The back-and-forth between the government and the opposition about the details of the Indigenous Voice to Parliament has dragged into this week.
Opposition Leader Peter Dutton’s demands for more detail have been dismissed as “disingenuous” by Prime Minister Anthony Albanese and Attorney-General Mark Dreyfus, with Dreyfus declaring today that Dutton should “stop talking out both sides of his mouth” on an issue that is “too important” to Australia.
So what should Australians who want more information do before they make up their minds on the referendum?
Gabrielle Appleby, a constitutional expert at the University of New South Wales and the Indigenous Law Centre, said there was easily digestible and accurate information that people can access if they want to learn more.
“There is the official government website that provides some information already, particularly on the previous processes that led to the Uluru Statement, the Morrison government’s co-design process, and the government’s current process,” Appleby told Crikey.
“Then there are websites like the one put together by those involved in the Uluru Statement, which has a series of explainers and frequently asked questions that you can go and read.
“But I think the key part if you’re an interested Australian citizen is to stay an interested Australian citizen.”
Appleby said it was likely the referendum wouldn’t occur until September or October, and that there would be plenty of time for people to educate themselves on the issue.
“The government education campaign and the information that’s going to be part of that has not yet started rolling out,” she said.
However, Appleby said it would be helpful to focus on what the Voice means in principle, rather than the details of the model.
“I think what people need to understand is that they’re performing a constitutional role, and it’s to be taken seriously, and they do need information. That has to be the starting point,” she said.
She said the key thing to understand was that the referendum has two purposes. The first is to make sure the Australian state recognises the special place and history of Indigenous peoples. The second is to make a structural institutional change so that Aboriginal and Torres Strait Islander peoples have a right to participate in relation to government and parliamentary decisions that are made about them.
“The actual detail of how that participation is going to be operationalised will be set by legislation, and can be tinkered with and improved over time,” she said.
She compared it with other referendums, such as those held by the colonies in the 1890s to adopt the Australian constitution.
“The Australian people were asked to vote on the idea of a Commonwealth Parliament,” she said.
“But they were not asked to vote on exactly how these people would be elected, the numbers of parliamentarians, that type of thing.”
If the first referendum goes ahead without the proposed law being spelled out it will be a plebiscite not a referendum. If the Government proceeds to an amendment of the Constitution without spelling out the law it will get challenged in the High Court and be declared in breach of section 128.
Surely the Government can do better than this.
Have you read the Australian constitution lately? https://www.aph.gov.au/constitution Of necessity it’s a broad brush document. It sets out the basic structures on how we’re governed, not the fine detail. There isn’t even a mention of the office of Prime Minister, but there’s lots about the powers of the Governor General.
The proposed wording on the Voice has to be seen in this context as it says what the Voice will be able to do, but not the precise mechanism by which this may be achieved, as it isn’t necessary.
So where are the broad statements from the government about the voice? Nada.
That’s what bothers me.
Section 128 says “The proposed law for the alteration thereof…shall be submitted …to the electors qualified to vote… .” There is nothing broad brush about that.
How many more times do I have to explain this?…………
A Referendum has legal force (i.e. it is binding on Governments)
A Plebiscite is only advisory (i.e it can be ignored by Government)
Read before posting:
https://peo.gov.au/understand-our-parliament/having-your-say/elections-and-voting/referendums-and-plebiscites/
A Referendum is what you have to change the Constitution, and only the Constitution.
A Plebiscite is an expensive opinion poll.
1. What would “a special place” confer?
2. Is the right to participate in legislation made by our representatives in our name not already enshrined in our Constitution?
3. Would a Treaty not achieve the same goals but have more legal weight?
4. Why would the Australian electorate trust Parliament on this issue when they didn’t on selecting a president in the Republican referendum?
The republic referendum was deliberately manipulated by the Howard government to make sure it failed. This referendum could be sabotaged with a similar strategy, but hopefully Albanese’s government will make an effort to ensure it passes. We’ll see…
Multiple treaties would be required, as making a single treaty with dozens of disparate groups isn’t feasible – and, anyway, treaties would have to be made by state governments as it is they who hold the land that the treaties would concern. But, I think, if done properly and in good faith, treaties could achieve the same goals – and much more. Treaties could finally legitimise the “settler” occupation of Australia – at least, partially anyway, where there are surviving Traditional Owners
Whoa! “Multiple treaties”? Legal treaties, what’s more.
