Designing an Indigenous Voice that empowers: How constitutional recognition could strengthen First Nations sovereignty Jason O'Neil

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Published as: Jason O’Neil, ‘Designing an Indigenous Voice that empowers: How constitutional recognition
could strengthen First Nations sovereignty’ Alternative Law Journal. Copyright © 2021 Jason O’Neil.
DOI:10.1177/1037969X211009628

Designing an Indigenous Voice that empowers: How constitutional recognition could
strengthen First Nations sovereignty

Jason O’Neil
PhD Candidate, Nura Gili, University of NSW, Australia

Abstract
This article considers how a First Nations Voice to Parliament, if carefully designed, could
strengthen the land-based sovereignty and autonomy of First Peoples in Australia. It
critiques the proposals presented in the Indigenous Voice Co-design Process' Interim Report
released January 2021 for its emphasis on the role of government and existing structures. It
responds to Indigenous critiques of the Uluru Statement from the Heart, while arguing for a
constitutionally enshrined Voice to Parliament that respects and defers to First Nations'
Country-based authority.

Keywords
Indigenous legal issues, constitutional amendment, constitutional law, public law, Indigenous
rights

Corresponding author: Jason O’Neil, Nura Gili, University of NSW Sydney NSW 2052,
Australia

In May 2017 the Uluru Statement from the Heart 1 (the Uluru Statement) transformed the
Indigenous constitutional recognition movement, with First Peoples 2 rejecting the symbolic
‘Recognise’ campaign in favour of substantive change to the relationship between First
Peoples, and the Australian people, First Nations, and the Australian Parliament. In January
2021, the Interim Report 3 of the ‘Indigenous Voice Co-design’ demonstrated a shift again,
this time away from the spirit of the First Nations Voice to Parliament demanded by the Uluru
Statement. While a referendum on the Voice has not been ruled out, the design and function
of the ‘Indigenous Voice’ recommended in the Interim Report depicts a weak-form, legislated
Voice with questionable influence and a limited mandate to represent First Peoples.

The Uluru Statement presented us all with the opportunity to reshape Australia and
recognise the importance of First Nations influence in Australian law-making. In their
advocacy for kin and Country, First Peoples’ voices have consistently opposed injustice and
demanded that economic development not come at the cost of the health of our lands,
waters, and diverse ecosystems. It is First Peoples’ ontological connection to Country, the
inter-connected, living system of land, water and life that shapes First Peoples’ identity and

1
  For information about the Uluru Statement and its reforms, see https://ulurustatement.org/.
2
  I use the term ‘First Peoples’ to emphasise the peoplehood of all Aboriginal and Torres Strait Islander peoples
as distinct social, cultural and political collectives. I use ‘First Nations’ to refer to the existing or aspirational
polities of those peoples, and to emphasise Aboriginal and Torres Strait Islander peoples’ right to organise and
self-determine as nations.
3
  National Indigenous Australians Agency, Indigenous Voice Co-design Process: Interim Report to the
Australian Government (October 2020) (Indigenous Voice Co-design Interim Report)
https://voice.niaa.gov.au/sites/default/files/2021-02/indigenous-voice-codesign-process-interim-report-2020.pdf.

Published as: Jason O’Neil, ‘Designing an Indigenous Voice that empowers: How constitutional recognition
could strengthen First Nations sovereignty’ Alternative Law Journal. Copyright © 2021 Jason O’Neil.
DOI:10.1177/1037969X211009628

cultural authority, 4 that deserves recognition. No version of the Voice can ever replace First
Nations authority over their Country, and a Voice should never be a replacement for genuine
negotiation between First Nations and settler governments. However, it is possible to design
the Voice in such a way that it encourages and supports First Nations autonomy and
sovereignty, through its own recognition and deference to First Nations cultural authority.
Unfortunately, the current proposals for the Indigenous Voice strongly emphasise the
importance of existing structures, and risk further diluting the relationship between First
Nations and the governments that operate on their Country.

