This is the third of five posts in a special series that AUSPUBLAW is featuring on the First Nations Voice to Parliament. This series is co-hosted with the newly launched Indigenous Constitutional Law Blog, and also features posts by Megan Davis, Geoffrey Lindell, Gabrielle Appleby and Eddie Synot, and Harry Hobbs. If you are interested in this, and other constitutional issues facing Indigenous peoples, we encourage you to visit that blog and consider subscribing for future posts.

BY SANA NAKATA

Where to start

It is hard to know where to start sometimes. Australia-as-we-know-it is often said to start at 1788. But we know better. Still, the forces of our contemporary political moment, our disciplinary training, our institutional arrangements so often have us starting at a point in which Australia has already come to exist. I find this hard. Untenable even. As a political theorist and a Torres Strait Islander, I cannot accept the political legitimacy of the Australian state. It doesn’t make sense to me. You can’t steal an entire continent and then govern legitimately; it shouldn’t be possible. You certainly cannot declare yourself sovereign over it, amongst the presence of hundreds of communities and nations with their own languages and systems of kinship, land management, inheritance and law. And yet, here we are. Struggling to know where to start.

In other settler colonial states, some First Nations were able to fight for and negotiate treaties soon after first contact. That is, there are some treaties that are brokered at a point in time when the legitimate establishment of a new state isn’t yet complete. First contact treaties make more conceptual sense. They resemble a negotiation between sovereigns working toward a new kind of relationship, a new foundation for governing. They are founded on a level of respect by each party for the other’s claim to a place, to a people, to a nation. This founds a willingness to ‘treat’, to exchange and debate and compromise – or not.

In 2021, the states of Queensland and Victoria are at various stages of establishing the processes and institutions to negotiate treaty between First Nations and the state. The Northern Territory is engaging in its own negotiations. Other processes, including that in South Australia, have commenced but ceased, unfulfilled. These processes – some more admirable and promising than others – show just how exceptionally hard it is to broker a serious, meaningful treaty between sovereigns in a legal and political context in which the state has governed – unquestioned – over Aboriginal peoples and Torres Strait Islanders for centuries already. In endeavouring to make a new start for Indigenous-settler relations on this continent, we find ourselves embroiled in the complexities of what was begun in 1788, and formalised in 1901 with the federation of colonies in the Commonwealth of Australia under a new Constitution.

In 2017, the Uluru Statement from the Heart and the Final Report of the Referendum Council provided us with a new start: a proposal for a First Nations Voice to Parliament enshrined in the Constitution. The Uluru Statement starts with Voice in order to make Treaty and agreement-making possible. The reasons why are at times technical, and I’m not about to suggest you read the Constitution. But you are not required to be an expert on constitutional law in order to be an engaged citizen. So, let me tell this story from outside rather than within the law.

Understanding Treaty under the Australian Constitution

In some ways, constitutions can be understood as the start of a nation-state. The Australian Constitution is the product of a series of conventions held in the late 19th century, in which representatives of the colonies came together to debate and negotiate the terms of a new federation that would become the Australian state.

The history books tell us that these weren’t violent conventions; there was, the books say, no war. But, of course, we know better. There was war. There were wars. All across the frontiers. Aboriginal peoples and Torres Strait Islanders still carry the grief for all that was lost. The difference is that it was not from this conflict that the Australian Constitution emerged. The document that commences the Australian nation-state, the document that provides the rules upon which the state must act in order to govern legitimately, paid no regard at its inception to the sovereign claims of the First Peoples of this continent. It paid no regard to their continued existence as peoples. It paid no regard to the ongoing violence against them. Indeed, it explicitly expunged their existence from the peoples of the Commonwealth; it left the colonies, now states, with responsibility for their welfare. While the explicit exclusion of First Nations peoples was remedied in the 1967 referendum, what remained was a constitutional silence.

It is in this context that a proposal for a Voice to Parliament to precede Treaty must be understood. Voice precedes Treaty in Australia because the nation-state with which First Nations must negotiate has already established the foundational rules that cement its unquestioned political legitimacy. In the celebrated case of Mabo (No 2), the High Court recognised the pre-existence of First Peoples societies and laws, but denied any attempt to question the state’s claim to legal sovereignty.

