At the 1897 Adelaide Federation Convention, Alfred Deakin implored delegates to see themselves as ‘trustees for posterity, for the unborn millions… whose aspirations we may help to fulfil and whose destinies we may assist to determine’.
Deakin wasn’t thinking about Indigenous people because they were not treated equally in the new constitution — they were expressly excluded from the census and from Commonwealth jurisdiction.
But Deakin’s urging of a liberal democratic nation can guide us today as we contemplate Indigenous matters.
Australia has turned out to be an incredibly successful nation of which we can be proud. But all too often, Australia has not been a good country for Indigenous people.
One way to fix this is for liberals and conservatives to again look at the 2017 Uluru Statement which contained a Voice to Parliament as its centrepiece.
As I see it, there are four reasons for its establishment.
First, if we are going to have special laws for Indigenous people, it is only fair that Indigenous people are consulted on these laws. Second, this agenda builds on our significant policy legacy in Indigenous affairs.
Third, a Voice to Parliament supports parliamentary democracy by offering non-binding advice to Parliament. Fourth, a Voice to Parliament recognises the value of community and civil society.
Let me step through each of the four.
Firstly, if we are going to have special laws, it is only fair that we have a way of managing them.
Eighteen laws are on our statute books which are specifically directed at Indigenous Australians; heritage protection, land rights, native title and Aboriginal corporations to name a few. No other group is treated in this way, for better or worse.
The Indigenous Voice to Parliament is based around a simple proposition: that Indigenous people have a right to be consulted about laws which are directed specifically at them.
At the moment, we have a thoroughly illiberal system where we have these 18 special laws without any system of management.
Some people say that we should get rid of these laws and that would remove the need for this system.
But even One Nation accepts the ongoing need for laws like native title. There will always be a need for special laws which reflect the unique relationship Indigenous people have with the land.
Secondly, this completes a liberal project.
Liberals like Deakin built modern Australia, therefore the unfinished business sits at our doorstep.
Australian liberalism has, in the past, been a key driver of innovation which first introduced the concept of Indigenous collectivism into the Australian legal system. It started with Harold Holt and his referendum which overturned two Deakin-era provisions.
Holt’s 1967 referendum gave the Commonwealth the power to legislate for Indigenous people. This power was very substantially used by the Fraser government to establish the landmark Northern Territory Land Rights scheme in 1976.
Fraser’s laws created land councils and led to the handing back of sites like Uluru to traditional owners.
We have delivered more of this agenda than Labor but we have not embraced our history like they have. The failure to understand the past reduces our ambition in the present. Conservatives are supposed to value the past, not forget it.
Thirdly, why would we be afraid of non-binding advice?
There are worse things parliament can do than hear more from the citizens. A Voice would support Parliament in performing its core constitutional functions. This is not unusual. Parliament is already required to engage in specific consultation.
For instance, the Joint Committee on Human Rights is required to report on the human rights implications of all bills and legislative instruments. The same can be said for the Joint Standing Committees on Corporations and Intelligence and Security. This is reform, not revolution.
The Voice to Parliament would be precisely that – a voice, not an authority or a third chamber. The Voice is best understood as an extension of parliamentary supremacy, not as a compromise with it.
Murray Gleeson, John Howard’s Chief Justice has said: “A body that has the capacity to speak to the Parliament on behalf of Indigenous people should be of advantage to parliament and through it, the nation. But it will also, in a practical way, bind Indigenous people.”
Fourth, who do you trust: Canberra or the community?
The Voice to Parliament also represents a devolution of responsibility away from Canberra and towards Indigenous communities.
Making policy requires consulting the people who are affected by it. Canberra often forgets this. Too often hacks and bureaucrats don’t have a stake in the success or failure of what they propose. I see this daily as a Senator.
A “co-design process” is currently underway to determine how this could work at both the local and national levels.
Giving Indigenous people a say, creating an institutional framework where they can consult and be consulted on laws that affect them, will result in better policy.
This has been trialled during the pandemic with great success with Indigenous people running the response. The result: no Indigenous deaths have been recorded from COVID-19. Repeat: no deaths and no infection in remote Indigenous communities.
Our current constitutional arrangements are the envy of the world. The answer to the current question lies in a return to first principles. The Voice to Parliament would tweak and strengthen the institutional framework. This recognises the fundamental value of parliamentary democracy.
Andrew Bragg is a Liberal Senator for New South Wales & author of Buraadja the Liberal Case for National Reconciliation, published by Connor Court.
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