October 2023

Comment

The Voice beyond symbolism

By Megan Davis
Supporters of the “Yes” campaign in Melbourne, Sunday, September 17, 2023, wearing "yes" T-shirts and raising their fists

Supporters of the “Yes” campaign in Melbourne, Sunday, September 17, 2023. © Diego Fedele / AAP Images

As October 14 approaches, opposition to the Voice has been dominated by false claims and discredited ideas

Recognition in constitutions is not a novel thing. It’s why it’s been discussed here since the republic referendum in 1999. Nor is the recognition of Indigenous peoples in constitutions novel – it is a pedestrian act globally. This next step for Australia is a normal progression for a nation that has achieved much in the past 20 years towards reconciliation.

Recognition is a complex legal concept, and it is not limited to its dictionary meaning of acknowledgement.

Constitutionally, the recognition spectrum is bookended by a weak form (where symbolism or acknowledgement resides) and a strong form. The former is regarded as weak because it does not require or compel the state to do anything, it cannot prohibit the state from doing something and it does not empower anyone. It is what Noel Pearson has called a “plaque in the Constitution”. The strong end of the spectrum is something that compels the state to act, or prohibits the state from certain conduct, or empowers First Nations people. Empowerment is what the Voice is about: recognition through a Voice.

Australia’s journey to a referendum on recognition began 12 years ago and the question has always been: where should Indigenous recognition sit on the spectrum? The weak end? Or further up the spectrum?

The process has included in the conversation politicians, First Nations people, constitutional lawyers and ordinary Aussies.

It is worth pointing out that this work, begun in 2011, has involved eight processes or mechanisms and 11 reports, including an expert panel, a joint select parliamentary committee, a statute called the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013, the Act of Recognition Review, the Referendum Council, the Indigenous Voice Co-Design Process and this year’s Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum. This is a huge volume of public policy and law reform work in 12 years. It was published in its entirety on the public record.

The story of Australian recognition tells us that symbolism was taken off the table five years into the process, as First Nations decided that constitutional symbolism alone was not enough to effect change in communities. In fact, the rejection of symbolism was the reason the Referendum Council was set up: to elicit from a sample of the Aboriginal and Torres Strait Islander community what meaningful recognition looks like to them.

The rejection of symbolism was a big deal in 2015. Three years after the expert panel handed its report to the Gillard government, we were hearing whispers about the Abbott government favouring symbolism for a referendum. We – Patrick Dodson, Noel Pearson, Kirstie Parker and myself – met with Tony Abbott to say that symbolism or minimalist constitutional recognition was not going to fly with Indigenous communities, because it cannot lead to change on the ground, and it was legally and technically complicated. We needed a new process.

Abbott and Bill Shorten then ran a leaders meeting at Kirribilli House, and those Indigenous leaders who attended issued what was known as the “Kirribilli Statement”, which declared that symbolism alone would not be acceptable. The Kirribilli leaders recommended that there be an ongoing dialogue to arrive at a resolution of what form recognition should take. The invitation issued to Australians from Uluru in 2017 revealed the answer to that: recognition through a Voice.

But it is this form of recognition the Coalition now rejects. And in doing so, the entire history of recognition, its cadence and nuance, has been erased by a federal opposition that appears to have not followed the process carefully or read any of the reports, or is exploiting Indigenous lives and communities for cynical political reasons: to claw back the massive defeat of the Coalition that saw its primary vote plummet to a historical low. To do so on the back of Blacks.

The fact is that in 2023, Peter Dutton and David Littleproud rejected outright the referendum proposal without reading any detail first. They should have attracted more condemnation.

The cynicism continued when it was revealed the “No” campaign had scripts advising its volunteers to hide their identity as campaigners, and to instead pretend they were fellow ordinary Australians ringing up others to discuss concerns about the Voice and, especially, reparations (which are not associated with the constitutional amendment).

This was shocking to many. But it was not the national news that night – Professor Marcia Langton, who had pointed out that the foundations of messaging from the “No” campaign was racist, was the subject of the bulletins. Nine and News Corp repeatedly asked whether Langton had delivered the nail in the coffin for “Yes”. Langton was derided for questioning racism in this country in a way that no racist is ever scrutinised. As many said in social and political commentary, it’s seen as worse in Australia to point out racism than to be a racist.

When 20,000 marched the streets of Brisbane, a few sovereignty activists unfurled an Aboriginal flag across Victoria Bridge with “Vote No” emblazoned on it. The flag led the news, not the 20,000 Aussies marching.

The post-referendum analysis will show much of the Australian media deploying false equivalence and normalising conspiracy theories prosecuted by the “No” campaign. Mainstream media have been a passive conduit of misinformation and disinformation during the campaign. And now they are writing pre-referendum obituaries exonerating themselves entirely by asking whether the “Yes” campaign failed because it didn’t have more pithy slogans.