Without a change to the foundational rules of the state – the Constitution – treaties negotiated between it and sovereign First Peoples remain at risk of being a negotiation between foundationally unequal entities, producing agreements that fail to reflect inter-sovereign respect and that are unenforceable as a matter of both law and politics in the Australian state. Reliance on international law’s power to give effect to domestic treaties is misguided. This issue must be remedied at the domestic level.

What does a Voice make possible under the Constitution?

For some, the time and work and energy required to get to Voice would be better spent in being put immediately into Treaty. That’s understandable: as the Uluru Statement itself makes clear, Treaty is the point.

Makarrata is the culmination of our agenda: the coming together after a struggle.

Voice precedes Treaty not because a Voice matters more, but because of what a Voice makes possible. We cannot, and should not, anticipate what an agreement-making process would look like at the federal level nor what it is that First Nations would seek to negotiate through that process. But we must anticipate that it requires the Commonwealth to enact the terms of any Treaty. Want a new funding model for community-led health? That will require legislative change. Want to give land back? Ditto. Want to abolish the Australian Federal Police? Same. This is the problem with an already existing state negotiating Treaty: it already has written into its Constitution the scope of its law-making powers. And the scope of those law-making powers, including the race power as amended in the 1967 Referendum, are taken to be legitimate and enforceable without any regard to the claims or interests of Aboriginal and Torres Strait Islander peoples.

The only power Aboriginal and Torres Strait Islander people have within the Commonwealth’s law-making powers is to vote for their representatives as one of the millions of electors. But our vote doesn’t count for very much in most electorates in this country. At best, we can become Members of Parliament. But Members are charged to represent their geographic electorates (including state interests, in the case of the Senate). They are often elected as members of a political party with its established policy platforms, including on Aboriginal and Torres Strait Islander affairs. No Aboriginal or Torres Strait Islander person gets elected to Parliament empowered to represent Aboriginal and Torres Strait Islander communities. The only way the Parliament will ever be able to hear our Voice is through constitutional change that formally protects it.

Others have written and will write about what the limits – legal and political – of a constitutional Voice must be. There is a general consensus, for instance, that it cannot be a veto power on the law-making power of the Constitution. The reasons for that are both technical and political. This limit is an important reminder that the Australian state will always be potent – even after Voice, even after Treaty.

Does that anger me? Absolutely. But still, it focuses my attention: it makes sharper the importance of ensuring that the law-making power of the Commonwealth, if it must always be potent, at least ceases to be omnipotent. That at a minimum we create a mechanism that our votes and willingness to stand for Parliament will never alone achieve: the promise that no law can be made about us, without us. And to create this additional mechanism and function within Australian law-making power requires rewriting the rulebook.

And imagine all that becomes possible after that. Imagine a Treaty-making process in which a hundred different nations have been able to come to the negotiating table with a list of demands that would require the Commonwealth to act: to redistribute power, to redistribute wealth, to fundamentally alter the relations between the state and Indigenous peoples. And imagine, at that table, if those negotiating knew that when push came to shove and for those changes to become possible that a law needed to be passed by the Parliament of Australia. And that when that time came, it would not just go to a mostly white, mostly male, mostly university-educated, professional elite, Parliament, but also to a First Nations Voice. A First Nations Voice that could never be silenced. Is it a slam-dunk guarantee that all our hopes and aspirations for the future will be realised? No. And may we all damn the colony for that. But does it make the realisation of those hopes possible? Yes.

Voice precedes Treaty not because of what it does, but because of what it makes possible: a new start.

The purpose of Voice is to make sure that Treaties, negotiated not at first contact but centuries later, have every chance to be strong, enforceable and transformative. We cannot risk Treaties that will become further artifacts of an already-history. Symbolic. Unenforceable. If our continued screams are silenced by bureaucracies, then for what will our truth matter except for the continued performance of our rage and grief for a third century and longer. To make our Truth count, we must have Treaty. And to have Treaty, we must have Voice. And if our Voice is not to be silenced when it becomes too hard to listen to, it must be constitutionally enshrined.