The importance of Voice: Advocating for kin and Country

First Peoples consistently use their voice to protect kin and Country from the impacts of
colonisation. Strong Indigenous voices build community and political pressure to the point
where governments have no choice but to respond. The Royal Commission into Aboriginal
Deaths in Custody (RCIADIC) and the Bringing Them Home Report demonstrate the
enduring importance of First Peoples’ voices in bringing attention to injustice. Both reports
were commissioned in response to relentless ground-level advocacy by Indigenous activists
fighting child removal and deaths in incarceration. They also remind us that successive
governments have failed to listen to those voices, with rates of Indigenous child removals,
deaths in custody and incarceration rising in the decades since. 5 First Peoples’ voices are
rarely convenient for governments. They are voices of critique; voices that challenge the
stories that settler-colonial governments have attempted to craft about an empty land, terra
nullius, and a race doomed to fail. They are voices that draw their authority from their
connection to land and Country, challenging the foundational assumptions of settler-colonial
sovereignty in Australia. 6

Country is the source of First Nations sovereignty, cultural heritage and knowledge. First
Peoples’ ‘ontological connection to land is one that the nation-state has sought to diminish
through its social, legal and cultural practices.’ 7 It has emboldened First Nations’ opposition
to colonisation, 8 and now places First Peoples on the frontlines of a global climate
emergency, highlighting the importance of Indigenous voices internationally. The opposition
to the Adani/Bravus Carmichael Coalmine by Wangan and Jagalingou People; 9 traditional
owners’ opposition to fracking in the Northern Territory; and the When the River Runs Dry
film and campaign highlighting the impact of water management on the Barka (Darling River)
are three recent and high-profile examples. 10 First Peoples have advocated for Country and
the need for balance between economic development and environmental protection

4
Aileen Moreton-Robinson, The White Possessive: Property, Power, and Indigenous Sovereignty (University of
Minnesota Press, 2015) 3–18.
5
Megan Davis, Family is Culture: Independent Review of Aboriginal Children and Young People in Out of
Home Care (October 2019); Patrick Dodson, ‘Patrick Dodson: 25 Years on from the Royal Commission into
Aboriginal Deaths in Custody Recommendations’ (2016) 8(23) Indigenous Law Bulletin 24.
6
Aileen Moreton-Robinson, ‘“Our story is in the land”: Why the Indigenous sense of belonging is so unsettling
to non-Indigenous Australia’, ABC (online, 29 May 2019) https://www.abc.net.au/religion/our-story-is-in-the-
land-indigenous-sense-of-belonging/11159992, archived at https://perma.cc/395Y-Y5L6; Moreton-Robinson (n
4).
7
Moreton-Robinson (n 4) 15.
8
See, eg, Ambelin Kwaymullina, ‘Seeing the Light: Aboriginal Law, Learning and Sustainable Living in
Country’ (2005) 6(11) Indigenous Law Bulletin 12.
9
Wangan & Jagalingou Family Council, ‘Our Fight: Stop Adani destroying our land and culture’ (Web Page)
https://wanganjagalingou.com.au/our-fight/.
10
See also the ‘Gamil means No’ campaign, opposing the Narrabri gas project on Gomeroi Country.

throughout colonisation. It is to the benefit of all people, not just First Peoples, that these
voices are heard.

These fights for Indigenous lives and Country are interconnected and part of the same
struggle. Wiradjuri and Wailwan woman, lawyer and activist Teela Reid argues that:

The struggle for a First Nations Voice has been 250 years coming, ever since
Captain Cook landed uninvited in 1770. It is about the fight for land rights, water
rights and the right to save our planet from the colonial structures that have
attempted to destroy it. It is about the fight for peace and justice, compensation and
reparations, the freedom to speak for country and control our own affairs. A
constitutionally entrenched First Nations Voice is recognition that our sovereignty
never was, never will be ceded. 11

Proposals from the Indigenous Voice Co-design Interim Report

The Morrison government appointed a ‘Senior Advisory Group’ in November 2019 to
oversee a two-stage ‘co-design process’ to develop proposals for a ‘national voice’ and to
‘improve local and regional decision-making’. A ‘National Co-design Group’ was appointed in
February 2020 and a ‘Local & Regional Co-design Group’ in March 2020. The terms of
reference for all three groups explicitly prohibit recommendations regarding constitutional
enshrinement of the Voice, and the Uluru Statement proposals. 12 All three groups were
encouraged to develop proposals which would improve the relationship between Indigenous
people and government policymakers. A summary of their combined proposals was
presented in an Interim Report to Minister Ken Wyatt in October 2020.

