On Voice, and the political power of representation
Sana Nakata
20.02.2023
Let me begin by acknowledging Wurundjeri Country from where I am speaking with you today, and the ongoing sovereign claim to this place and care for this place by Wurundjeri elders past and present. I acknowledge Gadigal country upon which this conference is taking place, and all Indigenous peoples who are joining us today.
On 6 February 2023, Victorian Senator Lidia Thorpe resigned from the Greens party to move to the crossbench in order to more fully represent a ‘Blak Sovereign’ movement. It sustains her request for greater assurance from the Albanese government that Black sovereignty would not be placed in jeopardy by constitutional recognition, as well as calls for Treaty first.
From this political perspective, anxiety abounds that the Voice will not result in the change it promises. The Voice proposal has also sustained criticism from conservatives for lacking ‘detail’. But this criticism is better understood as reflecting anxiety that a Voice to Parliament might actually change the political landscape too much - notwithstanding the absence of any power to compel or veto government action. This tension between the Voice to Parliament both being seen by some as not enough change, and by others fearing still that it is too much change, produces extraordinarily difficult politics for a Yes campaign.
In this post, I want to think through sincere responses to these concerns. In doing so, I want to make two points. First, the Voice to Parliament is a direct response to what we identify and name as ‘systemic injustice’ in any number of policy settings – from criminal justice, to child protection, to health and education – because it is an attempt to remedy the unjust foundations of the political system itself and the way in which laws are made. Second, as an effort to perfect a system of political representation for Aboriginal and Torres Strait Islander peoples, constitutional reform is less a form of substantive justice in and of itself than a foundation upon which substantive justice can be more effectively realised.
This tension – that the Voice is a significant effort to address foundational systemic injustice in a manner not previously imagined, and also that it alone is not a direct and substantive justice – underscores the importance of the sequence of the Voice preceding Treaty and Truth processes. I argue that Voice first is important not because it matters more, but because of what makes it possible in the future – however uncertain this future necessarily remains. Because a Voice addresses foundational systemic injustice and the absence of effective political representation for minority First Peoples rather than specific injustices with direct and more immediate specific remedies, it has been difficult to attend to criticisms from both sides of the political spectrum.
The Voice and political marginalisation
The Voice has been described as an ‘elegant compromise’ to the marginalisation of Aboriginal and Torres Strait Islander peoples, who constitute a small minority within a representative democratic system.
As it stands, the only formal right to representation that Aboriginal and Torres Strait Islander people have within the Commonwealth’s law-making powers is at the ballot box for local, state and federal representatives. But our vote does not 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) and they are often elected as members of a political party with its established policy platforms, including on Aboriginal and Torres Strait Islander affairs. The tension that this produces has been highlighted by Senator Thorpe’s departure from the Greens.
The sustained level of support for a constitutionally enshrined Voice across the Australian public over time tells us that most Australians understand this political marginalisation and the need for change. Conservatives who subscribe to principles of formal equality and consider electoral participation sufficient for Aboriginal and Torres Strait Islander peoples and communities, and a media that continues to elevate such concerns in the pursuit of presenting balanced arguments, are clearly out of step with how our contemporary nation as a whole understands the foundational and systemic conditions that sustain our political subjugation as Indigenous peoples.
It is for this reason that I worry less about the conservative opposition to the Voice than the progressive opposition to the Voice. Unlike conservative opposition, the progressive opposition recognises that the political system is foundationally unjust, and unable to represent the interests and perspectives of diverse Indigenous communities across this continent. But they also challenge that the Voice does not go far enough to ensure consequential action to change the everyday lives of Aboriginal people and Torres Strait Islander. Unlike those querying implications for First Nations sovereignty, which is a baseless concern in a settler colony that has failed to supplant our sovereignty despite its every effort, this question of action and consequence is a challenge more worthy of response.
