A First Nations Voice, Constitutional Law Reform, and the Responsibility of Lawyers
Megan Davis
26.05.2022
The commitment by Prime Minister Anthony Albanese to a referendum in his first term of government puts lawyers squarely in the frame of influence over the coming years. Referendums are rare in this country. The last one was in 1999, and the last successful referendum was in 1977. Referendums are one occasion that Australians do want to hear the views of lawyers. And this is a serious responsibility for all of us.
Many of us are lawyers who work in law schools and law firms and not for profits who frequently give Acknowledgements of Country, and embrace Reconciliation Action Plans (RAPs), employment quotas and procurement policies to support black businesses. Yet many of these activities do not change the status quo and lead to enduring change. A referendum to constitutionally enshrine a First Nations Voice is an opportunity for Australia to try something different: constitutional recognition, rights and reform is an approach to addressing structural inequality, disempowerment and disadvantage through structural reform.
Since the Uluru Statement from the Heart was issued to the Australian people five years ago today, the Indigenous Law Centre at the University of New South Wales has been involved in bringing legal experts together from across the country to talk about and discuss how to implement the reforms it calls for, as well as the importance of all lawyers' role in constitutional law reform. This is a conversation for lawyers no matter what field you practice in.
A successful modern referendum
There is much speculation as to whether a referendum on the Voice would succeed or will fail. The references and anecdotes deployed by many when predicting the success or otherwise of a referendum generally come from the Republic referendum in 1999, and the various lessons drawn from the same sex marriage plebiscite. There is a firm view that bipartisanship is required for a referendum to succeed.
The reality, however, is very different. The Indigenous Law Centre has done work over the past five years with electoral experts to determine the conditions required for a successful referendum. There is no precondition to a successful referendum. And, most importantly, there is no good data on referendum success relevant to a referendum on the Voice that will be held in 2023 or 2024. The eight successful referenda out of 44 do not provide comprehensive or conclusive information about the conditions for a successful modern referendum.
Not only do we have the influence of social media in 2022, but we also know that the trust of the Australian people in political and legal institutions is at an all-time low, undermining the influence they are likely to have on a vote. Indeed, the Australian people are likely to look to many and varied sources of information in deciding how to vote in a Voice referendum, and lawyers have an important role in this conversation. One of the most important factors in referendum success is the proposal itself, and lawyers have a key role in ensuring that the Australian people understand this proposal correctly: its fundamentals, the difficult questions, the detail, and the history.
Lawyers and the Fundamentals
Why do lawyers take such a prominent role during a referendum campaign? Because a referendum is all about the law, the highest law in the land. Many Australians are not fluent in public law, or, indeed, have any interest in the law. And so they turn to experts: lawyers.
One of the key reasons that lawyers play an important role in referendum campaigns is that Australia has a very low level of civics knowledge and relatively poor civics education. Many matters that will be relevant for voting in a referendum are not well known by Australians: the fundamentals of how the Commonwealth Parliament functions, the role of the Senate, the role of the House of Representatives, the role of the High Court of Australia, the role of the Australian Constitution and how you change the Australian Constitution. So people will look to lawyers to provide them with some advice on the fundamentals of the Constitution and a referendum and the question posed to them at the ballot box.
This means lawyers have a responsibility to know the basics of what the First Nations Voice is, and why it needs to be constitutionally enshrined.
The purpose of this post is not to say lawyers shouldn’t express a free view in the course of discussing a referendum on a First Nations Voice, but rather to urge lawyers to read and become fully informed about what the referendum is about, read the Uluru Statement from the Heart and the Referendum Council Final Report. This information will enable lawyers to play an important role in community legal education, and ensure that the information and analysis they provide is based on the facts.
Lawyers have a particularly important role in this referendum because it will be the first to be run in Australia in the era of social media. Social media – like Facebook and Twitter – contain significant amounts of misinformation, and are not regulated. Key pieces of misinformation that we are already seeing on those platforms is the false assertion that a Voice to the Parliament in the Constitution ‘cedes’ First Nations sovereignty, or falsehoods about the process in the Regional Dialogues and the Constitutional Convention that delivered the Uluru Statement. Australians should be supported to make an informed choice, not one based on misinformation. But some of these issues are not straightforward.
Lawyers and Difficult Questions
Lawyers have a responsibility to address questions that will arise regarding Aboriginal and Torres Strait Islander peoples and the law beyond the fundamentals of the Voice. For example, questions about why not address the races power (s 51(xxvi) of the Constitution) or a non-discrimination clause, or about the process at the Regional Dialogues and the Uluṟu First Nations Constitutional Convention.
Also, there is the question of the ‘ceding’ of sovereignty: whether recognition ‘cedes’ Aboriginal sovereignty. This is a niche question that most Australians have not yet contemplated, but that is already a significant part of social media commentary and debates on the Voice.
The Expert Panel on the Recognition of Aboriginal and Torres Strait Islander Peoples in the Australian Constitution in 2011 sought legal advice from an eminent silk and others confirming that recognition does not foreclose on sovereignty: no one can cede our sovereignty but ourselves. It is not up to the state to determine. The Expert Panel report states:
Advice received by the Panel is that the sovereignty of the Commonwealth of Australia and its constituent and subordinate polities, the States and Territories, like that of their predecessors, the Imperial British Crown and its Australian colonies, does not depend on any act of original or confirmatory acquiescence by or on behalf of Aboriginal and Torres Strait Islander peoples.