The Interim Report of the Indigenous Voice Co-design was released to the public in January
2021 for a consultation process, closing 31 March 2021. Its proposals demonstrate a
troubling shift in direction from the Voice to Parliament called for in the Uluru Statement. It
suggests a weak-form, legislated Voice with a haphazard relationship with both the
Australian parliament and governments of the day. It also places a heavy emphasis on the
role and importance of existing structures and organisations, conflicting with the Country-
based sovereignty and authority of First Peoples and their right to self-determination.

The Interim Report proposes several options in its model for a ‘National Voice’ and
‘Local/Regional Voices’. It recommends a National Voice comprised of 18 members with a
man and woman from each of the eight states and territories plus the Torres Strait Islands;
or alternatively 16 members with only one representative from the ACT and the Torres Strait.
Of those members, two would be full-time Co-Chairs, with the remainder being part-time
members. It proposes that members be either directly elected or appointed in an
undetermined process involving between 25 and 35 ‘Local/Regional Voice’ bodies
established in different regions across the continent to represent local communities.13 The

11
Teela Reid, ‘2020: The year of reckoning, not reconciliation’ (2020) 67 Griffith Review (online only)
https://www.griffithreview.com/articles/2020-year-of-reckoning/.
12
Indigenous Voice Co-design Interim Report (n 3) 177; 180; 183.
13
The Interim Report suggests a set number of regions for each state and territory, with the more populous
states receiving additional regions depending on a total of between 25 and 35. See Indigenous Voice Co-design
Interim Report (n 3) 90.

Interim Report also leaves the door open for ‘up to two’ government-appointed members of
the National Voice. 14

These proposals for a National Voice lack the political mandate necessary for both
parliament and government to take it seriously. It suggests a Voice, constituted as a
statutory body or corporation led by CEO, with a relationship with both parliament and all
levels of government. 15 It also suggests a Voice that can provide ‘formal’ and ‘informal’
advice to parliament and government, when requested by either body, or of its own volition.
The Interim Report recommends legislating a non-justiciable mechanism through which the
Australian parliament is obligated to consult the Voice on legislation that relies on the ‘race’
or ‘territories’ powers of the Australian Constitution, uses the ‘special measures’ provisions
of the Racial Discrimination Act 1975 (RDA), or suspends the RDA. 16 When combined with
the Report’s suggestions for how the National and Local/Regional Voices will be formed and
who they will represent, the ‘Indigenous Voice’ appears to be less a shift in the political
relationship between First Peoples and the Australian people, and more of an elaborate
Aboriginal and Torres Strait Islander consultative group for policymakers.

In 2007, the United Nations (UN) General Assembly passed the Declaration on the Rights of
Indigenous Peoples (UNDRIP). 17 Central to the UNDRIP was its recognition of Indigenous
peoples’ rights to self-determination and to ‘freely determine their political status’. 18 This
includes the right of First Peoples in Australia to ‘maintain and strengthen their distinct
political, legal … and cultural institutions’ 19 and ‘to participate in decision-making in matters
which would affect their rights, through representatives chosen by themselves in accordance
with their own procedures’. 20 The Uluru Statement proposal for a First Nations Voice to
parliament is consistent with First Peoples’ rights to self-determination under the UNDRIP. 21
The design of a First Nations Voice was left open by the Uluru Statement and Referendum
Council, as it was not part of the Uluru Dialogue process. Unfortunately, the Morrison
government does not appear to have engaged in the kind of slow, transparent and genuinely
collaborative process necessary 22 to build consensus around the form of the Voice.

