There is plenty of confusion around Ken Wyatt’s announcement last week of a referendum.
Initially it was thought Minister Wyatt was holding a referendum within three years to constitutionally entrench an Aboriginal ‘Voice’. That possibility was quickly dumped after the Prime Minister Morrison said any constitutional referendum would not be about any Aboriginal body.
Prime Minister Scott Morrison clarified what was on offer, four days after the Minister's commitment, “Our position has not changed when it comes to the issues of Constitutional recognition. Ken made that very clear, that issues of the process of a 'Voice’ were not being considered in the Constitutional context. Our position on Constitutional Recognition goes back to the time of John Howard…the first at his government’s level to articulate a view about Constitutional Recognition and my views have very much aligned with that.”
To refresh everyone’s memory, in 1999 Prime Minister John Howard co-authored a preamble to recognise our people in the Constitution. It was put to the Australian public at the Referendum, but only 39.3% of voters ticked 'yes'. The quest for Recognition failed.
Now, if all that is on offer is a reboot of John Howard’s failed attempt at Recognition, it would be a waste of time, money and energy. Aiming for Recognition, is aiming too low.
I was at the Uluru convention in 2017, and I too endorsed the call for a treaty, a voice and truth telling.
But I need to be clear, I voted for a powerfully political voice. Not an advisory body.
It is apparent from Commonwealth government statements, that only symbolic constitutional recognition is a possibility. As far as the three proposals from the Uluru Statement from the Heart is concerned, only one of them is likely to be put to the parliament to be legislated - either a treaty or a voice or truth telling, but not all three.
What can the Voice deliver?
The Noel Pearson voice model is for an advisory body, generally referred to as a Voice. It will have no legislative powers, deliver no services, return no land, have no budget to distribute. The body will not be allowed to burden parliamentary debate, nor interfere in parliamentary processes.
The Voice could not impose any obligations on governments nor create any rights for Aboriginal people. It cannot even determine its own membership. The government will select who sits on it.
This advisory body will offer advice that can be listened to, or ignored.
Those who promote the model, from Noel Pearson and Megan Davis to constitutional expert, Anne Twomey, all state there is nothing to fear from this body. You can say that again. It is not even clear who the body would advise: unless a government or a political party seeks advice, the body will be singing in the wind.
There is also the matter of duplicating advice to Parliament. Let’s not overlook the function of the Aboriginal and Torres Strait Islander Social Justice Commissioner at the Australian Human Rights Commission, where core business “includes reviewing the impact of laws, policies and programs on Aboriginal and Torres Strait Islander people, as well as providing policy advice and research on a range of pressing human rights issues.“
What can a Treaty deliver?
On the other hand, a treaty would return land. It should also allow Aboriginal people to share in the distribution of power (perhaps through designated seats) and share in the nation’s wealth (a percentage of the GDP).
Depending on what can be negotiated, a treaty could provide discrete Aboriginal communities with power over local policing (including customary law), local taxation, education, health, housing, road works and land use and planning.
For Aborigines unable to get native title, a treaty can return lands under freehold title to Aboriginal communities around Australia. The Commonwealth does not need a new power: it can compulsorily acquire crown lands from the states on payment of compensation.
Therefore, if the will is in the parliament, a treaty can be legislated.
Of course, the high hopes Aborigines may have about the content of a treaty may not be shared by politicians. The parliament might shave off many benefits from a treaty. That would be different from the Voice model.
Whereas a treaty might be honed down by white politicians the Voice is toned down by its black promoters.
Where is Aboriginal opinion on treaty or voice? Well, Victorian Aboriginals have been talking treaty for three years. Jill Gallagher is Victoria’s Treaty Advancement Commissioner. Mick Dodson has the same job in the Northern Territory. Until the change of government in South Australia, Roger Thomas was that state’s treaty commissioner.
The clear trend around Aboriginal Australia is for a treaty, not advisory bodies. There is no broad Aboriginal hunger for yet another advisory body.
Comparing the Voice with a Treaty
A treaty is itself recognition of Aboriginal sovereignty, dispossession and unfinished business.
Where a treaty offers decision-making, the Voice offers advice.
A treaty is practical self-determination. The Voice reduces Aborigines to subordination.
A treaty imposes obligations on governments and creates rights in Aborigines, the Voice model does not.
A referendum is still relevant to a treaty although not before a treaty is made, but afterwards. After a treaty is made a referendum could be held to prevent future antagonistic parliaments from unilaterally altering the treaty. This ensures both parties would have to agree to any alterations.
Commentary over the last few days suggest the Uluru statement will be legislated, not put to referendum. With little Aboriginal appetite for constitutional symbolism, attention now turns to counting supporters within the federal parliament.
Treaty and Voice have an equal prospect of political success. The question is if we can only have one of the options from Uluru, which is best – a treaty that delivers land and a share of power and wealth, or an advisory body?
Michael Mansell is a lawyer and social justice advocate, whose Aboriginal heritage is Trawlwoolway on his mother's side and Pinterrairer on his father's side, both from the north-east of Tasmania. Currently he is the Secretary of the Aboriginal Provisional Government and a published author. To read more see his essay 'Is the Constitution a better tool than simple legislation to advance the cause of Aboriginal peoples?' in It's Our Country.