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HomeVolume 28Voice 'not based upon any overseas precedent'

Voice ‘not based upon any overseas precedent’

By ERWIN CHLANDA

Are there any democratic countries where the constitution requires the parliament and executive to listen to a race-defined minority while there is no such obligation with respect to the other part of the population?

And if there are such countries, how do they manage their obligations?

These are questions the News put to Rachel Perkins, celebrated film maker, impassioned Yes advocate in the Voice debate, Alice Springs born and bred – a daughter of Charlie Perkins.

She forwarded the questions to Anne Twomey, Australian academic and lawyer specialising in Australian constitutional law.

She is currently the Professor of Constitutional Law and Director of the Constitutional Reform Unit at Sydney Law School at the University of Sydney.

Prof Twomey (pictured) replied:

The Voice referendum proposal was developed here in Australia to deal with our own Constitution and circumstances. 

It was not based upon any overseas precedent, so it is hard to find something closely comparable from another country.

I’m not aware of any country that has the same type of system as is proposed for Australia.

Each country has its own particular history and Constitution, and its own relationship with its Indigenous peoples – such as treaties, or a form of recognition of self-determination in its Constitution, or dedicated seats in Parliament, or a legislated representative body (which for various reasons may have greater stability and longevity than legislated bodies have had in Australia).

If you are looking for something more detailed and scholarly, this book contains comparative analysis:

(Conflict of interest alert – I am a part owner of Federation Press, which is why I know about this book. But there are probably other books out there that also address the issue.)

This book contains comparative analysis: Concepts and Context; Theories, Critique and Alternatives and Comparative Perspectives.

It includes work by well-regarded constitutional law scholars and legal historians, as well as analysis built from and framed by Indigenous world views and knowledges.

It also features the voices of a number of comparative scholars – examining relevant developments in the United States, Canada, the South Pacific, the United Kingdom, New Zealand and South America.

The combined authorship represents 10 universities from across Australia, the United Kingdom, the United States and Canada.

RELATED READING: Voice to Parliament: Scandinavia can do it, why not Australia?

18 COMMENTS

  1. Would be interested to hear about comparisons with the Sàmi Parliaments in Norway, Sweden and Finland from those more knowledgeable than I.

  2. “Are there any democratic countries where the constitution requires the parliament and executive to listen to a race-defined minority while there is no such obligation with respect to the other part of the population?
    And if there are such countries, how do they manage their obligation”
    New Caledonia: The Nouméa Accord of 1998 was promise by the French Republic to grant increased political power to New Caledonia and its original population, the Kanaks.
    It was approved in a referendum in New Caledonia on 8 November, with 72% voting in favour.
    A territorial congress and government have been established and the territorial Congress is allowed to pass statutes that are contrary to French law in a certain number of areas.
    Will the VOICE = Territorial congress?

  3. Damon, you make reference to three socialist countries. My research has led me to believe that the left of politics in Australia is hell bent on breaking our back to achieve this.

  4. Evelyne, in a word: NO.
    I’ll repeat my previous post:
    The Australian Solicitor-General, Dr Stephen Donaghue KC, has provided the government with independent legal advice stating that the proposed Voice would operate “only as an advisory body” and “clearly has no power of veto”.
    Also, as has been stated in many other places, Australia is the only “settlement country” that has not had some form of treaty, negotiated settlement and/or provision for representation for its Indigenous people.
    So it is obvious that this form of “catching up” will not be paralleled in other countries.
    They have already done it.

  5. Thank you Charlie.
    My question: If the proposed Voice would operate only as an advisory body, in which ways would the government of the day have to show that not only it hears the Voice, but it acts on the recommendations?

  6. Why is Australia so afraid of an advisory Voice from the first peoples of this country, 4% of the population who have a special and unique status on this land?

  7. I do not believe that people are afraid, but may like myself try to understand the process before the referendum.
    The Voice will be advisory? Would this Voice be listen to like the members of the National Reference Group for the proposed National Aboriginal Art Gallery were listen to?
    “The group will provide advice on delivery of the project, advocate nationally and help progress the recommendations outlined in the expert steering committee report on the implementation and operation of the Gallery.”
    I replace “the group” by the “Voice” I have: “The Voice will provide on delivery of the needs for The First People and help the recommendation outlined etc …”
    Will the Voice be listen to like the Group was listen to? Probably not and this is my FEAR.
    The Voice must have guarantee to succeed.

  8. What gets my goat is all these pollies calling for a Voice have a long history of not listening. And are actively not listening to Indigenous people right through this debate. Fracking in the NT and the alleged art gallery at Anzac Hill for just a couple of examples.

