A First Nations Voice: Balancing Ambition with Pragmatism

Written By Maia Brauner

The Uluru Statement from the Heart (‘Uluru Statement’) represented an unprecedented

turning point in the debate for Indigenous constitutional recognition, as the culmination of

the first constitutional convention ‘with and for First Peoples’. Of the three key reforms

posited by the Uluru Statement – Voice, Treaty and Truth, – an Indigenous ‘Voice to

Parliament’ (‘Voice’) has garnered the most support, both publicly and politically.

A Voice combines symbolic constitutional recognition of Indigenous Australians’ status as

‘First Peoples’, with a constitutionally enshrined, non-justiciable, advisory body, sitting

outside of Parliament, which advises on prospective laws and policies that may affect

Aboriginal and Torres Strait Islander people. The proposed measure retains considerable

support from many Indigenous advocates as a means of rectifying the historical omission of

Indigenous people from the Constitution, including the ongoing ‘textual silence’, and as a

means of enabling Aboriginal and Torres Strait Islander communities to exercise greater

autonomy and agency in their own affairs, thus mitigating against the continued passing of

discriminatory laws and policies.

Consistent with Indigenous people’s desires for constitutional inclusion, increased power,

and non-repetition of harms, a Voice offers an opportunity to rectify Indigenous

constitutional vulnerability, by securing their right to exercise a collective voice,

irrespective of their limited parliamentary representation, thereby recalibrating their

constitutional relationship with the state, from one of unilateral control to a more

consultative partnership. Moreover, a Voice would promote the proactive participation of

Indigenous people in law and policy drafting, through a consultative process, which

facilitates the acquisition of prior consent, in accordance with Indigenous desires for

greater autonomy, and non-repetition of harm, thereby increasing Australia’s limited

protections for Indigenous self-determination, and thus strengthening its compliance with

international human rights law.

Whilst it is acknowledged that a Voice, as merely an advisory body, with no law or policy

making powers, or right of veto, whose advice is non-binding, and non-justiciable, may

only offer a ‘weak’ form of self-determination, it is nonetheless contended that such legal

limitations are ultimately justifiable. To mandate parliamentary compliance with the

body’s advice would be inconsistent with democratic values, which reflect a right ‘to be

heard, not a demand to command’. Moreover, granting a veto power to a minority

population would be incompatible with Australian democracy, which affords an ‘equal

voice’ to all constituents, and further, conferring such a right on an external body, would

threaten to undermine the principle of parliamentary sovereignty. Finally, a justiciable

Voice may empower the judiciary to overturn parliamentary laws, in violation of the

democratic principles of the separation of powers and parliamentary supremacy.

As such, although it is recognised that Australia’s democratic system of Western legal

institutions represents a site of ongoing colonial oppression, and is seen by many

Indigenous Australians as fundamentally illegitimate, it is nevertheless argued that more

radical, structural changes which undermine Australia’s democratic system will not, in the

present political climate, secure majority support, and hence will not be attainable.

Thus, a Voice offers a practical yet empowering solution which effectively balances the need

for pragmatism with Indigenous ambitions.