Is it ethical non-Indigenous people get to decide on the Voice? Is it OK for one group to have rights others don't? An ethicist weighs in

Written by Paul Formosa, Professor and Head of the Department of Philosophy, and Co-Director of the Macquire University Ethics & Agency Research Centre, Macquarie University

Australians will soon be asked to vote on whether we should “alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice”.

Two philosophical concerns have been raised about this proposal.

First, is it appropriate for members of one group to decide what rights members of another group get? Why should non-Indigenous Australians get to decide if the First Peoples of Australia are granted an institutional Voice?

Second, is it appropriate to give members of one group rights that members of another group lack? Isn’t our system of government based on the idea we are all equal and therefore we should all have the same rights?

I’ll explore the ethical and philosophical basis of each question here.

1. Should one group get to decide for another group?

An analogy is often made between the same-sex marriage plebiscite and the Voice referendum. Given evidence about the harm the debate surrounding the same-sex marriage plebiscite had on the LGBTQIA+ community, it’s reasonable to ask whether that plebiscite should have occurred, given parliament could have legislated same-sex marriage without the plebiscite.

But despite the fact there are already reports of mental harm to First Nations people, considerations of whether or not we need this public vote do not apply to the Voice. The Voice, as a form of constitutional recognition that many (but not all) Indigenous people are seeking, can only occur via a referendum.

And there is actually nothing unusual about citizens and their elected representatives making decisions about what rights and entitlements others have. This is the very nature of democracies.

But this raises a more fundamental tension within our liberal-democratic political system. The tension lies between the “liberal” element, which seeks to secure the rights and liberties of all individuals, and the “democratic” element, which seeks to enact self-rule by the people.

This tension generates a problem known as the “tyranny of the majority”. This is where a democratic majority is able to violate the rights of a smaller minority.

In both the same-sex marriage and Voice votes, there is a large majority with the power to decide the rights of a minority.

Democracies typically guard against a majority mistreating a minority, in part, by enshrining foundational rights and liberties in a constitution that is difficult to change democratically.

This puts an imperfect, but practical, check on the exercise of that tyranny. The rights and entitlements set out in a constitution stipulate the fundamental terms of cooperation within a political community.

For example, the Australian constitution sets out that our political community is based around a Commonwealth with legislative, executive and judicial branches, as well as granting several explicit rights (such as the right to vote and the right to trial by jury) and implied rights (such as the freedom of political communication).

Enacting a constitutional change serves both a symbolic function, by expressing that something is part of the foundational framework of our political community, and a practical function of partially insulating it from changing democratic whims.

One argument against the Voice is that it would give one group something others don’t have. AAP/Richard Wainwright

2. Should one group get something others don’t get?

This leads to the second issue, whether there is something undemocratic about members of one group having different rights to members of other groups.

But this is not necessarily problematic (although it can be).

Members who belong to one group, such as the citizens of Queensland, have rights that members of other groups, such as the citizens of New South Wales, do not have, such as being entitled to elect representatives to the Queensland parliament.

Something similar would apply to the Voice, with First Nations people having the right to elect members to the Voice that members of other groups would not have.

But surely not every group should have its own constitutionally enshrined Voice? On what basis should we grant the First Peoples of Australia such a right?

There are at least two obvious bases.

First, as a rectification of past injustices. For example, if someone steals a painting from you, then you are entitled to have your property back or to receive restitution. This can apply cross-generationally.

If the Nazis stole your great grandfather’s painting, then you are entitled to have it returned to you or receive compensation if the painting emerges many years later, even if your great grandfather is long deceased.

First Nations people of Australia have suffered specific and significant injustices that other groups have not, such as the loss of sovereignty over their traditional lands, and they are therefore entitled to redress, which could (in part) take the form of a Voice.

The second basis is to rectify a specific disadvantage. As Canadian political philosopher Will Kymlicka puts it:

we match the rights to the kinds of disadvantage being compensated for.

For example, Australians with a disability are entitled to certain rights, such as disability support, that members of other groups are not.

On a range of measures, from health to education and wealth, Australia’s First Nations people face significant disadvantages, and it’s therefore reasonable members of that group receive specific rights to counteract the specific forms of disadvantage they experience.

Neither of these questions are the important ones

In democracies, majorities are asked to vote on what rights a minority has and members of different groups can have different rights.

Rather than focus on whether a Voice would “divide us by race”, we should focus (among other things) on the substantive issues of whether the proposed changes will be effective in helping to rectify past injustices or to counteract specific disadvantages, and whether any such changes should be embedded in our Constitution.

Inclusion in the Constitution would serve as an enduring expression of their foundational role in our political community, and would partially insulate them from democratic meddling.

Authors: Paul Formosa, Professor and Head of the Department of Philosophy, and Co-Director of the Macquire University Ethics & Agency Research Centre, Macquarie University