Three articles by Conversations journalists clarifying Uluru statement from the heart. Headed by a plea by Post author Eddie Vagg in the form of a poem.
Eddie Vagg’s poem First People inspired by ancient campsite, cries out for Truth Telling
I'm not kidd”n I walk across an ancient midden. I feel I just want to throw a spear. There is something here. I know about this tragedy. But this is not a parody. There is a spirit in this clay pan where a spirited race once ran. The flint flakes Shells from Rivers and lakes And the honing stone Petrified bone. An energetic race once called this spot home. The energy is sometimes there. Strongest in the spring morn. When they had the cool late winter burn green shoots would return. then the roo’s were Ambushed and speared. I amble further on the energy is gone. So has the tribe. Sulphur Crested’s The messenger bird Rested in the trees. their late evening screeching smacks of violence And the campfire silence
The Voice: what is it, where did it come from, and what can it achieve?
This is the first article in our three-part series explaining Voice, Treaty and Truth.
This week, the government will introduce a constitutional amendment into parliament to establish the Aboriginal and Torres Strait Islander Voice. If successful, it will go to a referendum likely in October or November.
We now know the wording of the amendment and referendum question the government is proposing. But what exactly is the Voice? Where did it come from? And what it can achieve?
What is the Voice?
The Voice provides permanent representation and recognition for Aboriginal and Torres Strait Islander peoples in the Constitution.
The Voice will be a new body that represents Aboriginal and Torres Strait Islander people from across Australia to provide their input into the decisions, policies and laws that are made by the government and parliament.
This is consistent with the UN Declaration on the Rights of Indigenous Peoples, which says Indigenous peoples have a right to participate in government decision-making in matters that affect their rights, through their own political institutions.
Across the world, similar types of institutions and relationships have been established, including in Sweden, Norway and Finland with the Sami people, and with the Māori in Aotearoa. There are also many similar relationships that Indigenous peoples have with the state in North and South America.
However, it’s also important to remember the Voice has been developed as a response to our local circumstances, and in particular, the lack of formal agreement – such as a treaty – or formal recognition of the rightful place of First Nations in Australia.
In Australia, the Voice will be constitutionally enshrined. This means successive governments can’t overturn it. It will be established as a new constitutional body in a new chapter (Chapter 9) at the end of the Constitution.
The key function of the Voice – to make representations to the government and parliament on matters relating to Aboriginal and Torres Strait Islander people – will also be constitutionally protected. But the government and parliament cannot be compelled (for example, through litigation) to follow these representations. As such, this body would not have “veto” power and is not a “third chamber”.
Rather, the Constitution is setting up a mechanism designed to improve decisions, policies and laws through First Nations input on matters that affect them. These matters might directly affect Aboriginal and Torres Strait Islander people, such as changes to the native title law, but it could also include broader laws and policies that have a particular impact on them, such as environmental protection laws or electoral laws. These decisions would be improved through their input.
Other details about the Voice will be decided by parliament through the normal legislative process. This ensures the Voice’s design can be flexible and evolve as required. These details include:
how many representatives will comprise the Voice
how they will be selected
what its internal processes will be
what powers it will need to perform its functions, such as accessing government information, and
how the Voice will interact with parliament and the executive.
As many constitutional experts have explained, establishing the key principles and leaving the detail to be determined through the legislative process is a normal – and desirable – way to design constitutional institutions.
That is not to say we don’t know what the Voice will look like – there has been significant work done on this. Most recently, the government has released a set of principles that will guide the initial legislative design of the Voice, should a referendum be successful.
The Voice also performs another important constitutional role: it recognises Aboriginal and Torres Strait Islander people as the First Peoples of Australia in the Constitution. At the moment, the Constitution is entirely silent with respect to Aboriginal and Torres Strait Islander people.
Where did it come from?
The Voice has been proposed by Aboriginal and Torres Strait Islander people as the best solution to respond to their overwhelming feeling of disempowerment and structural disadvantage.
The concept of the Voice, when understood as recognition and representation, has a long history. The advocacy for greater political representation for Aboriginal people stretches back to a 1938 petition organised by Yorta Yorta man William Cooper.
