Constitutional Law

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By Hannah RitchieBBC News, Sydney

On 14 October, Australia will vote in a historic referendum that cuts to The Core of how it sees itself as a nation.

If successful, The Proposal - known as The Voice - will recognise Aboriginal and Torres Strait Islander People in The Constitution , while creating a body for them to advise governments on The issues affecting their communities.

Yes advocates say it's a " modest yet profound" change that will allow Indigenous Australians to take " a rightful place" in their own Country - which has often dragged its heels confronting its past.

But those campaigning against it describe it as a " radical" proposal that will " permanently divide" The Country by giving First Nations People greater rights than other Australians - a claim legal experts reject.

So is The Voice really radical, and how have other nations approached The issue of Indigenous recognition?

The Path to a Voice

Australia is " unusual among settler nations to have never made a treaty with its Indigenous Peoples " says colonial historian Prof Amanda Nettelbeck .

It has also never recognised Aboriginal and Torres Strait Islanders as its first inhabitants in The Constitution . They weren't fully counted in The population until 1971 and there are no dedicated seats for them in government.

In 1962 they were finally granted The Right to vote in national elections. But calls for greater self-determination go back generations.

Throughout The 1800s, First Nations leaders fought for control over their own affairs, as frontier violence and European diseases decimated their communities. And by The early 20Th Century , civil rights groups were forming across The Country .

A petition to King George V calling for " a member of parliament, of Our Own blood" garnered 1,800 First Nations signatures in The 1930S .

William Cooper , a Yorta Yorta activist, led The Charge , hoping The document would eventually be delivered to The Crown . It never was.

Almost 40 Years later, an appeal from The Larrakia traditional owners in Darwin calling for treaty negotiations did make it all The Way to Buckingham Palace , although it went unanswered.

Australia first voted on whether to acknowledge Aboriginal and Torres Strait Islanders in The preamble of The Constitution back in 1999. The Reform - which was one of two amendments tied to The referendum over whether to become a Republic - failed.

Today, a document called The Uluru Statement from The Heart - which The Voice comes from - makes a similar request.

Drafted by More Than 250 Aboriginal and Torres Strait Islander leaders from across The Country , The 2017 document calls for The establishment of a constitutionally enshrined advisory body, as part of a longer process of treaty-making and truth-telling.

Australia has seen several Aboriginal and Torres Strait Islander advisory bodies come and go since The 1970s.

All were created with The aim of tackling The glaring disparities First Nations communities continue to face in areas of health, wealth, and education. But, at times, they faced tensions with policy makers and internal disputes, before ultimately being dissolved.

Voice advocates argue that The Authority and longevity stemming from The Body being constitutionally enshrined would protect it from a similar fate.

'An outlier'

The No campaign says The Voice would be " a leap into The unknown" and that it hasn't been " road tested" their main argument being that there's not enough detail about how it would operate.

But if The Reform passes it would be up to parliament to design The Voice - giving lawmakers The Power to change it over time. The Details of The Body will not be specified in The Constitution .

Experts also point out that other countries have had similar Indigenous advisory bodies in place for decades.

" Each liberal democracy that has a similar colonial history, has something in place, particularly at a federal level. Australia has nothing, " says Dani Linder, a Bundjalung, Kungarakany woman and legal academic at The University of Queensland.

The Sami People - who have inhabited northern Scandinavia for thousands of years - have had their own parliaments in Finland, Norway, and Sweden since The 1980s and 1990s, and their rights are recognised in The constitutions of all three nations.

The Elected bodies are regulated by parliament, and they advise lawmakers on How To best solve issues affecting Sami communities. Proponents of The Voice suggest it could function in a similar way.

In New Zealand The Treaty of Waitangi was signed at The Point of colonisation in 1840 and by 1867 it had created dedicated seats for Māoris in parliament. An Advisory Committee - The Waitangi Tribunal - has also been in place since 1975 to make sure Māoris have a say in The policies that affect them.

Canada's Indigenous Peoples have constitutionally enshrined treaty rights and The Right to self-government. And in 1982 an elected First Nations Assembly was created so that chiefs representing their communities could liaise directly with federal lawmakers.

Indigenous representative bodies are " simply not controversial" and have " worked comfortably alongside national or federal parliaments for decades" says Prof Nettelbeck.

" The fact that this proposal is so controversial in Australia is A Sign of how much of an outlier We Are on The International stage. "

However, part of The controversy surrounding The Voice is that advisory bodies aren't usually constitutionally enshrined.

No advocates say that putting The Voice in Australia's founding document could give it too much power, arguing it will undermine government processes and clog up The courts with its objections.

But leading legal minds - including The federal solicitor General - dispute that. And The Voice will have no power to veto legislation.

There is " no obligation upon parliament or The executive government" to respond to The Voice 's advice, Constitutional Law expert Prof Anne Twomey told The Bbc .

" All this does is provide for a body which can make representations to parliament and The executive. Any person or organisation in Australia can do exactly The same thing. "

Impacts of The vote

Australia's constitution can only be changed by referendum, and historically just eight out of 44 proposed amendments have passed. Those which succeeded had bipartisan support. The Voice doesn't.

The only two polls taken among Aboriginal and Torres Strait Islander voters found that More Than 80% of respondents favoured The Reform . Yet in national surveys, support is nosediving.

The No campaign says that if The Voice is voted down, it shouldn't be seen as an end to The Struggle for Indigenous constitutional recognition. Its messaging though, has been split, with arguments surfacing both for and against a possible second referendum to tackle The issue again.

One of The Public faces of The No vote, Warren Mundine , has also claimed a treaty process could be more likely to succeed if The Voice is rejected.

" If it is a No vote, that's when The Real work starts, " The Bundjalung man told The ABC.

But those who have studied The long journey that led to The Voice say a No outcome " draws a thick red line" through " decades of effort and labour from Aboriginal and Torres Strait Islander peoples".

" In The Uluru Statement, Aboriginal and Torres Strait Islander peoples said clearly that they want to be recognised via a Voice . So, if this referendum fails, there's no mandate for a referendum on Something Else , " Harry Hobbs , a constitutional lawyer who studies treaty making, says.

And The Debate itself has been laced with hate speech and disinformation that could leave permanent scars.

" We're experiencing The kind of deterioration of public discourse that we've seen in recent US elections and The UK Brexit referendum, " Prof Sana Nakata , a Torres Strait Islander political theorist, told The Bbc .

" The Level of lies and Conspiracy Theories circulating is not like anything I've seen in 20 years of closely following Australian political life. "

It's left First Nations communities feeling as though " we're under a political and social microscope right now, " Ms Linder says.

" We're having to justify our identity, our place, and our belonging in This Country … it's going to take some time for us to heal from this. "

As The Debate enters its final days, The Yes campaign is hoping to win over millions of undecided voters by framing The Voice as a historic opportunity for change.

" Too many of us have grown up strangers, " leading Voice advocate Noel Pearson told The Canberra Press Gallery last week.

" This referendum is The largest mirror we will ever look into as a nation… we, The Australian People , face a Choice - a Choice between crossing The Bridge to our future or floundering in The Past . "

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Source of news: bbc.com