So, with just weeks to go, the nation’s conservative parties have proposed a second referendum on purely symbolic recognition: a model rejected by First Nations, that is regarded as legally problematic and a huge waste of taxpayer money. Dutton and colleagues routinely parrot the line, “We support constitutional recognition but not a Voice”, as if these are two separate concepts that have been erroneously conflated. When I first heard this line, I scoffed, because the Voice proposal involved a painstaking, slow-moving and cautious ruling in and ruling out of recognition models. Voice is both substance and symbolism. It was never and has never solely been “acknowledgement”. But instead, Dutton has offered an alternative with no reference to the process over a decade, the process entered into by Tony Abbott and signed off on by Malcolm Turnbull. Why waste taxpayer money, and the Australian people’s energy via submissions and meetings, and exhaust First Nations peoples and subject them to public debate at its ugliest, only to misrepresent what had been carefully proposed and change the offer to a merely symbolic one?

The expert panel ruled out Dutton-style symbolism because of the legal risks associated with a statement of words placed at the front of the Constitution. Symbolism therefore invites a double whammy of legal danger and lack of substance. This seems to me a major point in the midst of the referendum campaign. As constitutional expert Anne Twomey wrote in 2014 (because this is how long ago symbolism was discarded):

From a structural point of view, we would have the incongruity of two preambles, one in the Constitution itself and one in the Act that enacts the Constitution. How would a court interpret both of them and deal with any differences between them? Which would have priority? Could the two preambles be combined to give rise to implications that neither alone could support? If the new preamble were instead to be described as an “introductory statement”, what effect, if any, would this have on its legal status and its role in constitutional interpretation?

Twomey then goes on to say:

Problems arise … where there is a disconnection between a newly inserted preamble and the substance of the Constitution. The insertion of a new preamble, without a change in the text of the Constitution, would most likely have the effect of altering the operation of existing constitutional provisions through the development of constitutional implications. This may be seen as a form of backdoor constitutional amendment that relies upon creative judges to use a new preamble to update or change the operation of substantive constitutional provisions in a way that the Australian people would not approve by way of referendum.

Dutton is suggesting a reform regarded as legally risky while calling the modest Voice amendment itself risky, even though the consensus of the legal profession is that the Voice is not.

Weeks from the vote, First Nations people can only forge on in the belief, imparted by our old people, that the goodwill of the Australian people will shine through. The “Yes” walks in capital cities brought joy to our hearts. They were tangible demonstrations of Australians accepting the invitation to walk with us. And they were upbeat and happy and full of love and joy. This is what “Yes” offers the nation: vision, unity, solutions, belonging.

Many of us have devoted our lives to addressing structural reform. We aren’t leaders proselytising from social media about abolition or decolonisation. To get change in the world requires you, over decades, to work with politicians of all sides to ascertain political agreement. The world is full of activists who never translate performative rituals of street protest or memes to change in the world.

I reflect on the volumes of books and articles I’ve read on referendums and constitutional drafting and Indigenous empowerment and democratic governance, and never in a million years did I think the debate in my country would descend into one where the focus was on whether the one-page Uluru statement was one page or 26 pages. Really? In my country?

All the aspirations and discussion in the Uluru dialogues were faithfully recorded on butcher’s paper and written up because our people were the first mistrusters in Australian democracy. Long before Australians lost faith in their parliament and liberal democracy, many of our people had. The only way to encourage mob to participate in constitutional recognition discussions was to commit to faithfully recording everything. We wrote down the radical ideas, impossible ideas and conservative ideas, as a sign of good faith. And this has been cynically exploited by the “No” campaign as a Trojan horse. It has misrepresented our peoples’ various aspirations as inevitable outcomes of a “Yes” vote. Nothing is inevitable in politics. Everything requires political agreement. Aspiration remains aspiration in the absence of political agreement. The Morrison government paid reparations to the Stolen Generations. Why? Because it had political agreement. As Aboriginal people, we know that political agreement is what our democracy is predicated upon.

The risk in maintaining the status quo is that First Nations people who were worried about participating in Australia’s first constitutional process involving them will have their concerns validated. I have quoted my constitutional law colleague at the University of New South Wales, Professor Ros Dixon, many times, but she puts it eloquently: “The risk in the status quo is [that] a whole generation of Aboriginal and Torres Strait Islander peoples will entirely lose faith in the process of legal and constitutional reform.” The small risk of “downstream uncertainty … has to be weighed against the absolutely certain risk of disillusioning and disappointing a whole generation of leaders and fellow members of our community”.

The consequences of “No” are dire for our communities. There is no way to recover from a “No”. It will have a massively detrimental impact on the mental health and wellbeing of our Aboriginal children who have to front up to school on Monday, October 16 feeling rejected, with proof that they don’t belong in Australian democracy and society. And having to accept a new, ingrained Australian value: that it’s socially acceptable to lie.

Our jarjums are growing up in an Australia of inclusion and acceptance and diversity. They are growing up in a country of fellow Aussie kids who learn about their Aboriginal footprint in kindy and primary school. Aussie kids now know the name of the First Nation on which they learn and live.

How can my Country be a “No”? This cannot be how it ends.

Megan Davis

Megan Davis is a Cobble Cobble woman from Queensland, a pro vice-chancellor and professor of law at UNSW, and a member of the Referendum Council.

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