The modern advocacy for constitutional recognition stretches back to Prime Minister Paul Keating’s response to the 1992 High Court native title decision known as “Mabo”. This included a social justice reform package that recommended constitutional recognition, to be determined through a series of conventions and negotiations with Aboriginal and Torres Strait Islander people.
This never happened, however. It wasn’t until 2010 that constitutional recognition was raised again as part of Julia Gillard’s minority government negotiations with independent MP Rob Oakeshott. This resulted in the establishment of the Expert Panel on Constitutional Recognition of Indigenous Australians, which reported in 2012.
The panel recommended recognition should be achieved through a series of changes, and most controversially a clause in the Constitution about racial non-discrimination. The Labor government never responded to the proposal and the Coalition dismissed it as a “one-clause bill of rights”.
Following this, in 2015, Aboriginal and Torres Strait Islander leaders developed the Kirribilli Statement, which requested a new set of consultations to break the stalemate on recognition.
This led to the bipartisan establishment of the Referendum Council and a A$10 million commitment to undertake nationwide consultations with Aboriginal and Torres Strait Islander people – as had been proposed back in the 1990s but never happened – as well as non-Indigenous consultations.
At the same time, groups like the Cape York Institute under Noel Pearson began significant work on a proposal for an Indigenous representative constitutional body, which would lay the conceptual foundations of the Voice. This included the development of some initial drafting by constitutional expert and professor Anne Twomey.
The Indigenous members of the Referendum Council, under the leadership of Aunty Pat Anderson, Megan Davis and Pearson, designed a series of locally led dialogues to understand the reform priorities of First Nations people across the country.
Each dialogue selected representatives to attend a First Nations Constitution Convention. After days of negotiations over such pressing questions as sovereignty and how best to achieve aspirations like a treaty, the convention endorsed the Uluru Statement from the Heart.
This called for two stages of reforms. First, a constitutionally enshrined Voice. Second, Makarrata, which is a Yolngu word for “coming together after a struggle”, to include agreement-making (a treaty) and truth-telling. Voice. Treaty. Truth.
What can it achieve?
The Voice is both a practical and symbolic reform.
Practically, the Voice is informed by decades of research and the experience of people on the ground, that decisions, policies, laws and most importantly outcomes are improved when Indigenous peoples are empowered and involved in the process.
Symbolically, the Voice offers Australia a chance to design a more inclusive narrative of nationhood, informed and strengthened by the participation of First Nations people.
In Australia, we have tried to address these issues before, including through bodies like the National Aboriginal Consultative Committee and the National Aboriginal Conference in the 1970s, the Aboriginal and Torres Strait Islander Commission (ATSIC) from 1990-2005, and smaller ministerial advisory bodies.
These bodies did good work and made a real difference, despite having limited power and resources. They often faced hostile political environments where a change in government would undermine the progress made.
But none of these bodies were enshrined in the Constitution, and each was dismantled, often at times of heightened political tension with the government. So, Aboriginal and Torres Strait Islander people were not able to have independence, stability, continuity or the necessary capacity to engage with government in a meaningful, ongoing way.
The Voice offers a highly practical reform, which for the first time will offer independence and stability through constitutional enshrinement.
The Voice is also an important stepping stone towards other key reforms in the relationship between Aboriginal and Torres Strait Islander people and the state – in particular, treaty and truth as described in the Uluru Statement.
The sequencing of Voice, Treaty, Truth has been given significant thought.
Voice precedes Treaty because fair, modern treaty negotiations require first the establishment of a representative Indigenous body to negotiate the rules of the game with the state. It can’t be left to the state alone, and the state must have a group of people with whom to negotiate.
In Victoria, this was achieved through a specific representative institution – the First Peoples Assembly.
Truth follows Voice and Treaty, because, as Torres Strait Islander political scientist Sana Nakata explains, Voice ensures Truth will matter more than just “continued performance of our rage and grief for a third century and longer”. Voice establishes the power for Treaty, and Treaty establishes the safekeeping of Truth.
As historian Kate Fullagar explains, truths about Indigenous history in Australia are well-known – there have already been royal commissions into colonial violence, the stolen generation, and Black deaths in custody. But they have been too easily forgotten, and they have not led to change.
