Why I will be voting YES in the Australian Referendum.

On or before October 14, 2023, Australians will decide whether they accept to enshrine the Voice for Indigenous Peoples into the Australian constitution. This article focuses on what I have experienced to be the "loudest" and most prominent arguments to vote NO. I hope it provides a different perspective, alleviates some fears and helps you make a more informed vote. I have tried my best to link articles in a number of places which are all good resources in exploring some of the below reasoning in greater detail.

I will be voting YES.

For me, there is very clear rationale to do so. I am not generally an over and above advocate for indigenous rights, nor do I directly actually have any direct interests that play a significant role in a YES vote. I feel, I am a fairly independent voter like many everyday Australians in relation to this referendum. But I do believe strongly in fairness, justice and better outcomes for all Australians.

Voting YES, means you are supporting to shift the ONUS for policy makers to have stronger accountability when they FAIL to consider indigenous rights and concerns.

Boy oh buoy, have our policymakers failed in recent history! There are continuous and recurring data points that this shift is badly needed:

?? (2018) - 10 yr review of Close the Gap Strategy found the government had failed to implement many recommendations and in fact mortality and life expectancy gaps have widened. One of the reasons cited was due to incoherent implementation including abandonment of national approach, leadership and funding agreements by 2014-15 to a 25-year plan.

???? As of June-2023, of the 17 socioeconomic targets with recommendations, only 4 (23%) are on track. 2 do not currently have sufficient tracking data yet. 11 are not on track, and of these 4 are actually heading in the wrong direction.

Heres a link to a Guardian article reporting the above in more detail.

?? (2017) - UN Special Report finds it "disturbing, alarming and deeply troubled" that recommendations by the UN as part of the Australia's 2009 commitment to the UN's Declaration on the Rights of Indigenous Peoples had not been implemented. This continues to damage Australia's prospects of securing a seat on the UN Security Council.

?? (2017) - Deloittes review of the 339 recommendations made from the 1991 Royal Commission of Indigenous deaths in custody found only around 2/3rds of the recommendations had been implemented in over 20 years. Whilst death in custody halved, the rate of incarceration doubled. Deloitte stated recommendations aimed at breaking the cycle of imprisonment and diverting people away from prison had the lowest rates of implementation nationally.

Heres a link to a Guardian article reporting these results in more detail.

?? (1997) - Bringing them Home Report, which followed a two-year national inquiry, found that 20% of indigenous children were living in out-of-home care. 20 years on, most of the recommendations have not been implemented and we are now seeing an increase in Aboriginal people in jails, suicide is on the rise and more children are being removed. The % living in out-of-home care has risen to 35% despite 54 recommendations.

Here is a detailed 20-year review by The Healing Foundation.

THE CURRENT APPROACH TO CONSULTATION AND IMPLEMENTATION HAS NOT BEEN WORKING VERY WELL.

Australia needs a shift.

Argument 1 - We don't know what the Voice actually looks like / We don't know how it will work in practice

You can find the design principles of the Voice to Parliament agreed by the First Nations Referendum Working Group here.

If you really want all the intrinsic details, The Calma-Langton co-design Final report is a 272 page report which was recommended to the government setting out what a Voice should look like. This was proposed after proposals from an Interim Report, developed in stage one of the co-design process, were tested and refined through a significant public consultation engaging more than 9,400 people and organisations, spanning more then 18 months, a number of government bodies and input from 52 co-design members (most of whom were Aboriginal & Torres Strait Islander).

It was recommended that the national voice have 24 members, with gender balance structurally guaranteed. The base model proposes two members from each state, the Northern Territory, ACT and Torres Strait. A further five members would represent remote areas due to their unique needs – one member each from the Northern Territory, Western Australia, Queensland, South Australia and New South Wales. An additional member would represent the significant population of Torres Strait Islanders living on the mainland. Members would serve four-year terms, with half the membership determined every two years. There would be a limit of two consecutive terms for each member. Two co-chairs of a different gender to one another would be selected by the members of the voice every two years. The Calma-Langton model proposed a national voice with two permanent advisory groups – one on youth and one on disability – and a small ethics council to advise on probity and governance.

How would local and regional voices feed in?

