When the Federal Government came to power a few weeks back, it re-affirmed its commitment to the entirety of the Uluru Statement from the Heart.

It was one of the Prime Minister’s earliest utterances after taking office. Since then there has been a fair bit of commentary about ‘The Voice’ to parliament and the timing of a referendum to amend the Australian Constitution to give effect to it.

The Prime Minister has indicated that the order of things will be The Voice first, and a republic second. Thus Constitutional recognition for Aboriginal and Torres Strait Islander people seems to be a first term priority. However in committing to the whole of the Uluru Statement from the Heart, there is more than just The Voice to contend with.

The Uluru Statement from the Heart came about in 2017 after a meeting of Aboriginal and Torres Strait Islander leaders at the First Nations National Constitutional Convention in Uluru. Although there is some contest from some Aboriginal leaders present about the Statement carrying the reference to Uluru, there was almost universal agreement that it represented a majority of what Aboriginal and Torres Strait Islander people wanted. Like the Yirrkala Bark Petitions presented to the Commonwealth from 1963 regarding the asserted land rights of the Yolngu People of Arnhem Land, the Uluru Statement from the Heart was depicted as a work of art, and its title is in itself is descriptive as it is evocative.

It contained three elements. The Voice is one, but it also includes the concept of Makarrata, which is a Yolngu word for Treaty. The third element is Truth.

Using the English word ‘Treaty’ may not be directly relatable to the concept of a Makarrata, so it is best to hear it from Noel Pearson who said: “The Yolngu concept of Makarrata captures the idea of two parties coming together after a struggle, healing the divisions of the past. It is about acknowledging that something has been done wrong, and it seeks to make things right.”

The concept of a Makarrata envisages a Commission presumably to operate as a form of Truth and Reconciliation Commission. The Uluru Statement also envsiges Truth will precede formal Treaty, and the enshrinement of The Voice to Federal Parliament.

Whilst the establishment of a Makarrata could be achieved by legislation or Letters Patent, The Voice can only exist by amendment of the Australian Constitution. Having had the Turnbull government take the matter no further, primarily on the basis that Constitutional reform was unlikely, those in favour of a Voice to Parliament know there is likely going to be one chance and one chance only to get this Constitutional amendment up, so they have been waiting for the right moment in the Australian public psyche to strike. They now have a sympathetic Federal Government and so the time may be now.

But there is still much to be done. Whilst academics and leading silks are working on the drafting of The Voice amendment, do Australians actually understand what is being asked of them, and what is involved? It is a timely reminder that of the 44 Constitutional amendments proposed since Federation, only eight have gotten up.

Returning to the subject of a Truth and Reconciliation Commission and Treaty, both concepts have worked in South Africa in respect to its post-apartheid Truth and Reconciliation Commission, and in New Zealand where treaties with the Māori were entered into from the start.

It has proven harder however for our First Nations people. Representing about 3% of our population, they have at times struggled to be heard. It is troubling that Aboriginal Australia is currently in the national dialogue again, but for reasons of the unacceptably high instance of family and domestic violence, not constitutional recognition.

The Māori are about 17% of the New Zealand population, and black South Africans about 80% of theirs, and they have brought about change. It has been a much harder job as only 3% of the population to convince the rest of Australians to amend our Constitution, set up a Truth Commission – which will be viewed by many as a lawyers’ picnic – when as a migrant nation our collective understanding of the past sins of the British and earlier Commonwealth and State Governments is sufficiently remote to be largely irrelevant to present day life of the majority of Australians.

There are also vocal opponents to the concept of The Voice.

Those who oppose a voice to parliament do so for a number of reasons. Warren Mundine thought the aim of Aboriginal Australia should remain a treaty-based approach, saying at the time of the Uluru Statement: “The Uluru Statement made two proposals. One is a “top-down” lawyers’ proposal that will certainly fail. The other is a grassroots proposal with overwhelming Indigenous support that could be implemented without the need for any referendum. I’m calling time on 10 years of discussion on constitutional recognition. We don’t need it.”

The most strident argument is that the creation of a Voice to Parliament is an assault on the supremacy of Parliament itself. Five years ago one may have countered that argument more effectively, but at present the rise and rise of unelected people in New Zealand might be argued by some debate to be an alarming analogy. A Māori caucus, the iwi, now wields considerable unelected power in what is described and defended as ‘co-government’. It found  its roots in a re-interpretation of the Treaty of Waitangi so that unelected people may sit alongside elected parliamentarians to govern policy. Given the striking similarities with the concept of The Voice, one can understand the naysayers. What we do not need is a New Zealand style reinvention of democracy.

Whilst academics and leading silks are working on the drafting of The Voice amendment, do Australians actually understand what is being asked of them, and what is involved?