  9. @ Michael Gravener: Your question as to why an advisory Voice “from the first peoples of this country, 4% of the population who have a special and unique status on this land” has caused a significant portion of the population to have reservations is because it puts equality of citizenship at risk.
    The Voice is identity politics.
    There are some legal opinions that conclude that the racial preference inherent in its design could influence government policy that has to do with other Australians, either by intent or by default.
    Some see it as a rule of law crisis, whereby equality before the law is threatened by the Voice being enshrined in the Constitution, rather than as a legislated body.
    The “unique status on this land” is by virtue of ancestry beyond 1788, but that does not erase the fact that others born under the Southern Cross share in a love for the bush, its flora, fauna, geography and people.
    If you are talking about sacred sites, that’s another issue and belongs in the Freedom of Religious expression debate, which currently persecutes Christian expression.
    So much for inclusivity.
    What is needed is more transparency from the Federal Government, but as we saw last week in Parliament, contempt for the democratic process prevails, which is what could be expected from cultural Marxists.

  10. The Australian Labor Party “cultural marxists”???
    Freedom of religion “persecutes Christians”?
    Well at least we know where you are coming from Russell.
    The loony right wing nut jobs.
    I’ve tried to engage in respectful discussion.
    I won’t waste any more of my time.

  11. No, Charlie. Don’t stretch your brain, old chap.
    Your usual generalisations and assumptions fall short of the mark again.
    I didn’t say the Australian Labor Party were cultural Marxists, more that this ideology informs identity politics, but pedantry appears to be your sandpit of choice.
    You obviously haven’t been following the persecution of Christian schools and their right to employ people of their own faith, which is similar to a political party having the right to screen its members.

  12. Charlie why cut off everybody for one? The discussion was for all or only a dialogue between you and Russell?
    PS: The High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution.

  13. The Commonwealth, and others, campaign for the VOICE to promote racial division within Australia.
    The Commonwealth divides Australians using racial tags to deny Australians their legal rights and legal responsibilities, using racial identification.
    The Commonwealth promotion of the VOICE contradicts Australia’s signing the 1948 United Nations Universal Declaration of Human Rights, particularly Article 02.
    History shows racism is a danger to peaceful lives.
    The VOICE referenda promotes racism.
    Opponents to racism need vote NO when they vote on the VOICE.

  14. For me this is about the unique circumstances of indigenous Australians and their ongoing disadvantage.
    They want to continue being who they are.
    For me it’s about primacy first and the failure to flourish second. Not race.

  15. If the proposed Voice was only to operate as an advisory body, it does NOT require the proposed Constitutional amendment.
    It appears those who support racism and racial division will vote YES, while those who oppose racism and racial division will vote NO.
    I will be voting NO.

  16. Evelyn’s Constitution amendment 129 iii is full of problems in that it places all power in the Parliament to decide the functions, composition, powers and procedures.
    This should have been spelled out before going to a referendum.
    It is unacceptable to allow this much power in the hands of the Parliament.
    Effectively it gives the power to make it much more than an advisory body.

  17. @ Baffled and @ Evelyne: The Voice Design Principles (VDPs) were made transparently available on the NIAA website.
    @ Evelyne: The Voice Constitutional amendment proposal provided an advisory role only without powers of veto or ability to fetter the usual functions of Parliament or Executive Government. Those institutions would have had a moral obligation to consider that advice but no compulsion to act upon it.
    At the finalisation of the Uluru Dialogue the Statement of the Heart was signed by two hundred and forty-three of the two hundred and fifty elected representatives attending from around Australia. That “National Convention” was held between 23-26 May 2017 at Yulara and Mutijulu, near Uluru.
    The purpose of the national meeting was to hear the findings of each of the dialogues and to see where the results of the dialogue showed a clear consensus.
    The Regional dialogues ranked a Voice to Parliament as the first reform priority. Although not on the agenda put before the dialogues, truth-telling also emerged with unanimous support at every dialogue. A handful left the Convention because they preferred a treaty to constitutional reform, one of these being Lidia Thorpe who, in 2020 became a Senator for the Australian Greens and later an Independent.
    It was decided to “ask the Australian people to ‘walk with us in a movement of the Australian people for a better future.’ This was because the Constitution can be changed by Australians.”
    Over time, when the drafting of the Amendment Bill for Constitutional amendment was undertaken, the proposal as it stood was what was settled for.
    Source: Megan Davis and George Williams (2023) “Everything you need to know about the Voice.” UNSW Press 2023, Chapter 5 “The Referendum Council and the Uluru Process” pages 107-126.

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