The opposing camps in the Indigenous voice debate rarely see eye-to-eye, but they agree a constitutionally enshrined advisory body would be unlike anything else in the world.
The ‘yes’ and ‘no’ camps are keen to highlight the uniqueness of the model being put to voters at the October 14 referendum.
Advocates say the voice would be a unique solution “to a very Australian situation”, not merely a duplicate of other countries’ efforts.
The ‘no’ campaign argues the distinct design makes it a risky proposition that hasn’t been road-tested anywhere in the world.
Experts say it’s technically true that no other country has enshrined an indigenous advisory body into its constitution in the way the voice would.
Ben Gussen, an international and constitutional law jurist at Melbourne’s Swinburne University, says Finland and New Zealand have indigenous bodies that formally advise the government, although they’re not enshrined in the constitution.
“While there may not be an identical constitutional model to the proposed Australian voice, there are indeed international examples of indigenous representation in other forms,” he told AAP.
Dr Gussen says Finland, along with Nordic neighbours Norway and Sweden, each set up indigenous parliaments for their minority Sami populations in Lapland and northern Scandinavia in the 1980s and 1990s.
The three Sami parliaments operate separately from their respective national parliaments and don’t have any lawmaking functions.
Instead, the bodies are empowered to make representations to the national government on issues affecting the Sami people.
The Nordic Sami parliaments were created through ordinary government legislation and are not mentioned in the Nordic constitutions.
Dr Gussen says for that reason, they can’t be directly compared to the proposed constitutional Indigenous voice in Australia.
Other countries including Colombia, India, Vanuatu and Venezuela reserve a quota of parliamentary seats for indigenous MPs.
Seven of NZ’s 120 MPs must be chosen from dedicated Maori electorates, while India’s 543-seat lower house earmarks 47 spots for representatives from specified tribes.
In NZ, voters of Maori descent can choose whether to enrol on the general election roll or the Maori electorates roll.
The country also has the Maori Council, an elected body established in 1962, to promote the interests of the Maori people and “make representations” to the government.
Shireen Morris, a Macquarie University constitutional law expert, said the Council wasn’t guaranteed in the constitution – NZ doesn’t have one – but it was anchored in the Treaty of Waitangi, which is considered to be a constitutional document.
She said it was misleading to say no country had tried anything similar to the voice, given every indigenous advisory body around the world had a localised design.
“There are no cookie-cutter democracies,” Dr Morris said.
“Many successful and stable democracies recognise indigenous peoples in their constitutional arrangements, including by giving them forms of a voice in their affairs, but every country does this in different ways.”
In Canada, she said, the constitution recognises indigenous rights and puts a duty on the government to consult indigenous groups if their rights may be impacted.
The country also has a national representative body, the Assembly of First Nations, that is neither constitutionally enshrined nor legislated.
South Africa, Vanuatu and Singapore have also created indigenous or traditional advisory bodies through their respective constitutions, Dr Morris said.
The South African constitution enables a national council of “traditional leaders”, and the government has passed separate legislation obligating it to consult the body on traditions and culture.
Vanuatu has a constitutionally enshrined council of chiefs, which the government is obliged to consult about the land, culture and languages of the majority ni-Vanuatu indigenous population.
Singapore’s constitution recognises Malays as the nation’s original inhabitants. As the majority of Malays are Muslim, the city-state also has a constitutionally enshrined body that advises the president on “matters relating to the Muslim religion”.
Bertus de Villiers, an adjunct law professor at Western Australia’s Curtin University, said constitutional indigenous advisory bodies in other countries all had a narrow brief dealing specifically with culture, language, traditions and land.
He said it was “unequivocally” the case that no country had a constitutionally enshrined indigenous body similar to the voice.
“To compare the proposed voice with international examples are apples and pears. They simply do not compare,” he told AAP.
For the ‘yes’ and ‘no’ campaigns at least, the important point appears to be not whether the voice would be unique, but whether that matters.
Australians will go to the ballot box on October 14.
