WHY A CONSTITUTIONALLY ENSHRINED FIRST NATIONS PEOPLE’S VOICE IS THE ONLY OPTION

GEMMA KEOGH0

ABSTRACT: This paper discusses aspects of affirmative action for constitutionally enshrining a First Nations Voice, including any attendant constitutional issues. Previous First Nations advocacy is first outlined along with recent developments in the Voice campaign. In addition, this paper discusses a contingency in the form of legislative reform.

I Introduction

Australia’s First Nations Peoples have long sought recognition for their sovereignty. The 2017 call for a constitutionally enshrined voice through the ‘Uluru Statement from the Heart’ is a formal plea for the Australian government. It focuses on First Nations peoples ‘constitutional vulnerability and powerlessness’0 and allows First Nations Peoples to speak into their affairs on a constitutional level.

A ‘First Nations Voice’ is also backed by international law, as it is a requirement that all Indigenous peoples are allowed to have meaningful participation in their government's decisions, particularly those which affect them.0 Further, Australia has endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which states in Article 18, ‘Indigenous peoples have the right to participate in decision-making in matters which would affect their rights … as well as to maintain and develop their indigenous decision-making institutions.’0 Although non-binding, this declaration has aspirations for what the international community desires for their Indigenous communities. However, despite endorsing it, Australian law has yet to implement any First Nations participation in decisionmaking or accept any degree of First Nations Sovereignty.

This paper aims to discuss aspects of affirmative action for constitutionally enshrining a First Nations Voice, including any constitutional issues involved. It will start by outlining previous First Nations advocacy along with recent developments in the Voice campaign. Additionally, space will be given to discuss a contingency in the form of legislative reform.

Ii Background

The concept of an empowered First Nations People’s voice within Indigenous affairs has a long history within its related advocacy.0 What started with a symbolic and uninformed

0 This paper was originally submitted as assessment for the subject LAW5211 Constitutional Law gesture from former Prime Minister John Howard in 1999 has sprung into a prominent legal and political discussion spanning indigenous and non-ingenious platforms.0 For example, in 2017, the constitutionally enshrined voice through an advisory body stemmed from a discussion between Indigenous leaders and conservative constitutionalists a few years earlier who were seeking common ground in the 'constitutional recognition debate’.0 This unlikely collaboration resulted from a previously proposed referendum to include a ‘racial nondiscrimination’ clause; however, due to low political support amid concerns for a power imbalance between the High Court and Parliament, it did not succeed.0 As a result, an alternative solution that would cover any previous objections while still allowing First Nations Peoples to achieve a constitutionally enshrined voice in their affairs was sought.0 In 2015, Anne Twomey drafted a constitutional amendment establishing such a voice through an advisory body0 to enable First Nations peoples to have a voice within the political process of law-making rather than attempting to bring change after the fact through the judiciary system.0

0 Shireen Morris, ‘The Torment of Our Powerlessness': Addressing Indigenous Constitutional Vulnerability Through the Uluru Statement's Call for A First Nations Voice in Their Affairs’ (2018) 41(3) University of New South Wales Law Journal 629.

0 Patrick McCabe, ‘An Australian Indigenous Common Law Right to Participate in Decision-Making’ (2020) Oxford University Commonwealth Law Journal 20(1) 52-85.

0 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/61/295 (2 October 2007, adopted 13 September 2007).

0 Shireen Morris, ‘The Argument for a Constitutional Procedure for Parliament to Consult with Indigenous Peoples When Making Laws for Indigenous Affairs’ (2015) 26 Public Law Review 166.

The proposal, as outlined by Twomey, spoke to the critiques of the earlier racial nondiscrimination clause. For example, it identified that there would be no veto powers, which would be ‘non-justiciable’. Also, there would be no risk of eliminated laws, and ‘parliamentary supremacy would be upheld.’0 Additionally, there would be no power imbalance between the High Court and Parliament, as this body would be constitutionally embedded, allowing First Nations Peoples to speak into decisions that would be made about them.0 Some scholars have recognised that the compromises within the Voice proposal are noble,0 with Greg Craven noting it is ‘an idea that is practical enough to work and profound enough to be worth doing.’0 Since first being drafted by Twomey, other First Nations Leaders and experts on the Constitution have joined the discussion, adding their options for how a First Nations Voice could be established.0 This culminated in 2017 with a national consensus of First Nations Peoples who agreed on how they wanted their voices to be heard.0

The iconic and historic Uluru Statement from the Heart proclaimed a consensus, with its call for reform through the First Nations Voice being constitutionally enshrined.0 Further, it called for the Makarrata Commission to be established through legislation, overseeing any ‘First

0 Dani Larkin and Sophie Rigney, ‘State and territory legislative vulnerabilities and why an Indigenous voice must be constitutionally enshrined’ (2021) Alternative Law Journal, 46(3) 205–211, 205.

