The First Nations Voice: Investigating constitutional reform through the lens of proceduralism

Abstract

Law is dependent upon the collective consciousness of the people it governs. It is enacted in the legislatures of this country, elected by the people and enforced by the officials of the executive. For much of Aboriginal and Torres Strait Islander history since 1770, Indigenous Australians have lived outside the recognition afforded by the law while simultaneously being victims of its worst excesses. Yet, in spite of the progress we have made in combatting systemic injustice, Indigenous Australians continue to be left without constitutional recognition, without a voice, and without representation. This article will argue in favour for the establishment of a First Nations Voice (‘FNV’), as proposed by the Uluru Statement from the Heart, arguably Australia’s most critical constitutional law reform initiative in recent years. Rather than outlining all of its empirical benefits, of which there are presumably many, this article will instead seek to consider the FNV from a theoretical perspective of proceduralism and establish that its quality as a procedural right grants it special complementarity with the Australian legal–political framework. Ultimately, my hope is to offer a legally proceduralist rationale for the FNV and reiterate its necessity as the next step in constitutional law reform.