Submission to Consultation on Proposals for a First Nations Voice

30 April 2021

Submitted online

I am writing to express my personal support for the Uluru Statement from the Heart, which was a generous invitation by First Nations people to non-Indigenous Australians to walk together ‘in a movement of the Australian people for a better future.’

This includes whole-heartedly endorsing the three key elements of the Uluru Statement:

  • Voice
  • Treaty, and 
  • Truth.

As the Statement itself outlines, the first element – a First Nations Voice – must be ‘enshrined in the Constitution’.

Constitutional enshrinement is essential to ensure the independence of the Voice, and protect it against political intervention by the Government of the day, something which has unfortunately occurred in relation to past Aboriginal and Torres Strait Islander bodies.

Constitutional enshrinement will also provide the Voice with stability, as it would not be able to be abolished through the passage of simple legislation, as happened with the Aboriginal and Torres Strait Islander Commission (ATSIC).

I therefore urge the Commonwealth Government to honour its election commitment to hold a referendum to establish the Voice once the model has been settled.

The referendum process itself has the opportunity to be a unifying moment, as a step along the long journey of genuine Reconciliation.

A successful referendum, with what I would hope would be a large majority of Australians voting in favour, would also provide the Voice with additional authority and legitimacy as it fulfils its Constitutional responsibilities.

Holding a referendum in the near future would also take advantage of what I believe is growing momentum towards embracing the Uluru Statement from the Heart and the opportunity for substantive progress which it presents.

On the other hand, I strongly oppose the creation of a Voice via legislation prior to such a referendum. 

This approach – ‘legislation first, referendum later’ – is weak for the same reasons a ‘referendum first’ approach is strong.

‘Legislation first, referendum later’ means the Voice would lack true autonomy in its formative years, at the very time it would need to be establishing its credibility with First Nations people.

It would operate under the constant threat of being abolished, just like its predecessors, while delays to any referendum could squander the community goodwill which has been built in support of the Uluru Statement.

All of that is before considering the real possibility of the current, or a future, Government walking away from their commitment to hold a referendum at a later date.

The order of events to create the Voice must therefore be a constitutional referendum first, followed by the passage of enabling legislation.

The above position reflects the first two ‘key messages’ of the Indigenous Law Centre at the University of NSW, and the Uluru Dialogue.[i]

I also endorse their third ‘key message’:

‘The membership model for the National Voice must ensure previously unheard Aboriginal and Torres Strait Islander people have the same chance of being selected as established leadership figures.’

In relation to this principle, I would like to make a comment about one of the proposed elements of a First Nations Voice as highlighted in the Indigenous Voice Co-design Interim Report, provided to Government in October 2020 and underpinning the current consultation.

Specifically, Chapter Two of that Report proposes two options for the Voice on page 37:

Option 1 – equal representation (preferred option), which features 18 members with ‘two members of different gender for each state, territory and Torres Strait Islands’, and

Option 2 – scaled representation, which features 16 members with ‘two members of different gender for each state and the Northern Territory’ and ‘one member each for the ACT and Torres Strait Islands with a member of a different gender selected following each completed term…’

The discussion on page 38, under the heading ‘Gender representation’, then states:

‘The National Co-design Group agreed unanimously to the importance of gender balance. All options reflect the principle that there must be a requirement for balanced representation of different genders in the National Voice membership.’

In response, I begin by welcoming the use of the term ‘different gender’ rather than the exclusionary phrase ‘opposite sex’ in these options.

I obviously also support efforts to ensure the National Voice is not male-dominated, and certainly not in the same way that Commonwealth Parliament currently is.

Despite this, I question how these options would operate in practice, especially the requirement there ‘must’ be ‘gender balance’ (with some of the materials supporting the current consultation describing this as ‘guaranteed gender balance’).

In particular, how does such a requirement apply with respect to non-binary people or other First Nations people with gender identities that are not male or female?

I suspect most people reading the Interim Report and associated consultation materials would interpret proposals for two members per jurisdiction being of different genders, reinforced by an overall requirement for gender balance, as involving one female and one male member in each state or territory.

However, that outcome would mean non-binary First Nations people may be prohibited from serving on the National Voice (which is contrary to a goal of ‘ensuring previously unheard Aboriginal and Torres Strait Islander people have the same chance of being selected as established leadership figures’).

On the other hand, if non-binary people are allowed to serve as members of the National Voice, this may result in the numbers of male and female members being different or unequal, and not satisfy some people’s notions of ‘gender balance’.

I raise this issue as a long-term advocate for the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community.

Nevertheless, I am conscious that I am not Indigenous, and believe that the core features of the Voice, including criteria for membership of the National Voice, are matters for First Nations people. 

In this context, I am not proposing a solution to this issue (concerning requirements for gender balance and their potential adverse impact on non-binary and other gender diverse First Nations people), merely bringing it to the attention of those responsible for this consultation and suggesting that it be considered further.

Thank you in advance for taking this submission into consideration.

Sincerely

Alastair Lawrie

The Uluru Statement from the Heart.

Footnotes:


[i] 1. The government must honour its election commitment to a referendum once a model for the Voice has been settled.

