2781

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Submission Number
2781
Participant
Sophie Rigney
Submission date
Main Submission File
Main Submission Automated Transcript

Voice Secretariat
Reply Paid 83380
CANBERRA ACT 2601
By email: Co-designVoice@niaa.gov.au

30 April 2021

Thank you for considering this submission to the Public Consultation on the Voice Co-Design
Interim Report. I am a non-Indigenous woman from nipaluna/Hobart. I have trained as an
international lawyer with a particular specialisation in post-conflict justice, state violence, and
Indigenous interactions with international law. I am currently employed at the Indigenous Law
Centre at the University of New South Wales, working on the ‘Recognition after Uluru: What
next for First Nations?’ research project. Prior to this, I have worked, researched, taught, and
volunteered in international law, human rights advocacy, and law reform, for two decades. I
hold a PhD from the Melbourne Law School. I make this submission in my personal capacity.

A Voice to Parliament, entrenched in the Australian Constitution, will be a unifying, practical,
and empowering legal reform. My submission makes the following points:

 Constitutional entrenchment of the Voice is important, as the current Co-Design
process has emerged from more than a decade of discussions on Constitutional
Recognition and cannot be separated from that national conversation;
 The view of the Uluru Dialogues and National Conference must be respected,
particularly regarding the place of the Voice in the Australian Constitution; and
 A Referendum must be held before enabling legislation for the Voice is passed.

Constitutional entrenchment of the Voice is important, as the current Co-Design process has
emerged from more than a decade of discussions on Constitutional Recognition and cannot be
separated from that national conversation

The Interim Report on Voice Co-Design is the latest step in a process that has been ongoing
for two decades. This is the discussion on whether and how to recognise Aboriginal and Torres
Strait Islander peoples in the Constitution. Any attempt to de-couple the Voice from its
Constitutional place is not acceptable, and disregards this longstanding national conversation.
To be clear: the current process of Co-Design did not emerge from nowhere. It is one step in a
long journey, which has moved from symbolic Constitutional recognition to meaningful and
substantive law reform.

The national conversation has engendered a widespread sense that Australia’s foundational
legal and political text is flawed. The Voice is proposed as the answer to that flaw. In particular,
in setting out an obligation for consultation on matters related to s. 51 (xxvi) and s. 122, as well
as the Racial Discrimination Act, the Voice would provide a balance to parts of the Constitution
that permit discrimination against Indigenous peoples. The Voice is a Constitutional solution
to a Constitutional problem; and as such, it must be placed within and protected by the
Constitution.

The view of the Uluru Dialogues and National Conference must be respected, particularly
regarding the place of the Voice in the Australian Constitution

Any proposals on the design of the Voice must adhere to the wishes of participants at the Uluru
Dialogues and National Convention. These wishes were unequivocal: the Voice must be
enshrined in the Constitution.

In 2015, when Indigenous leaders met with political leaders at Kirribilli, the previous emphasis
on ‘symbolic recognition’ shifted to a more Indigenous-centred and substantive movement for
law reform. The design and implementation of the Regional Dialogues and National
Convention evidenced this move to greater Indigenous participation in what Constitutional
Recognition can, and should, look like.

The Regional Dialogues and the National Convention at Uluru engaged 1200 Indigenous
people nationwide: it was the ‘proportionately significant consultation process that has ever
been undertaken with First Peoples’.1 Participants were deliberately invited in order ‘to
represent people who are often politically forgotten by government and parliament’ 2 –
including elders, traditional owners, representatives of communities or local organisations.3
This provided ‘an unprecedented insight into the wishes and needs of First Nations
communities across the country’.4

1
Referendum Council, Final Report of the Referendum Council, 30 June 2017, 10.
2
Public Lawyers, ‘Submission: The imperative of constitutional enshrinement: Submission to the Voice
Secretariat’, 20 January 2021, 2.
3
See Megan Davis, ‘The Long Road to Uluru’, Griffith Review 60 (2018), 13-32, 41-45.
4
Public Lawyers, ‘Submission’, 2.
The Dialogues were designed to be a deliberative, participatory and self-determined process.
They were carefully constructed to avoid ‘group think’ and to have Indigenous participants
reach their own conclusions and suggested ways forward. 5 This is in line with the principle of
free, prior and informed consent, and the principle of participation in Indigenous political
decision-making.

