Please cite the published version of this paper. This version may contain typographical and typsetting errors. Published as Cox, Ryan. 2023. “Political Legitimacy and the Indigenous Voice to Parliament.” Journal of Applied Philosophy. https://doi.org/10.1111/japp.12692 (open access)

1 Introduction

Since 1788, successive governments in Australia have claimed to have the right to exercise political power and authority over Indigenous Australians.¹ However, in light of the history of Australian settlement, it is not unreasonable to doubt that any of these governments have ever had a fully legitimate claim to exercise such power and authority over Indigenous Australians. Indeed, it is not unreasonable to doubt that the Australian Government has a fully legitimate claim to exercise political power and authority over Indigenous Australians today, even if one does not think that the history of Australian settlement calls this seriously into question.² This is because the basic structure of Australian society systematically disadvantages Indigenous Australians along various and complex dimensions and there are no reasonable prospects of redress within the prevailing governing conventions of Australian society. It is in the context of these two considerations, and their bearing on the question of political legitimacy, that we ought to view the package of proposed amendments to the governing conventions of Australian society, a package which includes the proposed Indigenous Voice to Parliament.³ Or so I shall argue.⁴

In what follows, I show how these considerations establish that the Australian Government faces a legitimacy deficit with respect to its claim to have the right to exercise power and authority over Indigenous Australians. I then show how the proposed Voice can be seen as part of a package of proposals to change the governing conventions of Australian society to rectify this legitimacy deficit. I take this argument from legitimacy to provide a sufficient case for the proposed Voice. An important feature of the argument is that it appeals only to facts about the Australian Government and its ability to address the systematic injustice faced by Indigenous Australians today. These facts are sufficient to establish that the Australian Government faces a legitimacy deficit which must be addressed, and which can be addressed, I shall argue, by adopting the proposed Voice. The argument from legitimacy, as presented in this paper, while providing a sufficient justification for the proposed Voice, can be bolstered by an appeal to claims about collective rights to self-determination and Indigenous sovereignty. However, as I shall argue, it has several advantages over more familiar direct and indirect arguments for the proposed Voice which appeal to Indigenous sovereignty and collective rights to self-determination.

Before presenting the argument, it will be helpful to be clear about what the proposed Voice to Parliament is being taken to be. The proposal itself, which is a proposal to enshrine a Aboriginal and Torres Straight Islander Voice in the Australian Constitution, will be put to the Australian people in a referendum.⁵ While many of the details of the Voice to Parliament will be left to Parliament to decide, the proposal is for an “Aboriginal and Torres Straight Islander Voice”, an advisory body that will “make representations to the Parliament and Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Straight Islander peoples”⁶. As an advisory body, the proposed Voice will give independent advice to the Parliament and Executive Government.⁷ It will not have a veto power. For the purposes of the argument of this paper, it will be assumed that what we are seeking an argument for, is the proposed Voice as an advisory body. In terms to be explained below, the assumption is that the proposed Voice will provide Indigenous Australians, collectively, with, at the very least, a greater degree of absolute contributory influence over certain decisions than they currently have.⁸

2 The Argument from Legitimacy

Whether a regime which claims to have the right to exercise political power and authority over a certain group of people does in fact have such a right, depends on whether the regime meets the basic legitimation demand with respect to that group or not.⁹ The basic legitimation demand arises whenever some claim to have the right to exercise such authority and power over others (Williams 2005, 6). Successive governments in Australia have claimed to have the right to exercise power and authority over Indigenous Australians. Thus, the basic legitimation demand has been raised with respect to Indigenous Australians.

Meeting the basic legitimation demand, once it is raised, requires that an acceptable justification of the exercise of political power and authority be given to everyone over whom it is being claimed to be rightfully exercised (Williams 2005, 4; Larmore 2018, 37). What counts as an acceptable justification will largely be a matter of what makes sense as a legitimation of political power in light of the beliefs and values of those who are to accept the justification.¹⁰ Philosophical theories of legitimacy differ with respect to how closely they tie acceptability to the actual beliefs and values of the governed, whether they take the acceptability of a regime in light of the non-coercively formed beliefs and values of the governed, to be both necessary and sufficient for the basic legitimation demand being met, or whether they impose further conditions on the demand being met—for instance, that the beliefs and values be reasonable and publicly defensible or that the justification appeal to principles that all members of society can see reason to endorse.¹¹ Nonetheless, there is a growing consensus that what counts as an acceptable justification must be tightly linked to actual beliefs and values, and not beliefs and values the governed would have under extreme idealisation.¹² As Philip Pettit writes: “Legitimacy is the ideal, under a natural formulation, of having a social order that is imposed only insofar as it satisfies terms that people actually endorse” (Pettit 2012, 144). This difference among theories will not matter to the argument from legitimacy, for, as we will see, questions about the prospects of the Australian Government’s meeting the basic legitimation demand are raised on almost any plausible understanding of what it takes to meet the demand.

