Why an Indigenous voice would not be a 'third chamber' of parliament

At Uluru in 2017, Indigenous Australians made clear that the kind of constitutional recognition they wanted was a living and continuing recognition, rather than mere words on a page of a little-read document. They called for recognition through an ongoing voice to Parliament about the laws and policies that affect them.

In rejecting this proposal, one claim by the government was that this would be discriminatory and contrary to principles of equality because it would give one racial group a means of influencing Parliament that is not open to others.

But it must be remembered that it is already the case that Indigenous Australians form the only racial groups about which special laws are made. This is because they are the only racial groups that lived in Australia prior to European settlement and accordingly have continuing legal rights, such as native title rights. Their continuing cultural heritage is also entitled to special legal protection and sustenance, as part of Australia’s national heritage. If they are the only racial groups subject to special laws, then it seems reasonable and fair that they should at the very least have a voice that can influence the body that makes those laws.

If established, the body representing Indigenous voices would have its views tabled in the Parliament, so that Parliament could be better informed when it makes laws. It would not be the only body to inform Parliament. There are numerous other bodies that already fulfil this function, representing other points of view. They include the Productivity Commission, the Australian Law Reform Commission, the Australian Human Rights Commission and the Auditor-General. They all make reports directly to Parliament, which are tabled so that our lawmakers can be better informed when they enact laws.

Is any of these bodies a "third House of Parliament"? Of course not. None of them has the power to initiate a bill in the Parliament. They can neither vote on the passage of legislation, nor veto it. None is a constituent part of the body that makes laws. It would be exactly the same for an Indigenous voice to Parliament. It could not be a third House of the Parliament, simply because it would have no power to initiate, pass or reject bills. Its role would be to give a voice to Indigenous views that could be heard within the Parliament, in the same way as these other bodies also speak to and inform Parliament.

If we are comfortable with the Auditor-General reporting to Parliament and advising about issues of financial prudence and accountability, then it is difficult to see how we would not be comfortable with an Indigenous body informing Parliament about matters that could improve the effectiveness and utility of its laws in Indigenous affairs and the efficient targeting of its expenditure.

The Houses of Parliament are not obliged to implement the advice of the Auditor-General, but will give it respect if it is sensible, well–reasoned and wise. The same would no doubt be true of any advice or recommendations of an Indigenous voice to the Parliament. It is hard to imagine that anyone would argue that it is better for Parliament to be ignorant and ill-informed, its laws ineffective and its expenditure wasteful. There can be no harm in listening to the views of others and using them to improve outcomes.

Why then do we need a constitutional amendment to give effect to this proposal, when other bodies already fulfil a similar role under ordinary legislation? An important aspect of the proposal is the moral authority of the people. If, as in 1967, the vast swathe of the Australian people voted in favour of Indigenous Australians having a voice about the laws and policies that affect them, then it would not only provide a profound reconciliatory moment in Australia’s political history but it would also impose sufficient political pressure to prevent future backsliding. Governments would be forced to make the new system work and focus upon how to get the best out of it. It could not be abandoned by neglect.

While the Commonwealth government was initially unsettled by the Uluru proposal, it has allocated money in the most recent budget to develop the detail of that proposal further. This suggests that it has recognised the underlying merit in it and is prepared to contemplate it more seriously. Perhaps with further consideration, both at the political level and across the country, the Uluru proposal which at first seemed so confronting to some, will grow in familiarity and be seen as a natural part of Australia’s evolution.

Just as the Australian people voted in support of the inherent fairness and justice they saw as underlying the more technical 1967 referendum proposal, they may too recognise the same essence in the Uluru voice from the heart.

Anne Twomey is a Professor of Constitutional Law at Sydney Law School.

This article was originally published by The Sydney Morning Herald.