'Voice versus Rights: The First Nations Voice and the Australian Constitutional Legitimacy Crisis' by Gabrielle J Appleby, Ron Levy and Helen Whalan in (2023) 46(3) University of New South Wales Law Journal comments
For almost three decades, Australia has been locked in a public and political debate about whether and how to ‘recognise’ Aboriginal and Torres Strait Islander peoples in the Australian Constitution. Omnipresent in all of these debates is the complex question of sovereignty. To many First Nations people, sovereignty is at the core of what they seek. Yet such aspirations seem to clash with the assumptions of many non-Indigenous people that the Australian state’s sovereignty is ultimate and exclusive – that is, fundamental and impinged by no other sovereignties. Such constitutional disagreements set up a chronic crisis of legitimacy. In this article, we examine the foundational purposes of substantive recognition reforms, and compare the two options that have dominated in the contemporary debate: rights and Voice. Recognition through rights is predominantly an attempt to redress the historical discrimination against Aboriginal and Torres Strait Islander people and prevent its future occurrence; or at least provide an avenue of redress for that potential. But this form of recognition, while it may do some work to support First Nations sovereignty and the right of self-determination, does not speak directly to them, and nor therefore to problems of constitutional legitimacy. We argue that recognition through First Nations Voice is a proposal that, unlike rights, relies on both deliberative and democratic characteristics to address the legitimacy problems that we outline. We identify this as a key implicit reason animating calls for an institutional political Voice from First Nations themselves, as expressed in the historic exercise of self-determination that culminated in the Uluru Statement. The Voice, operating as a vehicle through which First Nations can speak directly to the Parliament, has the potential to set up a deliberative and democratic process for the gradual working through of competing legitimacy claims.