The situation of Indigenous Australians living under the Australian Government today is one in which the legitimation demand has been raised but has not been met. Such a situation is one in which the right of a regime to exercise its de facto political power and authority over certain groups of people—that is, its political legitimacy—is called into question. It is one in which there is a legitimacy deficit.¹³ The concept of a legitimacy deficit is related to the ideas of the ends of government and the source of a government’s authority. Governments are often justified, at least partly, in terms of the ends they exist to attain. They are also often justified in terms of the source of their authority. Modern societies like Australia have all but settled the question of the source of the authority of the government: its authority is given by the principle of popular sovereignty. The history of colonial government in Australia in the 19th century is a history of the triumph of this principle. No other source of authority would make sense as a legitimation in light of the prevailing values and beliefs of Australians. We will return to issues around the principle of popular sovereignty below.

Governments are justified not merely in terms of the sources of legitimate authority, however. They are also justified partly in terms of the ends they exist to attain. Among the ends that governments exist to attain, I will suggest, and which form part of the justification for the exercise of power and authority is a securing certain degree of social justice. I will have more to say about what I take the operative conception of social justice to be in a society like Australia in a moment. The concept of a legitimacy deficit is related to the idea of the ends of government. As David Beetham writes:

A legitimacy deficit involving the ends or purposes of government…can be described as an inadequacy or incapacity for the constitutional rules to facilitate successful government performance, or to provide resolution in the event of failure, whether the failure is one of ineffectiveness or of partiality in respect of the ends that government exists to attain.(Beetham 1991, 207–8)

In other words, a legitimacy deficit arises involving the ends of government when the governing conventions of a society—the formal and informal conventions concerning how government gets done in that society—are incapable of achieving the ends of government.¹⁴ An interesting consequence of this conception is that a government can come to be unable to serve the ends of government by virtue of the ends of government themselves changing.¹⁵ Where securing basic liberties and pursuing the common good may have sufficed for the legitimacy of a government in the past, securing some degree of (egalitarian) social justice may now be required as an end of government.

If we reflect on the situation of Indigenous Australians living under the Australian Government today, we see that the governing conventions of Australian society are inadequate to its ends. The shared beliefs and values of Australian society when it comes to the end of government are not served by the current governing conventions. The basic legitimation demand has been raised but has not been met. There is a legitimacy deficit. This is partly due to raised expectations about the ends of government, and, in particular, raised expectations about and changing conceptions of social justice.¹⁶ The emerging conception of social justice is a conception of social justice which sees the equal satisfaction of basic human needs and some kind of equality of opportunity to obtain other socially valuable goods, such as education and work, as matters of social justice. On almost any remotely plausible conception of social justice, it will be clear that the circumstances of Indigenous Australians today are significantly unjust. Significant differences in life expectancy, infant mortality, health and disease outcomes, housing conditions, educational outcomes, occupational status, income and wealth, between Indigenous and non-Indigenous Australians all suggest, and in some cases may simply constitute, injustice at work.¹⁷

Recognising such injustice is only one half of the argument for the claim that there is a legitimacy deficit, however. The argument must also establish that the current governing conventions are inadequate, that they are incapable of fully redressing the situation. This half of the argument rests on a claim about the source and nature of the social injustice in question and on how this is related to the governing conventions of society—the formal and informal conventions of government at all levels. The claim is that the source of this injustice lies, in part, in the basic structure of society, in the structure of its basic institutions, in the way that these institutions interact with Indigenous Australians.¹⁸ We know that the cause of inequality is not merely a lack of resources, as the failure of welfare programs demonstrates. The cause is partly structural. As the Uluru Statement puts it: “These dimensions of our crisis tell plainly the structural nature of our problem”. It is a matter of how social institutions like the health care system and the education system work, how they fail to be sensitive to differences in cultural understandings of health and education.

