Silencing the Indigenous Voice: How Australians Have Failed Their Own People Part II

by | Oct 25, 2023

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About Virendra Ashiya

Virendra Ashiya is a law student at NLSIU, Bengaluru. He is interested in Constitutional and Criminal Law and works with Project Second Chance to advocate for the rights of prisoners and for post-prison rehabilitation opportunities. Virendra is also a research associate to Dr Elaine Dewhurst for a project on age discrimination in India.

The first part of this blog series addressed the background to the referendum and the Constitution of Australia, including how it derives from racially discriminatory beliefs which would later be implicated in the White Australia policy and the Stolen Generations of Indigenous Australians. The second part of this series considers the Voice initiative itself in greater detail, examining its claims to greater inclusivity and its relationship to Indigenous self-determination and affirmative action.

Would The “Voice” Lead to Inclusion?

Advocates of the Indigenous voice have asserted that its implementation would enhance the wellbeing of First Nations peoples. The campaign to establish the Voice was spearheaded by Australia’s Labor Party government, working in collaboration with Indigenous community bodies and advocacy groups. The objective to have the Voice enshrined in the Constitution was designed to prevent its abolition during governmental transitions, as has occurred with previous advisory groups

Indigenous peoples encounter adverse outcomes in terms of health, employment, education, and incarceration rates in comparison with non-Indigenous Australians. For instance, there is a more than seven year gap in life expectancy for Indigenous Australians compared with non-Indigenous Australians, a suicide rate twice the national average, and comparatively poorer outcomes for health, education and infant mortality. The proposed Voice advisory body would have included Indigenous representatives from each of Australia’s six states, in order to advance a deeper understanding of Aboriginal and Torres Strait Islander issues across a diverse range of regions and communities, and to address the vast gaps in these measures of wellbeing for First Nations peoples throughout Australia.  

The 2023 referendum to acknowledge Aboriginal and Torres Strait Islander peoples in the Constitution presented an important opportunity to establish a precedent of equal treatment for all Australian citizens, building on the progress made by the referendum of 1967. Under Section 51(xxvi), today’s Constitution grants legislative power to the Parliament for the enactment of laws that are deemed necessary for the wellbeing and protection of individuals belonging to specific racial groups. This provision is the result of an amendment actioned by the Constitution Alteration (Aboriginals) Act 1967 (subsequent to a successful referendum), which modified the section’s original wording. Previously, it had stated that special laws could be made for “the people of any race, other than the Aboriginal race in any State”, excluding First Peoples from the ambit of Constitutional oversight and thus signalling that Indigenous peoples were below parliamentary notice (indeed, it was not even until 1962 that Indigenous Australians were granted the vote). Though the 1967 referendum thus represented a significant progression towards social justice for Indigenous peoples, the 2023 referendum demonstrates that cultural change is far from realised in contemporary Australia. 

Is Self Determination Also a Part of Inclusion?

In the context of Indigenous peoples, recognition of the entitlement to self-determination acknowledges their enduring right to autonomous decision-making, self-governance, and self-sufficiency. The right to self-determination is typically achieved via treaty with the colonial-settler state, as has occurred in New Zealand and Canada. This remains a political goal for many Aboriginal and Torres Strait Islander peoples, who practiced effective self-determination and self-governance for millennia before the onset of colonisation. As such, some Indigenous advocates (representing the so-called ‘Progressive No’ campaign) argued that the Voice would not go far enough in securing the rights to self-government of First Nations peoples, given that the Voice was only an advisory body and did not itself provide opportunity for treaty or self-government, in the interests of greater autonomy for Indigenous communities.

For example, Articles 5, 18, and 19 of the United Nations Declaration on the Rights of Indigenous peoples (UNDRIP) establish a framework for devolved decision-making processes for Indigenous communities within colonial-settler states. According to the United Nations Permanent Forum on Indigenous Issues, the sole authority to determine which matters are suitable for deliberation by an Indigenous representative body rests exclusively with the Indigenous population themselves. Though it is not obligatory for the members of the Indigenous representative body to be selected by Indigenous peoples according to their procedures, this can be inferred from the non-binding “design principles”. As such, while the right to participate in decision-making was not explicitly protected by the proposed Indigenous Voice referendum, the opportunity to present First Nations peoples’ perspectives to decision-makers would have represented a critical step forward nonetheless, in accordance with the principles of the Uluru Statement from the Heart

Is The “Voice” a Step Towards Inclusion or Discrimination? 

Affirmative action – the granting of reparative allowances to social groups which have previously faced discrimination – seeks to offset a history of oppression and exploitation by taking into consideration and addressing the factors which have prevented a particular group from realising substantive equality. Thus, in the context of the Indigenous referendum, the proposed Voice does not constitute a form of discrimination, but rather a basic inclusionary response to the catastrophic marginalisation experienced by Australia’s Indigenous population over preceding centuries at the hands of the settler-colonial state. 

Moreover, the issue of whether the suggested constitutional modification may generate distinct privileges (or itself constitute a form of prejudice) was specifically examined by the Law Council of Australia, which concluded that: “The proposed amendment does not establish unique privileges for Aboriginal and Torres Strait Islander individuals, nor does it exhibit bias based on ethnicity. This is not deemed a ‘special measure’ as per the International Convention on the Elimination of all Forms of Racial Discrimination (CERD). Its basis lies in the principle of self-determination of communities, rather than differentiation based on race. The Voice also defends other basic human rights given to Aboriginal and Torres Strait Islander peoples, like the privilege of equal treatment and non-discrimination, and the privilege of participating in public affairs.” As such, the proposed Voice was designed not as a divisive force but rather a source of collective resilience, truth-telling and healing for communities which have endured protracted institutional violence and oppression.

This blog has considered the motivation and justification for the Indigenous Voice, building on the history of colonial dispossession and constitutional discrimination outlined in Part I. It has established that, while there was no guarantee that the Voice would produce specific results, it represented an important step toward the just and equitable treatment of Australia’s Indigenous peoples. Sadly, the referendum’s defeat is a regrettable sign that Australian policymakers and the population more widely have much work yet to do to achieve cultural change that recognises and respects the inviolable human rights of First Nations Australians.

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