Where did that idea come from?
It comes from logic. This sort of treaty can only be made between the owners of land and the occupiers. The owners are the Traditional Owners (TOs) of the many different countries in Australia, and the occupier is the crown in right of the state governments. There is no umbrella group for all TOs who could make a treaty binding on everyone, and there is never likely to be. The federal government could conceivably be delegated by the states to make a treaty on their behalf but, other than that, the only land the commonwealth holds in its own right, where it could make treaties, is the NT and the ACT.
The federal government (or anyone else) can’t legitimately make a single treaty applying to all of Australia, therefore there has to be multiple treaties
They never owned it they had no concept of ownership. That is whiteman’s dreaming. They have every opportunity to get on with their lives and many do but the issues in some of the settlements are all of their own making.
Define “ownership”
Exclusive possession.
Plus that rare word, responsibility thereto.
Although Caring for Country isn’t ownership, it still requires a comparable concept in modern Australia.
I would say that ownership of land is defined by the power to exclude others. I believe the Traditional Owners had that power, even if they didn’t subscribe to the English common law concept of ownership (whatever that is, or was at the time)
Yep. Two different ways of understanding things. We’re perfectly capable of accommodating both.
Sorry, I should have said belonging to Country and Caring for Country as they aren’t inseparable.
I’ll have another go, Belonging to Country and Caring for Country can’t be separated.
Well, not your concept of ownership anyway. Sounds like an updated form of terra nullius. How original of you.
just another stupid idea.
You need to check the constitution, treaties are a commonwealth responsibility.
International treaties, maybe, under the external affairs power. It is possible to argue that treaties with First Nations are international treaties – or at least, they would have been if they’d been made when they should have been, i.e., before settlement, like other colonies. But I don’t believe the consititution gives the commonwealth the power to enter into domestic treaties. You may be able to correct me on that, by pointing out where in the constitution that power comes from
So if multiple treaties are required because there are “dozens of disparate groups”, on what basis will there be a single Voice expressing a single view on a question that may affect those “dozens of disparate groups” differently? Or on which those “dozens of disparate groups” may have dozens of disparate opinions even if whatever is proposed affects them all equally?
That is an interesting question. I guess the answer remains to be seen – or not, if the referendum fails. However, I don’t think there would necessarily need to be a single view expressed by such a body. Multiple points of view could be expressed together
I am not Aboriginal and not white.
You’re right, all human beings are individuals.
I would think there are patterns. Like repeated problems – that can be said or shown and written down.
And repeatable or inspirational community led initiatives.
Just like, say, identifyable patterns that allow doctors to identify say, a stroke.
We still need to be listened to when we are sick or in danger.
Say, with a stroke – if no one will listen long enough to notice that maybe you’ve had a stroke, you just get worse and worse.
We all need food, shelter, fresh air, health, love/ to be cared for etc.
Humans need to be listened to. Their voices to be considered.
We can’t use the multiple/many treaties argument as an excuse not to have them; those treaties should have been done long, long ago. Nor should we use the ‘Treaties first, Voice later’ argument to postpone the Voice. I agree they could achieve similar goals, but dropping the Voice for ‘Treaties’ instead will mean no treaties and no Voice for umpty more years.
Howard neatly divided the nation into three: those who wanted a republic as per the Turnbull model and voted for it; those who wanted a different (presidential) model or a republic and voted against the specific proposal; those who didn’t want a republic of any kind.
Howard’s playbook has been dusted off by Dutton, who wants to divide us into (at least) three again: those who want the Voice and will vote for it; those who say they want the voice but won’t vote for it because they don’t have enough detailed information, in other words a ‘model’; those who don’t want a Voice under any circumstances, detail or no detail. Dutton knows he could repeat Howard’s trick by drawing out a specific model.