0 Morris (n 2) 632.

0 Shireen Morris, ‘Undemocratic, Uncertain and Politically Unviable? An Analysis of and Response to Objections to a Proposed Racial Non-discrimination Clause as Part of Constitutional Reforms for Indigenous Recognition’ (2014) 40 Monash University Law Review, 488.

0 Morris (n 2) 632.

0 Anne Twomey, ‘Putting Words to the Tune of Indigenous Constitutional Recognition’, The Conversation (online), 20 May 2015; Anne Twomey, ‘An Indigenous Advisory Body: Addressing Concerns about Justiciability and Parliamentary Sovereignty’ (2015) 8(19) Indigenous Law Bulletin 6.

0 Ibid.

0 Morris (n 2) 632.

0 Ibid.

0 Ibid 633.

0 Greg Craven, ‘Noel Pearson’s Indigenous Recognition Plan Profound and Practical’, The Australian (online, 25 May 2015) <https://www.theaustralian.com.au/opinion/columnists/greg-craven/noel-pearsonsindigenous-recognition-plan-profoundand-practical/news-story/472ff0238ad4f48cd423fdd9f74a9363>.

0 Warren Mundine, Practical Recognition from the Mobs’ Perspective: Enabling Our Mobs to Speak for Country (Options Paper, Uphold & Recognise, 2017); Megan Davis and Rosalind Dixon, ‘Constitutional Recognition through a (Justiciable) Duty to Consult? Towards Entrenched and Judicially Enforceable Norms of Indigenous Consultation’ (2016) 27 Public Law Review 255.

0 Morris (n 2) 633.

Nations agreements with the government and truth-telling about Australia’s History.’0 This amendment to the Constitution pivoted from removing specific references or inserting any symbolic statements, rejecting ‘minimalist forms of constitutional recognition’0 to address any vulnerability or powerlessness felt by First Nations Peoples through substantial and functional reform.0 Additionally, this proposal moves away from ‘constitutional empowerment through litigation’, the historic solution offered to First Nations Peoples.0 Many scholars agree that this reform aligns with the ‘culture and design’ of the Constitutionfar more than mere words or poetic sentiments – and significantly more than trying to insert a non-discrimination clause around race into a Constitution that does not have a bill of rights within it.0 It is important to note that in the many years of First Nations advocacy, never has a consensus been reached that encompasses every region; historically past advocacy has singularly arisen from specific areas.0 Despite the overwhelming and powerful consensus, it should be noted that several delegates left during the convention at Uluru due to a desire for ’sovereign treaties’.0 Regardless, the unanimous view expressed through the Uluru Statement and the countless discussions preceding its proclamation was for a First Nations voice through constitutional reform.0

The referendum council produced a report supporting the Uluru Statement because the First Nations Peoples consensus backed it, and it was significantly popular with submissions made by the broader public.0 The council made its recommendations concerning the First Nations Peoples Advisory body, suggesting that the body come with specific legislated functions and processes like advising on how the government operationally practices sections 51 (xxvi) and 122 of the Constitution in the context of First Nations’ particular laws.0 However, the report did not stop there; it also called for further declarations in the Constitution to provide for symbolic statements of recognition, effectively uniting what some consider to be ‘the three parts of Australian’ culture - 'the Indigenous, the British and the multicultural.’0

Within months of the Uluru Statement being released, the Australian government, led by Malcolm Turnbull, released their statement rejecting any call for a constitutionally enshrined First Nations Voice.0 Within this statement were the governments’ concerns; that the proposal would not promote equality,0 that this advisory body would become ‘a third chamber of parliament’ and that most Australians would not support such a proposal.0

0 Referendum Council, ‘Uluru Statement from the Heart’ (Statement, First Nations National Constitutional Convention, 26 May 2017).