The Voice, accountability and justice
A Voice creates a mechanism of accountability between the Parliament and First Nations that does not currently exist. However, as I’ve stressed, this representative mechanism alone is not necessarily a justice in itself. To remedy or perfect a colonial political institution, rather than to work to further undermine its legitimacy in governing over our selves and communities, is dissatisfying for many. There is an awareness that the ability to be heard is not alone enough to deliver substantive justice to Indigenous peoples.
From this perspective, the justice that is being sought will only be realised in a Country in which there is not one more death in custody, not one more baby taken from their mother. It lies in greater political autonomy, in the direct management of lands and seas in ways that can help to mitigate against future climate disasters. It will bring an end to endemic alcoholism in some black communities. But more importantly, this realisation of justice will bring an end to endemic racism in our legal and healthcare systems.
If our experiences of injustice are deaths by a thousand types of wrongdoing, then so too justice must come from a thousand sites of necessary action. It is not clear to many who fiercely believe in the pursuit of justice for First Nations communities how a Voice can do these many different things. Most Australians do not regard the actions of the government by reference to the Constitution’s heads of power, but rather in terms of service delivery on the one hand and minimising the imposition of government into our everyday lives on the other.
So, how can a Voice do these things? This is a worthy question for which there is no simple answer because the injustice the Voice remedies is a systemic injustice, one that is designed into the very structures of our law-making institutions. It remedies the failure of a representative democracy to represent the very peoples who were dispossessed and disempowered by its establishment. It brings with it no power to compel or to veto government action. While the lawyers may well understand why this is, for those who want to remedy not the injustice of ineffective political representation but dispossession, this is hard to accept.
To respond to this, we need to build a stronger understanding of what political representation does and does not do. The power of political representation lies not in a direct line to political decision-making or even in its aggregative effect to elect a Member of Parliament, but in the ability to sustain a set of political claims, both to a compelled audience – in this case the Parliament – but also a broader public. All Aboriginal and Torres Strait Islander people understand the latter, because this is what centuries of social and political activism have involved: the building of constituencies around common interests, the emergence of activists and spokespeople who give Voice to those interests, who use a range of tactics to pierce public debate and conversations and drive media attention that, in turn, might produce government engagement and decisive action. The barrier this representative field faces is in the absence of any assurance that the Parliament will heed these loud Voices and our sustained political claims. This is the very specific weakness in our political system that a Voice addresses. A constitutionally enshrined Voice, is, for this reason, both a significant but also a very precise, if not small, innovation.
I am often struck by how surprised politics students are to learn that while the 1967 referendum enabled the Commonwealth to make laws about Aboriginal peoples and Torres Strait Islanders, the Courts have told us that it is not required by the Constitution that these laws are made to our benefit. The Voice referendum partially remedies this, by protecting the right of Aboriginal and Torres Strait Islander peoples to be heard on matters that affect them. For some, this is not enough; for others, fears remain that it is too much. I contend that this is both a significant and valuable pursuit, an important strengthening of our political rights, and need not be sold as more or less than it is.
Representation and the Victorian Treaty experience
In Victoria, the Andrews government’s commitment to negotiating treaties was enabled through legislation in 2018. The first stage of work that this process had to build, led by then Treaty Commissioner Jill Gallagher, was the formation of a representative body. The preamble to the 2018 Treaty Act states that ‘this Act requires the State and a future Aboriginal Representative Body, as the voice chosen by Aboriginal Victorians, to work together in partnership to establish the entities, rules and resource base necessary to facilitate future treaty negotiations’. While at the national level the Makarrata Commission will be a separate entity for treaty negotiations, my observation here is that Treaty negotiations, and even the pre-negotiation stage of building treaty frameworks, could not take place without first establishing what has become the First Peoples’ Assembly of Victoria.
As an outcome of legislative power, with each passing state election there has been anxiety to progress the treaty process enough to make it politically untenable for a change of government to wind back or abandon Treaty, as has occurred in other jurisdictions. This is what occurs when the principle of representation is not constitutionally protected.