The process that led to the Uluru Statement from the Heart – the Dialogues and Convention –
was unprecedented in Australia; both in terms of number and type of participants, and the
design of process, ensuring Indigenous authorship. For all these reasons, the Statement’s call
for a Constitutionally-enshrined Voice is especially strong, and should not be ignored. The
proposals suggested in the Interim Report must be considered in light of the Uluru process and
the Statement issued, and cannot be separated from this: any proposals must rightly be
understood as coming through an overarching requirement of constitutional entrenchment, as
called for at Uluru and as legitimised by a process that prioritised Indigenous participation.

A Referendum must be held before enabling legislation for the Voice is passed

A referendum on the Voice should be held as a matter of priority, and before legislation is
passed. To legislate first would be to take the momentum out of the current push for
Constitutional entrenchment, and to dismiss the voices of those at Uluru who gave the
invitation for a Constitutionally-enshrined Voice. The Voice has emerged from the national
conversation regarding Constitutional recognition as the only law reform option that has the
collective endorsement of Aboriginal and Torres Strait Islander peoples.

A Constitutionally-enshrined Voice enjoys significant Indigenous and non-Indigenous
support.6 This is true even ahead of any concerted campaign, which shows the significant
potential for this support to grow to a landslide result in any referendum. Importantly, recent
research demonstrates that more Australian voters support a Constitutionally-enshrined Voice
than a legislated one.7 The Australian public are aware of need to link the Voice with the

5
Megan Davis, ‘The Long Road to Uluru’. See also Referendum Council, 10.
6
See, e.g., Reconciliation Australia, ‘Reconciliation Support Grows But More Needs to be Done – Latest
Australian Reconciliation Barometer’, 11 February 2019, available <www.reconciliation.org.au/reconciliation-
support-grows-but-more-needs-to-be-done-latest-australian-reconciliation-barometer/>; F Markham and W
Sanders, Support for a Constitutionally Enshrined First Nations Voice to Parliament: Evidence from Opinion
Research since 2017 (Centre for Aboriginal Economic Policy Research, 2020).
7
See Jacob Deem, A J Brown, and Susan Bird, ‘Most Australians support First Nations Voice to
parliament: survey’, The Conversation, 9 April 2021.
Constitution. Those calling for legislation first, due to a fear that a referendum might fail, are
underestimating this popular support and its nuanced appreciation of law reform.

While there is a suggestion that Australian voters will want to ‘try before they buy’, there is no
evidence for this – indeed, there is evidence for the reverse (that more voters support
entrenchment before legislation). Moreover, the Voice has had a number of antecedents; this
is not unchartered territory.

A Referendum on the Voice will provide all Australians with an opportunity to participate in
the Constitutional moment of reforming the relationship between the state and Indigenous
peoples. This is crucial: popular participation of this sort will provide the Voice with authority
and legitimacy. At the same time, it will educate all Australians on the Constitution, Australia’s
history, and the potential for a better and more hopeful future.

Conclusions

I agree with the recommendation of the Referendum Council:

That a referendum be held to provide in the Australian Constitution for a
representative body that gives Aboriginal and Torres Strait Islander First Nations
a Voice to the Commonwealth Parliament. One of the specific functions of such a
body, to be set out in legislation outside the Constitution, should include the
function of monitoring the use of the heads of power in section 51(xxvi) [the power
to make special laws for the people of any race] and section 122 [the Territories
power]. The body will recognise the status of Aboriginal and Torres Strait Islander
peoples as the first peoples of Australia.
The Voice must be enshrined in the Australian Constitution and a referendum must be held
before any enabling legislation passed. This reform is practical, has the support of the
Australian people, and is the only option collectively endorsed by Aboriginal and Torres Strait
Islander people. The reform will - if placed in the Constitution - have authority and legitimacy,
as well as will engage the Australian people in education about the relationship between the
state and Indigenous peoples. This is the time for Constitutional change to empower Indigenous
people in the decisions that affect their lives.

Yours Sincerely,

Dr Sophie Rigney