It is well recognised that Aboriginal and Torres Strait Islander peoples have endured significant struggles in attempting to gain constitutional recognition in Australia, evidenced most strongly since the 1937 letter to King George from Yorta Yorta elder William Cooper. The Uluru Statement from the Heart (Uluru Statement) represents a momentous endeavour to empower First Nations peoples to form an unanimous position on the way in which Indigenous peoples believe constitutional recognition should take place. Culminating from the dialogues of Indigenous Australians held around the country, the Uluru Statement has redefined the way in which Aboriginal and Torres Strait Islander peoples wish to be recognised within Australia’s polity. The Uluru Statement proposes a sequenced reform, namely ‘Voice, Treaty, Truth’, which are integral aspects to realising the ultimate goal of meaningful First Nations recognition in Australia, however, this essay focusses solely on the proposed reform of establishing a First Nations Voice to Parliament. It is argued that the establishment of a First Nations Voice reflects the profound understanding of the importance of reformation of the Australian Constitution, providing the foundation for genuine institutional recognition of First Nations peoples. This essay in its undertaking, analyses three focal points, ultimately arguing that through constitutional enshrinement the Uluru Statement provides a legitimate Indigenous-led solution for uniting Indigenous and non-Indigenous Australians, whilst representing a milestone in Australia in its ability to establish a pluralistic system of law.
The proposal of the Uluru Statement, to enshrine a First Nations Voice to Parliament in the Constitution provides no definitive proclamation about the design of the Voice. Indigenous Australian leader and member of the Referendum Council, Noel Pearson, has described the Voice as a body which would provide non-binding advice on legal and policy matters affecting First Nations peoples and a body which would sit alongside Parliament. This essay supports the notions of Pearson and maintains that the Voice should act as a constitutionally protected institution which will facilitate formal consultation on legislative and political affairs impacting Indigenous communities and will achieve legal pluralism. Responding to the suggestions presented in the Uluru Statement, a Joint Select Committee recommended the establishment of a National Co-Design Group which would have the role of further developing the design of the Voice to Parliament. In October 2020, the National Indigenous Australians Agency released its Interim Report on the Indigenous Voice Co-Design Process, and whilst the Report has many positive aspects, including its attempts to oblige the Government and Parliament to engage with the Voice as well as proposing membership models and functions, it fails to provide any recommendations on constitutional recognition for Australia’s First Nations peoples. Rather, the Report proposes an entirely statutory model of the Voice, relying on political instruments to attain Government compliance in its models of obligation and expectation in consultation with the Voice on certain matters. This proposal does have merit in the fact that it could provide Australian voters the opportunity to witness the functionality of the Voice, prior to the advocation of it through referendum and this essay respectfully acknowledges that this notion is supported by Hon Murray Gleeson AC, QC former Chief Justice of the High Court. However, it is argued that without additional constitutional authority from the time of initial formation, there would be no legal option to stop a repeal of the legislation which proposedly establishes the Voice, since the Houses of Parliament, under s 50, as well as the Parliament under ss 51 and 52 of the Constitution, would have no ability to bind their successors. Entrenchment in the Constitution is necessary to enhance the effectiveness of consultation between the Parliament and the Voice, as governments must be required to commit to meaningful engagement with Indigenous communities, through the Voice. As acknowledged by the Referendum Council, in order to achieve this, successful referendum under s 128 must occur, allowing for the representative institution for Aboriginal and Torres Strait Islander peoples to be established, consequently admitting First Nations Voices in Parliament. Legislative functions would be determined thereafter to enable the Voice to oversee the use of the heads of power in s 51 (xxvi) and s 122, as well as ensuring that Australia’s Constitution recognises Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia. Therefore, it is determined that in order to achieve an adequate standard of representation for Indigenous peoples in Australia, constitutional enshrinement of a First Nations Voice to Parliament is necessary, hence establishing a pluralistic legal system.
Many Aboriginal and Torres Strait Islander leaders have voiced their disappointment in the ongoing tokenistic gesture of acceptance by Parliament of Indigenous cultural statements, particularly evidenced since the Yirrkala Bark Petitions in 1963, which ultimately led to the Uluru Statement instead being tactically addressed to the Australian people. The invitation to ‘walk with [First Nations] in a movement of the Australian people for a better future’ issued in the Uluru Statement was delivered to the people of Australia, as it is the citizens of the country which have the power to amend the Constitution, via referendum under s 128, and join with our Indigenous counterparts in a process of political consideration and truth-telling. For Australians, constitutional recognition of our Indigenous peoples importantly raises questions about admitting our nations history and realising the best foundation for developing our future as a unified civilisation. As the fourth anniversary of the delivering of the Uluru Statement draws near, it is clear that support for recognition and reconciliation between Indigenous and non-Indigenous Australians has not been abandoned, made evident through the analysis of the 2020 Australian Reconciliation Barometer data. The perception of the importance of relationships between Indigenous and non-Indigenous Australians, as being ‘important/very important’, from the general public has trended upwards from 86% in 2014, to 91% in 2020. This demonstrates the immense opportunity the Uluru Statement has in unifying the peoples of Australia, backed additionally by the 83% of the general community who believe that our First Nations peoples and cultures should be recognised in Australia’s Constitution. Further, the support for the establishment of an Indigenous Voice to represent First Nations policies and affairs in Parliament as well as the need to protect that Voice in the Constitution has increased by 10% over the two years from 2018 to 2020.