The co-design report proposed 35 regions, broken down by state and territory. Communities and governments in each state and territory would jointly determine these. Local and regional voices would provide advice to all levels of government to influence policy and programs, and advise the non-government sector and business. The report outlines their roles, how they would be constituted and the principles they would embody, like cultural leadership, community-led design and empowerment. There would be “a clear, two-way flow of advice and communication” between them and the national voice, the report said.

What would an Indigenous voice to parliament not do?

The national voice would be an advisory body to the Australian parliament and government. It would not deliver services, manage government funding, be a clearing house for research, or mediate between Aboriginal and Torres Strait Islander organisations.

Argument 2 - This change/model is untested and we don't know what the effects of the change may be

I think there is A LOT we can learn from the practical effect of approaches around the world. Something this proposed referendum has considered in its proposal for Australia. Including the Voice as stated in this years referendum is not a new or completely untested concept.

???? New Zealand - has a stronger track record of recognising and integrating Māori policy and interests. They actually have seats in parliament which are designated to represent Māori's, one would argue a more aggressive structure then that proposed in this referendum. The Māori electorates were introduced in 1867 under the Māori Representation Act and a key distinction of that history stems from the uniqueness of The Treaty of Waitangi in 1840 between the British Crown and Māori Chiefs (a founding document) which recognised Māori ownership of their lands, forests and other possessions, and giving Māori the rights of British subjects. Quite a distinct experience to that which occurred in Australia.

???? As a side bar, I lived in NZ when I was younger growing up for many years and can attest to the integration of indigenous Kiwi's with the rest of the community first hand. Māori culture was accepted and included as part of what it means to be a Kiwi. You can see this for example when the All Blacks do the Haka, its not just Māori players who show their passion through this tradition is it? The Haka is actually an example of cultural integration, at my primary school, everyone had to learn the Haka, it was a proud tradition that brought togetherness amongst the school community, whether you were Māori or not. The Māori language was also taught as well as basic Māori history.

???? Norway - established a parliamentary body for the Sami people in 1989 that MUST be consulted by government following severe controversy around the proposed construction of a hydro-electric dam that was going to flood a Sami village. Again, a more "aggressive" structure then that proposed in the referendum. At the time of its consideration, Norway similarly had severe debate and division, but since the establishment over 30 years ago there has been relatively little controversy of its effect and is widely accepted by both major political parties.

???? In fact, in May this year, the Norwegian Parliament voted to amend their constitution to establish Sami people as an indigenous group to Norway. This proposal sailed through the Norwegian parliament with an overwhelming majority and it wasn't really controversial at all.

You can read about the NZ and Norway experience in a transcript of the The Saturday Paper's interview with policy advisor Andrew Wear who is also author of Solved: How Other Countries Cracked the World's Biggest Problems (and We Can Too)

???? and ???? Finland (1973) and Sweden (1993) have had similar structures present to represent the Sami people.

???? However, some have shifted between the level of legislative entrenchment such consultation holds. Criticism has occurred when entrenchment has not existed and governments have defaulted to a bias of ignoring consultation. The recurring lesson is that it is human and systemic nature that Governments default to ignoring recommendations and consultation unless an onus exists to consider more strongly.

???? Entrenchment has also not meant that the Sami voice have always got their way. In 2008, the Sami lobbied to have Sami peoples defined in the constitution to have distinctive rights in the state. This failed and instead the Swedish government proposed to include them in a list of minorities whose rights are protected. Whilst the outcome can be debated and whether you believe this was a good or bad outcome, the point is that a robust process of active consultation and engagement did occur, the process shows more integrity. Politicians cannot ignore or quash concerns made and it allows for the nation to engage in better debate and ultimately better democracy.

You can read about the Swedish Samediggi (Sami parliament) here.

???? Canada - has a recognised fiduciary duty of the Crown towards indigenous people in Canada that can be tracked back as far as the Royal Proclamation of 1763. This is quite a different approach, some of the criticism faced over time has been because of the uncertainty such a duty involves and what can be considered shifting interpretation of that duty and how it is applied narrowly or broadly in different contexts.