It is crucial to the argument from legitimacy that we have an adequate understanding of the nature and source of the injustice faced by Indigenous Australians. It is crucial to establishing the claim that the prevailing governing conventions are inadequate to the ends of government and to establishing the claim that the proposed Voice could be seen as a means of addressing the failings of the prevailing governing conventions. What is it about the structural nature of the injustice faced by Indigenous Australians which means that the prevailing governing conventions are inadequate? How does the structural nature of the injustice faced by Indigenous Australians differ from the structural nature of the injustice faced by, say, women or people with a disability in Australia?

Noel Pearson has helpfully characterised the predicament of Indigenous Australians in terms of (i) the extreme minority status of Indigenous Australians (ii) the history of settler colonialism, and (iii) racism (Pearson 2014, 37–38). I want to set aside for the moment the extreme minority status of Indigenous Australians.¹⁹ Pearson’s appeal to the history of settler colonialism and racism point us in a promising direction when it comes to understanding the unique nature of the structural injustice faced by Indigenous Australians. The history of settler colonialism is a history of an attempt by the dominant culture to impose itself on Indigenous Australians. It is a history of attempted assimilation. The attempt has not succeeded, and many Indigenous Australians have retained Indigenous identities and connections with Indigenous cultures. Given the history of settler colonialism, it is not surprising that many of the basic structures of Australian society function, if not as a mechanism for imposing the dominant culture, then, at least in ways that are not sensitive to differences between minority and dominant cultures. The consequences of such a lack of sensitivity are not merely consequences for culture, but are often more substantive. They are consequences for educational outcomes, health outcomes, and various related outcomes. What these basic structures provide for, contemporary implicit and explicit racism only exacerbates. To take just one example, an example linked to many outcomes, consider the case of education. The ways that educational institutions fail to be sensitive to features of Indigenous culture, and the way implicit and explicit biases, only serve to exacerbate these insensitivities, are well documented.²⁰ Now, the reason why the prevailing governing conventions are inadequate to addressing this structural injustice is that the prevailing governing conventions lack adequate mechanisms by means of which Indigenous Australians can report on, or advise on, the ways, whether positive or negative, that the basic institutions of society interact with their Indigenous identities and cultures. Although the voice of those at the receiving end of structural injustice need not be taken to be a decisive factor in any decision-making about how to address such injustice, it is clear that in the absence of such a voice, decision-making is likely to have significant blind-spots. In the context of the history of settler colonialism and continuing racial biases, the epistemic value of the voice of those at the receiving end of disadvantage becomes significant. A plausible diagnosis of why the prevailing governing conventions are inadequate to addressing the structural injustice faced by Indigenous Australians is that there is no mechanism within those conventions by means of which this epistemically valuable voice can be heard.

It is an important feature of my argument that a failure to achieve the ends of government with respect to social justice does not suffice for a failure of legitimacy. While some theorists would equate legitimacy and justice, seeing only one political distinction where there are in fact two, I think it is important to distinguish between the two. Governments are consistently failing to achieve their ends, including the ends of justice. But this isn’t always a matter of an inadequacy of the governing conventions. It may just be a failure of governments operating within those conventions, or it may be a matter of external contingencies, or there may be no better alternative conventions available. And, moreover, the correct way to respond to such failures may be to work within those conventions to achieve the ends of government. This is what allows us to explain why there may be a difference in kind and not merely a matter of degree when it comes to the question of justice for women in Australia, and justice for Indigenous Australians. Although it is not entirely uncontroversial, my view is that the prevailing governing conventions of Australian society do provide women with means of addressing their structural disadvantage within those conventions. Conventions of popular representation do seem to be able to be leveraged in the direction of justice. Women are not an extreme minority, and their influence on the political process is increasing. Progress may be slow towards justice for women, but there is evidence that there is progress. I think that the situation Indigenous Australians face is different in kind. As we just saw, various factors conspire to support the conclusion that the prevailing governing conventions are inadequate: the extreme minority status of Indigenous Australians, the history of settler colonialism, and racism.²¹ I think that this difference in kind makes for a significant normative difference: to be subjected to the exercise of power and authority without full legitimacy is to be, at least in part, mastered or dominated by others. Not only is one significantly disadvantaged, but there is little or no hope within the existing structures of power and authority for redress. This is the true meaning of powerlessness. Hence the urgency for change.