Designing a Voice that builds First Nations authority

Indigenous critics of the Voice and the Uluru Statement emphasise the importance of
sovereignty and the need for treaties between governments and First Nations. 23 Assertions

14
Ibid 39.
15
Ibid 70–1.
16
Ibid 51–2. For a helpful critique of this position and the Interim Report generally, see Dani Larkin, ‘Silencing
the Voice: How government is failing the Uluru Statement from the Heart’, IndigenousX (online, 22 January
2021) http://indigenousx.com.au/uluru-statement-from-the-heart/, archived at https://perma.cc/EN6F-Q7NU.
17
United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2
October 2007, adopted 13 September 2007) (UNDRIP).
18
Ibid art 3.
19
Ibid art 5.
20
Ibid art 18.
21
Eddie Synot, ‘The Universal Declaration of Human Rights at 70: Indigenous rights and the Uluru Statement
from the Heart’ (2019) 73(4) Australian Journal of International Affairs 320, 323–4.
22
UNDRIP art 19.
23
See, eg, Les Coe, ‘Why I Walked Out of the Referendum Council’s National Constitutional Convention at
Uluru (Yulara)’ in John Janson-Moore, Contesting the Referendum Council and the ‘Uluru Statement’ (Web
Page, 30 June 2017) https://www.johnjansonmoore.com/journal/2017/6/25/contesting-the-referendum-council-

of First Nations sovereignty are assertions of the ontological connection between First
Peoples and Country, employing the language of nation states (‘sovereignty’) in opposition
to colonisation. First Peoples have a legal and moral right to determine their own future, and
to seek a settlement for the dispossession and destruction of land and culture. 24
Recognising these facts by constitutionally enshrining a First Nations Voice could strengthen
First Nations’ autonomy and capacity to exercise sovereignty if done correctly.

A Voice to Parliament that defers to the authority of First Nations and is comprised wholly or
in part by representatives of those nations, would encourage First Peoples to organise as
collectives and strengthen their cultural authority and systems of governance. The
Indigenous Voice Co-design Interim Report emphasises a National Voice with
‘representation of particular groups, such as gender, youth, people with disability and
traditional owners’. 25 While it is important that these groups are all represented to reflect the
diversity of Indigenous experiences of colonisation and its impacts, this is a concerning
equivalency of Country-based cultural authority (represented by ‘traditional owners’) with
demographic representation and inclusion. There is an inherent tension between a First
Nations Voice comprised of elected/appointed Aboriginal and Torres Strait Islander
individuals, and the cultural authority of First Peoples to speak for their Country and exercise
autonomy over their own affairs. Designing the ‘Indigenous Voice’ to be a representative of
the diversity of all Aboriginal and Torres Strait Islander people, and inclusive of pre-existing
service delivery organisations, has the potential to further dilute the authority of First Nations
as nations. 26 This is especially true if governments come to see consulting the
national/local/regional Voice as equivalent to engaging with the First Nations on whose
Country they operate.

For the Voice to attract significant buy-in from First Peoples and strengthen the authority and
capacity of First Nations, it should defer to that same authority. A First Nations Voice
comprised of representatives of all nations that choose to participate would not only
recognise the authority of each nation to speak for themselves but could provide a catalyst
for First Peoples to rebuild their internal cultural and political authority. This is important work
that needs to be done before there can ever be widespread, successful treaties between
First Nations and governments. While some groups such as the Noongar and Ngarrindjeri
Nations have strong governance structures, and representatives who can negotiate with the
authority of their peoples, others do not.

Colonisation, by design, has disrupted First Peoples’ kinship networks, connections to
Country, and continuation of law and custom. Not every Indigenous person lives on Country
or can trace their heritage to a specific people. These issues, and the scale and diversity of
First Nations across Australia puts such a Nation-centred design into the ‘too hard’ basket
for government. However, it is not governments that need to do the work. If calls for
sovereignty and treaty are serious (and they are), there is a lot of internal work to be done to

and-the-uluru-statement, archived at https://perma.cc/NWB7-Z7KN; Wiradjuri Buyaa Council, Submission No
468 to Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander
Peoples (30 October 2018).
24
United Nations Declaration on the Rights of Indigenous Peoples art 28.
25
Indigenous Voice Co-Design Interim Report (n 3) 36.
26
For an important discussion of constitutional recognition and the complexity of Indigenous identities in the
settler-colonial context, see Sana Nakata, ‘Who is the Self in Indigenous Self-Determination?’ in Laura
Rademaker and Tim Rowse (eds), Indigenous Self-Determination in Australia: Histories and Historiography
(ANU Press, 2020) 335.