The Interim Report on an Indigenous Voice: A fundamentally different concept

It is in this context that there is much frustration to be had with the Interim Report to the Australian Government on an Indigenous Voice Co-Design Process. Let us be plain here: this Interim Report has transformed the meaning of Voice substantially from that in the 2017 Uluru Statement from the Heart. But let us also be fair: this was no easy remit for the Co-Chairs of the Senior Advisory Group. The Co-Chairs had been charged by the Minister for Indigenous Australians, the Hon. Ken Wyatt, to report against the following:

In order to achieve a design for The Voice that best suits the needs and aspirations of Aboriginal and Torres Strait Islander peoples, the Committee recommends that the Australian Government initiate a process of co-design with the Aboriginal and Torres Strait Islander peoples.

This direction deliberately unanchors the Voice from its origins in the First Nations dialogue process that commenced in 2016 and culminated in the Uluru Statement from the Heart. The terms of reference provided to the Co-Chairs ruled out from the start any discussion on the question of constitutional enshrinement of a Voice to Parliament. This dispensed with the most agreed upon principle of the Dialogues: Aboriginal and Torres Strait Islander people across the country are fed up with symbolic gestures and reform processes that represent nothing more than the rearrangement of deck chairs on a boat while all our people are already in the sea. And yet here we are, at real risk of rearranging the deck chairs yet again.

The terms of reference transformed the Voice from the most significant proposal for constitutional reform the Commonwealth of Australia has ever been called upon to consider, into little more than business as usual. The Commonwealth’s terms of reference silenced the voices of 1200 dialogue participants by writing the core of their demands out of their scope.

The most strongly endorsed reform by dialogue participants was a constitutionally enshrined Voice to Parliament. The second most endorsed reform was Treaty, and a third significant principle that emerged was the importance of truth-telling. Voice. Treaty. Truth. The Voice that the Interim Report has ended up advising on is, sadly, very different from what was envisaged by the Dialogues. They are quite simply different ideas, grounded in different values and different ideals, and emerging from different political processes.

The Interim Report offers up the best that is possible within its limited remit. It sustains the need for an Indigenous Voice and marks itself as the most recent in centuries-long efforts by Aboriginal and Torres Strait Islander peoples to realise their aspirations within the limited legal space that the Commonwealth is willing to give us.

There are many things that the Interim Report’s proposal, in any of its variously configured models, could potentially deliver. But for me, there are two necessary consequences to the Voice: Treaty and Truth. While a Voice could deliver many things, the Dialogues make clear that if it cannot deliver Treaty, if it cannot deliver Truth, then its value is fundamentally undermined. There is one condition necessary to realise a Voice that cannot be silenced: constitutional enshrinement.

The Interim Report thus delivers its proposal against an impossibly limited brief. It is also the very example of why a Voice is necessary for Treaty, and why both are necessary for Truth.

It starts with our Voice

I started this post not sure where to begin. I find myself thinking a lot about how the start is both a long time ago, and still a bit further ahead. This country, this extraordinary continent that has sustained life and love and plans for the future for millenia upon millenia, tells us that we are more than today’s colony. We are country. We are entwined into an ecosystem that is unravelling at the seams, having categorised ourselves outside of all that is more than human in it. And so, it is true that we are also more than a Constitution, more than a federation of colonies, more than a dysfunctional muddle of parliaments. We are more than something that began in 1788 or 1901 or 1967 or 1983 or 2015; though it must be said that we were all changed in those years for worse more than better.

We began at the very moment that human life burst to life on this Earth. And ever since, the First Peoples of this continent have imagined and brought to life futures of their own making. And then there was this moment when the violent unravelling began and we stand on the cusp of a moment when those effects threaten to incinerate us all. But between that long past, and the ever-closer end, we have a chance to take our futures back again. And it begins with our Voice.

Sana Nakata is Associate Professor in Political Science and Associate Dean, Indigenous, at the Faculty of Arts, University of Melbourne and co-director of the Indigenous-Settler Relations Collaboration.

Suggested citation: Sana Nakata, ‘On Voice, and finding a place to start’ on AUSPUBLAW (3 March 2021) <https://auspublaw.org/2021/03/on-voice-and-finding-a-place-to-start>.