0 Ibid.

0 Frank Brennan, ‘Contours and Prospects for Indigenous Recognition in the Australian Constitution, and Why it Matters’ 90(5), Australian Law Journal 340–354; Morris (n 1) 632.

0 Morris (n 2) 633.

0 Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (Report, January 2012).

0 Morris (n 2) 634.

0 Morris (n 5) 170–3.

0 Claudianna Blanco, ‘We Won’t Sell Out Our Mob: Delegates Walk Out of Constitutional Recognition Forum in Protest’, NITV News (online, 25 May 2017) <https://www.sbs.com.au/nitv/article/we-wont-sell-out-our-mob-delegates-walk-out-ofconstitutional-recognition-forum-in-protest/v42y9atu4>.

0 Referendum Council (n 18) 9–16.

0 Ibid 33–5.

0 Ibid 2.

0 Ibid; Morris (n 2).

0 Malcolm Turnbull, ‘Response to Referendum Council’s Report on Constitutional Recognition’ (Media Release, 26 October 2017) < https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel %2F5596294%22>.

Iii Recent Developments

A government initiative with Indigenous participation issued a report in January 2021 providing an overview of potential ‘models’ of the Voice. Within this report, two interwoven processes are shared; however, neither option address the constitutional issue raised out of the Uluru Statement.0 Some would argue that this is deliberate.

The proposals include two legislated voices, one to the government and one to parliament. 0 In its rawest form, the Voice to the government would be purely administrative, providing advice to the incumbent government at an executive level. This advice would primarily focus on issues related to indigenous-specific service-delivery organisations, aiming to complement existing indigenous bodies rather than replace them.0 The voice to parliament depicts a ‘National Voice’ with its members able to advise the Commonwealth on any policies and laws that may impact First Nations Peoples and their affairs.0 It is worth noting that both of these options would allow for early intervention and advice by First Nations Peoples within the legislation and policy development processes.0 Additionally, it would be a link for ‘Regional and Local Voices’, ensuring all levels and their views would be considered at the national level of government.0

With all these positive aspects, the report also presented several provisions that would limit the First Nations Voice. For example, it does not include any form of ‘mediation or facilitation or specific government-led program delivery initiatives.’0 Most notably, the report advises that the First Nations Voice be ‘non-justiciable’, meaning if consultation on behalf of the Ministers failed to take place, no action could occur within the judiciary system.0 Additionally, laws would be passable through both houses of Parliament without consultation, even if First Nations Peoples were impacted.0 It also does not award any veto power to the Voice.0 The driving force behind the report’s proposals is its faith in ‘transparency mechanisms’,0 which supposedly will keep the government accountable for its actions concerning First Nations Affairs. However, this accountability and transparency are weak and contradict the desires expressed within the Uluru Statement.0

0 Ibid.

0 Ibid.

0 Larkin and Rigney (n 6) 205.

0 National Indigenous Australians Agency (NIAA), ‘Interim Report to the Australian Government’ (Interim Report, October 2020) <https://voice.niaa.gov.au/sites/default/files/2021-01/indigenous-voice-codesign-process-interim-report-2020.pdf>.

0 Larkin and Rigney (n 6) 207.

0 NIAA (n 34).

0 Ibid 44.

0 Ibid 48.

0 Ibid 47.

0 Ibid 51.

0 Ibid.

0 Larkin and Rigney (n 6) 207.

0 NIAA (n 34) 54.

0 Larkin and Rigney (n 6) 207.

The desire behind the First Nations’ Voice, as shared within the Uluru Statement, is for direct and in-person consultation with both houses of parliament, offering space for scrutiny and input into laws and policies that impact them. To provide anything less would ‘undermine the cultural authority’ held by First Nations Peoples.0 Consequently, the report and its proposals lack the constitutional enshrinement element, which is integral to the First Nations Voice.0

Iv Constitutional Enshrined First Nations Voice

Having determined that the Constitutional enshrinement of the First Nations Voice is an essential feature, it should remain a focal point.0 The functionality of the Voice would be ‘clearly and concisely’ recognised within the Constitution, with the Uluru Statement delegates intending that the finer details – how it would work and what potential membership processes might look like - would occur after a successful referendum. This intention was for flexibility and change to emerge as the Voice is developed over time. Enshrining the Voice within the Constitution would ensure political legitimacy, and with a successful referendum, it would have significant public support.

