just a professor of public law; although in that role for 30 years I have taught students of all persuasions and worked with Indigenous and non Indigenous academics on issues to do with regulating politics and representation.
I support the Uluru ideals and ideas; as do a majority of Australians according to a reputable survey. The question then is, how to advance them, practically, politically and in law. I support an entrenched, national Voice or assembly. I would not purport to advise on its design, unless asked by Indigenous folk.
In this submission I just want to stress the importance of a permanent, national Voice. Politics, everywhere, is mediated between ground up/organic concerns and interests, and the interaction of mediators of those concerns (representative voices) within structures and institutions. First Nations, the world over, have had their own unique structures and institutions degraded or marginalised by colonisation. In the Australian context, that came inextricably with the formation and entrenchment of State and Commonwealth structures and institutions of government.
We make much in Australia of the flexibility of our 'political constitution': that is, not having a binding 'Bill of Rights', focused on individual 'rights' and court decisions limiting government or political power. Instead our constitutional systems put primary faith in representative politics, through parliaments and the executives formed from the lower houses of parliaments. This is all to the good, in theory.
But it is only to the good in practice if politics serves all groups in society. Clearly, electoral politics has largely failed Indigenous Australians. (Who were largely excluded, at least based on the 'half caste' system, even from that most basic of political rights, the vote, until the 1960s, in many of our lifetimes. Even since then, the unique but minority status of Indigenous peoples has been sublimated by the party-dominated electorate politics that guides the thinking of executive government and MPs).
Indigenous Australians are often lectured about the need to take self-responsibility. Politics - and a Voice - is just such an opportunity for self-responsibility. For forming policy and positions to share with the wider the polity.
The Voice must be national, as it must be able to aggregate and combine voices of many mobs and interests/needs, at the dominant level at which formal government occurs, that is the Commonwealth level (especially over Indigenous affairs since the 1967 referendum, but also given the fiscal power of the national treasury). So it needs to be a Voice to both Parliament (legislation, and oversight of executive) and the Australian Government (executive power). And potentially, it could be a Voice to State and Territory equivalents, if they wished to opt in or consult.
The Voice also must be national as only that format can engender, for Indigenous-governmental relations, the same political variety and focus that 'mainstream' intermediary groups and politics have (with all their peak voices, formalised factions or parties, etc). That is, the Voice is not just about representative outcomes - communication outwards to government. It is also constitutive - an active means of fostering national political forces and voices. That is, of fostering a politics that speaks to the public at large, and not merely in response to formal invitations to have input on a particular policy or bill.
I suspect that is one reason some within government would like to avoid a national Voice: something less 'political', less potentially unruly, is the likely outcome if the Voice can be constrained to be something less public. Opposition to a Uluru declaration Voice is thus far less about fears of a 'third chamber' in the formal sense, as the Voice will be advisory not binding. It is about fears of a 'third chamber' in the informal sense, as a Voice that will have a discursive, public political, role on the national political stage.
Finally such a Voice needs to be protected. Because the experience of earlier committees and commissions is that the executive or parliament will pull the rug from under a purely executive or legislated Voice, as the seasons suit.
Thank you for reading this.
Graeme Orr, Professor in the law of politics, University of Queensland.