By: Jennifer Grubman
Image "Aboriginal Flag" by Michael Coghlan under CC By-SA 2.0.
On October 14, 2023, Australia held its first constitutional referendum of the twenty-first century.[1] Had the referendum succeeded, a section would have been added to the Australian Constitution not only recognizing First Nations as the “First Peoples of Australia,” but also establishing a body known as the Aboriginal and Torres Strait Islander Voice, or the Voice.[2] This was not Australia’s first constitutional referendum concerning First Nations.[3] In 1967, Australians voted in favor of an amendment to the Australian Constitution that granted “state and National parliaments … concurrent power” to legislate for the First Nations.[4] However, unlike the 1967 referendum, the 2023 referendum would have left the First Nations less “dependent on the benevolence of [a] government” whose prior laws and policies demonstrate that it should not bear the responsibility of legislating for First Nations.[5] The Voice originated in the 2017 Uluru Statement from the Heart,[6] a declaration calling for the recognition of First Nations sovereignty through the establishment of the Voice and the Makarrata Commission, which would “supervise a process of agreement-making between governments and First Nations and truth-telling about [First Nations] history.”[7] The Voice would have been a permanent installation in the National Parliament and a source of independently researched and proactive advice on legislation and policies touching First Nations.[8] This advice would come not from unaffected legislators but from a representative cross-section of First Nations individuals, chosen directly by their communities to serve on the Voice.[9]
However, Australia demonstrated on October 14 that it was not ready to let First Nations have a voice in the Parliament. To succeed, the referendum needed a majority vote nationwide and in at least four of the six Australian states—the so-called “double majority.”[10] At the polls, only 39.9% of Australians nationwide voted in favor of the referendum.[11] The referendum also failed to garner a majority vote in any of the six states—the closest it came to doing so was in Victoria, with a 45.8% “Yes” vote.[12] Australians’ conservative attitudes towards constitutional amendments and “a fog of [online] falsehoods,” including claims that the Voice would “raise taxes and strip Australians of their homes” and was “the first step” of a U.N. invasion of Australia, likely plagued the referendum’s success.[13]
Even with its ultimate failure, the question remains: would the Voice have constituted genuine progress for First Nations? Indigenous voices are split on this question.[14] Lidia Thorpe, a DjabWurrung Gunnai Gunditjmara woman and the first Indigenous woman to serve in the Parliament of Victoria,[15] was a vocal opponent of the Voice. Thorpe described the Voice as “a ‘powerless advisory body,’ ‘window dressing for constitutional recognition,’ and an ‘insult’ to First Nations people’s intelligence.”[16] She felt the Voice was powerless because of its inability “to return land, deliver services, distribute resources, enact laws, [or] block racist laws … .”[17] Indeed, the Voice would not have been endowed with veto power over legislation or the ability to deliver programs to First Nations.[18] Thorpe instead advocated for the federal and state governments to undertake a five-tiered plan, including “implementing a series of treaties with Indigenous nations and clan groups.”[19] Conversely, Dean Parkin, a Quandamooka man who directed the Yes23 initiative,[20] saw the Voice as a step towards “break[ing] the current cycle” of disadvantage in which First Nations are ensnared.[21] He stated that the Voice, by bringing “the voices of Aboriginal and Torres Strait Islander peoples . . . closer to where decisions are being made,” would create “[b]etter outcomes for the families and communities on the ground.”[22] While acknowledging that the Parliament was under no obligation to follow the Voice’s advice, Parkin argued that “consultation leads to better results,” pointing to the success of local decision-making on Groote Eylandt.[23]
Dismantling the longstanding and deeply entrenched settler colonialism at play in Australia will likely not occur in one fell swoop but rather in the culmination of many small, progressive steps toward decolonization. Criticism of the Voice’s “powerlessness” perhaps failed to recognize this reality. The Voice was never seen, even by supporters like Parkin, as the panacea to the oppression of First Nations.[24] It was, by design, a “modest proposal” meant to be “consistent with and … sit alongside the legal claim of British sovereignty [over Australia].”[25] Furthermore, the omission of capacities such as veto power was a deliberate choice to make the Voice “benign enough to be acceptable to the Australian public.”[26] While just a foot in the door of the Parliament, the Voice may have provided a “mechanism” wherein fundamental questions, like “the practice and exercise of First Nations sovereignty,” could “be worked out in [the Voice’s] iterative and ongoing constitutional relationship” with the Parliament.[27] However, regardless of the Voice progressing beyond a mere advisory body, it remains starkly apparent that the failure of the October 14 referendum was a missed opportunity not only to attempt to address the stark inequalities faced by First Nations in their day-to-day lives, but also for non-Indigenous Australians “to acknowledge that the brutal dispossession of [First Nations] underwrote their every advantage in [Australia].”[28]
Jennifer Grubman is a Staff Editor at CICLR.
