The Rejection of the Voice for Aboriginal People in Australia – A Postmortem of Causes of Failure
DOI:
https://doi.org/10.31078/consrev1021Keywords:
Advisory Body, Australia, Indigenous Rights, Referendum, Self-Determination, The VoiceAbstract
On 14 October 2023, the Australian electorate rejected by an overwhelming majority a proposal for a constitutionally guaranteed advisory body, to be called the Aboriginal and Torres Strait Islander Voice. This was the fourth attempt in Australia to create an advisory voice for Aboriginal people, but the first time it was attempted via a constitutional amendment involving a public vote. The rejection is continuing to reverberate through Australian society. To many Aboriginal people this was not only a rejection of a technical proposal, but a rejection of their aspirations of self-determination. This article reflects on some of the root causes why in the view of the author, the referendum failed. The article is critical of the lack of information about the composition and functions of the proposed Voice as well as the inconsistencies between various reports and public documents. These contributed to public scepticism and rejection of the proposal.
References
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth).
Acts Interpretation Act 1901 (Cth).
Albanese, Anthony. "Albo Hits Back on Claim That Voice to Parliament." News.com.au, September 18, 2023.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue 2009] HCA 41; (2009) 83 ALJR 1152.
Alfredsson, Gudmundur. "The Rights to Self-Determination in International Law." In Minority Self-Government in Europe and the Middle East, edited by O. Akbulut and E. Aktoprak, 3-31. Leiden: Brill, 2019.
Appleby, Gabrielle J., Sean Brennan, and Megan Jane Davis. "A First Nations Voice and the Exercise of Constitutional Drafting." Public Law Review 34 (2023): 3-9.
Attorney-General's Department (South Australia). "Local First Nations Voices." 2023. https://www.agd.sa.gov.au/first-nations-voice/local-first-nations-voices.
Australian Bureau of Statistics. "Census 2021" Canberra, 2021. https://www.abs.gov.au/census.
Australian Electoral Commission. "National Results." 2023. https://tallyroom.aec.gov.au/ReferendumNationalResults-29581.htm.
Australian Electoral Commission. Your Official Referendum Booklet. AEC, 2023. https://www.aec.gov.au/referendums/files/pamphlet/referendum-booklet.pdf.
Australian Institute of Aboriginal and Torres Strait Islander Studies. "NAC—Establishment, Role and Functions. Canberra: AIATSIS, 1983. https://aiatsis.gov.au/collections/collections-online/digitised-collections/treaty/national-aboriginal-conference.
Australian Education Union v Department of Education & Children’s Services (2012) 248 CLR 1.
Barrie, G. N. “The ‘Right’ to Free, Prior and Informed Consent: Evolving Customary International Law.” In Courts and Diversity: Twenty Years of the Constitutional Court of Indonesia, edited by Bertus De Villiers, Saldi Isra, and Pan Mohamad Faiz, 195–227. Leiden: Brill, 2024.
Bartlett, Richard. Native Title in Australia. Australia: LexisNexis Butterworths, 2020.
Baum, Scott. “Unravelling the Referendum: An Analysis of the 2023 Australian Voice to Parliament Referendum Outcomes across Capital Cities.” Research Square, 2024. https://doi.org/10.21203/rs.3.rs-4069107/v1.
Berry, M. “The Voice Referendum.” Journal of Australian Political Economy 92 (2024): 240–48.
Charles, K. C., and Lucy Hamilton. “The Voice and Australia’s Democracy Crisis.” Meanjin 83 (2024): 200–209.
Charters, Claire, and Rodolfo Stavenhagen, eds. Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples. Copenhagen: IWGIA, 2009.
Constitution Act 1889 (WA).
Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023.
Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158.
Cowan, Simon. “Things to Learn from the Voice to Parliament Referendum.” Canberra Times, October 21, 2023.
Cross, J. “Jacinta Nampijinpa Price Tells Press Club the Voice Is ‘Built on Lies’ amid Furore in Canberra.” National Indigenous Times, 2023. https://nit.com. au/14-09-2023/7687/jacinta-nampijinpa-price-tells-press-club-the-voice-is-built-on-lies-amid-furore-in-canberra.
Davis, Megan, and George Williams. Everything You Need to Know about the Voice. Sydney: UNSW Press, 2023.
De Villiers, Bertus. “An Advisory Body for Aboriginal Peoples in Australia—The Detail May Be Fatal to the Deal.” Brief, March 2018: 7–11.
De Villiers, Bertus. “An Ancient People Struggling to Find a Modern Voice— Experiences of Australia’s Indigenous People with Advisory Bodies.” International Journal on Minority and Group Rights 26 (2019): 1–21.