How might the Australian Government come to meet the basic legitimation demand? How might it overcome the legitimacy deficit? Under what conditions could it offer an acceptable justification to all of those it claims to have a right to exercise power and authority over? Only by changing the governing conventions, it seems, will the Australian Government come to meet the basic legitimation demand, for only then will it be able to offer an acceptable justification of the exercise of its political power and authority to everyone over whom it is exercised. It is in the context of this situation that we should consider the proposal of an Indigenous Voice to Parliament enshrined in the Australian Constitution and the broader package of proposals made in the Uluru Statement. Such a proposal can be seen as part of a package of proposals for resetting the governing conventions of Australian society, a resetting of those conventions such that there will be some reasonable hope for redress within the governing conventions of society. As we just saw, one of the reasons why the prevailing governing conventions are inadequate is that they lack a mechanism by means of which an epistemically important voice can be heard. We saw that it was due to the particular nature of the structural injustice faced by Indigenous Australians that it is so important that such a voice can be heard. The nature of this structural injustice is illuminated by facts about the history of settler colonialism and racism. It is for this reason that the proposed Voice may be uniquely placed to address some of the structural disadvantage faced by Indigenous Australians. Other solutions, such as more representation in Parliament, or more sophisticated forms of consultation, would arguably not get to the heart of the problem that we have identified. If this diagnosis is correct, then an Indigenous Voice to Parliament enshrined in the constitution would amount to a resetting of the governing conventions of Australian society of the kind which may, together with the implementation of other parts of the package of proposals, allow the Australian Government to offer a justification to all Australians of its exercise of political power and authority over them: there may, under the revised circumstances, be a reasonable hope of redress within the amended governing conventions of Australian society.²²

At this stage in the discussion, it is worth addressing a potential objection. According to the objection, to suggest that there are shared beliefs and values, or that there should be, may be to assume too much and to adopt an imperialistic attitude towards legitimacy. Perhaps the situation in which we find ourselves in modern societies is one in which there is no system of shared beliefs and values, and perhaps to seek one would lead to injustice being done to minority systems of shared beliefs and values. The argument I have given may not recognise the gulf between Indigenous beliefs and values and mainstream liberal egalitarian beliefs and values. I have assumed that the project of answering the basic legitimation demand is one of finding a way of justifying the governing conventions of society in terms of broadly shared values and beliefs. And I have suggested that, with a proposal like the Voice, this can be done. Perhaps this is a mistake. Perhaps what is needed is that we find governing conventions which can be justified in terms of a ‘plurality’ of prevailing systems of values and beliefs, or a ‘plurality of normative orders’, where “a normative order is a cluster of values, beliefs and legitimation ‘narratives’ (religious, cultural, moral, political and legal) that people appeal to in order to justify (and contest) the practices and institutions they are both subject to and help constitute.”(Ivison 2020, 123) If normative orders are plural, then the question becomes: “on what basis can a liberal political order be considered legitimate given this plurality?”(Ivison 2020, 124) Perhaps what matters, then, is not that there might be a single system of beliefs and values in light of which the basic legitimation demand might be met, but that the basic structure of society can be justified in light of each of the distinct normative orders prevailing within it. This makes the prospects of legitimating something like a liberal democratic state look rather dim. If the plural normative orders do not contain significant overlap or are not subsumed under a broader normative order, there may be little hope of agreement on a particular form of government. A better way of thinking about the plurality of normative orders, however, may be to see the project of meeting the basic legitimation demand as one of finding a way to accommodate the plurality of normative orders within society. This understanding is suggested by Ivison when he writes:

One reason why repeated attempts at ‘solving’ entrenched indigenous disadvantage fail (measured almost exclusively in social welfare terms) is because of the lack of political (and moral) attention accorded to indigenous normative orders in the determination of law and policy. In other words, there has been insufficient attention paid to the structural nature of the injustice underlying relations between settler states and indigenous peoples.(Ivison 2020, 125, emphasis added)

On this interpretation, as I understand it, the issue of the plurality of normative orders only provides a further and deeper explanation as to why we need to change our governing conventions if the structural nature of the injustice faced by Indigenous Australians is to be addressed: not only must the governing conventions be sensitive to what are traditionally understood as cultural differences, but they must also be sensitive to Indigenous normative orders. In this sense, then, I take Ivison’s appeal to plural normative orders to offer a sophisticated refinement of the argument from legitimacy offered above, one which connects issues of structural injustice to the plurality of normative orders. Moreover, as I shall argue below, Ivison’s account of the plurality of normative orders might also help us to better understand the role appeals to Indigenous sovereignty might play in justifying the proposed Voice: Indigenous sovereignty can be understood (it need not be) as a kind of non-political, spiritual and cultural authority, grounded in relations to the land; and such a form of authority forms part of a plurality of normative orders which must be respected under government.

