Why are we voting on a Voice, but not a Treaty?

By Nigel Polak, PACFA President

9 October 2023

In the course of my duties as PACFA's President I was invited to consider the publication of a public statement, on behalf of PACFA and its members, supporting a "Yes" vote in the forthcoming referendum on the Aboriginal and Torres Strait Islander Voice to Parliament. Something similar to that published by the Royal Australian College of Psychiatrists

We can say that the Yes vote has the emphatic support and advocacy of our own College of Aboriginal and Torres Strait Islander Healing Practices (CATSIHP). However, PACFA is not the Royal Australian College of Psychiatrists, and not all Aboriginal and Torres Strait Islanders support the Yes position, so we do not feel that the PACFA Board can speak on behalf of our members on this issue. As I will go on to discuss, the issues are complex, and each individual PACFA member should do their own research and deliberations and reach their own conclusions as to what is the best way forwards for them and for their nation.

So, instead, I am sharing my own personal investigations and reflections.

Before doing so, firstly allow me to acknowledge the traditional owners of Gumbaynggirr, the country where I have the incredible privilege to live, work, play and raise my family. I feel a genuine sense of awe at their continued custodianship of this country, country that has never been ceded, over more than 65 millennia. A fact that Tyson Yunkaporta in Sand Talk: How indigenous thinking can save the world picks up to point out that if we want to learn about how to live sustainably on this earth, we need look no further than the incredible longevity of Australia’s original inhabitants. So, I also offer my deep respect to their elders both past and present, and my support and assistance for their continuing custodianship of lands and waters.

In the spirit of acknowledgements, I also wish to acknowledge your ancestors for their struggles and for their wisdom that have enabled you to be here reading this right now.

Before retraining as a counsellor/psychotherapist, my first career was as a lawyer. So, I am beginning with my legal understanding of how and where we find ourselves here in the lead up to the national referendum on October 14. 

The concept of sovereignty for Aboriginal and Torres Strait Islander peoples goes back to Captain James Cook and the first landing. At the time the “discoverers” convinced the British Crown to reach the conclusion, determined by the High Court of Australia to be a lie, that Terra Australis was terra nullius, a land without people, unoccupied, uninhabited.  It is on the basis of this first legal deception that modern day colonial Australia has been built. Under international and common law, as per the High Court of Australia’s decisions in Mabo [1992] and elsewhere, Treaty is what should have happened had the British monarchy and government not accepted the false determination of terra nullius, and so remains the legally correct thing to do. 

But, is that what this referendum is about? Are the eligible voters of Australia being asked if we would like the British Crown and Government to rectify these wrongs and belatedly negotiate treaty? No, we’re not. In fact, we are being asked if we want something quite different.

In trying to understand the complex dimensions of recent and ongoing debates on the future of Indigenous Australians, I have been listening to diverse Aboriginal and Torres Strait Islander peoples voices as they express their passion for Indigenous rights, liberties, sovereignty and autonomy. Many of these voices are emphatic that voting “YES” will be a step in the wrong direction, a step away from formal Treaty. They are concerned that The Voice to Parliament, an as yet undefined advisory body, will be powerless to implement any of the changes that it recommends; a repetition of previous misguided attempts to solve "the Aboriginal problem". 

In the words of Senator Lidia Thorpe: 

We will continue to fight for treaty, we will continue to fight to have our sovereignty acknowledged in this country. I don't think a yes or no result is going to make any difference. I think even with a yes vote outcome then it's still a denial of what the Blak sovereign movement is about and it's hand-on-heart do-gooders who think they know what's best for us. So that's a form of racism as well.

These voices highlight that the dimensions of this referendum go beyond the “YES - I support Aboriginal and Torres Strait Islander wellbeing and self-determination” surface of the question, because that is a given.

For me, and many others focused on the legalities of the referendum, the real problem lies in the detail of the question itself.

"A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. YES or NO?”