Published as: Jason O’Neil, ‘Designing an Indigenous Voice that empowers: How constitutional recognition
could strengthen First Nations sovereignty’ Alternative Law Journal. Copyright © 2021 Jason O’Neil.
DOI:10.1177/1037969X211009628

resurge the collective authority of First Nations to exercise those sovereignties and be a
party to those treaties. Questions such as: ‘who are our people?’, ‘how do we organise?’,
‘where do we get our authority from?’, ‘are we a nation?’, ‘do we want to be a nation?’, ‘who
can be members of our nation?’ and ‘who can benefit from the programs and services of our
nation?’ will lead to difficult yet necessary conversations 27 for First Peoples to exercise
autonomy and authority over Country in an age of nation states and increasing
globalisation. 28

While it is the responsibility of First Peoples to continue the important work of strengthening
and redeveloping their cultural-political authorities, it is also the responsibility of settler
governments not to further disrupt or unnecessarily rush the outcome of this work. Part of
the reform necessary for success in ‘Indigenous Affairs’ in Australia, is the ability for
governments to look beyond the time pressures of the electoral cycle. First Peoples need
time and space to do this work. In instances such as a treaty process, or establishment of
the Voice where First Nations cultural authority may come into play, it may be necessary for
governments to allocate resources and time to support these cultural matters without
obligations or expectations as to the outcome. Some consideration of this appears to shine
through in the Interim Report’s discussion of the establishment of local/regional Voices. The
Local & Regional Co-design group ‘agreed it is essential that Local and Regional Voice
arrangements do not disrupt or encroach on the ongoing role of these systems based in
traditional law/lore and custom.’ 29 While the Interim Report does recommend community
control and input into the design of Local/Regional Voices, with as much connection to
cultural authority as deemed appropriate, 30 the speed with which the co-design process has
been implemented, and the repeated emphasis on incorporating existing arrangements
suggests that First Peoples will not be afforded the necessary time and space necessary to
effectively strengthen and incorporate First Nations authority in the Indigenous Voice
process.

The proposed ‘Indigenous Voice’ has not been envisioned as a ‘First Nations Assembly’, 31 or
a ‘united nations’ of First Nations. Its proposed membership has been limited to only 18 to
avoid a Voice that is ‘too large and impractical’. 32 However, there are clear benefits for
designing the Voice to recognise and draw on the Country-based authority of First Nations
as traditional owners. Nation-based representatives need not be the sole basis for the

27
   These discussions have happened or are already happening in various forms by First Peoples across the
continent. For scholarly consideration of these points see, eg, Alison Vivian et al, ‘Indigenous Self-Government
in the Australian Federation’ (2017) 20 Australian Indigenous Law Review 215.
28
   For discussions of what this may look like, see, eg, Dylan Lino, ‘Constitutionally Recognising Indigenous
Peoplehood: Towards Indigenous-Settler Federalism’ in Constitutional Recognition: First Peoples and the
Australian Settler State (The Federation Press, 2018); Steve Hemming, Daryle Rigney and Shaun Berg,
‘Ngarrindjeri Nation Building: Securing a Future as Ngarrindjeri Ruwe/Ruwar (Lands, Waters, and All Living
Things)’ in William Nikolakis, Stephen Cornell and Harry Nelson (eds), Reclaiming Indigenous Governance:
Reflections and Insights from Australia, Canada, New Zealand and the United States (University of Arizona
Press, 2019) 71.
29
   Indigenous Voice Co-design Interim Report (n 3) 67.
30
   Ibid 67–9.
31
   Tony McAvoy SC has advocated for the establishment of an Assembly of First Nations and developed a
proposed national treaty framework. See: Tony McAvoy, ‘An Assembly of First Nations and a Treaty’ (Paper
presented at the National Native Title Conference, 2 June 2014) archived at
https://web.archive.org/web/20200414052303/https://aiatsis.gov.au/publications/presentations/assembly-first-
nations-and-treaty.
32
   Indigenous Voice Co-design Interim Report (n 3) 38.