De Villiers, Bertus. “Dithering between Consultation and Consensus—Whereto with Advisory Bodies for Indigenous Peoples?” Journal of Ethnopolitics
and Minority Issues in Europe 22 (2023): 32–63. https://doi.org/10.53779/HBKA3992.
De Villiers, Bertus. “Life after the Failed Voice: Options for Aboriginal Self- Determination and Consultation in Australia.” International Journal on Minority and Group Rights (2024): 1–32.
De Villiers, Bertus. “Right to Be Consulted, but the Frustration of Being Ignored: The Ongoing Efforts in International Law to Give Practical Meaning to Free, Prior, and Informed Consent.” In Indigenous Rights in the Modern Era: Regaining What Has Been Lost, 68–130. Leiden: Brill, 2023.
De Villiers, Bertus. “Seven Questions before the Voice Can Be Heard: Learning from the Past.” Brief, August 2022: 8–11.
De Villiers, Bertus. “Speaking, but Does Anyone Listen? The Path of Progress and Frustration with Indigenous Advisory Bodies of the Sámi, Aboriginal People, and the Khoisan.” In Indigenous Rights in the Modern Era: Regaining What Has Been Lost, 131–200. Leiden: Brill, 2023.
De Villiers, Bertus. “The Recognition Conundrum—Is an Advisory Body for Aboriginal People Progress to Rectify Past Injustices or Just Another ‘Toy Telephone’?” Journal of Ethnopolitics and Minority Issues in Europe 17 (2018): 24–28.
De Villiers, Bertus. “Using Control over Access to Land to Achieve Self-Government (of Some Sort): Reflecting on the Experiences of Aboriginal People with the Right to Negotiate in Australia.” In Navigating the Unknown—Essays on Selected Case Studies about the Rights of Minorities, 104–37. Leiden: Brill, 2022.
Donaghue, Stephen. Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum. Canberra, April 19, 2023.
Evans, M., and Michelle Grattan. “The Voice to Parliament and the Silent Majority.” Australian Quarterly 95 (2024): 4–11.
First Nations Referendum Working Group. “Design Principles of the Aboriginal and Torres Strait Islander Voice.” 2023. https://voice.gov.au/sites/default/files/2023-06/design-principles-aboriginal-torres-strait-islander-voice.pdf.
Fleay, Jesse, and Barry Judd. “The Uluru Statement: A First Nations Perspective of the Implications for Social Reconstructive Race Relations in Australia.”International Journal of Critical Indigenous Studies 12 (2019): 1–14.
Goot, Murray, and Tim Rowse. “The Debate Over the Constitutional Recognition of Indigenous Australians: National Unity and Memories of the 1967 Referendum.” Australian Journal of Politics and History 70 (2024): 97–119.
Hogan, Orla. “Why the Voice Failed: The Australian Establishment Has Been Too Focused on Symbolic Gestures Rather than Practical Change.” The Critic, February 2, 2024.
Howard, John. “The Right Time: Constitutional Recognition for Indigenous Australians.” Speech presented at The Sydney Institute, Sydney, October 11, 2007. https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2FL41P6%22.
Indigenous Voice. Indigenous Voice Co-Design Process Final Report to the Australian Government. (Calma-Langton Report). Canberra: Indigenous Voice, July 2021. https://voice.niaa.gov.au/sites/default/files/2021-12/indigenous-voice-co-design-process-final-report_1.pdf.
International Labour Organization. Indigenous and Tribal Peoples Convention, 1989 (No. 169). June 27, 1989. https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169.
Joint Select Committee. Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Island Peoples 2018. Canberra: Parliament of Australia, 2018. https://www.aph.gov.au/Parliamentary_Business/ Committees/Joint/Constitutional_Recognition_2018/ConstRecognition/Final_Report.
Joint Select Committee on the Voice. Advisory Report on the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023. Canberra: Parliament of Australia, May 2023. https://www.aph.gov.au/Parliamentary_Business/ Committees/Joint/Aboriginal_and_Torres_Strait_Islander_Voice_Referendum/VoiceReferendum/Report.
Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs. Inquiry into the Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia. Canberra: Parliament of Australia, 2023.
K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501.
Kichwa Indigenous People of Sarayaku v Ecuador, Merits and Reparations, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 245 (June 27, 2012).
Koori History Website. “The 1970s: The National Aboriginal Consultative Committee (NACC) 1973–1977.” Accessed April 23, 2021. http://www.kooriweb.org/foley/images/history/1970s/nacc74/naccdx.html.
McCusker, Malcolm. “’A Bad Idea for Australia’: McCusker Blasts the Voice at Its Core.” 6PR, October 6, 2023.
Middleton, Justice Geoffrey. “Statutory Interpretation: Mostly Common Sense?” Melbourne University Law Review 40 (2016): 626–56.
Mogale and Others v Speaker of the National Assembly and Others [2023] ZACC 14.
