Submission in response to
Interim Report to the Australian Government:
Indigenous Voice Co-Design Process
Summary:
(a) Voice to Parliament must be constitutionally enshrined to ensure longevity,
resolution and legitimacy.
(b) Legislation must follow referendum.
1. I am a non-Indigenous lawyer and legal academic whose research interests include
the law affecting First Nations peoples. I do not purport to speak for the
Traditional Owners of the land, nor for First Nations peoples. I speak rather
concerning the capacity of the law to deliver justice.
2. Constitutional enshrinement of Voice to Parliament
2.1. Unlike other nations colonised by the British, Australia has not established
proper legal relations with First Nations peoples inhabiting this continent.
The absence of recognition through legal process of the standing of First
Nations peoples has resulted in the inability of government to resolve
longstanding injustices imposed upon First Nations.
2.2. Consideration of a Voice is part of a broader context that seeks to resolve the
underlying relationship between First Nations and the wider Australian polity.
The legal mechanism for creating Voice is therefore central to this context.
2.3. Three matters arise from this reality.
2.3.1. Longevity: Legislating Voice without constitutional enshrinement
does not resolve the question of relations more broadly between First
Nations and the broader Australian polity. As a creature of legislation
alone, such an institution can be repealed at the pleasure of the
Parliament. That is, a legislated Voice fails to reflect the status of First
Nations as integral to the Australian institutional framework and serves
only a short-term attempt to right existing wrongs.
2.3.2. Resolution: To legislate a Voice on the premise that future
constitutional enshrinement will occur, fails to account for the
conservatism attendant on proposals for institutional change. After
decades of inquiries and reports into constitutional recognition of First
Nations, culminating in the Uluru Statement from the Heart as the
consensus position of First Nations peoples themselves, the appetite for
further campaigning will wane if this opportunity is lost. Suggestions by
proponents for a legislated voice assuming later constitutional change,
must therefore be assumed to be against constitutional enshrinement
altogether. The public momentum exists now to resolve these
longstanding questions and this opportunity must be taken without delay
to avoid the risk of losing it.
2.3.3. Legitimacy: Constitutional enshrinement affords legitimacy to Voice
amongst both First Nations communities and the broader Australian
polity through the mechanism of referendum. This will afford confidence
in the institution that is lacking in a legislated body alone.
2.4. Importantly, constitutional enshrinement allows both for symbolic and
substantive change as a reflection of a national consensus. Legislation alone
will not achieve this, reflecting only the will of Parliament. However, with a
constitutionally enshrined Voice, the Parliament retains the power—correctly,
Indigenous Voice Co-Design 1
in accordance with Australian norms of governance—to legislate to establish
the Voice and its mode of governance.
3. Legislation must follow referendum
3.1. I endorse the submission of From the Heart (Submission #19, 21 January
2021) as to the requirements for legislation following referendum
(recommendation 3).
3.2. This recommendation works together with the need for constitutional
enshrinement (clause 2 above).
4. The imperative to set right relations between government and First Nations, with
Voice one of three measures recommended by the Uluru Statement from the
Heart, demands a courageous step to establish a constitutional institution without
devolving into the lawyers’ tendency towards only perceiving risk. I speak with
the authority and experience of a lawyer when I say that this tendency can too
often lead to paralysis when what is needed is progress. To the contrary, this
submission contends that the real risk for Australia lies in failing to embrace the
opportunity provided by the Uluru Statement and a constitutionally enshrined
Voice.
Dr Kate Galloway
30 April 2021
Associate Professor of Law
Griffith Law School
Griffith University
Indigenous Voice Co-Design 2
