A First Nations Voice enshrined in the Constitution is a form of practical and substantive recognition of the unique status of Aboriginal and Torres Strait Islander peoples as the First Peoples on whose lands the nation of Australia has been established. Why is recognition important, and what has led us to this point?
The appeal for a First Nations Voice to Parliament was the latest evolution of a persistent call for constitutional recognition of Australia’s First Peoples that stretches back to the drafting of the Australian Constitution. Recognition involves acknowledging the unique status of Aboriginal and Torres Strait Islander people as Australia’s First Peoples, with distinct sovereignty, identities, languages, ancestry and relationships to Country. As outlined in the United Nations Declaration of Rights of Indigenous Peoples, First Nations peoples have an inherent right to recognition of their collective rights and to participate in decision-making on issues that impact their attainment of these rights.
Currently, the Constitution reflects Australia’s historic and continued discrimination against First Nations peoples. Until 1967, the Constitution – Australia’s founding document and ‘rulebook’ – only recognised First Nations peoples in the form of exclusion, negating their rights to benefits, being counted in the Census and inclusion under federalised laws.
Once the constitutional amendments proposed in the 1967 Referendum were approved, any reference to Aboriginal and Torres Strait Islander peoples was entirely removed from the Constitution. This means that there is currently no formal recognition or acknowledgment of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia in the Constitution, no constitutional guarantee of fair treatment or protection from racial discrimination and no permanent safeguard to ensure they have a role in the decision-making that affects their lives and communities. Nor is there any constitutional acknowledgement of the value of their cultures, languages and rights as the First Peoples of the continent.
What follows is a recent history of a more than 120 year old struggle for First Nations recognition.
In December 2010, an Expert Panel on Constitutional Recognition of Indigenous Australians was established and commenced investigation on how to constitutionally recognise First Nations peoples. In January 2012, the Expert Panel suggested a new section be added to the Constitution – ‘Section 51A’ – entitled ‘Recognition of Aboriginal and Torres Strait Islander peoples’ to recognise First Peoples as the original inhabitants of the nation now known as Australia. The Federal Government later announced that a referendum would be delayed by two to three years due to an absence of widespread public support.
In November 2012, the Aboriginal and Torres Strait Islander Peoples Recognition Bill was introduced to Parliament to demonstrate support for the Expert Panel’s report. In 2015, the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples was founded and began investigations on how to conduct a successful referendum on constitutional recognition of First Nations peoples. The Committee affirmed that to constitutionally recognise First Nations peoples, the proposed question must address the “injustices of exclusion” through structural “protection from racial discrimination”.
In December 2015, a Referendum Council was established and began consultations on how best to establish constitutional recognition of First Nations peoples. A Discussion Paper was released in October 2016 and articulated the central suggestions for constitutional reform to include:
Between December 2016 and May 2017, a series of invite-only Regional Dialogues were held across Australia, hosted by the Referendum Council. Representatives from Aboriginal and Torres Strait Islander communities from across the country were consulted on what constitutional recognition could look like. In each location, the Council held discussions in partnership with local community members to ensure First Nations peoples voices were safeguarded. However, several attendees withdrew from consultations over concerns that constitutional recognition was progressing at the expense of conversations on sovereignty and Treaty.
In May 2017, a convention at Uluru heard the outcomes from the First Nations Dialogues, with 250 First Nations leaders and representatives in attendance. The Uluru Statement from the Heart was released, inviting the Australian people on a shared journey toward a better future, starting with constitutional recognition in the form of a First Nations Voice to Parliament and culminating in processes of treaty making and truth telling. This package of reforms became known as Voice, Treaty and Truth.
Despite the generosity of spirit embodied by the Uluru Statement, in October 2017 the then Turnbull Government outrightly rejected its proposals, breaking the Prime Minister’s promise of ‘doing things with Aboriginal people’ instead of to them. Turnbull made the decision unilaterally, without any consultation with or regard for the National Congress of Australia’s First Peoples – the then national representative body – or members of the Referendum Council.
After rejecting the Uluru Statement, the Government established another Joint Select Committee in March 2018, tasked to again ‘inquire into and report on matters relating to constitutional change, including the proposal for the establishment of a First Nations Voice.’
This Committee’s Final Report in November 2018 endorsed a constitutionally enshrined Voice to Parliament. By the end of 2018, the Federal Labor Opposition took an affirmative position by promising to ‘establish a Voice for First Nations people’ and to take the issue of Constitutional Recognition to referendum if elected to government in 2019.
In July 2021, the Final Report on a First Nations Voice Co-Design Processes – authored by Tom Calma and Marcia Langton after having been appointed by the Morrison Coalition government – was submitted to the Australian Government after a four-month consultation period. A hybrid model of Local and Regional Voices interconnected with a National Voice was recommended as the way forward for a First Nations Voice to Parliament.
On 21 May 2022, Prime Minister-elect Anthony Albanese announced his incoming Government’s re-commitment to implementing the Uluru Statement from the Heart during his election night victory speech, pledging to begin by establishing a constitutionally enshrined Voice to Parliament.
On 29 September 2022, the inaugural meeting of the Referendum Working Group and the Referendum Engagement Group discussed the steps to a 2023 referendum on a First Nations Voice to Parliament.
Prime Minister Albanese said in his historic address to the nation at the Garma Festival in August 2022:
A referendum is a high hurdle to clear, you know that and so do we. We recognise the risks of failure – but we also recognise the risk of failing to try. We see this referendum as a magnificent opportunity for Australia… I am optimistic that this historic decision, this long-overdue embrace of truth and justice and decency and respect for First Nations people will be voted into law by the people of Australia.
On 23 March 2023, the draft referendum question for the First Nations Voice was announced by the Albanese government:
A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?
The Constitutional Alteration (Aboriginal and Torres Strait Islander Voice) 2023 Bill was introduced to Parliament on 30 March 2023. On the same day, a Joint Select Committee was formed to investigate and report on the Constitutional Alteration Bill 2023.
The Joint Select Committee undertook an analysis of the Bill, hearing from witnesses and published submissions, and recommended Parliament to pass the Bill without amendment on 12 May 2023. The Constitution Alteration Bill was passed on 31 May 2023 by the House of Representatives.
On 19 June 2023, the Constitution Alteration Bill passed the Senate (and Parliament, having already been successful in the Lower House) and subsequently the Referendum to recognise First Nations Peoples through the Voice to Parliament would be called within six months.
On 14 October the Referendum to recognise First Nations Peoples in the Constitution and enshrine the Voice to Parliament was defeated.
A constitutionally enshrined First Nations Voice to Parliament would have been a first step toward structural and symbolic reform, ensuring that Aboriginal and Torres Strait Islanders peoples could have a say about the laws and policies that impact their lives and communities.