Undoubtedly, a First Nations Voice to Parliament will act as an institution that will not only allow Aboriginal and Torres Strait Islander affairs to be reviewed by First Nations peoples, but this essay also argues that constitutional recognition is key to reconciliation and Australia’s future as unified citizens. The Voice will attempt to subdue the inordinate failures of Australia’s history and consequently act as an appeal for a renewed outlook on the relationship between Indigenous and non-Indigenous Australians, forging a new constitutional relationship. Entrenchment of the Voice in the Constitution will allow for recognition of First Nations peoples to develop beyond tokenistic ‘inclusion’ but rather will invoke structural reform across Australian institutions, leading to purposeful dialogue and valuable interactions between Indigenous and non-Indigenous Australians. In order for reconciliation to be realised, institutions will be required to listen to and apply the legal, political and cultural solutions our First Nations peoples have offered. This will certainly be more plausible if the Voice has constitutional recognition to ensure a legal obligation exists to engage with First Nations peoples on matters relating to Indigenous affairs. Undisputedly, today, the people of Australia recognise the importance of our Indigenous cultures and peoples in society and support a constitutionally enshrined Voice to Parliament, which will offer an ‘Indigenous-led legal, political and cultural solution for bringing together Indigenous and non-Indigenous Australians within our system of governance.’
As documentation of the proceedings of the First Nations constitutional dialogues, the Uluru Statement represents an unprecedented process in Australia’s history, as it constitutes the most proportionately momentous conference process to have ever been established for, and with, First Nations peoples. Historically, in an attempt to influence and inspire this nation, which has continuously resisted First Nations cultural authority, the Referendum Council, which initiated the constitutional dialogues culminating in the Uluru Statement, adopted the Indigenous custom of storytelling. This storytelling process engaged approximately 1200 First Nations delegates, which negotiated and generated the proposal of the Voice to Parliament, an idea that no constitutional lawyer had ever considered, and further reveals the revolutionary nature of the Uluru Statement. The Voice proposed by the Uluru Statement offers an integral opportunity to institute legal pluralism in Australia, unlike any other form of Indigenous law reform to have come before. The suggestion that symbolic representation in legislation is sufficient to fully recognise Aboriginal and Torres Strait Islander peoples in Australia has been a continual misjudgment. This notion is supported through reviewing the frameworks of previous Indigenous statutory advisory bodies, particularly the structural relationship between the Aboriginal and Torres Strait Islander Commission (ATSIC) and the Government, prior to the Commission’s abolition. Due to the lack of constitutional enshrinement, it was non-obligatory for the Government to engage with ATSIC, and despite some individual achievements, no genuine Indigenous consultation and empowerment was developed between communities and the Government, which ultimately lead to its abolition on the grounds that it was an ineffective institution. ATSIC’s experiences have undoubtedly influenced the constitutional dialogues that crafted the Uluru Statement, reinforcing the need for a First Nations Voice entrenched in the Constitution, which is revolutionary in recognising First Nation peoples.
Furthermore, it is essential to note that any proposed law reform that involves referendum under s 128, is in itself a milestone of Australian law. As recognised by Megan Davis, a Cobble Cobble woman and Marcia Langton, a Yiman and Bidjara woman, the 1967 Referendum, which resulted in a landmark 90.77 yes vote in support of First Nations rights and one of only eight successful amendments to the Constitution, should be remembered as ‘a wonderful achievement of collaboration between Indigenous and non-Indigenous Australia.’ Undoubtedly, the citizens of Australia came together to recognise Aboriginal and Torres Strait Islander peoples in the last milestone of Indigenous constitutional change and significantly the next phase is happening now, presented in the form of the Uluru Statement. The momentous achievement of the Uluru Statement, in its unprecedented process of dialogue between Indigenous peoples across the nation, provides evidence of its potential to create an opportunity to make fair Australia’s founding document. The Uluru Statement offers a historic solution which will remove, and consequently prevent discrimination in our Constitution, whilst simultaneously ‘offering a vital opportunity to integrate Indigenous law into an otherwise settler legal system.’
Whilst the Uluru Statement provides a legitimate opportunity to create genuine constitutional recognition of First Nations peoples through the establishment of a First Nations Voice to Parliament, the proposal was dismissed by the then Prime Minister Turnbull four months after it was issued, on the basis that the Voice would amount to a ‘third chamber’ of parliament. The Government’s falsely determined disregard of the importance of enshrining a First Nations Voice in Parliament does not detract from the fact that the process which culminated in the Uluru Statement is a milestone. Moreover, the Uluru Statement is undisputedly an opportunity for Australia’s polity to develop a pluralistic system of law, and right the wrongs of a constitution that omits the recognition of Australia’s First Nations peoples. An authentic Indigenous-led solution for uniting Indigenous and non-Indigenous Australians in the areas of law, culture and politics is offered through the Uluru Statement and it is hoped that in the near future the peoples of Australia are given the opportunity to realise constitutional recognition of our First Nations peoples through referendum under s 128 of the Australian Constitution.