A Referendum on the First Nations Voice to Parliament is a National Priority

Teela Reid

30.11.18

Labor has promised to uphold its commitment to enshrine a First Nations Voice to Parliament as a matter of priority. This means Bill Shorten has the opportunity to redefine a nation that so desperately needs leadership. Despite the current lack of parliamentary bipartisanship, unfinished business with First Nations must be addressed immediately. Labor’s focus should be on the pathway towards a referendum, not the details of a specific model for a Voice.

Before the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples released its final report on Thursday, Labor revealed on Tuesday that its first priority for constitutional change is to enshrine a First Nations Voice to Parliament. This was announced in a joint statement by the Leader of the Opposition Bill Shorten, Senator Patrick Dodson, Senator Malarndirri McCarthy and Linda Burney MP and immediately reinforced by the shadow Attorney- General Mark Dreyfus.

However, Labor also announced that in the absence of bipartisanship it will look to legislate a ‘new body’ as a first step on the pathway towards enshrining it in the constitution. Nobody knows what this body means. If its role is to design a legislated First Nations Voice to road-test before a referendum it is not necessary. As Indigenous law academic Gemma McKinnon wrote, ‘trialling an Indigenous Voice before a referendum is like forcing us to audition,’ and it is wrong. Labor’s focus should be on the process towards a referendum that includes creating the question to be put to the voter, not the legislative details of a specific model.

Labor should not wait for parliamentary bipartisanship to decide whether to put a First Nations Voice to Parliament to the Australian people. Bill Shorten should not hide behind the façade that a referendum requires parliamentary bipartisanship. Labor need to capitalise on the groundswell of Australians from across the political spectrum that support the enshrinement of a First Nations Voice to Parliament, then provide the leadership to build bipartisanship.

This is a case where parliamentary multipartisanship may need to follow the multipartisanship of the Australian people.

Labor did not wait for the Coalition to agree to a republic plebiscite so why wait with respect to a First Nations Voice? Otherwise it seems there is one rule for the republicans and another rule for First Nations. This is the torment of our powerlessness and it strikes as a double standard. If Australians were required to wait for the Coalition to take action on important issues, we would achieve very little given the current state of affairs. This is a matter for the people to ultimately decide, not Parliament.

The idea to enshrine a First Nations Voice in the Australian Constitution is modest but profound, and achievable. Certainly, the Australian people need clarity to ensure they understand the question before they get to the ballot box. This means a robust education process as to why a First Nations Voice in the decisions that affect our lives is urgent and necessary. It will require a smart political strategy to address concerns and provide Australians transparency in how the Voice will be designed and implemented upon a successful referendum.

The enshrinement of a First Nations Voice is the first step to enabling the detail of design in legislation. To attempt to design a model before a referendum will mislead the Australian people, and likely set a referendum up to fail over small details that are not themselves constitutionally enshrined. If you design the Voice first, the referendum will be mired on the design and not on the significance of recognising the unique status of First Nations Australians as part of our national identity.

The benefit of legislating after a referendum means that the design has the capacity to evolve. It allows the detail to be co-designed by parliament in a process driven by the self- determination of First Nations Australians who have long struggled to have their voices heard.

The power and success of the First Nations Voice enshrined in the Constitution depends on its public status. A referendum process provides the vehicle for public discussion that is necessary to elevate the Voice to the legitimacy it deserves in our democratic process.

Constitutional recognition of First Nations occurs throughout the world. And while we can look to other countries like New Zealand and Canada for guidance, First Nations in Australia have had a very different struggle before us. So what lies ahead requires a very clear and definite strategy. This is why a sequenced set of reforms were offered in the Uluru Statement – first, a First Nations Voice to Parliament and second, a Makarrata Commission to enable treaty processes and truth-telling.

Indeed, a successful referendum is a monumental task. We should embrace the opportunity that comes with a referendum to provide a national discussion about the rightful place of First Nations. It is long overdue. The time for talk is over. Australia, we have nothing to lose, but a lot to gain. Bill Shorten, now is the time to step up and show leadership.

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Teela Reid is a proud Wiradjuri and Wailwan woman, lawyer and human rights advocate.

Suggested citation: Teela Reid, ‘A Referendum on the First Nations Voice to Parliament is a National Priority’ on AUSPUBLAW (30 November 2018) <https://auspublaw.org/blog/2018/11/a-referendum-on-the-first-nations-voice-to-parliament-is-a-national-priority/>.