This is in fact two very distinct and very different questions wrapped up into a single question:           

1. Alter the Constitution to recognise the First Peoples of Australia. 

Whilst many Aboriginal and Torres Strait Islander advocates of the No vote argue that it should be sovereign Aboriginal & Torres Strait Islanders contemplating accepting the rest of us into their lands and cultures and are already recognised under of the Australian constitution, I personally feel that this is a step in the right direction, even (one can only hope) towards Treaty.            

2. Establish an Aboriginal and Torres Strait Islander Voice. 

This is a separate question entirely, and I and many others will feel extremely disappointed if Aboriginal and Torres Strait Islanders and their supporters that vote No are statistically conflated with those voting No for more racially prejudicial reasons. Because they will be, and it will create a false impression of our position as a nation.

My position, in short, would probably make a nifty screen-printed t-shirt to wear to pro-Indigenous rights rallies - “My Yes is a yes to Treaty”. 

For me, the fact that the two questions have been conflated into one points to the core conundrum with this Referendum, and indeed raises concerns about the influence of those that might profit from the politics that are being played here. Has it been designed to fail? Is the government leaving themselves ample wriggle room to slant the final drafting of The Voice legislation in favour of vested interests like the enormously well-resourced mining and property development industries?

One of the key claims of critics is that all previous attempts at Aboriginal and Torres Strait Islander representative institutions have historically failed in their efforts to be effectively representative, and failed in their efforts to "Close the Gap" and solve the problems faced by Aboriginal and Torres Strait Islander peoples. So, why should this new institution with a different name, “The Voice to Parliament”, be any different? 

The answer ultimately depends upon how the government, and eventually the High Court, interpret the wording of the constitutional amendment (the small print that comes after the mandatory selection of a "Yes" or a "No"), draft the legislative instrument that creates the Voice, and then gets this passed through two houses of a divided parliament. Can, and will, this be done in a way that meets the aspirations of Aboriginal and Torres Strait Islander people, the needs of governmental bureaucratic process, and the expectations of the Australian people?

If done well, The Voice might prove to be a legitimate mechanism for Aboriginal & Torres Strait Islander people to have a say in decisions to be made about them and the country they all home. If done poorly, it may not. Either way, it will be many years before anyone can know for sure. 

But the people who have been thinking and talking about this for much longer than the rest of us have already considered this, in considerable detail, and produced The Design Principles of the Aboriginal and Torres Strait Islander Voice.

These Design Principles were drafted by Aboriginal and Torres Strait Islander people and determined in consultation with Aboriginal and Torres Strait Islander representatives through the Statement of the Heart process. A process that was literally "the best they could do with the resources that they had at the time" (Megan Davis, 2023). In these Design Principles they set out an expectation that the advisory body be populated by a broad and balanced demographic of Aboriginal and Torres Strait Islander representatives appointed in accordance with local customary practices. This is reassuring.

I find myself feeling confident that if these Design Principles are followed, then the Voice has a real chance to accurately represent the concerns, views and ideas of a broad cross-section of grassroots Aboriginal and Torres Strait Islander communities. 

This process will be challenging, and expensive, to implement. By voting Yes I would be expressing the view that this expense is worth the potential benefits that may follow for Aboriginal and Torres Strait Islander communities, and ultimately, thereby, all Australians, into the long term future. Across a long enough time frame, "they" are "us", and "we" are "them". 

So, all things considered, and on the balance of things... I will be voting Yes on October 14.

In doing so I am relying on an expectation that a successful outcome to the referendum would lead to the co-design of a system in which Aboriginal and Torres Strait Islander communities would legitimately be heard, and the wisdom of that voice respected, by the Australian Parliament, in a way that facilitates real change for Aboriginal and Torres Strait Islander communities. I can only hope, and lend my support and energy, to the effective implementation of an effective design, and further hope that that might one day lead to a more complete and satisfying outcome for our First Nations People.