In light of existing First Nations law reform vulnerabilities and Commonwealth legislative supremacy, the only effective way for a First Nations Voice is to protect it at all levels of governance through its constitutional enshrinement. This is because State and Territory-level laws are innately weaker than their federal and Commonwealth counterparts.0 Furthermore, the First Nations Voice is centrally linked to ‘the relationship between the Commonwealth and the States and Territories,’ which the Constitution will always govern.0 As a result, the First Nations Voice should be ensured the same constitutional protection and clarification. Accordingly, the First Nations Voice and the proposed structure or functions should be clear and concise and outline how to achieve its purpose.0

V Addressing The Concerns

Within the Turnbull government’s response to the Uluru Statement were some concerns that caused them to withdraw support for a constitutionally enshrined voice.

The first concern was the enshrinement of a constitutional ‘representative assembly’ that was comprised of Indigenous Australians who alone ‘could vote for or serve in it’ would be ‘inconsistent’ with the equal civic rights principle, which is fundamental to the foundation that the two chambers of Parliament and what Australia’s democracy is built upon.0 Scholars have argued against this claim, believing it to be incorrect and stating that a principle of equality does not exist within the Constitution. 0 However, the High Court has historically declined to hold a strong position on the principle of equality debate because of existing discriminatory clauses and historical evidence.0

0 Ibid.

0 NIAA (n 34) 178-83.

0 Larkin and Rigney (n 6) 206.

0 Ibid.

0 Ibid.

0 Ibid.

0 Turnbull (n 30) 1.

0 Shireen Morris, ‘Love in the High Court: Implications for Indigenous Constitutional Recognition’ (2020) Federal Law Review, 1-28, 5.

Further, the Constitution already encompasses many voices as it ensures that the former colonies have the mechanisms to have their voices heard by the ‘bigger’ power.0 However, the Constitution protects all these political communities and recognises their worth; it even considers the smallest state, Tasmania, and grants it an ‘equal’ voice in the Senate under s 7.0 Scholars remind us that the equality argument is defeated by the constitutional system Australia is founded on, federalism, where ‘multiple political communities are constitutionally recognised.’0 However, the same courtesy has not been extended to the oldest of Australia’s political communities, First Nations Peoples, who were not invited to the table during early constitutional deliberations, nor were they included in the 1901 implementation of it. Therefore, the Constitution has no current mechanisms protecting First Nations People’s rights. Suppose a state such as Tasmania, with a population of 571,517 persons, has constitutionally protected rights.0 Should the same be extended to First Nations Peoples, who have a more significant population of 896,300 people, 0 and also have their rights protected? The Uluru Statement makes an equal and reasonable request by asking for a constitutionally enshrined voice.0

Further, the Constitution already creates division within Australia by race.0 The Commonwealth holds supreme power through sections 109 and 122. However, they also have concurrent heads of power, such as s 51(xxvi), which allows the government to create legislation regarding First Nations Peoples. The 1967 referendum is one case of successful First Nations advocacy under the ‘race’ element, with ‘the relationship between the Commonwealth and First Nations Peoples’ influencing a change to the Constitution. 0 The change was made to s 51(xxvi), where the words ‘other than the aboriginal race in any State’ were deleted; this change now allows the Commonwealth to legislate any ‘special laws’ regarding First Nations Peoples.0

Notably, this change has also been used in defence of legislation that discriminates against First Nations Peoples, such as the Hindmarsh Island Bridge Case, 0 where the Commonwealth passed legislation to restrict the operation of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), which limited its application and made it not apply to a specific area.0 There were significant challenges against this action by Ngarrindjeri women on the foundation that the ‘race power’ was being used detrimentally and incorrectly. 0 The government made a counterargument, stating that the power given under this section was unrestricted, provided it was used based on the premise of race and that its use permitted discrimination.0 Ultimately the decision, in this case, rejected any arguments from the Ngarrindjeri women. Instead, it remained aloof, with the potential for the government to use this ‘race power’ to impose further racially driven discrimination or enact laws that would adversely affect First Nations Peoples.

0 Leeth v Commonwealth (1992) 174 CLR 455; Kruger v Commonwealth (1997) 190 CLR 1.

0 Dylan Lino, ‘Towards Indigenous-Settler Federalism’ (2017) 28(2) Public Law Review 118; Dylan Lino, Constitutional Recognition: The First Peoples and the Australian Settler State (Federation Press, 2018) 244–9.