To summarise the discussion so far. I have argued that the proposed Voice ought to be seen in the context of questions about political legitimacy. I have argued that the Australian Government faces a legitimacy deficit with respect to its claim to have a right to rule over Indigenous Australians. And I have argued that the deficit may be overcome by adopting the package of proposals which includes the Voice to Parliament. It is fitting that the question should go to a referendum and receive popular authorisation. Moreover, it is fitting that the proposals should focus on changing the constitution, as the constitution formally enshrines the governing conventions of a society, it formalises what the governing conventions of a society are to be and set out how government is to be done.²³ In what remains, I will consider alternatives to, and extensions of, the argument from legitimacy that I have offered in this section.

3 Arguments from Sovereignty and the Right to Self-Determination

It might be thought that if there is an argument for the proposed Voice, then it must be an argument from sovereignty or from a right to self-determination, and not an argument from legitimacy.²⁴ The terms ‘sovereignty’ and ‘self-determination’ are the most commonly appealed to normative terms of public debates over the Voice, and ‘legitimacy’ hardly makes an appearance. Moreover, the Uluru Statement from the Heart makes several references to sovereignty:

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs….This sovereignty is a spiritual notion…. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown….With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.

The argument from legitimacy offered in the previous section appeals neither to claims about sovereignty nor to collective rights to self-determination. Might arguments from sovereignty or rights to self-determination provide a better case for the proposed Voice? Might such considerations bolster the argument from legitimacy? In this section, I argue that, rather than providing independent or direct arguments for the Voice, the arguments from unceded sovereignty and self-determination appeal to considerations which are best accommodated within the argument from legitimacy. I will begin with some clarificatory remarks about the concepts of sovereignty and self-determination.²⁵

The concept of sovereignty is the concept of supreme or ultimate power and authority with respect to some matter.²⁶ Although the concept of sovereignty is a broad one, covering many spheres of authority, theorists have tended to be concerned with a particularly narrow conception of sovereignty, one tied to the supreme or ultimate authority of modern nation states over their internal matters. Since sovereignty is a right to supreme or ultimate power, it is taken to confer a right of non-interference on the part of other actors, and so is central to claims of political independence. Such a conception has also been closely tied to a right to control a territory. While this conception has been closely tied to the defence of the supreme authority of the modern nation state, it can be adapted to any political group. Characterising such a conception, Janna Thompson writes that “‘sovereignty’ is the exercise by a people—whether a clan, a tribe or a nation—of control over a particular territory through their political and social institutions” (Thompson 1990, 315). Call conceptions like these political conceptions of sovereignty, since they entail a right to supreme or ultimate political power or authority (whether this is tied to a particular territory or not).

Such political conceptions of sovereignty are closely related to certain conceptions of the collective right to self-determination and self-government. As James Tully writes: “The principle or right of self-determination is, on any plausible account of its contested criteria, the right of a people to govern themselves by their own laws and to exercise jurisdiction over their territories, either exclusively or shared” (Tully 2008, 285–86). Such a right to self-determination is at the heart of the UN Declaration of the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly in 2007.²⁷ Article 3 states:

Indigenous peoples have a right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

The declaration understands the right to self-determination here as grounding a right of Indigenous peoples to determine their political status and a right of Indigenous peoples to freely pursue their economic, social and cultural development. Article 4 connects the right to self determination to the right to political autonomy and self-government:

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs….

Articles 3 and 4 both seem to be committed to a stronger form of political right than that proposed in Article 18: “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights”, an article that comes close in wording to the many of the justifications offered of the proposed Voice. Thus, for instance, Megan Davis speaks of the right of Indigenous Peoples “to participate in decisionmaking in matters that impact upon their lives.”²⁸