The Voice presents an opportunity for improving the relationship between First Nations and the State through stable political empowerment that will give all Australians an opportunity for a better, shared future.
Professor, UNSW Law School, UNSW Sydney
Lecturer, Griffith Law School, Griffith University
Disclosure statement
Gabrielle Appleby is a member of the Indigenous Law Centre at UNSW (Sydney). She served as a pro bono constitutional consultation to the Regional Dialogues and First Nations Constitutional Convention that delivered the Uluru Statement from the Heart.
Eddie Synot is a Senior Engagement Officer with the Uluru Dialogue and a Centre Associate with the Indigenous Law Centre at UNSW (Sydney).
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Griffith University and UNSW Sydney provide funding as members of The Conversation AU.
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First Nations people have made a plea for ‘truth-telling’. By reckoning with its past, Australia can finally help improve our future
What actually is a treaty? What could it mean for Indigenous people?
This is the second article in our series explaining Voice, Treaty and Truth. Read the first article in the series here.
The Uluru Statement from the Heart calls for Voice, Treaty and Truth. These aspirations are intended as a sequence of reforms, that advance towards a just settlement with First Peoples.
The federal government is committed to holding a referendum later this year to put an Aboriginal and Torres Strait Islander Voice in the Australian Constitution. The government has also agreed to implement the Uluru Statement “in full”.
Following the referendum, it’s expected attention will shift towards a Makarrata Commission to “work on a national process of treaty-making and truth-telling”. In fact, reports suggest the government might move even faster.
For generations, Aboriginal and Torres Strait Islander peoples have called for a formal treaty or treaties to recognise their sovereignty “and set out mutually agreed terms for our relationship with the Australian government”.
But while Treaty has long been part of the political landscape, it is not well understood. Many Australians wonder what a Treaty is, what it would achieve, who it would be negotiated with, or for whom, and how. We’ll explore some of these questions here (in brief).
Why does Australia not have a Treaty?
When European colonial powers encountered Indigenous peoples, they often negotiated treaties. These agreements dealt with a range of matters, including trade and military alliances. They also set out rules to share the land and maintain peaceful relationships.
These colonial-era treaties were regularly broken. However, they recognised Indigenous peoples had the right to deal with land and exercised sovereignty over that land.
The British did not engage in treaty talks in Australia. They never sought to negotiate with the owners of this land. Instead, they claimed the land belonged to no one and took it for themselves.
Historians have debated why the British took this approach. Some have argued as a penal colony with a substantial military force there was no need to negotiate trading relationships with the original owners. Others have argued the racist attitudes of the day were influential.
Whatever the reason, the result is Australia is an outlier. As a result, many Aboriginal and Torres Strait Islander peoples believe the moral and legal basis of the nation is “a little legally shaky”.
What is a Treaty?
The absence of a Treaty is one of the major challenges facing the Treaty debate in Australia. Without a history of treaty-making, the concept of what a treaty is or involves remains vague for many people, including government.
It means some people can argue a Treaty is dangerous or it would lead to the breakup of the nation. This makes little sense because a Treaty is a marriage not a divorce. It’s about bringing communities together and building strong relationships based on self-determination.
Governments might argue they’re already engaged in treaty-making. There are many examples of bureaucracy adapting its policy formulation and delivery to reflect community aspirations for a greater say in the delivery of services.
Such “partnerships”, “co-design” and local decision-making with government are valuable. They mark an important shift in promoting Aboriginal and Torres Strait Islander peoples’ participation in policy development and service delivery. But simply calling an agreement a “treaty” doesn’t make it a treaty.
Australia has signed up to a range of international legal instruments that concern the rights of Indigenous peoples. These legal instruments set a clear standard for what makes an agreement a treaty. A treaty must satisfy three conditions.
A treaty acknowledges Indigenous peoples are a distinct political community different to other Australians. This is because Indigenous peoples are the only group of Australians who owned, occupied, and governed the continent before colonisation. This recognition also acknowledges the historic and contemporary injustices that invasion has caused
A treaty is a political agreement reached by a fair process of negotiation between equals. Negotiation helps ensure everyone’s interests can be considered. But securing a fair negotiation process can be difficult. In Victoria, the First Peoples Assembly and State government have agreed to a Treaty Negotiation Framework that sets out principles to guide Treaty talks
Treaties involve both sides committing to responsibilities, promises and principles that bind the parties in an ongoing relationship of mutual obligation and shared responsibility. Most importantly, while the outcomes of any negotiation will differ according to the parties, a treaty is built on the recognition of Indigenous peoples’ inherent sovereignty. As part of this, a treaty will provide for some degree of self-government. What this looks like in practice will be worked out in negotiations.
