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This year Australians will be asked to vote to close a gap in our Constitution, by recognising for the first time Aboriginal and Torres Strait Islander people as the First Peoples of Australia. The proposal is to do so in a substantive way by creating a body called the Aboriginal and Torres Strait Islander Voice. The NSW Bar Council unanimously supports the proposed wording of the amendment as sound and appropriate and a Yes vote for several reasons.
A Gumatj girl being painted in traditional colours for bunngul (ceremonial dances) at Garma in north-east Arnhem Land.
First, the Constitution has never recognised Australia’s First Peoples. It is time for this to happen. The Constitution was enacted by the United Kingdom parliament in 1900, when Australia was governed by the colonial fiction of “terra nullius”. First Nations peoples were deliberately excluded by sections 51 (xxvi) and 127 of the original Constitution. It is a matter of great national historic shame that the significant majority of First Nations people currently aged 56 years and above commenced their life not counted in the census by virtue of the undoubtedly racist and explicit statement in section 127 that “Aboriginal natives shall not be counted”.
While section 127 was repealed following the 1967 referendum, there remains no recognition of our First Peoples in the Constitution. This is an enormous gap which the Australian people have the power to close with a Yes vote.
Second, there is a need for more than symbolic recognition. Symbolic recognition was rejected by the Australian people in the 1999 referendum. Since then, consultations with First Nations culminated in the 2017 Uluru Statement from the Heart, calling for “the establishment of a First Nations Voice enshrined in the Constitution”. A subsequent co-design process involving over 9400 people and organisations resulted in a Final Report by Professors Marcia Langton and Tom Calma, strongly supporting a national voice with integrated links to local and regional voices.
Third, proposals for amendments linked to the “race power” in section 51 of the Constitution or “special laws” were not supported in the consultations and were unanimously rejected by the Bar Council. The annual “Closing the Gap” reports make abundantly clear that our national (and state) laws which are not enacted as “special laws” can and do disproportionately affect First Nations peoples.
Fourth, the second limb of the proposed wording defines the function of the Voice. It is critical, and it is the unanimous view of the Bar Council, that it should not be removed or altered. Representations should not be limited to draft legislation. The very purpose of the Voice is to let decision-makers know the potential impacts of policy proposals on First Nations communities. The Voice could proactively engage with those responsible for mainstream policies and programs before they take effect. This will not dictate “executive” decisions but should lead to improvements in practical solutions by informing government early and from the ground up. Moreover, while legal challenges cannot be ruled out, given the third limb of the alteration, it is a “low-risk” provision.
Fifth, the third limb of the proposed wording empowers the parliament to adjust and control the functions, powers and procedures of the Voice, but will not permit its abolition. Barristers over decades have witnessed the dissolution of national First Nations consultative bodies created by legislation, such as the Aboriginal and Torres Strait Islander Commission. The Voice should not be abolished upon a change of government. The third limb means that there can be adaptions over time. It also preserves power to the parliament with respect to matters relating to the Voice, which could include legislation as to the legal effect of its representations. Failure to take into account representations from the Voice will not invalidate legislation. Suggestions that litigation would impede the lawful execution of policy decisions are not warranted.
Sixth, the wording is appropriate for the Constitution. A Constitution is not a document which contains “details”. When the telecommunications power in section 51 (v) was enacted, expressed as “postal, telegraphic, telephonic and other like services”, no-one could have imagined that it would one day encompass the internet. It is appropriate and regular for details of the Voice to be developed and enacted by the parliament.
Finally, NSW Barristers have advocated for decades on issues impacting First Nations people, including at the Royal Commission into Aboriginal Deaths in Custody, for implementation of its recommendations, the Pathways to Justice Report of the Australian Law Reform Commission, advocacy for funding for First Nations legal services, reforms on heritage protection, and native title laws. Our practitioners work on the ground with First Nations people and in court, and appear at the highest levels in administrative and constitutional proceedings. The NSW Bar Council has closely considered and unanimously supports the wording and a Yes vote.
Constitutional recognition in this form will ensure appropriate acknowledgment of our First Peoples and their ancient and continuing relationship to our continent. The establishment of the Voice will promote practical positive outcomes for those impacted by the enduring effects of terra nullius, removal to missions, stolen generations and the consequential gaps we must close.
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