Voice debate; How it will help a dialogue for the future from a divided past

One version of this concern is that an Indigenous Voice violates the principle of equal citizenship and equality before the law. Another is that it introduces a divisive form of racial politics into our public life. Some claim it will have little impact on improving the lives of Indigenous people. Yet others say it will have too much power.

A significant part of the debate has been carried out - so far, at least - in a negative tone, and even by some of its supporters. The focus has been on what the Voice won't do and what its limits are, and less about what it can do.

Of course, the Yes campaign is only just beginning. And there have been powerful statements of support from different sections of the community. State governments, sporting codes, companies, and community organisations have expressed their support in various ways.

However, I want to place the proposal for a Voice into a broader context of democratic innovation and renewal. Taken in isolation, claims about whether the Voice should make "representations" only to Parliament, or also to "executive government", can seem rather arcane and confusing.

Concerns about judicial activism and the rule of law, detached from a broader account of how the interplay between law and politics works in a representative democracy, can be misleading. We are not, for example, as a result of the Voice, on the verge of a massive transfer of power to the High Court, as just about every credible legal commentator has made clear.

The American democratic theorist John Dewey said that "the public is a collective called forth by experience of common problems".

And the way that democratic societies deal with common problems is through public conversation - through what political theorists call "public reasoning".

The Australian public is being called forth through the referendum process to address the unresolved status of Indigenous peoples in our body politic. We need a richer account of democracy within which to locate the proposal for a Voice to raise the quality of our debate about it.

What is distinctive about the Voice is both its democratic pedigree and its democratic character. Although there are reasonable questions about how much more democratic it could have been, the emergence of the proposal for the Voice from community led dialogues across Australia lends it strong democratic credence.

And at the heart of it is a mechanism for improving the quality of decision making about matters that affect Indigenous peoples.

The desire to anchor the Voice in the constitution is intended both to protect it from being subject to the whims of electoral politics, and to mark the special place Indigenous peoples have in our history.

There is both a forward looking and remedial aspect to this form of recognition. Given the persistent gap in life prospects between Indigenous and non-Indigenous peoples over decades, we know our existing institutions are not working. But equally, given the complexity of these issues, and the ongoing legacies of colonial dispossession, we need to find ways to keep working through these challenges together.

The proposal is also unique globally. In Canada, the Constitution Act of 1982 recognised "existing" Aboriginal treaty rights, resulting in a long march through the courts to figure out exactly what that means. In the United States, the domestic dependent nation status of Indian nations, formulated by the Supreme Court in the 19th century, has meant, again, that the courts have led the conversation. In New Zealand, the establishment of the Waitangi Tribunal (a commission of inquiry, chaired by a judge) and reserved parliamentary seats for Maori, has resulted in a very different kind of political process for resolving purported breaches of the treaty.

The proposed Voice to Parliament, on the other hand, is seeking to anchor Indigenous perspectives in the constitution, but also at the heart of our democratic institutions.

So, what is the best way of conceiving of the kind of democracy that I think the Voice is calling for?

One of the fundamental values underpinning democracy is political equality. But what kind of political equality? The idea of equality appealed to by many critics of the Voice is too simplistic. Often, it's a claim that equal treatment means the same treatment, in every circumstance.

But our legal and political institutions already make sense of equality in much richer ways. To treat someone equally requires that we answer at least two further questions: equal in what respect? And to what extent do their circumstances require further consideration in figuring out how to treat them equally?

There are two elements to what I'll call democratic political equality.

The first are those rights that citizens need to protect them from the harms that both the state and society can do. These include the classic protections of freedom of assembly, of religion, of speech, of property and bodily integrity.

The second element, however, and too often neglected, is the positive freedoms associated with participation in public life. We can only ever truly secure our freedoms when we share equally in the power being exercised over us. Citizens need to have the opportunity to shape the laws to which they are subject; in short, they must be empowered.

Most importantly, as leading democratic theorists such as Jurgen Habermas and Danielle Allen have argued, these public and private freedoms are mutually dependent: you can't fully realise one without the other. Thus democracy, on this reading, is instrumentally valuable - it protects us from harms and enables us to pursue our own interests. But it is also intrinsically valuable - it helps us lead better lives by empowering us to shape the society within which we live.

Another aspect underpinning the kind of democracy the Voice is calling for is what I referred to above as "public reasoning". Put simply, in a democracy, you solve problems through public conversation. But the terms of these conversations - who participates and how, as well as the kinds of reasons one can or shouldn't appeal to - matter.