A treaty will also include a range of other elements. It could include financial compensation, return of land, formal recognition of historic wrongs, and symbolic gestures of reconciliation, such as apologies.
Treaties are unique agreements. As Professor Megan Davis explains, they are aimed at “settling fundamental grievances, and establishing binding frameworks of future engagement and dispute resolution”.
Modern treaties are different from historic treaties
There is a long history of treaty-making all over the world from which Australia can draw lessons. But it’s important to note modern treaties differ from those negotiated in colonial periods. They are more technical and legally complex. They are also negotiated against a long history of inequitable relationships.
They will also be subject to Australian law. While colonial-era treaties were international agreements between two sovereign communities, modern treaties will be subject to Australian law.
Treaty is happening now
Treaty is a longstanding aspiration of First Peoples in Australia. It is only in recent years, however, governments have decided to talk treaty.
Progress has been slow, but important steps have been taken at the state and territory level. For instance, in February this year, the Queensland government introduced the Path to Treaty Bill 2023 into the state parliament. The bill will establish and finance an independent First Nations Treaty Institute to “help prepare and support First Nations people for treaty negotiations with the state”.
That same month, the South Australian government introduced a bill to establish a Voice to the Parliament, with a treaty process to follow.
In Victoria, after several years of patient work, negotiations between the First Peoples Assembly and state government are expected to begin by the end of the year. Similar processes are underway in the Northern Territory, Tasmania and the ACT.
Every treaty process has its own challenges and complications and it’s too early to tell whether these processes will result in meaningful settlements. Nevertheless, they demonstrate two key things.
First, Treaty is a matter of political will, not legal impossibility. Second, looking towards the referendum later this year, the existence of treaty processes across the country suggests Australians may be willing to deal with the unfinished business of colonisation and its consequences.
Associate professor, University of Technology Sydney
Professor, Faculty of Arts and Social Sciences, University of Technology Sydney
Lecturer, Faculty of Law, University of Technology Sydney
Disclosure statement
The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.
Partners
University of Technology Sydney provides funding as a founding partner of The Conversation AU.
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This is the third article in our series explaining Voice, Treaty and Truth. Read the other articles in the series here and here.
Australia has never been good at listening to Aboriginal and Torres Strait Islander people. Despite the truths that have already been told in processes like the Royal Commission into Aboriginal Deaths in Custody or the Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, time and again governments have ignored recommendations designed to address the impacts of Australia’s settler-colonial past and present.
State refusals to respond to truth have led to renewed calls for processes that will detail the impacts of colonisation in the everyday lives of Indigenous people. These calls were an important part of the Uluru Statement from the Heart, which sought “the establishment of a First Nations Voice enshrined in the Constitution”, complimented by “a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history”.
As legal scholars Gabrielle Appleby and Megan Davis have commented, the call for truth-telling in the Uluru Statement is just one part of a wider call for structural reform intended to ensure improvement in the lives of Aboriginal and Torres Strait Islander people.
Why truth?
Beginning in the 1980s, formal truth-telling processes (usually called truth commissions) emerged as a method of reckoning with the past in deeply divided societies around the world. Perhaps the most famous example is the South African Truth and Reconciliation Commission, which aimed to address the gross violations of human rights that happened under apartheid.
Truth commissions like this are generally temporary, state-sanctioned inquiries that typically last from one to five years, with a remit to investigate particular events and examine specific violations over a defined period of time. This typically involves collecting testimony from victims and (sometimes) perpetrators.
It is only relatively recently that truth-telling processes have been used as a response to settler colonial violence, most notably via Canada’s Truth and Reconciliation Commission, which arose after a class action lawsuit on behalf of the roughly 150,000 First Nations children taken from their familes and placed in residential schools.