0 Australian Constitution s 7.

0 Dylan Lino, ‘The Uluru Statement: Towards Federalism with First Nations’ Australian Public Law (Blog post, 13 June 2017) < https://www.auspublaw.org/blog/2017/06/towards-federalism-with-first-nations>.

0 Tasmanian Government, ‘Tasmanian Population’ National, State and Territory Population (Report, 15 December 2022) < https://www.treasury.tas.gov.au/Documents/Population.pdf>.

0 Australian Government, ‘Profile of Indigenous Australians’ Australian Institute of Health and Welfare (Article, 07 July 2022) < https://www.aihw.gov.au/reports/australias-health/profile-of-indigenous-australians>.

0 Morris (n 52) 5.

0 Ibid.

0 Larkin and Rigney (n 6) 206.

0 Australian Constitution s 51(xxvi).

0 Kartinyeri v Commonwealth (1998) 195 CLR 337 ‘(Hindmarsh Island Bridge Case’).

0 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

This racial discrimination comes despite antidiscrimination laws on the Federal and State levels, including the Racial Discrimination Act 1975 (Cth) (RDA). As a result, Australia was placed on the ‘early warning urgent action list’ by the United Nations Committee on the Elimination of Racial Discrimination (CERD) because of concern regarding ‘race power’.0 This was further exasperated when the RDA was limited by the High Court’s decision in Wik Peoples v Queensland 1996. 0 This decision prompted the government to introduce the Native Title Amendment Act 1998 (Cth) suspending the RDA’s operation. This action alone allowed the Commonwealth to discriminate against Indigenous Native Title claims.0 The Hindmarsh and Wik cases prove that the Commonwealth has the powers and willingness to undesirably affect the rights of First Nations Peoples and their communities. It is important to note that although it is prohibited to discriminate under the RDA racially, there are special considerations that can be used in the name of advancement regarding individuals or groups of racial or ethnic backgrounds.0 These considerations can be observed in Maloney v The Queen, where the High Court held that no consultation or consent of the affected communities is required to enact them.0 This ruling is in direct contradiction to the opinion in CERD, as well as the mandate within the Expert Mechanism on the Rights of Indigenous Peoples 0 A voice enshrined in the constitution is the only option in achieving this. The ideal outcome would be to bring Australia in line with international standards and to create true equality amongst all Australian people.

The second concern was that the First Nations Voice would become, either by perception or reality, a third chamber of Parliament, if it contained the functions of something more than an advisory capacity – as was recommended in the Referendum Council report.0 This concern is null and void; no third chamber was proposed in the Uluru Statement or following discussions. Even the creator of the misconception, National Party member Barnaby Joyce

0 Kartinyeri (n 63).

0 Ibid.

0 Megan Davis, ‘Closing the Gap in Indigenous Disadvantage: A Trajectory of Indigenous Inequality in Australia’ (2015) 16 rescinded his statement and admitted it was a mischaracterisation.0 Instead, the recommendation of a First Nations Voice was ‘to Parliament, not in Parliament.’0 It intends to be an external body created by Parliament, having no power to make or veto laws, and there was no suggestion to reform the existing Houses of Parliament.0 Instead, its purpose is to provide a universal, unanimous and concise voice for First Nations Peoples. It would enable Parliament to hear concerns and make the necessary adjustments at the beginning of the law and policy-making process. Parliament Supremacy would prevail, but First Nations Peoples’ rights would be recognised and constitutionally protected. In addition, there is fear of a power imbalance between the courts and the parliament. However, scholars have shared that the integrity of Parliamentary Supremacy and Judicial Review would be retained if the structure of the First Nations Voice was impeccably drafted to maintain it. 0 There is a fine line between a simple gesture and implementing an advisory body that can influence Parliament on First Nations affairs.

(1) Georgetown Journal of International Affairs 34, 40.

0 (1996) 187 CLR 1.

0 Larkin and Rigney (n 6) 208.

0 Human Rights Law Centre, ‘Palm Island alcohol restrictions are “special measures”’ Case Summaries (Online, 19 June 2013) <https://www.hrlc.org.au/human-rights-case-summaries/palm-island-alcohol-restrictions-are-special-measures>.

0 [2013] HCA 28.