‘National Voice’. But they should be a significant consideration in designing an effective
Voice. Otherwise, it could further complicate and dilute the relationship between First
Peoples, as distinct political and cultural collectives, and the governments that operate on
their Country.

The Voice is not a replacement for government-Nation relationships

Further to this point, a First Nations Voice should not be a replacement for genuine
relationships and consultation between First Nations and local, state and federal
governments. The motivation behind a Voice to Parliament is the failure of governments to
rectify the social, economic, spiritual, physical and cultural damage caused by colonisation.
The unwillingness or inability to hear Indigenous voices and provide influence and decision-
making power to the real experts of ‘Indigenous Affairs’ has led to decades of policy failure.
The Voice, even if it is comprised only of representatives of First Nations, is only a
representation of the collective viewpoints of its members. It will not have the authority to
speak for Country, or to consent to something on others’ behalf.

Even the planned 25 to 35 ‘Local/Regional Voices’ which are proposed to vary in design
based on the input of local Aboriginal and Torres Strait Islander people appear far removed
from the Country-based authority of First Peoples. This is evident in the Interim Report’s
discussion of existing service-delivery and governance structures that would influence the
makeup of the local/regional voices. For example, the Interim Report describes the ‘NSW
Local Decision Making’ initiative as ‘strongly aligned’ to the proposed local/regional voice
framework. 33 The New South Wales (NSW) Local Decision-Making initiative allows
Aboriginal organisations to form a ‘Regional Alliance’ representing specific local government
areas of NSW. These alliances can then negotiate agreements with the NSW government
around service delivery in their area. In no way does this approach consider the Country-
based authority of First Peoples, nor does it challenge the pre-existing and deeply
embedded power structures which the Uluru Statement seeks to reform.

Despite how the ‘Indigenous Voice’ is depicted in the Interim Report, engaging with all levels
of government in policy design and advocacy, no proposed model for the Voice can replace
the authority and expertise of First Peoples. Governments will have the same obligation to
develop genuine relationships with the First Peoples on whose Country they operate, and it
is an obligation that a First Nations Voice should encourage them to take more seriously. As
an example, Dubbo City Council or NSW Health should not be asking a Local/Regional
Voice for the authority to do something on Wiradjuri Country. They should ask the Wiradjuri
People, in recognition of their right to self-determination and connection to Wiradjuri Country.
The role of the Voice should be to amplify First Nations’ Voices, and advocate for
governments to defer to the expertise of First Peoples in designing and implementing
relevant law and policy.

Reflecting on the over-incarceration and continued deaths in custody of Indigenous people
in the 25 years since the RCIADIC, Yawuru man Senator Patrick Dodson argued:

If we are serious about addressing these issues, we must work together and agree
on a way forward. But the process must engage Indigenous peoples in a genuine

33
Indigenous Voice Co-design Interim Report (n 3) 105.

Published as: Jason O’Neil, ‘Designing an Indigenous Voice that empowers: How constitutional recognition
could strengthen First Nations sovereignty’ Alternative Law Journal. Copyright © 2021 Jason O’Neil.
DOI:10.1177/1037969X211009628

        dialogue. And that dialogue must translate into real partnerships that enable local
        communities to devise solutions to the problems that confront them. 34

While these genuine partnerships between First Nations and governments are essential to
good policymaking, there needs to be certainty and sustainability in those partnerships and
any initiatives that result from them.

Constitutional enshrinement: The importance of certainty and sustainability

First Peoples are especially vulnerable to the whims of government and the electoral cycle.
There is a body of academic and government literature documenting the detrimental impact
of limited funding, reporting obligations, service duplication and short-term thinking in
Indigenous policymaking. 35 In 2011, Tom Calma and Darren Dick reflected on their hopes for
the recently established National Congress of Australia’s First Peoples:

        We need the National Congress to be around for the long haul. Most previous
        representative bodies in Australia have been short-lived, lasting for between 10 and
        15 years. This is not long enough to close the gap in life expectancy or to address
        the many other challenges that Aboriginal and Torres Strait Islander people face. Nor
        is it long enough to contribute to the much-needed transformation of the relationship
        between Aboriginal and Torres Strait Islander peoples and the Australian Settler-
        State in this country. When we look back in 20 years time, we hope that the
        establishment of the National Congress of Australia’s First Peoples in 2010 was
        indeed an historic moment that led to fundamental change, putting Australia on a
        new path to true equality, self-determination and respect for Aboriginal and Torres
        Strait Islander people. 36