2. Enabling legislation for the Voice must be passed after a referendum has been held in the next term of Parliament.

A Referendum, a Plebiscite & an Inheritance

There are only a few possessions that hold sentimental value for me.

 

Like most people, there are some photos that have a special place in my heart because they remind me of people or moments that have been significant to me. Then there’s the engagement ring Steve gave me (of course). And the unit we bought together too – well, the small part that isn’t currently owned by the bank – not because it is our dream home by any stretch of the imagination, but because it is the home we are making together.

 

One other object I am sentimental about is actually a copy of the Australian Constitution. No, I’m not that much of a nerd – it’s because it once belonged to my grandfather, Alexander Greig Ellis Lawrie, a Senator who represented Queensland from 1 July 1965 to 11 November 1975, and who passed away in the same year I was born.

 

For people who know me, and where I sit on the ideological spectrum, the fact he was a member of the Country Party might come as a bit of a surprise. But, as well as inheriting his physical appearance (or so I’m told), he also passed down – through my father who was once a National Party candidate, too – a keen interest in contributing to politics and public life.

 

Which meant that, when his wife – my grandmother – died early last decade, the Constitution he was provided with when he was originally sworn in, in Senate red and with his name etched on the front cover, was given to the most ‘political’ of his grandchildren.

 

IMG_0916

My grandfather’s Senate copy of the Australian Constitution.

 

One of the things I love about his copy of the Constitution is that, given he started his first term before the successful 1967 referendum on Aboriginal issues (amending the races power, and including Aboriginal people in the population of the States and Territories for the first time for the purpose of allocating seats in Parliament and determining Commonwealth grants), he has actually crossed out, in pencil, the words “other than the aboriginal race in any State” in section 51(xxvi) and struck a line through section 127 entirely.

 

As a consequence, it feels like I own a piece of history – an object that is connected to a special moment when Australia took a small step forward from its past, and in too many cases present, mistreatment of Aboriginal and Torres Strait Islander people.

 

I’ve been thinking about that 1967 referendum quite a bit of late. Not just because today, May 27, is the 49th anniversary of that historic vote. But also because it is the last time the Australian people came together to formally vote on the rights of a minority group.

 

At the moment there is a serious chance there will be a similar public vote at some point between November of this year, and the 50th anniversary of that referendum in May 2017. This time, however, the minority group whose rights will be decided in this way are lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

 

That’s because, as you’re probably well aware by now, Prime Minister Malcolm Turnbull has promised that, if his Liberal-National Government is re-elected at the July 2 federal election, they will hold a plebiscite to decide whether to finally introduce marriage equality.

 

In light of this possible plebiscite, I’m sure I’m not the only person reflecting on the 1967 referendum, both as a source of inspiration – because it shows that Australia can change for the better – but also to learn some of its lessons, including how to present a vision of what a more equal country could look like.

 

Nevertheless, while there are some obvious similarities between these two public votes, we shouldn’t overlook the fact the marriage equality plebiscite will be a fundamentally different challenge, in at least three key ways:

 

First, unlike the referendum on Aboriginal issues – which was required to amend two sections of the Constitution – a plebiscite on marriage equality is entirely unnecessary. The High Court has already found that Commonwealth Parliament has the power to amend the Marriage Act 1961 to remove discrimination against LGBTI couples – it’s just that Coalition MPs and Senators are refusing to pass such legislation. In this way, the marriage equality plebiscite can be seen as a political choice rather than a legal necessity.

 

Second, the changes approved by the 1967 referendum enjoyed such clear political and community support that there wasn’t even an official ‘No’ case put before the people. That provides at least part of the explanation for why more than nine in ten Australians voted Yes – which remains the highest affirmative vote in any Commonwealth referendum or plebiscite.

 

Unfortunately, we already know there will be a well-funded and well-organised campaign against marriage equality in any upcoming plebiscite. The recent attacks on the Safe Schools program – by ‘the three Australians’ (Christian Lobby, Marriage Forum and The Australian newspaper) – is just a small foretaste of what an anti-marriage equality campaign would resemble. As a result, the Yes vote for marriage equality will be significantly lower.

 

Third, the decision to hold a referendum in May 1967 had the support of the community whose rights it would affect – from the accounts I have read, it seems most Aboriginal and Torres Strait Islander people were in favour of holding such a vote.

 

In marked contrast, it is not the LGBTI community putting forward the option of a plebiscite – indeed, the overwhelming majority of LGBTI organisations strongly oppose this proposal. Instead, a plebiscite is being advocated by the opponents of equality – not just the Australian Christian Lobby, but also by some conservative members of the Government who would prefer equal marriage never happened. This obviously creates a different dynamic for this particular public vote.

 

In short, a marriage equality plebiscite is a fight we have not chosen. But, if it does proceed, it will be a fight we must engage in, with all our collective efforts.

 

And it’s a fight that we must win, because there is simply too much at stake. Not just for the tens of thousands of couples, like my fiancé Steve and I, who are growing tired of waiting for the simple right to get married, in our own country and in front of our families and friends.