0 United Nations Human Rights Commission, ‘Expert Mechanism on the Rights of Indigenous Peoples’ (2016) res 33/25 < https://www.ohchr.org/en/hrc-subsidiaries/expert-mechanism-on-indigenous-peoples>.

0 Turnbull (n 30) 1.

The third concern was the unclear election process which could not ensure that the ‘diversity of Indigenous circumstance and experience’ would be represented democratically and fairly.0 Again, this speaks to the desire for a truly representative government that would allow citizens to feel they had an equal say in how they are governed. Interestingly this is linked to Edelman J’s decision in Love v Commonwealth0 where he argues that the proceedings within the matter offered no prospect for any First Nations Peoples to be heard.0 Further, Keane J argued that there was a case for ‘special recognition’ for First Nations Peoples in the Constitution because of historical events and the need for a representative voice.0 Having direct access to both houses of Parliament avoids unnecessary committee appearances for bringing issues to lawmakers. This means accurate and consistent cultural representation and enhancing the existing systems and institutions’ capacity for ‘good governance.’0

The final concern was the government’s belief that a drastic amendment to the Constitution and its representative institutions such as this would have no genuine support by enough of the general public to meet the standard in s 128 for a referendum to pass.0 This concern was and continues to be debunked through multiple independent polls. The first, a 2017 Omnipoll, established that 60.7% of Australians would vote favourably.0 A 2018 Newspoll continued to show that 57% would vote in favour, despite negative campaigning on the government's behalf.0 An unpublished poll by a lobbying group discerned that 56% of people would vote in favour, 17% would vote no, and 28% were undecided.0 More recently, research conducted in 2019 showed 66% of people in support,0 and then in 2020, the level of support had risen to 81%.0 Regardless of the government's rejections, there is a continued push for the Uluru Statement to come to fruition by Indigenous and non-indigenous Australians.0

0 Amy Remeikis, ‘Barnaby Joyce “Apologises” for Calling Indigenous Voice a Third Chamber of Parliament’, The Guardian (online, 18 July 2019) <https://www.theguardian.com/australia-news/2019/jul/18/barnaby-joyceapologises-for-callingindigenous-voice-a-third-chamber-of-parliament>.

0 Morris (n 52) 6.

0 Ibid.

0 Gabrielle Appleby, ‘Constitutionalising an Indigenous Voice in Australian Law-Making: Some Institutional Design Challenges’ (2015) 18(2) Australian Indigenous Law Review, 98-110, 100.

0 Turnbull (n 30) 1.

0 (2020) 375 ALR 597.

0 Ibid 715 [467] (Edelman J).

0 Ibid 639 [178] (Keane J).

0 Dani Larkin and Kate Galloway, ‘Constitutionally entrenched Voice to Parliament: Representation and Good Governance’ (2021) 46(3) Alternative Law Journal 193-198, 196.

0 Turnbull (n 30) 2; Australian Constitution s 128.

0 Calla Wahlquist, ‘Most Australians Would Support Indigenous Voice to Parliament Plan that Turnbull Rejected’, The Guardian (online, 30 October 2017) < https://www.theguardian.com/australia-news/2017/oct/30/most-australians-supportindigenous-voice-to-parliament-plan-that-turnbull-rejected>.

In 2018 further support was given to a First Nations Voice by a Joint Select Committee, which stated constitutional recognition was the only viable pathway.0 The committee also called for further consultation regarding the Voice’s design.0 However, despite a cooperative design process beginning in 2019,0 former Prime Minister Scott Morrison indicated he would also oppose constitutionalising the Voice.0 In the face of the continued opposition from the government, the Attorney-General stated more ‘precise words’ and a draft amendment would need to be produced before the government could fully support it.0

Vi The Contingency

An ordinary legislative response to the Uluru Statement is possible. As mentioned earlier, the Interim Report made recommendations for such an action. Its non-justiciable instrument would create an obligation for Parliament to consult a First Nations Voice on any legislation that utilises the ‘race’ powers within the Constitution. It would also use the ‘special measures’ conditions within the RDA or suspend it.0 However, the legislative suggestion within the Report appears to have shifted from a significant political relationship between First Nations Peoples and Australia to a consultative group for policymakers.0 Another concern in this context is the potential loss of power for the Commonwealth. Specifically, the question is how to effectively protect and promote First Nations Peoples' interests while simultaneously having limited actions through legislative reform on discrimination.0 The fear is that this shift would overextend judicial review into what should be parliamentary power.

