Australia’s Prime Minister recently announced his Government’s plans to hold a national referendum on the “Indigenous Voice to Parliament“. The Voice is a key outcome from the Uluru Statement from the Heart, and the path towards Treaty and Truth. It will require amendments to the Australian Constitution. The inevitable debate about the detail, purpose and scope to be enshrined in the Voice has now been heightened by the death of Queen Elizabeth II, and related issues of Australia’s pre- and post-colonial history, the experience of Federation and the fate of the Republican movement.

NAIDOC guide to Indigenous place names in Australia (image sourced from SBS)

One of the first comments in the wake of the Prime Minister’s announcement came from the Green Party, who indicated that their support for the Voice would be conditional on there being a Treaty first. Indeed, Greens Senator Lidia Thorpe called the proposed referendum “a waste of money”, indicating that she wanted to see a Treaty with Indigenous Australians before any talk of a Republic. Since the Queen’s death, it seems the Senator has changed her mind, and is now calling for both a Treaty and a Republic. But the Prime Minister has determined that the first order of business for his Government is the Voice, and that the Republican debate is not for his first term in office.

The question to be presented in the Referendum will be:

“Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?”

And the proposed additions to the Constitution would read something like this:

1.There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
2.The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples.
3.The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

While refusing to be drawn on the precise details of the Voice, the Prime Minister has defined what it is NOT going to be: “Not a third chamber, not a rolling veto, not a blank cheque.” Meanwhile, two bodies have been appointed to prepare for the Referendum proposal and implementation: the Referendum Working Group, and the Referendum Engagement Group, whose terms of reference are not entirely clear – and Senator Thorpe complained that the appointees “did not represent First Nations voices”.

Given the history of Referendums in Australia (most notably the failure of the Republican Movement to secure a “Yes” vote in 1999), it’s understandable that people are either wary about the form of the question and/or the Constitutional amendments, or are concerned about the apparent lack of detail that the Government has so far provided on the remit of the Voice. There is a possibility that the electorate votes “Yes” in the Referendum, but that agreement cannot be reached on the changes to the Constitution, or the structure of the Voice. So it’s understandable that some people are seeking more detail, or at least more clarity.

Whatever the sequence of events (Voice, Treaty, Republic?), it’s going to be a complicated process. For example, putting the Republic before the Voice may mean that the latter becomes redundant, assuming the Republican Constitution embeds principles such as the United Nations Declaration on the Rights of Indigenous Peoples. And Treaty before Republic would mean that the agreement(s) would be between the First Nations people and the Australian Constitutional Monarchy, whose Head of State is now King Charles III.

Perhaps that is the point – the formal process of healing, reconciliation and reparation cannot be meaningfully done without some involvement by the British Crown, in whose name Indigenous lands were appropriated in 1788. But does that potentially “absolve” Australia’s post-Federation Governments and Administrations from any responsibility for the act of British colonisation? Since Federation in 1901, Australia has had ample opportunity to make amends. It is no longer possible to suggest that any change to the Australian Constitution would require Royal Assent by the King or Queen in person – the purely ceremonial role of the British Monarchy in respect to Australia’s domestic affairs has always been predicated on the advice from both the Governor General (who serves as the Monarch’s local representative, and who gives Royal Assent to Australian Acts of Parliament), and Australia’s own government ministers and civil servants. In any event, it’s long been understood that the Crown would not prevent Australia becoming a Republic; in effect, the Crown could not intervene in any Constitutional amendment. Such a change is entirely a matter for the Australian Parliament.

The Westminster Act of 1931 confirmed that Australia is an independent state able to form its own foreign policy and defence free from British control; and the Australia Act 1986 formally severed all remaining legal ties between Australia and the United Kingdom except for the Monarchy. So a Treaty with Indigenous peoples could have been possible since 1901 when the Commonwealth of Australia Constitution Act came into force, heralding Federation. (Interestingly, King Charles III has had to be proclaimed by the Federal Government, and by each State – which might suggest the need for multiple Treaties?)

Another argument against embodying the Voice within the framework of the current Australian Constitutional Monarchy is because it would appear to “ratify” colonisation, and thereby imply Sovereignty had been granted (retrospectively?) to the Crown, which would therefore negate the need for Treaty. Indeed, the whole point of Treaty is to re-assert that Indigenous Sovereignty was never ceded, and that unlike other British colonies such as Canada and New Zealand, the British Crown has never attempted to negotiate any form of direct agreement with the Indigenous Nations of Australia.

Alternatively, Associate Professor Hannah McGlade has stated that a national Treaty needs a national body to negotiate (hence a key purpose of the Voice).  Further, she argues that Aboriginal Sovereignty relates to the “right to shape the national dialogue” on issues of primary concern to the Indigenous population. While not quite equating to full self-determination, it does provide a persuasive argument in favour of establishing the Voice to Parliament.

Finally, some other factors to consider as we move through this multi-faceted debate on Treaty, the Republic, and defining Australia’s post-colonial, post-Federation and post-Monarchy identity:

1. A Republic is no guarantee of getting Treaty right – indeed, look at the number of republics that have ridden rough-shod over their own indigenous and minority peoples – oppression and dictatorship is not the preserve of monarchs and emperors.

2. There is the question of how Crown land in Australia will be resolved, both in relation to Treaty, and the Republic. This would include the commercial arrangements for agriculture, mining and tourism, as well as land development and construction.

3. Inconsistencies in how Indigenous people are acknowledged at public events, meetings and in other similar settings. Here in Victoria, we are very used to some statement of recognition towards Indigenous nations and the traditional custodians of the land, along with their elders past, present and emerging. On my recent trip the Kimberley, I was surprised that no such formal statements were made when visiting culturally significant landmarks, usually under the direction of official tour guides, including National Parks. Not that there was an absence of awareness, knowledge or public signage, but I had expected there might have been a more vocal expression from some of our hosts.

4. Despite the need for a cohesive approach to the Voice and Treaty, it would be a mistake to view the Indigenous populations and their respective Nations as an homogenous entity. Even within Indigenous communities, as in any society, there are differences and inconsistencies. So there will be different demands placed on those charged with navigating the Voice, and negotiating Treaty. But a speedy outcome should not preclude the establishment of a solid consensus. After all, what’s 240 years compared to 50,000?

Next time: Recap…