The plan for an Indigenous Voice to Parliament was a result of the government-funded push for constitutional recognition that would deny any real rights, argues Paddy Gibson
In February, on ABC’s 7.30, Indigenous leader Noel Pearson appealed to Liberal leader Peter Dutton to get behind the referendum for an Indigenous Voice to Parliament, urging him to “finish the job that John Howard started in 2007, when he first announced the commitment to constitutional recognition”.
Anthony Albanese’s promise to hold a referendum on the Voice, against Dutton’s hostility, has created a perception that it represents progressive change.
But as Pearson reminded viewers, “the proposal does not come from the left-wing”. It was designed by his Cape York Institute in 2014 by a working group that included Liberal Party members and prominent conservatives.
It was part of a government-funded process promoting token constitutional recognition.
This did indeed start with John Howard in 2007, in the dying days of his time as Prime Minister.
Howard had waged war on Aboriginal self-determination, defunding community-based programs, abolishing the Aboriginal and Torres Strait Islander Commission (ATSIC), attacking Native Title and finally, launching the NT Intervention in 2007.
He committed to a constitutional referendum to recognise the “special status of Aboriginal and Torres Strait Islanders” if he was re-elected. Pearson had urged Howard to make such a proposal, in a long letter where he also expressed hope that Howard would defeat Kevin Rudd in the election.
Both the Labor and Coalition governments that followed retained Howard’s commitment both to the Intervention and to constitutional recognition.
The main political function of this was to create the impression that governments were moving on a positive reform agenda in Aboriginal affairs, while they implemented racist policies against Indigenous communities.
In 2010, the Gillard government commissioned an Expert Panel to prepare a report on possible avenues for constitutional recognition.
Along with exploring potential symbolic statements of recognition, this panel also proposed more substantial changes to the constitution, such as a new clause prohibiting racial discrimination.
The Liberal-National Coalition ruled out support for any such changes delivering substantive rights.
But the concept of “recognition”, offering lip service but no rights, was embraced across the corporate sector and by both major parties. The government bankrolled the “Recognise” campaign, which tried to build popular support for the idea.
Labor leaders attended community barbecues wearing “Recognise” T-shirts at the same time as they designed legislation to entrench the NT Intervention.
The Recognise campaign failed to generate any grassroots support and began to attract protests. It was quietly dropped and a new body, the Referendum Council, was established by the Abbott government in 2015, to begin a new round of consultation with Aboriginal communities to try and salvage constitutional recognition.
Pearson’s Voice model
Noel Pearson and his Cape York Institute were already plotting a change of course.
Two things were clear. Conservatives in the Liberal Party would never support constitutional amendments that could allow Aboriginal people to challenge government legislation in court on the grounds that it was racially discriminatory or violated rights to self-determination. These would therefore fail at any referendum.
However, Indigenous communities would not accept constitutional change that was merely symbolic, such as a new preamble.
The Cape York Institute set out to work through this apparent contradiction. Pearson engaged human rights lawyer Shireen Morris and conservatives such as Liberal MP Julian Leeser and the philosopher Damien Freeman.
Freeman was writing a book on Tony Abbott’s political philosophy and was also close to John Howard. In her book Radical Heart Shireen Morris attributes the genesis of the “Voice to Parliament” proposal to a phone conversation between herself and Freeman.
The idea was to use the constitution to empower parliament to create an Indigenous advisory body. This could be sold to the Indigenous community as substantive reform.
But the body itself would be completely subordinate to parliament—there would be no guaranteed structure, budget or powers. Crucially, the constitutional amendment would be “non-justiciable”, creating no rights to litigate in the High Court.
Pearson received some early encouragement from then PM Abbott, who had created a hand-picked advisory body called the Indigenous Advisory Council (IAC). Pearson wrote to Abbott promising that his new Voice proposal would ensure “parliamentary supremacy … You have already begun down this path … I am interested in how we can enhance and build upon your IAC”.
Constitutional experts Anne Twomey and Greg Craven were also brought into the process.
Twomey explained that the proposal was “developed specifically to bring the far right onside”.
Major corporations such as BHP and Rio Tinto were early supporters, recognising that a powerless advisory body presented no threat at all to their exploitation of Aboriginal lands.
Pearson’s model was included in the discussion paper that informed consultation by the Referendum Council, which held a series of “regional dialogues” that culminated in the major conference at the Yulara resort near Uluru in 2017, giving us the Uluru Statement from the Heart.