Rather than attempt an exhaustive examination of the various conceptions of sovereignty and self-determination here, I propose to examine conceptions which are most likely to bear fruit as part of an argument for the proposed Voice. In discussing these conceptions I will draw on an important distinction from recent work in democratic theory. The distinction is that between having controlling influence over political decisions and having some degree of contributory influence over decisions.²⁹ A group has controlling influence over some matter when it has decisive influence over a range of decisions related to that matter—it is for that group to decide the matter. Conceptions of sovereignty and self-determination can be distinguished with respect to whether they entail extensive controlling influence or whether they entail restricted controlling influence. Historically, conceptions or sovereignty and self-determination have been tied to the notion of extensive controlling influence—this is just political autonomy or self-government in the unrestricted sense. Sometimes claims for Indigenous sovereignty or self-determination involve this extensive conception. Sometimes it is claimed that such extensive control should involve final authority, and is thus incompatible with the authority of the state. Sometimes it is claimed that such extensive control is compatible with the authority of the state. As Taiaiake Alfred writes in a related context: “even those who advocate sovereignty as a goal seek only a limited form of autonomy, not independence; the goal relates only to powers of self-government within a framework of constitutional law and authorities delegated by the state”.³⁰

More recently, conceptions of sovereignty and self-determination have focused on a right to restricted controlling influence. Patrick Macklem writes, “[Indigenous] government involves more than the conferral of special rights to engage in particular activities: It also involves rights to determine how, when, where, and by whom such activity can occur” (Macklem 1993, 1355 emphasis added). The model here is something like a federal system. As Macklem writes: “within a federal system, levels of government are sovereign within their respective spheres of authority” (Macklem 1993, 1347). On such a model, different and potentially overlapping groups may have controlling influence over different matters. I will call these conceptions of political sovereignty and self-determination strong political conceptions, and will contrast them with democratic conceptions below. I take the latter, “coordinate” model, on which different groups may be sovereignty with respect to different spheres of authority in a coordinated system, to be the most promising strong political conception of sovereignty, and the one of the most fruitful for thinking about claims of Indigenous Sovereignty.

How might these strong conceptions of sovereignty and self-determination be appealed to in arguments for the proposed Voice? We can distinguish between direct and indirect arguments. Direct arguments proceed as follows: Indigenous Australians have a right to self-determination, understood as entailing a right to extensive or restricted controlling influence; the proposed Voice would partly or fully satisfy such a right. Indirect arguments proceed as follows: Indigenous Australians have a right to self-determination, understood as a right to extensive or restricted controlling influence; the proposed Voice is an important first step or means to negotiating the conditions for the satisfaction of such a right. Let us begin by considering the plausibility of the shared first premise here.

What could justify the claim to a right to extensive or restricted controlling influence on the part of Indigenous Australians? It could be argued that this is the extensive right associated with historical sovereignty and it has never been ceded or extinguished. This is the historical route.³¹ I take it that the claim that Aboriginal and Torres Straight Islander tribes were the first sovereign nations, in some strong sense, of the Australian continent and adjacent islands to be a plausible one, and to be defensible on historical evidence. I also think that a plausible case can be made for the claim that such sovereignty was never ceded, or at least that it was not ceded by many Aboriginal and Torres Straight Islander tribes.³² The more controversial question is whether such sovereignty, in the political sense, has been extinguished, or whether only some weaker form of sovereignty remains in place to today.³³ This is not a question I will take up here.³⁴ It is worth noting, however, that to the extent that such claims to unceded sovereignty are defensible, they will establish a claim to sovereignty for distinct First Nations, and not for Indigenous Australians as a collective, a consideration which is relevant to arguments for a centralized Voice.³⁵

A second line of justification appeals to the fact that the exercise of controlling influence, either extensive, or restricted, may be required for continuation of collective ways of life.³⁶ This is an instrumental kind of justification and it rests on two claims. The first is that Indigenous Australians have a significant interest in certain collective ways of life, an interest significant enough to ground various duties on others with respect to that interest.³⁷ The second is that a certain degree of controlling influence is a necessary means to protecting and promoting that interest.³⁸ I take the first of these assumptions to be very plausible.³⁹ The second assumption is a largely empirical assumption about the causal relationship between controlling influence and the protection and promotion of certain substantive interests. It is hard to say whether it is controlling influence which is necessary here, or whether something like a significant degree of contributory influence (a suggestion to be discussed below) would be sufficient. I will not take a stand on this matter. Rather, I want to consider how rights to extensive or restricted controlling influence can be appealed to in argument for the proposed Voice, provisionally granting that a right to controlling influence can be justified.⁴⁰

Perhaps the most important point to make in relation to proposed Voice is this: at best the proposed Voice would give Indigenous Australians, collectively, a significant degree of absolute contributory influence over decisions affecting them. (Absolute influence here contrasts with relative influence—how much influence one has relative to others). It would not, in itself, give Indigenous Australians the kind of controlling influence required for autonomy or self-government understood as requiring extensive or restricted controlling influence. Indigenous Australians would not have controlling influence over such matters as they would still share influence over such matters with other Australians. This, of course, is something that the framers of the proposal were aware of. The Final Report of the Referendum Council states that the Voice to Parliament “was considered as a way by which the right to self-determination could be achieved.” However, “There was a concern that the proposed body would have insufficient power if its constitutional function was ‘advisory’ only”.⁴¹ The second premise in the direct argument is simply false: the proposed Voice itself is not a constitutive means of satisfying the right to either extensive or controlling influence.

