“How does your proposed constitutionally enshrined Indigenous voice to parliament affect First Nations peoples’ sovereignty in this country?” Greens Senator Lidia Thorpe asked Senator Penny Wong in parliament on 1 August.
This question asserts the chief concern that First Nations rights advocates have been raising in regard to the prioritisation of constitutional reform – or the constitutionally-enshrined Indigenous voice to parliament – since the Uluru Statement from the Heart was first proposed in May 2017.
Thorpe posed the question just two days after prime minister Anthony Albanese gave his Garma speech in Arnhem Land.
In making the address, the Labor leader outlined that a referendum on the voice will be held during this term of parliament, and he flagged the broad voice proposal and the referendum question to be put to the vote.
Momentum for the voice is gaining. But, as Thorpe suggests, incorporating Aboriginal and Torres Strait Islander peoples into the Australian Constitution, via the enshrining of a First Nations parliamentary advisory body known as the voice, may undermine Indigenous sovereignty.
So, that’s why the Greens propose that issues involving the genocidal founding of the nation, First Nations sovereignty and “free, prior and informed consent” be addressed prior to any advisory body entering into the Constitution.
A constitutional grey area
“The colonisers say that they are “sovereign”. We say that we are sovereign,” outlined Thorpe. “In entering the colonial project, their constitution, we need to be 100 percent satisfied that we’re not ceding our sovereign rights by going into the colonisers “sovereign” rule book.”
“When constitutional lawyers have been asked, the response continues to be that it’s up to the interpretation of the law at the time,” the Gunnai Gunditjmara and Djab Wurrung woman told Sydney Criminal Lawyers.
Containing the proposal for a voice, the Uluru Statement was produced by the Referendum Council in May 2017, at a national conference of Indigenous delegates in central Australia. It was the culmination of a series of meetings considering the original plan for constitutional recognition.
Thorpe was amongst a group of delegates who stormed out of the national conference, claiming the approach being taken would threaten Indigenous sovereignty. And in addressing reporters, Thorpe stated that the way forward would be establishing “a sovereign treaty”.
“I want all the legal experts out there to prove to me that we are not ceding any of our sovereignty by entering into the colonial so-called “sovereign” system,” Thorpe added in respect to the voice.
John Howard initiated the idea of incorporating First Nations people into the nation’s founding document, via a preamble, in 1998. This was the same PM who oversaw our nation being one of four that voted against the adoption of the UN Declaration on the Rights of Indigenous Peoples in 2007.
The Gillard government picked up constitutional recognition in early 2012. This resulted in the Recognise campaign. And it was the May 2017 meeting of the Referendum Council that saw the more robust voice to parliament advisory body put on the agenda.
During his Garma speech, Albanese pointed to a number of reasons why this “Aboriginal and Torres Strait Islander Voice” shouldn’t threaten those who oppose it, with one of those being it will have no veto power.
So, this means, ultimately, the voice can advise parliament on issues affecting First Nations communities, but there’s no guarantee this advice will be acted upon.
This is where a treaty or treaties differ. Treaty-making is an agreement negotiated between two sovereign entities, recognising the independence of each party. So, any such compact would involve the Australian nation acknowledging Indigenous sovereignty as a foundation to be built upon.
But simply inserting First Nations people into the document that forms the legal basis of the Australian polity does nothing to recognise their sovereignty, but rather it incorporates them into a set of laws asserting European sovereignty over the continent: a system that disadvantages them.
The Native Title Act 1993 (Cth) is a prime example of how official Australian policy can usurp Indigenous sovereignty. Native title law guarantees limited First Nations sovereignty, but when it conflicts with European rights to land, it’s native title that’s always extinguished.
In terms of how to move forward on improving First Nations, Senator Thorpe introduced the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) Bill 2022 back in March. This legislation is designed to incorporate the principles set out in the UN document into Australian law.
“The United Nations Declaration on the Rights of Indigenous People is like a First Nations Bill of Rights,” Thorpe advised. “It talks about our right to self-government, autonomy and self-determination, because First Peoples had our own laws before colonisation.”
The senator’s bill provides that the prime minister creates a plan on how to enshrine the Indigenous rights set out in the declaration into local laws, in consultation with First Nations communities and the Australian Human Rights Commission.
“Key articles talk about free, prior and informed consent. This is critical because we need to stop colonial governments making decisions about us, without us,” explained Thorpe.
“Self-determination and free, prior and informed consent need to be at the foundation of any referendum.”
As Albanese indicated in his Garma speech, the Uluru Statement doesn’t simply propose the Indigenous voice to parliament, it also recommends establishing a Makarrata Commission to supervise “agreement-making” or treaty-making, as well as truth-telling.
According to Thorpe, the Uluru Statement gets the process around the wrong way. She asserts that truth-telling needs to happen first, and through what’s acknowledged via that process, treaty-making should then take place. And following on from this, the voice can then be contemplated.
In recognition that the true history of invasion, dispossession and genocide must be recognised prior to any other path taken, the Greens released a policy in January to establish a $250 million Truth and Justice Commission to oversee this truth-telling process.
The senator has announced that she and Greens leader Adam Bandt will be entering into negotiations with the Albanese government, with the aim of incorporating the other elements of the statement into the national vote.
The Australian Greens are also insisting that the recommendations from the Royal Commission into Aboriginal Deaths in Custody and the Bringing them Home report be fully implemented. And as the party now holds balance of power in the Senate, it’s support is essential to the government moving on the referendum.
“We need to do all elements of the Uluru Statement together, underpinned by the UNDRIP, to ensure that it’s not an invitation-only process and that all Aboriginal and Torres Strait Islander people – who this will ultimately affect – have an opportunity and the accessibility to participate and make decisions for their own clans and nations,” the senator said in conclusion.
“Those that already support the statement need to open their minds to understand why truth and treaty is the way to ensure a successful referendum.”