Uluru and after
The regional dialogues were invitation only and capped at 100 participants. Despite this, they did reject the idea of tokenistic constitutional reform.
Key themes at all the discussions were demands for treaty, sovereignty and an end to the skyrocketing rates of child removal, incarceration and policies like the Intervention.
Speaking after the convention at Yulara, Referendum Council co-chair Pat Anderson said symbolic acknowledgement in the constitution had been “totally rejected”.
The Uluru Statement from the Heart made three demands, for “a First Nations Voice enshrined in the constitution… a Makarrata Commission to supervise a process of agreement making between governments and First Nations and truth-telling about our history”.
The Referendum Council claimed the call for a Voice as an endorsement of Pearson’s advisory body.
Nineteen elected delegates walked out of the convention, with Wiradjuri leader Jenny Munro telling the press, “It’s not a dialogue, it’s a one-way conversation. They are not looking at any alternative options other than the Noel Pearson road map”.
However, other delegates who stayed in and signed the Uluru statement argue that the call for a “Voice” meant far more than a body with no powers.
Josie Crawshaw, one of the NT delegates, was elected to the Statement from the Heart Working Group (SFHWG), a body that was supposed to carry forward a campaign for the demands of the Uluru statement.
In the week following the convention, Crawshaw told a panel in Darwin: “Pearson’s model, the advisory body… has been ruled out by every dialogue and Uluru. It needs to have some delegation of powers that the Federal Government has now… powers to make policies and programs. And we need a guaranteed source of revenue.”
A SFHWG submission to the Joint Parliamentary Committee examining options for constitutional reform in 2018 also argued that “the Advisory Voice model is unsustainable and does not provide the structural change needed to substantively address First Nations’ inequality”.
However, the SFHWG was not funded to continue meeting. There was no consistent, public challenge the Indigenous leaders associated with the Referendum Council. As a result, the Statement from the Heart has come to be popularly understood as a call for Pearson’s advisory Voice.
Despite being designed to appease the Liberal party, PM Malcolm Turnbull rejected the idea, disingenuously branding it a “third chamber of parliament”.
But both major parties were still keen to keep discussion of constitutional reform alive, as a diversion from dealing directly with any of the crises facing Aboriginal communities.
Turnbull supported further consultation and Scott Morrison commissioned a report by Tom Calma and Marcia Langton on a potential model for the Voice. The idea was to legislate a body first, with a possible referendum later on.
Advocates of the Voice continued to campaign for a referendum. There were essentially two campaigns run, for different constituencies and with different messages.
On the one hand, major corporations and conservative politicians were given assurances that the Voice would be tame and powerless.
A document released in December by the Constitutional Expert Group advising the Albanese government spells out this case.
It says, “The Voice does not confer ‘rights’, much less ‘special rights’” on Indigenous people, because its functions would be limited to making representations to parliament or government and “this is an opportunity available to any individual or organisation”.
The proposed constitutional amendment does not even create a “right” for Indigenous people to choose their own representatives, Expert Group member Anne Twomey has explained, because it “leaves for parliament the power to decide the composition of the Voice”.
Other pro-Voice campaigners, however, have focussed on building support from trade unions, religious groups and civil society organisations.
This campaign argues that the Voice can realise Indigenous self-determination, forcing the government to finally listen.
The experience of ATSIC, abolished in 2005, has been raised as a key reason why it is needed. If it’s enshrined in the constitution, the argument goes, the government will not be able to get rid of a Voice it doesn’t like, the fate of every advisory body thus far.
This ignores the fact that the Voice will be a creature of legislation, and a hostile government could pass legislation abolishing one particular Voice model and replacing it with representatives of its own choosing.
As Twomey outlined back in 2017: “Although the Constitution [will say] there has to be a body, it will be up to the parliament to decide how it should be composed … The reason for this is to avoid the ATSIC problem—the concern being that entrenching something like ATSIC in the Constitution, if it becomes dysfunctional you can’t get rid of it.”
Pearson’s Voice proposal is based on the political fiction that appeasing powerful vested interests can somehow convince them to address the shocking oppression faced by Aboriginal communities.
But every major step forward for Aboriginal rights has come through struggle—through organisation and protest to demand concessions from the government and corporate interests. That is what’s urgently needed—not a toothless Voice to Parliament.