The Uluru Statement isn’t the first time First Nations on this continent have called for truth-telling. Since colonisation, Indigenous peoples have insisted that Australia must not look away from their experiences of dispossession and survival.
When these truths have been told, however, they have all too often been met with denial, defensiveness or even aggression. For example, when the Stolen Generations inquiry pointed to evidence of the forcible removal of Indigenous children that, it charged, constituted a breach of the UN Convention on Genocide, there was an immediate conservative backlash. The Howard government rejected the findings of the inquiry in one of the earliest salvos against what conservatives have termed a “black armband” view of Australian history.
There is a reason settler governments have been reluctant to engage in truth-telling. First Nations often seek truth as a means of changing an untenable status quo, reshaping society’s attitudes so as to improve their own future prospects and reaffirm their distinct sovereignties and their right to self-determination.
As the non-Indigenous Canadian political scientist Courtney Jung has argued, while settler governments may try to use the conclusion of a truth commission to “draw a line through history”, First Nations seek to build “not a wall but a bridge”, using truth-telling to “draw history into the present, and to draw connections between past policy, present policy, and present injustices”.
Whose truths? What truths?
Broadly speaking, First Nations peoples seek truths that address three key themes: narrative and memory; trauma and healing; and responsibility and justice.
We have described this potential as “the promise of truth”, in which truth-telling leads to a kind of agreement between Indigenous and settler peoples, rather than being a process centred on the state and its violence.
The promise of truth is that it will change national narratives and produce a new, shared collective memory that acknowledges crimes of the past; it will contribute to the healing and recovery of Indigenous people who have been harmed by colonisation and dispossession; and it will compel settlers and their institutions to take responsibility for the harms of colonisation.
This approach stands in contrast to what we have called the “colonisation of truth”, through which truth-telling is seen primarily as rehabilitative of the settler colonial state while obscuring ongoing injustices. When truth is colonised, it may reproduce narratives that restore aspects of settler legitimacy and treat injustices as being solely in the past. Alternatively, this version of truth may treat First Nations people merely as victims, telling stories of harm and trauma without delivering reparation. Or it may suggest that the demand for responsibility and justice has been fulfilled simply by engaging in the truth-telling process, rather than treating the telling of truth as a starting point for a fairer future.
Truth, then, is complex, and what it may achieve in the Australian context is not yet clear. As treaty processes progress in several Australian jurisdictions, the commitment to truth-telling seems likely to be a part of future negotiations. This close connection between treaty and truth is unique to the Australian case and confirms the strongly held belief that truth has transformative potential. We do not yet know whether the linking of truth and treaty will produce the transformation in relationships that is so urgently needed.
Victoria, which announced a commitment to treaty in 2016, is the jurisdiction most advanced in testing this proposition. In 2022, Victoria established the Yoorrook Truth and Justice Commission (Yoorrok is a Wemba Wemba word meaning “truth”), marking a new era in Australian truth-telling focused on the history of invasion and colonisation of First Nations’ territories. Until the creation of Yoorrook, no previous commission, royal commission or inquiry into colonisation in Australia has included the word “truth” in its official title.
Yet still, truth is not a straightforward proposition. “Truth burns,” as Indigenous academic Marcia Langton recently put it. Sometimes, truth-telling is painful and connects directly to harm and injustice.
Truth is tricky. It can appear to open spaces for new understandings, while simultaneously shutting these spaces down and reinforcing the colonial status quo.
Ultimately, truth-telling is uncomfortable but necessary, as change in any relationship inevitably is. But this is where the possibility lives. As new truth-telling takes place across this continent we have an opportunity to imagine what it might mean to be in a relationship that does not deny the truth of First Nations’ lives, or the truth of how Australia has come to be.
Faculty of Arts Indigenous Postdoctoral Fellow, Indigenous and Settler Relations Collaboration, The University of Melbourne
Professor, School of Social and Political Sciences, Co-Director, Indigenous-Settler Relations Collaboration, The University of Melbourne
Disclosure statement
The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.
Partners
University of Melbourne provides funding as a founding partner of The Conversation AU.
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To bring you up-to-date on this post. If you are interested in Frank Brennans article . He was a noted participant in constructing approaches to the voice. This article is awash up of the failed referendum vote. This article is available on Apple Books
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