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This is why it's time

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The group chosen by Minister for Indigenous Australians Ken Wyatt to conduct the exercise of designing an Indigenous Voice will hand down its report imminently.

The only reason this committee exists is because of the Uluru Statement from the Heart. Although its terms of reference do not permit them to discuss constitutional enshrinement or the form of the Voice, both the Minister and his representatives on the Senior Advisory Group have chosen to speak frequently and openly about their personal desire for legislation only; a minimalist Voice.

Consequently, they have been at pains to explain why a referendum on a Voice will fail. The evidence suggests otherwise. And for those of us in the next generation of Indigenous policymaking, it has been drummed into us by the Productivity Commission and the Australian National Audit Office that an evidence base matters.

They say the multitude of "failed solutions" in Indigenous Affairs has been because decision-makers at the top of the tree ignore or do not consider the evidence base when crucial decisions are made about First Nations lives.

Rather, they always know best, usually based on anecdote.

The evidence that sets the groundwork for the next phase of constitutional recognition is clear. Australia has been on this road for well over a decade. Multi-party support for constitutional change started 14 years ago with Howard.

Since Gillard, the constitutional decade has delivered seven formal Commonwealth processes and nine reports. The culmination of all this work is that a constitutional Voice to Parliament is the only viable option for a referendum.

Four years of polling has consistently told us Australians will vote "Yes" at a referendum on an enshrined Voice.

In fact 90 per cent of submissions to the Wyatt Voice design support a constitutionally enshrined Voice.

I have worked in law reform for decades and the response to the interim report by ordinary Australians is unheard of.

Why would thousands of Australians, not normally involved in Indigenous affairs, make a submission to the Wyatt process? Partly it is because of "co-design".

The Minister invited Australians to have a say in the Voice design. Also, Australians can see the benefit of the Uluru Statement and a constitutionally enshrined Voice for First Nations communities and for the community at large. It benefits the whole country.

We are seeking to carve out a right to be at the table when decisions are made about our lives. As Australians look around and see the manifestation of poor public policy in Indigenous Affairs, they view this reform as reasonably justified.

The quality of policy will improve if you involve communities themselves. This cannot be done by peak bodies or advisory groups that are hand-picked or government "place based" artifices at Commonwealth, State and Territory level.

It has been suggested that a Voice set up under the Constitution can be repealed too and therefore there's no difference in risk and therefore legislation is the easiest approach.

The querying of the difference between the risk of repeal under a constitutional Voice as opposed to repeal under a legislated Voice is easily answered. First, there's a very real difference between the Constitution and legislation.

As Professor Gabrielle Appleby and Professor John Williams, two of Australia's leading constitutional experts, have argued:

"The referendum will represent public support for a structural change to renegotiate the Indigenous-state political relationship ... the public support of the proposal will drive responses of the political branches. Anything that falls below expectations (of) good faith engagement with the new institution will come at a high political cost, at least in the first few years following the referendum."

No longer can a Voice be undone under a veil of secrecy or secret wheeling and dealing in Canberra that excludes First Nations by those who think they are entitled to dictate the pace of political change for our people; like the Native Title Act amendments.

Constitutional protection prevents our lives being kicked around as a continual political football. It seeks to elevate our issues from the realm of politics.

The political boards that have been trodden for decades and decades in our name have seen our Indigenous rights shrink, self-determination disappear and our issues horse-traded by those who purport to represent us but are not accountable back to our communities. It has delivered us the status quo; where so many communities feel powerless and voiceless.

While the Australian people are mobilising there remains a deficit discourse in Canberra on referenda. Those cynical and weary from decades of politics, they do not have the energy to muster on this issue.

They cannot see the opportunity this presents the nation. Since 2010 these weary folk lead with the same question: what if the referendum fails?

This cognitive block means they never contemplate the benefits this will bring First Nations and the nation at large.

This is why the Uluru Statement was issued to the Australian people. The Parliament belongs to the Australian people and the evidence shows the Australian people are saying, "It's Time".

By Megan Davis

Megan Davis is a Cobble Cobble woman, human rights lawyer and Pro Vice Chancellor (Indigenous) at the University of New South Wales.


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