This said, it might be suggested that the proposed Voice could be justified as a first step or means to achieving sovereignty in this strong sense. Perhaps the proposed Voice is more likely than any alternative to further the cause of Indigenous sovereignty, understood, perhaps, in terms of the “coordinate” model above. This, in my view, is the most promising form of argument from such a strong political conception of sovereignty for the proposed Voice. It rests, however, on a significant empirical assumption about proposed Voice being an important first step or means towards Indigenous Sovereignty. It is difficult to tell whether the proposed Voice is more likely to further the cause of Indigenous sovereignty, understood, perhaps, in terms of the coordinate model above, than the alternatives. Proponents of strong forms of political sovereignty are sceptical that it will be. They see the Voice as a part of a package which would make the pursuit of strong forms of sovereignty less likely. As one sceptic, Michael Mansell, writes: “The…proposal does not achieve self-determination. In fact it cannot even be described as a step towards-self-determination” (Mansell 2016, 53). I do not want to take a stand here on the empirical question. I will merely note that if a good case can be made for the proposed Voice being a plausible means to achieving stronger forms of sovereignty, then we would have an additional reason, over and above that provided by the argument from legitimacy, for the proposed Voice. The argument from legitimacy, nonetheless, has an advantage over such an argument in that it does not rest on any such claim about what the proposed Voice will be an important first step towards. The change to the constitution which enshrines the Voice will itself address the legitimacy deficit.⁴²

So much for arguments for the voice from strong strong conceptions of self-determination and sovereignty. Might arguments from weaker conceptions of self-determination and sovereignty do better? Many theorists and activists have attempted to develop more democratic conceptions of self-determination and sovereignty.⁴³ These conceptions have less of a focus on political autonomy and self-government. These alternative conceptions are often developed in terms of “democratic representation”, but I think that they are better understood as claims for a significant degree of absolute contributory influence over decisions. An argument from such a weaker conception might do better than arguments from strong conceptions in that the proposed Voice can plausibly be seen as a constitutive means to achieving sovereignty on these weaker conceptions.

As I have said several times now, one thing the proposed Voice promises to do it to give Indigenous Australians, collectively, greater contributory influence over decisions affecting them than they currently have. The proposed Voice promises to deliver is both greater absolute contributory influence, and greater relative contributory influence over certain decisions, for Indigenous Australians, than they currently have. Now, there would be a straightforward democratic argument for the Voice if it were the case, as it plausibly is, that Indigenous Australians, individually, on average, as a matter of fact, have less relative contributory influence over certain political decisions than other Australians. Then the proposed Voice could be justified merely on grounds of political equality: it is needed to ensure that Indigenous Australians have equal informal and formal influence over political decisions. This is a powerful argument, but it needn’t appeal to anything like a right to self-determination. It need only appeal to a certain conception of democratic equality. It isn’t clear to me, however, that such a proposal would go far enough. Achieving equality of informal influence will not be enough to address the structural disadvantage faced by Indigenous Australians and so will not be enough to address the legitimacy deficit. Moreover, and this is a point I suspect proponents of the argument from sovereignty would be keen to make: equality of informal influence would not be enough to protect the common way of life of Indigenous Australians. It is for this reason that I think that the proposed Voice had better be seen as a mechanism for ensuring that Indigenous Australians, collectively, have much greater absolute contributory influence over decisions affecting them than they currently do. How can such a proposal be justified?

As the discussion has now made clear, any argument for a right to sovereignty or self-determination that is going to be relevant to justifying the proposed Voice must establish a right to a significant degree of absolute contributory influence. It need not establish a right to controlling influence over certain matters. But it must establish more than a right to equal relative influence. I suspect that such a case can be made based on the claim that a significant degree of absolute contributory influence is required for people to protect a common way of life. This is what I take to be the truth in the arguments from sovereignty and self-determination: that Indigenous Australians, collectively, have a prima facie right to a significant degree of absolute contributory influence over decisions affecting them. If so, we have an independent and direct argument for the proposed Voice on our hands. The proposed Voice can simply be seen as a constitutive means of satisfying the right of Indigenous Australians to a significant degree of absolute contributory influence over decisions affecting them.