0 Simon Benson, ‘Bill Shorten Raising Voice a Winner with Voters: Newspoll’, The Australian (online, 20 February 2018) < https://www.theaustralian.com.au/nation/bill-shorten-raising-voice-a-winner-with-voters-newspoll/news-story/ 3d6ee299780b7ac6901df9ccdfa16cc5>.

0 Murray Goot, ‘Confused polling distorts the debate on an Indigenous Voice to Parliament’, The Conversation (online, 31 January 2022) <https://theconversation.com/confused-polling-distorts-the-debate-on-an-indigenous-voice-to-parliament175525>.

0 Katherine Murphy, ‘Essential Poll: Majority of Australians Want Indigenous Recognition and Voice to Parliament’, The Guardian (online, 12 July 2019) <https://www.theguardian.com/australia-news/2019/jul/12/essential-pollmajority-ofaustralians-want-indigenous-recognition-and-voice-to-parliament>.

0 Lorena Allam, ‘More Australians Want an Indigenous Voice Protected in Constitution, Survey Suggests’, The Guardian (online, 30 November 2020) <https://www.theguardian.com/australia-news/2020/nov/30/moreaustralians-want-anindigenous-voice-protected-in-constitution-survey-suggests>.

0 See the petition by Professor Fiona Stanley, ‘Australian Council of Social Service, Joint Statement: A Call to the Prime Minister and Australian Parliament’ <https://www.acoss.org.au/supportfirstnations/>.

0 Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, Final Report (Report, November 2018).

0 Ibid.

0 Deborah Snow, ‘Morrison Pledges Recognition But Will Take “As Long as Needed”’, Sydney Morning Herald (online, 26 May 2019) <https://www.smh.com.au/politics/federal/morrison-pledges-recognition-but-will-take-aslong-as-needed20190526-p51r80.html>.

0 Greg Brown, ‘Morrison to Veto “Voice” as Part of Constitution’, The Australian (online, 12 July 2019) <https://www.theaustralian.com.au/nation/politics/morrison-to-veto-voice-as-part-of-constitution/news-story/ c9753bbe3595470032ac7fa95636931e>.

0 Michael Pelley, ‘Public Won’t “Buy” Uluru Statement, Claims AG’, Australian Financial Review (online, 21 June 2019) <https://www.afr.com/politics/federal/public-won-t-buy-uluru-statement-claims-ag-20190620-p51zf6>.

0 Lino (n 54).

0 Jason O’Neil, ‘Designing an Indigenous Voice that empowers: How constitutional recognition could strengthen First Nations sovereignty’ (2021) Alternative Law Journal 46(3) 199-204, 201.

0 Appleby (n 77) 98.

Some scholars suggest the limitation could be directed within the ‘parliamentary process’ rather than afterwards.0 While ordinary legislation can be the instrument for a First Nations Voice, the proposal within the Interim Report does not recognise the genuine desire from the Uluru Statement, that is, the protection of their Voice from being snuffed out by future legislative changes.

A legislative voice is without ‘special status,’ has no significant input from the general public, and offers no stability or independence.0 This means that a voice through legislation can easily be removed or amended by Parliament without barriers or accountability due to its flexible nature.0 It can also be amended or overturned without First Nations consultations, simply at the whim of whoever holds a majority in both houses.0 As such, the constitutional protection of rights is pivotal to that desire and is doubtful through ordinary legislation.

Vii Conclusion

Within everything mentioned in this paper is the unwavering importance of a clear and protected relationship between First Nations Peoples and those in different authoritative positions at all levels of government. Therefore, the only option for a First Nations Voice is to have it constitutionally enshrined, not mere legislation. The challenge that will continue to remain in seeking constitutional reform is education. Politicians and the public alike need to receive continued education about why a constitutionally enshrined Voice aligns with the heart of the Constitution.

0 Ibid.

0 Elisa Arcioni, ‘NAIDOC Week 2021: Why a legislated voice is not a “constitutionally enshrined voice to parliament”?’ Indigenous Constitutional Law (Blog Post, 05 July 2021) <https://www.indigconlaw.org/home/naidoc-week-2021-why-a-legislated-voice-is-not-a-constitutionally-enshrined-voice-toparliament>.

0 Ibid.

0 Ibid.