1. How widespread is support of the proposal in the wider Aboriginal and Torres Strait Islander community?

We can argue till the cows come home about how widespread the support is. But until there is an inclusive plebiscite of the peoples involved, no one can definitively make a claim either way. Reuters gave Hillary Clinton a 90% chance of winning the election against Trump just hours before the 2016 vote – and she lost!

Polls and invite-only meetings can be skewed, just as interacting in social media bubbles can be skewed. Only 7% of eligible people voted in the Victorian First Peoples’ Assembly elections – indicative of general distrust in government-run processes. This brings us to the next, more important question…

2. How do/did Aboriginal and Torres Strait Islander peoples consent to the Uluru Statement reforms?

What is the mechanism for consent for the reforms? Has it already been given by Aboriginal and Torres Strait Islander peoples, or is it still to be given?

This is important for Australians to know before they run off to their local members asking for a referendum because they think it’s what Aboriginal people want.

This is important for Aboriginal and Torres Strait Islander peoples to know so they can give their free, prior and informed consent, and do so consciously.

Australia is a dualist state, and has not yet incorporated the UNDRIP notion of “free, prior and informed consent” into domestic legislation. So we don’t even know what “consent” in this context means. In 2018, the UN Expert Mechanism on the Rights of Indigenous Peoples did a study on “free, prior and informed consent”. If you want to know what Australia really thinks about “free, prior and informed consent” you can read it in their submission to the study (tl;dr – they haven’t decided yet!).

How can consent be given when both the definition and mechanism of consent is unclear?

This is a critical question – consider how the rules of consent were changed to get the Noongar settlement through by changing Native Title Act. This settlement has been dubbed “Australia’s first Treaty”, so it is a harbinger of things to come with agreement-making. We need to agree on the rules of consent up-front before any major reform. Otherwise government can make their own definition on the fly to suit themselves.

For example – if black consent for constitutional recognition meant a yes/no question vote at 60% majority of Aboriginal and Torres Strait Islander peoples in a majority of states, then at least we would be on par with the standard to change the Australian constitution. Australia chose how it defines consent of their peoples, why are our own cultural notions of consent not also respected?

The right to self-determination should also include the right to say “no” to political assimilation and “no” to constitutional recognition. When have the wider Aboriginal and Torres Strait Islander community ever had the chance to say “no”? They never have. The multi-million dollar question has always been “How do you want to be recognised in the Constitution”. Not a cent has been spent on asking – “Do you want to be in the Constitution at all?”.

3. Why is the proposed function of the Voice to monitor the race power and the territories power?

Quoting from the Referendum Council Final report main recommendation –

One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122.

Final Report of the Referendum Council (page 2)

Section 51 (xxvi) is the power to pass laws “for any race”. Section 122 is a power over territory that the commonwealth has acquired (under the section “New States” – because the Voice will be a new State!).

Would it make sense for the Queensland Parliament (representing a polity of the people of Queensland) to have the function to monitor the use of some random heads of power in the federal constitution?

Nope.

And it makes about the same amount of sense to have the Voice (representing a polity of the “First Nations” peoples) monitoring these two federal powers. Is the Voice going to monitor laws on the Jervis Bay Territory or the Australian Antarctic Territory? Is the Voice going to ensure Australia’s immigration policy does not revert back to the White Australia Policy, as per the original intention of the races power; to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth?

The monitoring heads of power function of the Voice doesn’t make sense. There is no real correlation with these heads of powers and “matters affecting Indigenous peoples”. Aboriginal and Torres Strait Islander peoples are a polity, not a race.

4. What happens to sovereignty?

Yes – we know… the “guiding principles” say that sovereignty will not be ceded or diminished.But what happens to sovereignty? Who is game enough to explain the effect on sovereignty beyond fragmented soundbites regurgitating the mantra of “sovereignty never ceded” or talking about Phillip’s instructions?

Discussion from Australian lawyers about Aboriginal sovereignty usually come back to domestic court decisions which can only deal with the “internal” notion of sovereignty, and are based on English interpretations of International law. What about International Law and external sovereignty? How will external sovereignty be affected?

5. Why do mining companies support it?

Simple question – what’s in it for them? Rio Tinto are blowing up sacred sites and simultaneously supporting the reforms.

6. What happens when Australia becomes a republic and the constitution is rewritten?

Protection in the constitution is only going to last as long as the constitution itself. Forming a republic will involve major constitutional reforms or a rewrite of the constitution. What happens to the Voice then? What will protect it from being erased or being equated with voting rights?

7. What does the worst-case scenario look like?

As a matter of strategy, if you going to make take-it-or-leave-it offers to a government in exchange for sharing your sovereignty, your offer needs to be solid. This means – the worst-case scenario that meets the terms of the offer needs to be acceptable. Fantasising about the various functions the Voice could have is not helpful if those functions were not part of the offer. Only elements part of the original take-it-or-leave-it offer are binding, optional add-ons from co-design are not. What does this worst-case scenario look like?

8. How are the negotiated terms of agreement-making enforceable?

Colonial countries historically have very poor track records for keeping their Treaty obligations. But since the UN’s call for decolonisation in the 60’s, settler-colonial nation States have been a lot better at upholding their Treaty obligations, because they are on notice that historical treaties are fully enforceable in International law. The legitimacy and foundation of settler-colonial States depends on upholding those historical treaties, and they know it.

The Uluru Statement calls for agreement-making. How will the terms negotiated in agreement-making be enforceable? Will the legitimacy and foundation of Australia be dependent on upholding internationally enforceable agreements, or are they simple contract terms that are enforceable only in domestic courts?