Do these considerations provide a better argument for the proposed Voice than those we have considered so far? Might there be a better way of accommodating claims to sovereignty? I want to suggest that this direct argument has a significant drawback when compared to the argument from legitimacy: it justifies a departure from the democratic ideal of equal informal influence over all decisions on the grounds that some have an independent right to a significant degree of absolute contributory influence over certain decisions. This is potentially in conflict with the principle of popular sovereignty as a source of legitimate authority. If the principle of popular sovereignty entails anything, it entails that no individual or collective has an independent moral right or claim to greater influence over political decisions than any other individual or group.⁴⁴ This is in tension with a collective right to a particular degree of absolute controlling influence, since that degree may entail a right to greater influence than others.⁴⁵ Now, I am not saying that departures from the democratic ideal of equal informal influence can never be justified. They must be justifiable if the proposed Voice can be justified. My claim is that they cannot be justified in terms of some having independent right or claim to greater influence over decisions, without generating a significant tension with the principle of popular sovereignty.⁴⁶

How might this tension be resolved? I want to suggest that it can resolved by embedding considerations about the important of protecting a common way of life —considerations which are appealed to in the arguments from sovereignty and self-determination—within the argument from legitimacy. Rather than argue for a right to a significant degree of contributory influence, we instead think of a failure to protect First Nations ways of life as among the injustices the prevailing governing conventions are inadequate to address. The right is a right to the protection of these ways of life and not to some degree of political influence. The changes to the governing conventions are then not justified on the basis of some independent moral right to influence over political decisions—something inconsistent with the justification for the principle of popular sovereignty—but rather as a means to better serving the ends of government and redressing the legitimacy deficit. In this way, the very considerations which motivate the argument from sovereignty and self-determination can be seen to bolster the argument from legitimacy.

I want to conclude the discussion by returning to the “spiritual” notion of sovereignty mentioned earlier, a notion that “co-exists” with the sovereignty of the Australian Government. One way for the relevant notion to co-exist with the sovereignty of the Australian state would be for it to involve an authority distinct from the political authority.⁴⁷ On this view, sovereignty is not seen as a claim to political authority as such. Rather, it is seen as a right to supreme or final authority over certain matters, plausibly, cultural and spiritual matters. Such a source of authority would correspond to something like a normative order, in Ivison’s sense: “a cluster of values, believes, and legitimation ‘narratives’ (religious, cultural, moral, political and legal) that people appeal to in order to justify (and contest) the practices and institutions they are both subject to and help constitute.” These normative orders are a source of authority but are not a source of political authority as traditionally understood—they are not backed, for instance, by the apparatus of the state. Although the orders are plural and overlapping, some may be sovereign, in the sense of providing a kind of final or supreme (non-political) authority on some matters. The Uluru Statement spells out one such understanding of sovereignty when it speaks of “the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty.”⁴⁸

How might such an understanding of sovereignty relate to the argument from legitimacy? Unlike on the previous understandings, sovereignty itself is not understood as a right to a significant degree of contributory influence over political decisions, and so does not conflict with the justification of the principle of popular sovereignty. Sovereignty, rather, is something that already exists, and must be protected. In this sense, sovereignty can be seen as an element of the common way of life in need of protection. As we have just seen, considerations of sovereignty are given their full force when they are considered in the context of the argument from legitimacy. Thus, we might see the equal protection of normative orders, of the non-political sovereignty of groups, as a claim of justice, and as something which the prevailing governing conventions are inadequate to protect.⁴⁹ Then considerations of sovereignty could be subsumed within the argument from legitimacy, for the basic legitimation demand will only be met by resetting the governing conventions in such a way that equal claims to the protection of plural normative orders is met. There is no guarantee that the proposed Voice will protect or promote Indigenous sovereignty on this understanding. We might reasonably hope, however, that by giving Indigenous Australians a greater Voice than they currently have, “this ancient sovereignty can shine through as a fuller expression of Australia’s Nationhood”.

Whether we adopt these stronger versions of the argument from legitimacy bolstered by considerations of self-determination and Indigenous sovereignty or not, a sufficient case can be made for the proposed Voice on the basis of considerations of political legitimacy. It has been the aim of this paper to set out such a case.

Bibliography