The authors of the the Uluru Statement and their supporters have repeatedly made the point that The Voice is not a third parliamentary chamber. However the potential problem is encapsulated in another argument, and that is that once the Australian Constitution is amended it is another unelected group of people who will determine what it means: judges. The High Court of Australia alone interprets the provisions of the Australian Constitution, and let us say whilst retaining the necessary respect for its institution, some of those interpretations have raised eyebrows from time to time.

Concepts of ‘implied rights’ falling from the Constitution was a favourite of the Mason High Court. Then there is the body of jurisprudence that means that even although our State borders are required by the Constitution to remain open for trade and commerce, they are only open until the High Court says they aren’t, as we have seen throughout the Covid pandemic. Thus one cannot really predict with any certainty or good conscience what The Voice may morph into after the judicial application of what we lawyers call ‘interpretation’. Some would say intervention.

The argument is that at this stage an elected Parliament has no control because a referendum leading to Constitutional amendment is a decision that supplants representative democracy, and is of the people not the Parliament, and once made becomes a matter for the Court to say what it means and once again not the Parliament.

To counter that, lawyers and legal academics having been working on a model that enables constitutional creation of The Voice whilst leaving the finer details to the Parliament in an attempt to maintain parliamentary sovereignty at all times. To create a power for Parliament that is non-justiciable. That is what is likely to ultimately be put to the Australian people. It then becomes a matter of trust in the model and the legal proponents for change.

It is perhaps Australians’ innate conservatism and suspicion of ‘lawyers bearing gifts’ that is one reason why so few Constitutional amendments proposed have succeeded. That, and the mechanical difficulty of achieving a majority of votes overall as well as a majority of states; the so-called double test required for constitutional reform in Australia. On the last occasion the Republic question was proposed, it failed. And in a sobering fact for the Albanese Government, only one ALP-proposed referendum in the history of Federation has ever succeeded, that regarding social security in 1946.

So maybe Warren Mundine is right. By the time we get to this vote, years down the track from the Uluru Constitutional Convention, and if a referendum for The Voice fails, a great deal of effort by many people will have been potentially wasted, and more importantly, valuable time lost.

Meantime, Aboriginal Australia continues to suffer from the scourge of substance abuse, closely linked to family and domestic violence and reduced economic opportunity, which has led many commentators and Aboriginal and Torres Strait Islander elders to make a further argument, and that is that there are more pressing issues to confront than constitutional recognition. Conversely, proponents of The Voice say it is the very vehicle through which these types of issues can find their way onto the floor of Federal Parliament.

Constitutional recognition for Aboriginal and Torres Strait has been a very long journey. What we are contemplating now is very different to where it all began. What was once a debate about whether recognition should be in the Preamble or elsewhere in the Australian Constitution has become substantially more involved, some might say, bogged down by the Uluru Statement. It has become an all or nothing zero-sum game.

This and the question of priorities was no doubt on her mind when Senator Jacinta Nampijinpa Price said last year: “I certainly don’t mind the idea of being recognised in our nation’s constitution[…][but] I’m more focused on the more immediate, practical issues, trying to provide outcomes for the betterment of Indigenous Australians, as opposed to, you know, symbolic gestures.”

Earlier this week she echoed the same sentiment, saying ‘the Labor government needs to prioritise protecting the rights of victims of domestic violence and sexual abuse ahead of establish a voice to parliament, the Uluru statement or treaty’.

In earlier remarks regarding The Voice and constitutional recognition the senator also remarked on another contentious subject by observing that, “If we’re reaching for equality, true equality, then that means that Indigenous Australians be on the same footing as all other Australians”.

That is the final objection to The Voice from many Australians; that equality will not be achieved by creating inequality. Although we ought to Constitutionally acknowledge our first peoples, does that mean we are better off as a nation creating a different status for Aboriginal and Torres Strait Islanders than that enjoyed by other Australians? If we say that we may distinguish one’s status and entitlement to have one’s voice directly heard in the Parliament of  Australia based on race, we may be straying into territory never contemplated since Federation. Indeed every attempt to amend our Constitution in the past has been with an opposite agenda, to make Australia more – not less – egalitarian.

These are quite profound questions for Australians to decide, against a history of unhappy colonisation of Australia from the perspective of its traditional owners. Yet that has happened, and we now have an Australia that is truly multicultural in the best of ways, with well over 300 languages spoken in Australian homes, forging forward successfully notwithstanding our past.

The first colonists probably should have entered treaties with the indigenous nations of Australia. Truth is always a welcome ingredient in Australian society. And ultimately we may end up with The Voice to Parliament. Yet whilst there are arguments in favour of these things, there are also sound arguments made against.

A mature Australia will take this in its stride, but should not as a nation allow this important national discussion to be reduced to shrill rhetoric and the shaming of people who will advance views from all perspectives, as we contemplate our commitment to the Uluru Statement from the Heart, or otherwise. This is not, and ought not become, a politicised issue. It should become a choice regarding what is in our best national interests and that of our children. It should be about how to make our nation a stronger and better place.

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia