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Will the Voice to Parliament be a 'racial divide' in Australia?

A look at claims about the Voice ahead of the upcoming referendum.

In an interview with Sky News Australia’s Peta Credlin, the Institute of Public Affairs’ Daniel Wild claimed that the Indigenous Voice to Parliament would be similar to New Zealand’s Waitangi Tribunal, with a “mission creep” of needing to consult Aboriginal and Torres Strait Islander peoples on natural resources projects, and would “permanently divid[e] Australians by race.”


While recognising that Aboriginal and Torres Strait Islander peoples have had different historical relations with their respective governments, Wild argued that there was an agenda of division in Australia that would give Aboriginal and Torres Strait Islander peoples increasingly preferential treatment, at the expense of non-Indigenous Australians, even using military terminology to characterise this policy.


But his claims misrepresent both the legal situations in Australia and New Zealand, and the Indigenous Voice to Parliament.


While the Maori and Aboriginal peoples were the subjects of colonial governments, their experiences were vastly different, although with many diverse Indigenous peoples involved it is important not to over-generalise.


In New Zealand, the British recognised Maori society as similar to other ‘primitive’ chiefdoms. This led to several unfair treaties being placed on the Maori peoples by the colonial power, the most famous being the Treaty of Waitangi 1840, signed by roughly 540 Maori leaders.


In contrast, the Aboriginal and Torres Strait Islander peoples of Australia were treated as ‘primitive’ tribes, so uncivilised that they were, at best, ‘noble savages,’ which was used to justify treating Australia as terra nullius, meaning ‘nobody’s land.’


By the time the terra nullius doctrine was reversed by the High Court of Australia in Mabo v Queensland (No 2) (1992), the Waitangi Tribunal had existed for 17 years, established by the Treaty of Waitangi Act 1975 (NZ). At the same time as the Tribunal was being established, Australia was implementing the Racial Discrimination Act 1975 (Cth).


Thanks to these established treaties in New Zealand, many Maori nations have had their sovereignty recognised. The original Treaty of Waitangi is even treated as a constitutional document.


Because there are treaties between the British, New Zealand and Maori governments, the ‘Crown,’ representing the New Zealand government, is heavily involved in Maori legal matters, including lands rights disputes. The Waitangi Tribunal, in addition to advising the government on Maori issues, is also expected to investigate, advise on, breaches of the Treaty of Waitangi 1840 by the Crown.

 

RELATED: Check out Common(wealth) Knowledge #12 for a discussion about the role of the Crown in the government.

 

Comparing the role of the Crown in the two systems, Professor Cris Shore said that, in New Zealand, the Crown is “at the heart of New Zealand’s constitutional order as the … key signatory to the Treaty of Waitangi.” The Crown has a diminished role in Canadian First Nations issues, but the disconnect between the Crown and Aboriginal and Torres Strait Islander peoples is much greater in Australia, despite the Crown determining what happens with the culture and heritage of the country’s original population, such as under Part 6 of the National Parks and Wildlife Act 1974 (NSW). Without underlying treaties, the Crown in Australia is much less involved in, or at least more disconnected from, Aboriginal and Torres Strait Islander native title proceedings and other Aboriginal rights issues.


So, while there are similarities, it is important to note that this is more just “differences in our Indigenous populations and their history,” as Wild put it.


There are further issues with relying on the Waitangi Tribunal as an example for what the Voice would look like, though.


Indigenous Law Centre Associate and Griffith University lecturer Eddie Synot spoke with 6 News and said that, while there will be some details about the Voice confirmed before the referendum, the finer details will be worked out afterwards. He gave two justifications for this.


Firstly, if all of the details are worked out beforehand, then it won’t be a referendum on the Voice, it will be a referendum on a specific model of the Voice. If rejected, another referendum with a new model would be needed, which is a waste of time and money. This means that details like if or how people will be elected to it might be set in stone before the referendum.


In addition, if a model was included in the referendum, then it would be built into the Australian Australian Constitution, making it very difficult to make any future changes to it. Instead, the proposal is to entrench the existence of the Voice in the Constitution, and then do the rest by legislation. This isn’t a novel idea; the High Court of Australia didn’t exist until the Judiciary Act 1903 (Cth), despite being included in the Constitution.


However, there is enough detail to know that it will only be an advisory body. It won’t have the investigative powers of the Waitangi Tribunal. And this advice will only be treated as recommendations. Even the advice of the Waitangi Tribunal isn’t always followed.


While there is debate over whether the Voice will be useful in protecting Aboriginal and Torres Strait Islander interests, what is clear is that the Voice won’t divide Australia by race. As the Voice is only an advisory body, it doesn’t give Aboriginal and Torres Strait Islander peoples special powers.


It isn’t intended to operate as a third House of Parliament, so arguing that it will give “one subset of our community essentially two votes,” as Wild claims, is incorrect. There is not enough information to know if or how people will be elected to serve on it, and if they are, this won’t give them powers that are denied to other Australians.


Finally, consulting Aboriginal and Torres Strait Islander peoples about resource projects, like corporate mining, on their land is not inconsistent with Australian property law.


Under Australian property law, it is expected that people with legal interests over land are to be consulted by private businesses and individuals who want to purchase, develop, or otherwise use that land.


Although Australian law tends to preference other types of property rights over the native title rights of Aboriginal and Torres Strait Islander peoples, High Court judges have suggested that native title should be treated the same as other types of property rights. Some of these include Justice Toohey in Mabo (No 2), [100], Chief Justice French and Justice Keane in Queensland v Congoo (2015), [13], Justice Gageler in that same case, at [166], and Chief Justice Gleeson and Justices Gaudron, Gummow, and Hayne in Western Australia v Ward (2002), [105].


Stuart Jeffery is the host of Between Parkes Place and Capital Hill on 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.


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Sources:


Cris Shore and David V. Williams, The Shapeshifting Crown: Locating the State in Postcolonial New Zealand, Australia, Canada and the UK (Cambridge University Press, 2019).

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Judiciary Act 1903 (Cth).

Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23.

National Parks and Wildlife Act 1974 (NSW).

Queensland v Congoo (2015) 256 CLR 239; [2015] HCA 17.

Racial Discrimination Act 1975 (Cth).

Treaty of Waitangi Act 1975 (NZ).

Stuart Jeffery, ‘Australia Day, Native Title, and the Legacy of Terra Nullius’ [2022] (Winter) University of Southern Queensland Law Society Law Review 27.

Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28.

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