UNSW Sydney’s leading constitutional experts discuss recognition and the need to listen to First Nations peoples when formulating policy that affects them.
Among the reasons for supporting a Yes vote in the upcoming Voice referendum, UNSW Sydney legal experts Professor Megan Davis and Scientia Professor George Williams highlight two key considerations.
Prof. Davis, a Cobble Cobble woman, is UNSW’s Pro Vice-Chancellor Society and Director of the Indigenous Law Centre. She has worked on constitutional recognition at UNSW Law & Justice for 20 years. Prof. Williams, UNSW’s Deputy Vice-Chancellor of Planning and Assurance, specialises in Australian constitutional law and is a former Dean of Law & Justice.
‘Recognition’ is one of the main reasons we are at this point, leading up to a referendum on a First Nations Voice to Parliament, Prof. Davis said.
“It was Australian governments who said to us [First Nations peoples], ‘We want to recognise you’, and they asked, ‘What form do you want to be recognised in?’ We have answered, we want to be recognised through the Voice.
“Australia has never given any substantive recognition to the fact that we are the first peoples of the continent. Recognition makes a difference for all sorts of reasons, not the least being it's very difficult to do anything within a legal political system if you haven't been recognised as a legitimate entity. Despite having statutory land rights, native title and common law recognition of Indigenous peoples as a discrete and distinct cultural, political community, Aboriginal and Torres Strait Islander peoples aren't recognised as a legitimate entity within the Australian polity.”
Prof. Davis said Australia likes to recognise the symbolic manifestations of Aboriginal culture, but that Reconciliation Action Plans (RAPs) don't make a difference, and Acknowledgments don't make a difference.
“Flying our flags don't make a difference if we're not substantively recognised. Australia as a country is very good at symbolism but not good at substance. We usually balk at doing something that will make a difference – but not this time.
“We've tried so many things in this country, but we've never tried this. We've never tried the empowerment of First Nations people in the Constitution. We now have a Prime Minister who's prepared to expend political capital on this, and that's not insignificant. Most major constitutional transformative moments in the world – including Australia – that have involved constitutions have been because of a courageous leader, not because of bipartisan support.”
This is the change our Indigenous communities are asking for, Prof. Williams said.
“They met at Uluru, they released the Uluru Statement from the Heart asking for Voice, Treaty, Truth, starting with the Voice. After decades of uncertainty, this is what their community wants, and this is about respecting that. If the First Nations peoples are to be recognised, it should be in a form that the people being recognised are asking for.”
Listening to communities
Prof. Davis and Prof. Williams agree that Australia currently makes laws and policies without having Aboriginal and Torres Strait Islander communities at the table, and that's why they fail.
“Twelve years of closing the gap, and it's not working. Most Australians can see that. I think there's general consensus, even within the No campaigns, that things aren't working,” said Prof. Davis.
“Closing the gap is just one component in terms of disadvantage in Indigenous people's lives. All the resources and money that are generated for its multiple indicators – justice, land rights, health, education, etc. – for the most part don’t have substantive input from Indigenous peoples. Currently, input is from bureaucrats in Indigenous departments in state and territory governments.
“Nobody actually talks to communities about what's needed to make change on the ground. And it's communities, who live in these situations, who on a day-to-day basis experience all the issues that impact communities, who know best what's needed.”
Prof. Williams said that while there have been advisory bodies in the past, they have typically been in a form that the government of the day wants. They’ve had handpicked membership that’s not reflective of who Indigenous communities would like to speak for them. The bodies come and go, they lack a mandate and they often lack clarity of mission.
“They haven't worked for good reasons. So, at Uluru, Indigenous peoples said, we do need a Voice, we do need this body, but it needs the permanence that comes from being in the Constitution. It needs to be a body that is reflective of our community, and the people who we would like to speak on our behalf. It also needs to be a body that has a mandate to speak directly to government and parliament – which overseas experience shows is likely to be more effective.”
Prof. Williams said research also shows that if you impose laws and policies on a community, you shouldn't expect them to work.
“They're often poorly designed or they're not going to have buy-in. Whereas if you do get buy-in, and you do get good design, policies in areas like health, education and closing the gap of life expectancy are more likely to succeed.”
According to Prof. Williams, the massive problems and failures in public policy in this area over decades, indeed a couple of centuries, consistently can be attributed to a failure to listen.
“As a result, outcomes aren’t well tailored for the community being supported. If we want to get value for taxpayers’ money, and if we want to have good policies and laws, we need to listen to the community affected – and that's what the Voice will facilitate.”
UNSW and support for a First Nations Voice to Parliament
In February 2023, UNSW affirmed its support for the Uluru Statement from the Heart and its call to enshrine a First Nations Voice in the Constitution with a formal statement approved by the University’s Management Board. The Uluru Statement reinforces the University’s ongoing commitment to an equitable and just society.
UNSW Vice-Chancellor and President Professor Attila Brungs said he is proud to affirm UNSW’s support for the Uluru Statement from the Heart, and its call for a First Nations Voice to Parliament.
“Reconciliation is at the heart of the UNSW Indigenous Strategy 2018–2025 and the UNSW ethos of having a positive impact on the world around us.
“The University has actively supported the process of the First Nations Voice from its early days, including through the Indigenous Law Centre and the Uluru Dialogues. UNSW proudly heeds the call of the Uluru Statement from the Heart for all Australians to walk together for a better future,” Prof. Brungs said.
Prof. Williams said that UNSW’s involvement in the process to get to the Voice resonates for us in a way that is different to any other university in Australia.
“UNSW is the leading university, through our staff involvement, in the Uluru Statement through to the Voice today. The Uluru process was led by academics at UNSW Law & Justice, particularly Megan Davis who was Pro Vice-Chancellor Indigenous at the time.
“When the Uluru Statement was read out for the first time to the Australian people in 2017, it was Megan who read out the statement nationally,” Prof. Williams said.
The wording for the referendum came from a model developed by the Indigenous Law Centre at UNSW. The Referendum Working Group, including Prof. Davis, refined the words that will be put to the people later this year and both Prof. Davis and Prof. Williams were members of the Constitutional Expert Group established by the Australian government to advise the government on the wording.
Prof. Williams noted that UNSW is the university that has had, time after time, graduates who are trailblazers in the Indigenous community. He noted Pat O'Shane AM, UNSW’s first Indigenous graduate, who went on to become the first magistrate in New South Wales, the first Barrister in New South Wales, as well as many more impactful roles. She is now one of the people recognised in the naming of UNSW buildings. More recently, alumnus Professor Kelvin Kong, the nation's first Indigenous surgeon was named the 2023 Person of the Year at the NAIDOC Awards, the premier awards for Indigenous communities.
“When we look at our community – and I saw this as a Dean – our Indigenous students have regularly been our best-performing students. It's important we celebrate their really remarkable achievements and those who have gone on to be leaders repeatedly in their fields.”
While UNSW has a proud tradition of supporting the University’s Indigenous community, Prof. Williams said it is “absolutely rock solid in also recognising diversity of views”.
“One of the great things I've seen, for example, is in the faculty of Arts, Design & Architecture where’re there’s a student forum with for and against cases – which is as it absolutely should be.
“UNSW has taken the position that everyone needs to make up their own mind. As a university, we want to support a respectful, inclusive debate. We want to hear all the different points of view. That's our strength – it's the academic freedom that underpins our values,” Prof. Williams said.