[1] Referendum on an Aboriginal and Torres Strait Islander Voice, Nat’l Indigenous Australians Agency, https://www.niaa.gov.au/indigenous-affairs/referendum-aboriginal-and-torres-strait-islander-voice [https://perma.cc/AN2L-V6WS].
[2] Id.
[3] I use “First Nations” to refer to Aboriginal and Torres Strait Islander Peoples.
[4] Harry Hobbs & George Williams, Treaty-Making in the Australian Federation, 43 Melb. L. Rev. 178, 202 (2019). Prior to 1967, the Australian Constitution enshrined the power to legislate for Indigenous communities in the states. Id. at 201-02.
[5] Larissa Behrendt, Aboriginal Sovereignty: A Practical Roadmap, in Sovereignty: Frontiers of Possibility 166-67 (Julie Evans, Ann Genovese, Alexander Reilly & Patrick Wolfe eds., 2012).
[6] Rod McGuirk, Australians Decide Against Creating an Indigenous Voice to Advise Parliament on Minority Issues, AP News (Oct. 14, 2023, 6:47 AM), https://apnews.com/article/australia-indigenous-voice-referendum-6e9a9a7916a6024479d9e985f28e2d5e [https://perma.cc/32WB-YA6U].
[7] The Statement, The Uluru Statement, https://ulurustatement.org/the-statement/view-the-statement/ [https://perma.cc/M895-Z4MK].
[8] Design Principles of the Aboriginal and Torres Strait Islander Voice, The Uluru Statement, https://ulurustatement.org/design-principles/ [https://perma.cc/EU4Y-R92B] [hereinafter Design Principles].
[9] Design Principles, supra note 8.
[10] Double Majority, Australian Electoral Comm’n, https://www.aec.gov.au/elections/referendums/files/double-majority-fact-sheet.pdf [https://perma.cc/YX69-VK9G.
[11] Voice Referendum Live Results and Updates, Australian Broad. Co. News, https://www.abc.net.au/news/elections/referendum/2023/results?filter=all&sort=az&state=all&party=all [https://perma.cc/KR2V-F64R].
[12] Id.
[13] Chad de Guzman, Australians Reject Proposal to Enshrine Indigenous Representation: What to Know, Time (Oct. 13, 2023, 6:15 AM), https://time.com/6323355/australia-indigenous-voice-referendum-results/ [https://perma.cc/2YWG-PFNT].
[14] See Greta Stonehouse, The Differing Views from Indigenous Australians Across NSW on the Voice to Parliament Referendum, Australian Broad. Co. News (Oct. 5, 2023, 8:14 PM), https://www.abc.net.au/news/2023-10-06/nsw-voice-to-parliament-different-indigenous-australian-views/102927776 [https://perma.cc/J3A3-R9EH].
[15] Lidia Thorpe, The Australian Greens, https://greens.org.au/vic/person/lidia-thorpe [https://perma.cc/9C9S-NLGZ].