Mundine, Nyunggai Warren. “The Voice, as Proposed, Is Flawed and Insulting to First Nations.” Sydney Morning Herald, April 19, 2023. https://www.smh.com.au/national/the-voice-as-proposed-is-flawed-and-insulting-to-first-nations-20230418-p5d1g3.html.
Palmer, Kingsley. ATSIC: Origins and Issues for the Future. A Critical Review of Public Domain Research and Other Materials. Canberra: AIATSIS, 2004.
Pratt, Angela, and Scott Bennett. The End of ATSIC and the Future Administration of Indigenous Affairs. Canberra: Parliament of Australia, 2004. https://parlinfo.aph.gov.au/parlInfo/download/library/prspub/FXED6/upload_binary/fxed68.pdf.
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
Reconciliation Australia. “Voice to Parliament.” 2023. https://www.reconciliation.org.au/reconciliation/support-a-voice-to-parliament/.
Referendum Council. Final Report of the Referendum Council. Canberra: Commonwealth of Australia, June 30, 2017. https://www.referendumcouncil.org.au/final-report.html.
Referendum Council. “The Statement: Uluru Statement from the Heart.” Uluru: Referendum Council, 2017. https://ulurustatement.org/the-statement.
Sanders, Will. “ATSIC’s Achievements and Strengths: Implications for Institutional Reform.” Sydney: Centre for Aboriginal Economic Policy Research, 2004. http://caepr.anu.edu.au/sites/default/files/Publications/topical/SandersATSICAchievement.pdf.
Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193.
Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 172 (November 28, 2007).
“SA First Nations Voice Election Results Show Low Turnout, but Candidate Urges ‘Give Us a Chance.’” ABC News, March 29, 2024. https://www.abc.net.au/news/2024-03-29/sa-voice-to-parliament-voter-turnout/103649148.
Shrinkhal, Rashwet. “’Indigenous Sovereignty’ and Right to Self-Determination in International Law: A Critical Appraisal.” AlterNative: An International Journal of Indigenous Peoples 17 (2021): 71–82. https://doi.org/10.1177/1177180121994681.
Stonehouse, Greta. “The Differing Views from Indigenous Australians across NSW on the Voice to Parliament Referendum.” ABC News, October 6, 2023.
Taflaga, Marija. “Australia: Political Developments and Data in 2023: Unfinished Business: Failed Referendums and Ongoing Inflation.” European Journal of Political Research (2024): 1–11.
Tauli-Corpuz, Victoria. Autonomy Report of the Special Rapporteur on the Rights of Indigenous Peoples. New York: United Nations, 2019. https://www.undocs.org/A/74/149.
Taylor, Lenore. “Paul Keating Says Voice Referendum Was ‘Wrong Fight’ and Has ‘Ruined the Game’ for a Treaty.” The Guardian, October 27, 2023. https://www.theguardian.com/australia-news/2023/oct/27/paul-keating-says-voice-referendum-was-wrong-fight-and-has-ruined-the-game-for-a-treaty.
Taylor, Paul. A Commentary on the International Covenant on Civil and Political Rights: The UN Human Rights Committee’s Monitoring of ICCPR Rights. London: Cambridge University Press, 2020.
Tomaselli, Alexandra. “The Right to Political Participation of Indigenous Peoples: A Holistic Approach.” International Journal on Minority and Group Rights 24 (2017): 390–427.
United Nations. Indigenous Peoples and the United Nations Human Rights System. New York: United Nations, 2013.
United Nations. “Special Rapporteur on the Rights of Indigenous Peoples.” 2007. https://www.ohchr.org/en/issues/ipeoples/srindigenouspeoples/pages/sripeoplesindex.aspx.
United Nations. United Nations Declaration on the Rights of Indigenous Peoples. 2007. https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html.
Wellauer, Kirstie, Carly Williams, and Bridget Brennan. “Why the Voice Failed.”
ABC News, October 16, 2023. https://www.abc.net.au/news/2023-10-16/why-the-voice-failed/102978962.
Wesselinoff, Adam. “Review: How the Voice Referendum’s Defeat ‘Unsettled’ Australia.” The Catholic Weekly, July 1, 2024. https://catholicweekly.com.au/voice-referendum-failure/.
Winterton, George. “Australia’s Constitutional Convention 1998.” Agenda: A Journal of Policy Analysis and Reform 5 (1998): 97–109.
Wood, Asmi. “Critique of ‘Voice versus Rights’.” UNSW Law Journal Forum 5 (2023): 1–17.
Yupsanis, Athanasios. “The International Labour Organisation and Its Contribution to the Protection of the Rights of Indigenous Peoples.” Canadian Yearbook of International Law 49 (2011): 117–76.
Zhou, Naaman. “The Failure of Australia’s Attempt to Create an Indigenous Voice to Parliament.” The New Yorker, October 19, 2023.