It derives from the majority view of the High Court in Mabo v Queensland (No 2) that the basis of settlement of Australia is and always has been, ultimately, the exertion of force by and on behalf of the British arrivals.
Advice to the Panel is that recognition of Aboriginal and Torres Strait Islander peoples in the Constitution as equal citizens could not foreclose on the question of how Australia was settled.
Nor should constitutional recognition in general have any detrimental effect, beyond what may already have been suffered, on future projects aimed at a greater place for customary law in the governance of Australia.
Lawyers and the Details
Another question will be on the amendment: what are the words that go in the Constitution? The short answer is: it is an enabling provision. Constitutional enshrinement is about establishing and protecting the institution and setting its core function, and then enabling Parliament to legislate for the detail. I urge all lawyers to read the explanation of this issue by Associate Professor Sean Brennan and understand what the enabling provision is likely to look like. The deferred approach is not dissimilar to the way the High Court of Australia was set up. There was an enabling provision in 1901 but the Court was not created by legislation until a few years later.
The question about the substance of the Voice: what will it look like? The bricks and mortar of what a Voice looks like will be finalised after the referendum. There is a wealth on information about what a Voice might look like from the 2018 Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander People to former Indigenous Australians Minister Ken Wyatt’s Indigenous Voice Co-Design process. There is certainly enough detail for a referendum on the enabling provision to occur next year.
Lawyers and the history of law
As lawyers many of us understand that much of what happened to First Nations peoples since 1788 was sanctioned by law. Much of the narrative that Australia was a lawless frontier must give way to an accurate picture of how the parliaments and courtrooms of the Colonial-era and post-Federation sanctioned the dispossession and subjugation of a peoples. Of this Noel Pearson has said:
it is not the horrific scenes of mass murder that are most appalling here, it is the mundanity and casual parsimony of it all.
The Toward Truth project I have been involved in through the Indigenous Law Centre in partnership with the Public Interest Advocacy Centre (PIAC), to create a definitive and factual database of laws and policies in each jurisdiction, seeks to set out the role the law has played since 1788.
First Nations peoples were dispossessed following the invasion, historians say there was a brief conciliation period, and then frontier war as pastoral industries expanded and markets expanded onto Aboriginal land. This is known as the Frontier Wars or the Killing Times. Eventually this gave way to the ‘protection’ era as the numbers of Aboriginal peoples dwindled. This swept in a brutal and draconian era of non-freedom created by statute. These laws were passed for the ostensible ‘protection’ of Aboriginal people, to protect them from diseases and reprisals or arbitrary killings and murders. Eventually the protection era was dismantled – as Australia signed onto important international agreements that spoke to equality and non-discrimination – as the nation could no longer justify having Aboriginal peoples racially segregated. The dismantling of this legal framework led to the assimilation era in which we saw the removal of children from their families and the continuing theft of Aboriginal wages by the state. Many families never saw their children again and while a few Aboriginal people saw the return of some wages that they had worked hard for, they had to settle for compromised settlements and often measly compensation.
Australia has never had a serious national discussion about reparation. And while I have been critical of the way in which truth and justice and reconciliation have been conceptualised in Australia – and in particular the way transitional justice theory and practice has hijacked truth-telling – the fundamental question of reconciliation is: What does repair look like?
The hundreds of men and women of the First Nations Regional Dialogues – the historic process that included Indigenous peoples in Constitution building for the first time – said repair was a constitutionally enshrined First Nations Voice to the Parliament.
The law can oppress and the law can redeem
Today is the fifth anniversary of the Uluru Statement from the Heart. I started work at UNSW twenty-two years ago teaching public law and researching constitutional recognition under the supervision of Professor George Williams. Twenty-two years later a Prime Minister has committed to a referendum on meaningful constitutional recognition of First Nations.
This is not an insignificant thing.
I want to conclude by recalling what my mentor at UNSW law school, Emeritus Professor Garth Nettheim, said to me and to a generation of Australian law students who read his work: the law can oppress and the law can redeem. This is what the Uluru Statement is about. It is setting out what repair looks like and asking Australians to walk with us in a movement of the Australian people for a better future. It is only through a referendum and the Australian people speaking that we can have our voice heard and a permanent role in the democratic decision-making of the nation. There is only a short window of opportunity for the nation in which this can happen and everyone from grandmothers to grandfathers, fathers and mothers, brothers and sisters, friends and extended family will look to you as an Australian lawyer and ask for your advice and this is an important responsibility for all lawyers.
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Megan Davis is a professor of constitutional law and holds the Balnaves Chair in Constitutional Law and is Pro Vice-Chancellor Indigenous at UNSW Sydney. Professor Davis is an Acting Commissioner of the NSW Land and Environment Court.
Suggested citation: Megan Davis, ‘A First Nations Voice, Constitutional Law Reform, and the Responsibility of Lawyers’ on AUSPUBLAW (26 May 2022) <https://www.auspublaw.org/blog/2022/05/a-first-nations-voice-constitutional-law-reform-and-the-responsibility-of-lawyers>