It's not that citizens engage as if they were in a philosophy seminar, or in a court of law. Rather, it's that we agree to resolve our disagreements, or continue to live with them, as best we can, through dialogue. These conversations will often be difficult and frustrating, as well as incomplete and disorienting. But the spirit driving them, ultimately, must be one of mutual respect and persuasion, rather than the exercise of arbitrary power.

However, citizens are unequally positioned relative to each other in terms of how they can participate in these public conversations. Hence why the positive freedoms I mentioned above are so important to secure.

Some have more access to resources than others. Some are more eloquent or forceful than others. Majority cultures tend to shape public discussions and institutions in both explicit and implicit ways that can disadvantage minorities.

Thus, we need to design democratic institutions so that they are responsive to the deep pluralism of our society. We need to multiply the ways in which diverse citizens and groups can participate in public debate and policy making. This cuts against technocratic forms of rule, as well as rule by simply majority.

I think this is the best interpretation of what "making representations" to parliament and the executive in the draft constitutional amendment means and why it should be preserved. It's about creating a mechanism for pluralising and enriching Australia's democratic conversation. It's not about identity politics. It's not intended as a conversation stopper.

Finally, this way of conceiving of democracy should shape our conception of democratic citizenship. It's not simply a legal status, and nor is it mainly about voting and obeying the law. Instead, citizenship becomes a richer, more capacious ideal.

According to this richer ideal, democratic citizenship also involves the development of forms of self-awareness and self-formation through a wide range of deliberations about our existing institutions. Our sense of common interests, for example, can expand as we encounter new claims, or re-interpretations of existing ones, that we were previously unaware of. Pluralising public reason creates room for democratic innovation.

Deva Woodly, in her brilliant analysis of the emergence of the Black Lives Matter movement, uses the analogy of "swailing" - or what we know as the Aboriginal land management practice of "cool burning" - to analogise the kind of renewal that social movements generate for fragile democratic environments.

Woodly points out how these movements draw out the contradictions between ideals and political realities, and demonstrate that democracy is always an incomplete process. The social movements that have led to the Uluru statement - going back over decades - have provided a kind of democratic cool burning for Australian public discourse.

In proposing a new mechanism for enhancing Indigenous voices in our political institutions, the Voice is appealing to the interdependence between public and private freedoms, as well as the value of government through public reasoning.

Note that framing the Voice in this way also offers us a means of assessing how best to design and implement the details, if the constitutional amendment is approved.

Democratic values cut in both directions. The way that local and regional Indigenous communities select and engage with their Voice representatives, as well as those in Canberra, will be critical.

The norms that govern those processes will need to reflect the broader democratic intent of the Voice. The final report of the Indigenous co-design process is a good place to start for exploring these different possibilities.

Let's return to some of the criticisms we began with: Is the Voice introducing division where there is unity, racial categories where there is neutrality, and inequality where there is equality? I think the answer is clearly no.

First, the social, economic, and political baseline we are starting from is radically unequal. Almost everyone agrees that the gap between Aboriginal and Torres Strait Islanders' wellbeing and that of the rest of the population is shameful.

Second, it's not Indigenous people who have insisted on introducing racial categories into our politics, but rather successive Australian governments and the legal and political institutions that arose from settlement. It was the High Court, after all, that drew on the Racial Discrimination Act, among other sources, to remove long entrenched legal obstacles to the recognition of native title in Mabo.

And it was the Australian government that suspended the application of that act when it legislated the Northern Territory "Intervention" in 2007.

Race, in other words, has been a primary tool of the state over many years, not the social movements that have sought justice for Aboriginal people. The Voice isn't a proposal for reintroducing racial categories into our civic identity, despite what Peter Dutton recently claimed. In fact, quite the opposite: it is an attempt to reconfigure that identity so that it no longer reflects the racial injustices of the past (and the present).

This democratic framing can also help us think through a deep criticism of the Voice from the left. Some have argued that nothing less than a treaty, rather than a deliberative body, is required to fully disrupt the colonial edifice of the Australian state. The Voice, on this reading, is a form of entrapment; it naturalises settler law and the colonial political order.

However, if we see the constitutional recognition of an Indigenous Voice in democratic terms (and assuming it can indeed reflect the diverse voices of Indigenous peoples), then it offers a practical way of working through these profound questions.

The Uluru statement is, after all, rooted in a claim of continuing sovereignty. Nothing about the referendum process requires a repudiation of that.

However, the establishment of a constitutionally recognised deliberative body puts in place a mechanism for an ongoing conversation between peoples that could, over time, reconfigure these relations.

It offers a means for enlarging and deepening our public reasoning about not only the consequences of the past, but our collective aspirations for the future.

Duncan Ivison, Professor of Political Philosophy, University of Sydney

This article first appeared on The Conversation