 

But also for the children of rainbow families, who deserve to grow up in a country where their parents are treated equally, and have the ability to get married if they so choose – surely those are the kinds of ‘family values’ that most people would support.

 

We must win because of the impact this change will have on literally hundreds of thousands of lesbian, gay, bisexual, transgender and intersex children and young people, both now and into the future, who will learn that most Australians believe who they are, or who they love, is now accepted.

 

And I sincerely believe we must all fight, and hopefully win, a plebiscite on marriage equality because of what it will ultimately say about our country – about who we are and the values we hold dear.

 

Is Australia an accepting, generous and inclusive nation, the home of the ‘fair go’, willing to treat people equally no matter who they are? Or are we exclusive and unequal, denying the right to get married solely on the basis of a person’s sexual orientation, gender identity or intersex status?

 

The experience of the May 1967 referendum on Aboriginal issues shows us that we can get the decision right. The Senate copy of the Constitution I inherited from my grandfather demonstrates that we can ‘cross out’ the discriminatory provisions that exist in our laws.

 

So, if we wake up on the morning of July 3 and a plebiscite on marriage equality remains squarely on the public agenda, then we must all make sure we do everything within our power to leave our own inheritance, for LGBTI people and indeed all Australians – a better, fairer, and more equal country.

 

**********

 

Things you can do right now:

 

Denying Marriage Equality is Theft

Next week, the High Court will hear the Commonwealth’s application for the ACT’s same-sex marriage laws to be overturned. Arguments will focus primarily on whether the 2004 amendments to the Commonwealth Marriage Act ‘cover the field’ in terms of legislating under sub-section51(xxi) of the Constitution, or whether the amendments have instead left the door open for State and Territory Governments to establish a new category of marriage, namely same-sex marriage.

But perhaps the Court should also consider sub-section 51(xxxi), which gives the Commonwealth Parliament power for “the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has the power to make laws.” Maybe our High Court Justices should ask whether laws which take away the right of LGBTI couples to get married are tantamount to theft.

Allow me to explain. The most direct way in which the marriage equality ban takes money from LGBTI couples is that, currently, it forces couples overseas in order for their marriage to have any legal standing at the time of the ceremony. The couple obviously incurs significantly higher costs than for a domestic wedding. Even if the ACT laws are allowed to stand, for Australian couples who wish to have a ceremony with legal standing, however briefly, the vast majority will need to hold their wedding a long distance from home.

With recent estimates of the average cost of weddings being in the vicinity of $35,000, or even $54,000, it is grossly unjust to force some couples to pay even more, merely because of their sexual orientation, gender identity or intersex status.

Compounding this, a system which forces LGBTI couples to travel, either interstate or overseas, to get married reinforces a financial threshold on which couples can tie the knot, with only the well-off able to do so. Someone’s class should never determine whether they can access a legal institution like marriage.

The next theft comes when the couple returns home – at customs, they are summarily, and completely without justification, stripped of their state of being married. Something which means so much to the couple – enough for them to travel to undertake it – is confiscated, without any compensation. Surely an argument could be mounted that this amounts to “the acquisition of property on [un]just terms”?

Something else which is stolen from LGBTI couples is the ability to celebrate their wedding with their desired guests. This happens in two ways. For those who choose to travel to get married, many of their family and friends will be unable to attend the ceremony due to cost, or the need to take extended time off work. For other couples, like my fiancé Steve and myself, who instead choose to wait until they can legally wed in Australia, the passage of time will have the same effect.

In our case, we both have elderly grandmothers who we love dearly and who we would love to have at our nuptials. That would have been possible when we first got engaged, at the start of 2010, although, sadly, my grandmother is probably now too frail to travel to our wedding, even in Australia. By the time marriage equality is eventually passed, I fear the same will be the case for Steve’s grandmother – and he will be devastated by that.

The ability to celebrate our wedding with the people who matter most to us has been ripped from our grasp by the Commonwealth Parliament. We, and other couples like us, feel it acutely. As an aside, perhaps so-called ‘family values’ campaigners should consider how they would react to government intervention on their wedding guest list – because that is what has been imposed on us.

The theft which is a consequence of the ban on marriage equality will not even stop whenever a Bill is finally passed – it will keep on stealing from us into the future. Explaining this ‘future theft’ is what eventually helped my rural, LNP-voting conservative parents understand why I feel so passionately about this issue.

Earlier this year, they had their 40th wedding anniversary. Which is something worthy of celebration – and so they did. Because these things, anniversaries, matter. One day, Steve and I hope to do likewise. Except that, the longer the ban on our marriage lasts, the less likely we will both be alive in order to celebrate a 50th, or even 40th, wedding anniversary. Even after the ban is eventually lifted, it will still be lifting precious things from our pockets.

Of course, what is being stolen from us is likely too intangible to be considered by the High Court under sub-section51(xxxi). But this theft is exactly what should be reflected upon by any Parliamentarian who is considering voting against the right of LGBTI couples to get married.

What makes the current ban ever harder to stomach is that, everyone, from Tony Abbott down, knows that marriage equality is inevitable. Which makes the ongoing refusal of our MPs to pass it seem extremely petty. Especially when what they are stealing from us, both now and in the future, is something grand.