Civil Law

By Stefan Russell-Uren


Indigenous voice to parliament

In around 2015, Malcom Turnbull and Bill Shorten appointed a Referendum Council, tasked with working out a way to recognise Indigenous Australians in the constitution. The Council was comprised by 16 people from the highest echelons of grassroots activism, law, and politics including:

  • Noel Pearson (who negotiated the Native Title Act 1993 (Cth) in the wake of the Mabo decision);
  • Murray Gleeson (former Chief Justice of the High Court of Australia);
  • Senator Pat Dodson (a Former Royal Commissioner into Aboriginal Deaths in Custody); and
  • Dr Galarrway Yunupingu (Gumatji Elder who negotiated the Ranger Uranium Mine Agreement).

Between 2015 and 2017, the Referendum Council travelled around Australia, seeking views about constitutional recognition. The Council ultimately organised a convention of indigenous communities to discuss options for constitutional recognition.

In May 2017, the First Nations National Constitutional Convention was convened at Uluru, in the Northern Territory. The Convention included 250 delegates representing various indigenous communities throughout Australia.

On 26 May 2017, the Convention issued the Uluru Statement from the Heart (“the Statement”). The Statement expresses the powerlessness resulting from a structural exclusion from Australia. The Convention demanded a First Nations Voice to parliament be enshrined in the constitution, to alleviate that powerlessness and provide a mechanism through which Indigenous Australia could speak to parliament.

The Voice was immediately rejected by Malcolm Turnbull, who dismissed it as a “third chamber” of parliament. At the time, Turnbull was beset by the conservative faction of the Liberal Party, and he attempted to appease them (in vain). Turnbull since changed his views, and is now an avid supporter of the referendum.

On 21 May 2022, the Labor Government was elected, and Anthony Albanese became Prime Minister. Albanese’s first commitment in his acceptance speech was to hold a constitutional referendum establishing a First Nations Voice to Parliament.

The Voice is intended to overcome the disempowerment inherent in the Australian Constitution. Whilst the treatment of indigenous Australia has been covered extensively in the news, the precise nature of that constitutional disempowerment has not been subject to much civil debate, during discussion about the Voice.

By virtue of section 51(xxvi) of the Constitution, the Commonwealth Parliament is empowered to make special laws for people of any race (“the Races Power”). The Races power was created in 1967, to remove power from the States and hand it to the Commonwealth. However, the mere existence of that power entrenches, in our Constitution, the unabashed racism which spanned 1901 to 1967. The Races Power permits the Federal Parliament to make laws authorising:

  1. the removal of indigenous children;
  2. pushing indigenous women to only bear “half-caste” offspring in an attempt to “breed out the colour”; or
  3. limiting work rights for Chinese Australians.

Each of these is a real example taken from our shared history. Indeed, the Commonwealth has previously argued the Races power would permit it to enact laws against indigenous Australians similar to the law in apartheid South Africa.

Importantly, the Races Power is exercised by a parliament over which Indigenous Australians have limited political influence. Indigenous Australians only make up 3% of enrolled voters. That figure falls to about 1% in Victoria, and 2% in the ACT. The statistical insignificance of the population means a political party is unlikely to lose seats due to opposition from an indigenous community to a policy advanced by it. With that said, some “bell-weather” seats, such as Eden Monaro, have indigenous populations which dwarf the margins by which the seat is held.

The entrenched political weakness of Indigenous Australians is different in the Northern Territory. The Northern Territory has a total population of about 148,342 enrolled voters, including 53,563 Indigenous Australians. Whilst about 26% of Indigenous Australians are not enrolled to vote, collectively, they still constitute a powerful political force, capable of changing a seat from one party to another.

The possession of political power by Indigenous Australians in the Northern Territory influences the federal parliament. It is no coincidence that 75% of politicians from the Northern Territory are indigenous. It is not politically feasible for any major party to run a non-indigenous candidate in most of the available seats. However, the Northern Territory’s political power is limited.

The structural disempowerment of Indigenous Australians in the Northern Territory comes from the Senate (Representation of Territories) Act 1973 (Cth) (“the Representation Act”). The Representation Act grants the Northern Territory two senators and two members of the House of Representatives. This stands in stark contrast to the 6 senators and 5 members of the House of Representatives allocated to Tasmania. In summary, the jurisdiction in which Indigenous Australians have the greatest capacity to exert political influence is, coincidentally, the jurisdiction with the least political power.

Each of the points made above lend support to the argument that a culturally significant population is relatively powerless to inform the exercise of state power against them. That situation is both the antithesis of a democracy and the product of it.

The Voice to parliament seeks to overcome these issues in the Constitution by ensuring indigenous Australia has a political framework through which it can exert influence. If the referendum is successful, the Voice will create an institution in which indigenous people are represented, and able to express views to parliament about laws affecting them. Members of the Voice will not be able to veto laws, but will have a right to be heard.  It should be remembered that when the Constitution was drafted, indigenous Australia had no say in it and, at the time, were counted in the census as fauna (ie. like wombats).

In order for the referendum to pass, the proposal must reach a “double majority”. This means the referendum has to be supported by a majority of the voters in a majority of states. As the Northern Territory is not a state, the votes cast by Indigenous Australians residing there will be counted towards the national majority, but will not count towards the majority of states.

There is no small irony in the fact that the residents who live on country where the Uluru Statement of the Heart was proclaimed will get half a vote in support of it.