When, in July last, Anthony Albanese announced his proposed amendments to enshrine an Aboriginal and Torres Strait Islander Voice in the constitution, he stressed the functions of the Voice would be advisory, not deliberative.
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He asked the Australian people to accept the proposal in principle, and not worry about details.
Since then, the concept of the Voice has evolved significantly. South Australia has just enacted its First Nations Voice Act 2023, the first such law in Australia. The act is broadly based on the groundbreaking recommendations in the Langton/Calma report (July, 2021). This is the report Mr Albanese has said "would form the basis of what the Voice would come to look like".
On March 16 last year, Linda Burney, the Minister for Indigenous Australians, strongly endorsed the South Australian bill, saying the government wants "to build on the strengths of the SA model".
Inevitably, these developments have placed both the Langton/Calma report and the SA Act at the heart of the referendum debate. In my view, they have exposed how out-of-touch the proposed amendments have become with the government's current intentions.
What I find truly bizarre is the Parliament already has the power under S.51 (XXVI) of the constitution (the "races" power) to enact whatever law on this subject it wishes as a "special law" deemed necessary for the Aboriginal or Torres Strait Islander people. No amendments are needed for that purpose.
It is impossible to do justice to either the Langton/Calma report or the SA act in this article. At the broadest level, the report recommends the establishment of a multi-faceted, fully integrated, nationwide, all-levels-of-government "Indigenous Voice". This would comprise a national Voice, comparable state and territory voices, a Torres Strait Islander Voice plus a network of 35 grassroots local and regional Voices. This would require inter-governmental agreement and matching Commonwealth, state and territory legislation.
The proposed national Voice would have "a responsibility and right to advise the Parliament and Australian government on national matters of significance to the ATSI people", in particular on matters relating to their "social, spiritual and economic wellbeing".
The regional Voices are the grassroots drivers of the Voice concept.
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They are envisaged as "a governance arrangement in each region", controlled exclusively by Aboriginal or Torres Strait Islander peoples. They would be "community-led, community-designed and community-run".
Their functions would include advising the national Voice on "systemic issues associated with national policies and programs and matters of national importance". At a broader, Australia-wide level, they would "work in partnership with all levels of government" and "provide advice and engage in planning and shared decision-making on policies and programs affecting communities, based on community aspirations and priorities".
These functions would extend to engagement with all government portfolios and agencies, "not just those specifically targeted to ATSI peoples".
The SA act adopts the basic framework of a state-first nations Voice supported by local First Nations voices, as recommended in the Langton/Calma report, but with variations too detailed to explain here.
Clearly, in my view, the Voice concept has moved way beyond just establishing an advisory Voice to Parliament and the executive as Mr Albanese initially proposed. As the Langton/Calma Report acknowledges, the Indigenous Voice that it recommends involves "a fundamental systemic change to the way governments and communities engage with each other".
In my view, the currently proposed amendments fail to provide the necessary foundation for what I would describe as the most sweeping change to our system of government since Federation. If amendments are put to the Australian people in this form, I believe the referendum will fail. That would be a tragedy.
I urge the government to make an exposure draft of its proposed law available as soon as practicable. It should also consider proposing the repeal of S.51 (XXVI), the racist foundations of which are a continuing embarrassment, and replacing it with a provision enabling Parliament to make laws with respect to (e.g.) "The Aboriginal and Torres Strait Islander Peoples, the First Peoples of this ancient land, for whom it is deemed necessary to make special laws".
This would at least provide both the symbolic and substantive constitutional recognition that the ATSI Peoples have sought for so long and provide a clearer non-racist foundation for any special laws that may be needed.
- Allan Hall is a former deputy president of the Commonwealth Administrative Appeals Tribunal.