???? South Africa - the Khoisan people failed to be recognised and heard. Many were ostracised and Khoisan culture, language and tradition has struggled to be preserved. This was despite in 1999 Nelson Mandela constituting the National Khoi and San council to look after the communities needs but with no legislative power. This is similar to the current status quo in Australia where national bodies have existed at different times to advocate for Indigenous issues and rights. As such, in South Africa, advice was largely ignored by governments including issues of land rights and access to natural resources. This has led to ongoing violent protests, conflict and illegal land grabbing.

You can read about the Khoisan history in this Foreign Policy article.

Argument 3 - Voting Yes is "undemocratic" or instituting such a text in the constitution actually incites further "separation" or "treats people unfairly different" and/or "promotes division".

This argument, in my opinion, looks to exploit even the slightest fear in everyday Australians. It takes advantage of the fact that most everyday Australian's have a limited understanding of the constitution the law and legal history.

I have already stated countless examples above where these fears would be even greater (because the level of entrenchment or recognition in legislature is more aggressive) but as we can see in practice, those fears in history have not come to fruition and in fact have mostly worked quite well. There are also a number of checks and balances that inherently exists in parliamentary, legislative and legal processes.

Furthermore, this is an argument of principle, which I will try and show, has fundamental flaws.

???? The idea that equality is enshrined in Australia’s Constitution is flawed. For example, it actually permits and enables racially discriminatory legislation through section 51, a section which is quite literally known as ‘the race power.’ Even the structure of our Parliament is at a baseline, unequal. The Constitution mandates an equal number of senators from each state. This means that Tasmania has the same Senate representation as Victoria, despite having a population around 11 times smaller.

???? The principle of this counter-argument are based on principles of "Liberal Neutrality". Which is appealing in principle and sits well when you are part of the dominant group! However, this neutrality principle, can also legitimise systemic racism and poses great threat to fairness and protecting minority interests.... as was the case in Australia for a long time! Our system of native title rested on this premise up until the 1975 Racial Discrimination Act (again, note the title if nothing else). Up until this act, the government could be racist and steal whatever land it wanted from Indigenous peoples, simply because they were Indigenous.

But you don't have to take my word for it. You can read about the "Myth of neutrality" in the context of the Voice referendum which is better articulated in detail here by Dr Michael Green from the School of Social and Political Science at the University of Melbourne .

Argument 4 - Why do Indigenous people warrant a Voice and not other parts of the community?

In short, because only Indigenous people have the historical entitlement and associated rights which we have universally recognised, and enshrined in law and that we (as well as most other nations) have committed to as part of shared values under the Universal Declaration of Human Rights in 1948 and then further, and specifically addressed in the UN Declaration on the Rights of Indigenous People (UNDRIP) adopted in 2007. A key part of this was affirming the fundamental importance of the right of self-determination of indigenous peoples.

Indigenous Australians have a right to self-determination. This is based on the fact they were Australia's first peoples which was recognised in the historic Mabo judgement by Australia in 1992. Lets not undo that progress! It overturned "terra nullius", the lie (and the lie policy makers relied on) that Australia was “nobody’s land” and effectively until that point erased Australia’s First People in any legal capacity. This then led to the Native Title Act 1993 and was a major turning point in Australia's history to beginning the road to shared reconciliation. Read more about Mabo from the Guardian here or if you want to read about the case in summary itself here .

Katie O’Bryan and Paula Gerber from Monash University’s Faculty of Law explain. “Amending the Constitution to provide First Nations peoples with a Voice to Parliament does not offend notions of equality; rather, it is acknowledging the finding of the High Court in Mabo v Queensland (No. 2) that “Their dispossession underwrote the development of the nation” - link here.

Concluding Remarks

• Our current efforts and systems are failing Indigenous Australians.
• There are widespread examples from around the world which have shown how positive reconciliation and impact can occur.
• The proposed Voice is a proportional proposal based on that evidence and follows considered consultation and extensive feedback.
• Some of the arguments to vote NO are based on exploiting fear and a lack of understanding, despite many examples existing in practice which can alleviate such fears.
• The Voice presents an opportunity to move the ONUS in the right direction for there to be better accountability. Leading to a better democracy and improved outcomes for Indigenous reconciliation.