Q&A on the Voice with Senior Lecturer Anne Maree Payne

What does having the Voice the Constitution mean for how it would function?

Under the current proposal, the design of the Voice is embedded in Australian democratic systems. While the Voice would be enshrined in the Constitution, details about how it will work in practice and how it will be formed has rightly been left to the Parliament to decide. You don’t want all the detail in the Constitution – because that would be unworkable.

It means that if the Voice isn’t working effectively it can be tweaked and improved without having to go back to the Australian people in another referendum. This is also important because the Constitution is interpreted by the High Court, not by elected representatives. 

The current proposal strikes a good balance: it gives Indigenous people the surety of knowing that there is a recognition in the Constitution of their right to self-determination through the Voice but leaves the details and the day to day function to be worked out by Parliament.

What’s the key takeaway for Indigenous Australians if the Voice Referendum is passed?

Indigenous people have the right to self-determination. This is part of their innate human rights, laid out in the United Nations Declaration on the Rights of Indigenous Peoples under the international human rights framework. It's a right that exists by virtue of their status as First Nations people. But getting the Government and other Australians to understand and respect that right is the challenge. A Yes in the referendum will send the message to First Nations people that other Australians support, respect, and recognise their rights. And I think that that will be a wonderful outcome.

One of the difficulties of Australian democracy is that we don't have a bill of rights, and we don't have constitutional protection of our rights. So people from minority groups are reliant on the majority to democratically support their rights. We saw that with the plebiscite on marriage equality, where the issue was put to the population for a majority vote, and we're seeing it again with the Voice.

How will the Voice make a practical impact on the lives of Indigenous people?

Indigenous people have the solutions to the challenges their communities face. They just need to be empowered to be able to be to put their solutions into place; and that's exactly what the Voice will do.

Let’s take an example from my area of expertise, which is the stolen generations and the policies and practices of child removal.

Some of my research looks at the values and attitudes held by white people who were involved in child removal. A major takeaway from the history of the stolen generations is that non-Indigenous people can do terrible things, even to the extent of genocide, and can convince themselves they are doing something in the name of good.

The shocking reality of those removals of Indigenous children, and the terrible trauma that it has inflicted on generations, is an example of a policy designed by non-Indigenous people to address a so-called “problem” in Indigenous communities.

That's just one example. There are many more from across the policy spectrum where genuine empowerment of communities to put their own solutions into place would make a real difference. Better representation though a Voice will help prevent things like the stolen generations from ever happening again.

What would be the difference between the Voice and previous bodies like ATSIC or the NACC?

The National Aboriginal Consultative Committee (NACC) and the Aboriginal and Torres Strait Islander Commission (ATSIC) were elected representative bodies of Indigenous people, so they do have that in common with the proposed Voice to Parliament.

But a key difference is that the voice will be constitutionally embedded, which means that there is an ongoing requirement in place for the Federal Government to establish a Voice with the capacity to advise Parliament.

Why is this a significant improvement on earlier representative bodies? Because what history shows us tends to happen – and it's happened on multiple occasions – is that when the Federal Government doesn't like the advice they receive from Indigenous Australians, they've disbanded the advisory body.

ATSIC was the last major example of this. The Howard Government disbanded it in 2005 following increasing claims by ATSIC for Indigenous self-determination, and criticism of the Howard Government's approach to Indigenous issues.

What will happen if the Voice doesn't get through the referendum? Will there be any chance for a Treaty to still happen?

The Voice and Treaty are two different things, and Treaty is not dependent on the Voice.

A Treaty also doesn't require constitutional amendments, so there's no requirement to have a referendum. And in fact, Australian has seen some very exciting developments over the last five or six years as a number of state governments have already started Treaty negotiations with Indigenous peoples.

We have four states currently going through this process. Victoria is the furthest along, but the Northern Territory, South Australia and Queensland are all in the early stages of setting up Treaty bodies to negotiate a settlement with Indigenous populations. After a decade of conservative government, a lot of state governments have clearly decided that these issues of justice can't wait, and they're getting on with doing things.

Under the Australian Constitution, a lot of the areas that can make a real impact in the lives of Indigenous peoples – things like health and education – are state level responsibilities. It may even be a better outcome to have state level treaties rather than one national treaty. There must be a process towards Treaty that's owned by the Indigenous community. When you think about the diversity of Indigenous Australians, and the 250+ Indigenous nations who inhabited this land prior to colonisation, it may make more sense that the former colonies are the ones that negotiate treaties with the Indigenous groups who they dispossessed from their lands. 

There have been a lot of references to the 1967 referendum which received a 90% vote in favour – how does this referendum compare?

I love teaching the 1967 referendum, because it is a very misunderstood event in Australian history. It’s remembered for doing a lot of things that it didn’t actually do.

There’s a lot of mythology around it: that it gave Aboriginal people the right to vote, and that it counted them in the census for the first time – both incorrect. Aboriginal people were always counted in the census. They just weren't enumerated for the purpose of electing Federal representatives when electorates were formed. Their right to vote had been legislated for Commonwealth elections in 1962, and by all the states by 1965.

Take the idea that it removed Indigenous people from being classed in the “Flora and Fauna Act” – there was no such act. But it is a good metaphor for the sense of powerlessness and disrespect that was shown to Indigenous people, and that was very real.

What the 1967 referendum did do was amend the Constitution to allow the Federal Government to make laws for Aboriginal people.

The fact that even a positive event in our history is widely misunderstood – let along the difficulty people have in engaging with the more challenging aspects of our history – highlights the lack of public awareness of the historical context. It shows how much work needs to be done in educating people about history in Australia.

It's hard to make direct comparisons to the current political situation. The media landscape is vastly different. A key difference is that in the 1967 referendum we had bipartisan support. It also came on the back of a decade-long grassroots campaign, led by Indigenous people who collected hundreds of thousands of signatures in petitions around the country to build support. While the Uluru Statement from the Heart was endorsed in 2017, we've had a shorter timeframe for the Voice, and we are operating in a very different context.

What comes after the referendum?

If the Yes vote gets up, Parliament will set to work on designing the Voice in consultation with Indigenous communities. And I hope we see work progress on the areas of Treaty and Truth-telling, which are the other two asks from the Uluru Statement from the Heart along with a Voice.

Even if the Yes vote does not win the required double majority, I think we have to maintain a positive outlook, and focus what the next steps are going to be. If we don't get a good outcome on from this, there are still many issues of injustice that can continue to be addressed.

We have to keep rolling up our sleeves and chipping away at these injustices. We can't give up and wring our hands. It will be more important than ever for non-Indigenous people of goodwill to partner with Indigenous people to try and work for change.