Eddie Synot is a Wamba Wamba First Nations lawyer and researcher with Griffith Law School, Griffith University and a centre associate with the Indigenous Law Centre, UNSW. He is also a member of the Uluru Dialogue.
Movements for change often face a chasm between the conviction of their followers and a future we never arrive at because we lack credible and achievable ways to get there.
Even when we respond to the worst parts of our society with the best of intentions, movements for change often mirror negative aspects of our politics that are disconnected from the reality of achieving change. Here, too, prevailing structures of power are not easily transformed, and organising for change is made that much harder by the very interests that serve and benefit from them.
The place of First Nations is no exception.
For 233 years the rights of First Nations peoples have been denied, and this denial has touched all aspects of First Nations’ lives. First Nations have not simply felt this denial as a lack of formal recognition, easily rectified by formalistic, symbolic gestures such as a new preamble in the Australian constitution. None of the decisions of the Commonwealth, states and territories, or broader institutions of Australian society, such as Closing the Gap or any other targeted reform, have occurred in a vacuum disconnected from this denial.
The length of this denial also means we are 233 years into a complicated relationship. We are dealing with a deeply embedded legal and political system that is not easily changed, so too Australian cultural norms.
First Nations have not ceded their sovereignty, but Australia’s legitimacy as a political, legal — but perhaps not moral — entity does not depend on whether it has a treaty with First Nations.
Even the United Nations Declaration of the Rights of Indigenous People (UNDRIP) does not change this. Article 46, often ignored by many that rely on UNDRIP to inform their claims against the Australian state, declares that nothing in UNDRIP “may be interpreted as implying… any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states”.
Whatever action we take, the Commonwealth will remain the paramount legal authority. Even future treaties will be susceptible to Parliament and could be torn up, leaving — in the absence of a constitutionally protected Voice — nothing. Some refuse to accept this. Their solutions should be understood in the context of their refusal to engage these challenges.
The Uluru Statement from the Heart was developed through a process that understood these challenges. Thirteen regional dialogues, run over three days each, engaged a representative cross-section of the Indigenous community through informed, deliberative dialogue. These were not simple consultations. These deliberations countenanced broad views from the Indigenous community, including dissent, and resulted in the First Nations National Constitutional Convention in 2017. There, an overwhelming majority of delegates endorsed the consensus position of the Uluru Statement and the sequenced reforms of Voice, Treaty and Truth.
These reforms provide a credible and achievable way forward. The Uluru Statement changes are grounded in the legitimate rights of First Nations. They are also informed by the reality of the Australian state. This means delegates at the regional dialogues and the national convention understood the difference between credible, achievable change as opposed to ideal, impossible constitutional amendments and reforms, each more impossible — legally and politically — to achieve than the last.
This is one reason why the Voice enshrined in the constitution was the first preference for change of regional and national delegates in the sequenced order of Voice, Treaty and Truth.
The order of Voice first followed by a Makarrata Commission for agreement-making and truth-telling was not forced on delegates. It cannot just be dismissed as the preference of leadership. Rather it was the result of informed, deliberative dialogue where delegates wanted their voices to be heard, and for that structural change to inform future processes of agreement-making (treaty) and truth-telling.
Misinformation about this process continues, however. Some deny First Nations’ rights, claiming the Voice is a “race-based” body based on inequality and division. These arguments would have us practise a terra nullius writ large and should be treated as belonging to the bygone age they do. Others refuse to recognise the claim of the Australian state, claiming also the Voice would be powerless, and treaty should come first. Neither position engages responsibly with the reality of our situation nor of achieving change. It is impossible First Nations accept they don’t exist, just as it is impossible to ignore the reality of the Australian state and the position of First Nations within it.
Yet political impossibilities have not stopped many exploring the chasm between personal preference, ideal and reality, while also making mountains out of molehills — such as the many claims about there not being enough detail on the Voice — while pushing their preference. Here expertise counts for little when the commentariat — and others — are all too ready to assume the position of the all-knowing polymath.
The claim the Voice will have no power is especially disingenuous when made by those that claim there isn’t enough detail. How would they know?
The point about power is naïve also because nothing, not even a treaty, can have, share, or replace the power of the Australian Parliament. Claims otherwise refuse to engage or accept factual explanations of our legal and political system that cannot be changed in the same way other constitutional amendments are made. No reform is going to change this fundamental structure other than an absolute upheaval, which is neither desirable nor on the agenda.
The truth is the Voice will not be powerless. It has been developed with all this in mind. The Voice will be a powerful and permanent institution for First Nations to mobilise around, to be recognised and represented by, and to influence Parliament’s decision-making. It is through the Voice that changes to the Australian culture and power of decision-making will occur to enable better outcomes as well as meaningful agreement-making and truth-telling.
Could we really expect that from current structures? The Uluru delegates understood we can’t.
Despite claims here too about there not being enough detail, the Voice is a simple, principled reform that has been detailed. It’s also a disingenuous claim. Australians vote every federal election to confer authority on Parliament to act on our behalf, whether we realise and accept that or not, with little to no detail of Parliament’s intentions. Yet now, suddenly, we are to believe the Australian public is a nation of policy wonks who must know the intimate detail of every decision Parliament intends to make before we vote.
Our political system has never worked that way, nor could it. Reforms could never ever be allowed that would limit Parliament’s power in such a way.
The fact is, the Voice has been developed through the most extensive process of constitutional reform in Australian history. This process, conducted over decades, has canvassed all the issues many fixate on. The detailed work has been done where it is needed. The accessibility of that detail, whether it is about the constitutional amendment itself as opposed to the future legislative model of a Voice (which is not needed) is another matter entirely and one that will be addressed through the course of the referendum.
This is a reform about first principles: there will be a Voice (because there should be); it will provide advice to Parliament (because it should as a matter of right and best practice); Parliament will have power over its make-up and powers (because that is how our constitutional system works).
If we aren’t happy with the Voice, we can organise to change it. It is on us to make it work.
There are no easy answers, but the Voice is the mechanism for us to make real, lasting change. The Voice’s fundamental existence as a matter of principle between First Nations and the Australian state would always remain. The Voice would provide a permanent, authoritative institution to negotiate the relationship between Indigenous and non-Indigenous Australians.
Finally, after 233 years, we would be taking a substantive step forward. First Nations would be recognised and respected and decisions would no longer be made without them. Not even treaty can guarantee that.
Does the prospect of an Indigenous Voice to Parliament fill you with pride? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