The Assembly, and the even more recently established Yoo-rrak Commission, uses its Voice to sustain political claims about such matters as child protection and criminal justice, including the campaign need to raise the age of criminal culpability from ten to fourteen and reform bail laws, even outside of formal Treaty negotiations that are still yet to commence. Commissioner Geraldine Atkinson stated that ‘we can’t wait until 2024 for a state wide treaty and then begin negotiations on this work. This work needs to start now. We know what needs to be done. We just need the power to do it.’
While those of us in Victoria would all acknowledge that the Assembly is not a perfect form of political representation for the Indigenous peoples of Victoria – Islanders living a long way from home, and Traditional Owners alike – it remains that this is the powerful work that representation does. It puts on the agenda issues that the wider public and media and government would rather ignore, and keeps them there.
In building a richer, more diverse, more impactful public discourse, these representative fields are effective not because of their institutional perfection – no representative body, the Commonwealth Senate and House of Representatives included, is perfect – but because of how they produce and sustain a politics that demands and initiates action. It is sometimes a slow and winding path from representation to political action, but political action in a democracy is never realised without there having first been an energetic field of representative claim making. This is what all political communities work to effect.
I am not holding out here the First Peoples’ Assembly of Victoria or the Commission as model examples of political representation. Instead, this example reminds us that representation is, in practice, a form of political power, and that Aboriginal peoples and Torres Strait Islanders have effected different forms of political representation since the arrival of Europeans, and will continue to do so by any means necessary. It is also an example of political vulnerability when that representative landscape exists at the whim of a Parliament and a government of the day, rather than at the demand of a nation who have decided that the representation of a continent’s First Peoples is a minimum requirement to govern with any possible legitimacy in this place.
The Voice invests in the ever present power of Aboriginal people and Torres Strait Islanders in the halls of every decision-making site in this country. I am deeply protective of our right to do so with the greatest levels of autonomy possible, and for communities that wish to build economies and social services beyond the reaches of the state to find ways of doing so. But for those of us who muddle along every day, caught in the webs of government decision-making, then we must also find ways of better holding the law-making powers of this Country accountable to do us.
Conclusion
Those who fear that a Voice to Parliament does too much tell us much more about their own insecurities and their lack of confidence in the plurality of our communities that constitute our nation than they do about Constitutional law or political power. To fear the Voices of Aboriginal peoples and Torres Strait Islanders, who for the most part have been exceptionally conciliatory in the context of our ongoing dispossession, is misplaced and groundless. Indeed, if it is grounded in anything, it is grounded in racism, and we need to call that out.
For those who fear that a Voice to Parliament does not do enough, I understand their concerns. Those who know me know that I am not optimistic or faithful person. Governments and colonies have always found ways to control and regulate our lives and their blame us for the conditions of our own subjugation. But this political pessimism is also what underscores my belief in constitutional reform: short of winning a brute war by force, the Constitution is our best mechanism for being able to regulate government power. A Voice to Parliament is a precise proposal, grounded in principles of representation and participation. It is not everything, but that does not mean that the work it effects is worth nothing. After all, without meaningful political representation and participation, impactful political power will always remain elusive.
Political action and meaningful consequences, including negotiating strong and enforceable treaties, require something formative: they require a protected and empowered representative field from which to express our unceded sovereignty and sustained political claims as the First Peoples of this continent. To date, we have had remarkable impact in building and sustaining this for ourselves. But we are entitled make those representations not just to the public square, at protests and rallies, but to the Parliament of Australia. In my view, this must be considered a minimum legitimacy requirement if Australian governments wish to continue to make laws about us in the centuries ahead.
Sana Nakata is currently an Associate Professor in Political Science at the University of Melbourne. She commences as Principal Research Fellow at the Indigenous Education and Research Centre at James Cook University from April 2023. This post is based on a presentation by A/Prof Nakata to the 2023 Constitutional Law Conference, Gilbert + Tobin Centre of Public Law, Faculty of Law and Justice, UNSW.
Suggested citation: Sana Nakata, ‘On Voice and the political power of representation’ on AUSPUBLAW (20 February 2023) <https://www.auspublaw.org/blog/2023/2/on-voice-and-the-political-power-of-representation/>