Various people are saying there are sufficient indigenous advisory groups already, or that jobs and education are more important and urgent, or even that indigenous people are already over-represented in the federal parliament. That’s a strange collection of arguments: many think the existing advisory groups are useless; jobs, education and the Voice can surely be concurrent priorities, with the Voice advising on that very subject; and indigenous MPs are not representatives, in the House, of indigenous people. I think that lot must be in the third group, opposing the Voice. Comforable with their arguments, their minds won’t be changed.
Australia is the only Commonwealth country which hasn’t signed treaties with its first nations. It’s also, as far as I know, the only colonial, or ‘settler’ (it does sound nicer, doesn’t it?) country that has no treaties. Canada and NZ began signing treaties with their first nations in the 19th century; in Canada, treaties are still being signed and revised. We haven’t got out of the colonial phase. Looks like we don’t do a treaty or a Voice; we must be special.
A treaty? Yes, it may well, but as my dear departed mum used to say ‘you’ve got to walk before you run’. I would argue a nationwide referendum on a treaty would coke and die. Why? To much denial still rests within too many. However, the voice is a great start point. Walk before you run…
When we ask for ‘detail’, THIS is what we mean:
1. Why and how will simply labelling as ‘The Voice’ yet another Indigenous Advocacy & Advisory framework – in this case an unformed, non-standardised, multi-tiered, cross-jurisdictional, very likely internally-factionalised, non-operational, non-funding, non-justiciable…oh, but Constitutional, o, yay, whitey magic!… one – will ensure it will make any difference, symbolically, functionally and/or re: outcomes, to that (not) made by:
a. ATSIC;
b. Land Councils;
c. First Nations Advisory groups of multiple shades and authorities since ‘67;
d. Indy and pro-Indy democratic Reps at Fed, State and local level;
e. Ministries, committees, public service departments, regional councils, elders networks, local community networks, consultants, authorities;
e. Indigenous legal networks;
f. Indy business, media, NGO and health advocacy groups;
g. Mabo;
h. the Redfern GAME-changer;
i. the tent embassy
j. Reconciliation policies
k. BLM
l. bridge walks
m. Apologies
n. NAIDOC
k. etc etc etc.
It’s not the smoke, mirrors and straw man sleight-of-hand kind of ‘detail’ we want. The contrived pantomime bickering over the structural set-up and legislative nuances – including the Cynical Fake War of Teh Detailzzz – are frankly just classic culture war street grifter patter. From both sides. Look over there! A lack of detail!!! No, nasty racist people whining about a lack of detail!
It’s like fixating on your kids bickering in the back seat while the car is heading for (another) dismal cliff of over-promise, exploitation and inevitable disillusionment
The accusatory lacuna being skated past by the Whitey Knowledge Classes, the arrogant mutual conspiracy of disdainful silence that truly enrages, is in the detail of WHY and HOW yet another version of a magical Imaginary Fwend in Knowledge Class Whitey’s Pwivilege Palace – ‘The Voice’ of Whitey-Bureacrat-Parliament-Constitutional God – is going to change things tomorrow, when multiple variations of it it have not…since 1967.
Detail? Why and how will once again doing EXACTLY what has serially failed since 1967 – in essence, Whitey tricking up crackpot bolt-on policy after crackpot bolt-on policy to keep the post-Colonisation victimhood ghetto standing, rather than bulldoze the whole f**king sh*theap of a prison flat – not fail again?
How much political capital is going to be wasted on this ludicrous display of unctuousness?
It’ll all end in tears and disrupt any of the real political work this country so desperately needs.
It’s about consulting Aboriginal Australians on policy proposals/legislation before Parliament to ensure that Aboriginal needs and interests etc have been taken into account. Bit like consulting women about childcare in the old days when Parliament was almost all male.
Giving them the respect of listening to them has never been tried.
The first (sic!) banking crisis in modern OZ in 1996, when the flaks were telling us that “banks deserve support in this difficult time” gave us that malign phrase “too big to fail”.
The same false concept applies to the major industries of welfare in general and FNs scams in general.