[16] Sarah Basford Canales, Lidia Thorpe Says Voice Referendum Should Be Called Off and Attacks ‘Powerless Advisory Body,’, The Guardian (Aug. 16, 2023, 3:37 PM), https://www.theguardian.com/australia-news/2023/aug/16/lidia-thorpe-calls-for-referendum-called-off-indigenous-voice-to-parliament-no-campaign# [https://perma.cc/EPJ2-HRGV].
[17] Andrew Tillett, Lidia Thorpe Urges Albanese to Call Off ‘Divisive’ Voice Vote, The Australian Fin. Rev. (Aug. 16, 2023, 5:48 PM), https://www.afr.com/politics/federal/lidia-thorpe-urges-albanese-to-call-off-divisive-voice-vote-20230816-p5dwwk [https://perma.cc/J3ZS-DDAS].
[18] Design Principles, supra note 8.
[19] Tillett, supra note 17. Unlike the United States, which recognizes a limited internal sovereignty for Indigenous nations, Australia rejects any form of First Nations sovereignty. See Coe v Commonwealth (1979) 24 ALR 118, 129 (Austl.) (“The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.”). Because it does not recognize aboriginal sovereignty, Australia—specifically the federal government—refuses to engage in treaty-making with First Nations. Sean Brennan, Brenda Gunn & George Williams, Sovereignty and Its Relevance to Treaty-Making Between Indigenous Peoples and Australian Governments, 26 Sydney L. Rev. 307, 317-18 (2004).
[20] Yarn About the Voice with Dean Parkin & Alison Overeem, Yes23, https://www.yes23.com.au/yarn_about_the_voice_with_dean_parkin_alison_overeem [https://perma.cc/CR84-27QP]. Yes23 was a grassroots Indigenous-led movement to garner support for the referendum. About Yes23, Yes23, https://www.yes23.com.au/about [https://perma.cc/YX7Y-7P8G].
[21] Dean Parkin, Voice to Parliament Will Just Give Us Say, Better Outcomes, The Canberra Times (Sept. 15, 2023, 4:19 P.M.), https://www.canberratimes.com.au/story/8348291/getting-a-say-on-decisions-affecting-us-is-all-were-asking/ [https://perma.cc/WW2M-8M6J]. According to “all the standard indicators of poverty and disadvantage,” First Nations are “the most disadvantaged and marginalised group in Australia.” Chapter 13 - Indigenous Australians, Parliament of Austl., https://www.aph.gov.au/parliamentary_business/committees/senate/community_affairs/completed_inquiries/2002-04/poverty/report/c13 [https://perma.cc/X3KM-5VD5].
[22] Dean Parkin: What is a Voice to Parliament and Why Does It Matter?, Soc. Ventures Austl. (Jan. 31, 2023), https://www.socialventures.com.au/sva-quarterly/dean-parkin-what-is-a-voice-to-parliament-and-why-does-it-matter/ [https://perma.cc/8UZC-QQ93].
[23] Parkin, supra note 21.
[24] As put by Parkin, “[a] Voice is not going to solve everything.” Id.
[25] Gabrielle Appleby, The First Nations Voice: A Modest and Congruent, Yet Radically Transformative Constitutional Proposal, Australian Pub. L. (Nov. 6, 2021), https://www.auspublaw.org/blog/2021/06/the-first-nations-voice-a-modest-and-congruent-yet-radically-transformative-constitutional-proposal [https://perma.cc/Z8JR-8KDP] (emphasis omitted).
[26] Yan Zhuang, Crushing Indigenous Hopes, Australia Rejects ‘Voice’ Referendum, The N.Y. Times (Oct. 14, 2023), https://www.nytimes.com/2023/10/13/world/asia/indigenous-voice-australia-referendum.html [https://perma.cc/L6UC-PXBN].
[27] Appleby, supra note 25.
[28] A Statement from Indigenous Australians Who Supported the Voice Referendum, The Uluru Statement (Oct. 15, 2023), https://ulurustatement.org/a-statement-from-indigenous-australians-who-supported-the-voice-referendum/ [https://perma.cc/D475-FGBG].