The National Congress was, of course, dissolved mid-2019 following the withdrawal of
Commonwealth funding by the Abbott government. Representative bodies like National
Congress and ATSIC cannot survive without sustained support and goodwill from a federal
government that regularly changes ideology and policy priorities. The ease with which
bodies are created by one government and cast aside by the next demonstrates the perilous
nature of First Nations influence over policy and decision-making in Australia. This is the
motivation behind constitutionally enshrining the Voice through referendum. While inserting
an enabling provision into the Constitution does not guarantee perpetual government
support for the Voice, it will provide the political mandate of a successful referendum, further
complicating any move to defund or weaken the Voice based on ideology. 37 Constitutional

34
   Dodson (n 5) 25.
35
   See, eg, Michael C Dillon and Neil D Westbury, Beyond Humbug: Transforming government engagement
with Indigenous Australia (Seaview Press, 2007); Queensland Productivity Commission, Service delivery in
remote and discrete Aboriginal and Torres Strait Islander communities (2017); Commonwealth, Royal
Commission into Aboriginal Deaths in Custody, Regional Report of Inquiry in New South Wales, Victoria and
Tasmania (1991) ch 24.
36
   Tom Calma and Darren Dick, ‘The National Congress of Australia’s First Peoples: Changing the Relationship
between Aboriginal and Torres Strait Islander Peoples and the State?’ in Sarah Maddison and Morgan Briggs
(eds), Unsettling the Settler State: Creativity and Resistance in Indigenous Settler-State Governance (The
Federation Press, 2011) 168, 187–8.
37
   See also: Megan Davis, ‘Toxicity swirls around January 26, but we can change the nation with a Voice to
parliament’, The Conversation (online, 25 January 2021) https://theconversation.com/toxicity-swirls-around-
january-26-but-we-can-change-the-nation-with-a-voice-to-parliament-153623, archived at

enshrinement will give the Voice a level of security and certainty that no Indigenous
organisation or representative body has had before. And while this does not guarantee
influence, it will provide a platform around which First Peoples can collectively organise and
continue to advocate for kin and Country.

Conclusion

The Uluru Statement from the Heart is an invitation to the Australian people that provides us
all with an opportunity to shift the relationship between First Nations, settler governments
and the Australian people. What began as a push for symbolic recognition of Aboriginal and
Torres Strait Islander people in the Australian Constitution has been transformed through
Indigenous advocacy into a demand for Voice, Treaty and Truth. There is substantial
potential in a First Nations Voice that recognises and draws on First Nations sovereignty.
The design of such a Voice could play an important role in fostering First Nations autonomy
and preparing First Peoples to exercise their sovereignty and negotiate treaties with
governments from a more level playing field.

The ‘Indigenous Voice Co-design’ Interim Report suggests that the Morrison government
may pursue a different direction. It is important that any co-option of the language and intent
behind the Uluru Statement is closely scrutinised. A weak ‘Indigenous Voice’ that fails to
meet the demands of the Uluru Statement risks being little more than a focus group for
government policymakers. To be effective, a First Nations Voice must be enshrined in the
Constitution and strengthen First Nations sovereignty in the journey towards a national
treaty-making process led by the Makarrata Commission.

Acknowledgments

The author would like to thank the anonymous reviewers, as well as Diana Perche and Faith
Sheridan for their feedback and advice.

Funding

The author received an Australian Government Research Training Program Scholarship.

Jason O’Neil is a PhD candidate in the Nura Gili Indigenous Programs Unit at the University
of New South Wales, Australia.

https://perma.cc/NW7H-GKVS; Public Lawyers, Submission No 38 to the Indigenous Voice Co-Design Process
(22 January 2021) https://haveyoursay.voice.niaa.gov.au/submissions/view/sbm15bd4d37275607e51b233,
archived at https://perma.cc/FJ6X-G3QH.

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