When have any of these scams ever said “Job done, time to close”?
Professor Appleby refers to the concept that First Nations people ‘have a right to participate in relation to government and parliamentary decisions that are made about them’ (emphasis added). And the paragraph in the Uluru statement which immediately precedes the call for the Voice states that:.
‘We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country’.
Do these references to participation and the acquisition of power affect the debate? Arguably, all Australian electors already participate in the parliamentary system.
You are correct, they don’t affect the debate about the Voice. To me those comments are longer term and reflect the intention to construct a treaty. This is long overdue and Australia needs to grow up and address it.
Aborigial people have every right to have their opinions heard by parliament on questions affecting them. Any normally reasonable person of any colour or ethnicity would naturally assume that this has been happening since the year dot. What they don’t know is that this has never been the case. They may know that in the early days of white settlement the owner/occupiers were treated as vermin, non-people and certainly not as equal citizens, and they likely believe that that treatment is now banished and that the problems created in those days have no effect on today’s aboriginal people. The difficulty of helping them see that this is incorrect is the main problem of the referendum, if it is to be passed. Certainly, in theory, black people are already represented in parliament just as we all are, but as only 3.5% of the population they have insufficient power to be listened to, and a generally biased and discriminatory population (and therefore also parliament) have ensured that they’ve always had the rough end of the pineapple. To continue doing what we have always done and expect a different outcome would be foolish and wasteful. This ‘Voice’ guarantees them nothing, but it will put the spotlight on parliament should it continue to throw resources at problems of which they have no understanding, when the same resources if guided by the people affected will have better outcomes. So vote Yes. Please. If you vote yes you’ll be doing yourself a favour.
After all, the Apology hasn’t made the sky fall.
Have you ever heard of the department of Aboriginal affairs. What is that all about? There are 1400 odd nations amongst the Aboriginals the chance of any sort of unified voice ever emerging is pretty remote.
Is that the Department that imposes policies without adequate consultation? Maybe we should have a formal process of consulting the people that the policies apply to. Oh wait!
Presupposing failure guarantees failure. If the Voice gets up the Dept will be the biggest hurdle to eventual success. They’ll have to make big changes to procedures as well as to the way they think – perhaps. Or maybe they’ll all breathe a big sigh of relief and just get on with it. As for a unified voice – it hasn’t been invented yet. Have a look at question time in Canberra. Or go down the pub. Or a CWA meeting.
Or to put it in what I suspect would be more familiar territory………..
………..an anti-vaxxer rally.
Oh, so now a “unified voice” is an essential pre-condition for First Nation Australians being heard or listened to by the 227 ‘voices’ elected to speak, debate and legislate for 26 million Australians?
You’re right – why would Parliament be the forum for expressing diverse views? Do you reckon it’s possible that First Nation Australians could be selected to speak for and debate diverse perspectives? And not even have to worry about voting too?!
Or is that ability or political right for ‘other’ Australians only?
Thankfully, the past 230+ years of white men appointed by other white men within a political and legal system maintained by white men has ensured a “unified voice” is expressed for First Nation Australians. It has been so simple and effective – a white man has been that ‘voice’ (on behalf of the 1,400 nations – as cited above) and/or maintained silence on relevant issues that thereby served to unify First Nation Australians in collective suffering of paternalism (a charitable reference, at times). ‘Close the Gap’ data should silence critics of the above process, surely?
Overall, I can see the strength of your analysis: this beautiful place I call home has truly benefited from parliamentarians who enjoy public-funded roles with legal protections (in fact, obligations), to express a range of ignorant, racist and malicious views and opinions in the law-making process for up to six years (or longer) having secured <2% primary vote. ‘The Voice’ represents a threat to this system, does it?
Who would even consider allowing a non-voting collaborative First Nation ‘Voice’ to participate in any decision-making process (noting the absence of voting power) when our current system already caters for a degree of diversity in voices that speak for us all in unity? Just look at the outcomes for ATSI Peoples! Or it simply and entirely beyond our control in which case, why should we listen to the Voice of people who are and can speak for the oldest continuous civilisation on Earth?
Well said Drastic.