The ballot papers in the 2023 Australian Indigenous Voice to Parliament referendum had barely been counted before a new debate began.
Australia had rejected the proposed constitutional body that would have allowed Indigenous peoples to advise the government on policies affecting them and, with it, the clearest path to formalising First Nations representation at the national level.
What remained was a patchwork: good intentions, unmet obligations and no agreed structure through which Aboriginal and Torres Strait Islander peoples could meaningfully shape the laws governing their lives.
In 2009, Australia endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and committed in principle to Indigenous self-determination and participation in decision-making.
However, it has yet to implement the international standards into law, policy or practice – an issue compounded by the referendum’s defeat.
A state-by-state approach gains momentum
Scholars from The University of Queensland (UQ) Law School argue the solution to this complex issue may be hiding in plain sight.
In a co-authored article for the University of Queensland Law Journal, UQ Law School lecturer and Bundjalung and Kungarakany woman Dr Dani Linder, and UQ Law School academic Dr Dylan Lino investigated whether Australia’s states and territories could be the new frontier for Indigenous law reform.
While the Commonwealth has retreated from reform following the 2023 referendum, state and territory governments have proven more receptive to championing Indigenous representation, including South Australia’s First Nations Voice, created by the First Nations Voice Act 2023, and the First People’s Assembly of Victoria, formed following the Statewide Treaty Act 2025.
Australia’s sub-national approach to Indigenous participation and recognition is also at the core of a world-first research project, spearheaded by Dr Linder in Queensland.
As part of the Public Interest Advocacy Centre's Towards Truth project, she’s collating every Queensland law, policy, bill, speech or political debate that has impacted Indigenous people since colonisation.
“It’s so important to have this database to show our future generation of lawyers in Queensland how to navigate policy and politics and how to contribute to the ongoing support of Indigenous social justice rights.”
National stewardship still needed
Dr Linder argues that, while an encouraging first step, sub-national Indigenous institutions still need Commonwealth oversight to ensure legal coherence.
“There needs to be leadership and responsibility from the Commonwealth government to ensure there’s a sense of unity and coherence when it comes to laws and policies such as native title and cultural heritage protections,” she says.
Globally, several significant models set a precedent for Indigenous representation and participation on a national scale.
The Nordic Sámi Parliaments are statutory Indigenous institutions representing the Sámi people in Norway, Sweden and Finland and act as advisory and consultative bodies on cultural, language and land rights.
Canada established the Assembly of First Nations (AFN) to advocate for the rights of more than 600 First Nations communities and advance its treaty obligations. Meanwhile, in New Zealand, the Waitangi Tribunal investigates Māori claims relating to legislation, policies or actions that may breach the Treaty of Waitangi.
Reframing how we view political communities
Dr Lino, a former legal advisor to the Referendum Council, suggests that Australian policymakers needn’t look further than their own backyard for inspiration in designing a legitimate and effective national Indigenous institution.
He says Australia’s federalist model – a bedrock principle of the Australian Constitution – could be the key to unlocking a solution.
“The Australian constitutional system is designed as a federal system that provides a system of self-rule for sub-national political communities: the states and territories,” Dr Lino says.
“They get to govern themselves, combined with a system of shared rule where all of these political communities come together and have a say in how they're governed collectively.
“Recognising First Nations peoples as a distinct political community – similar to a state or territory – shows how an Indigenous institution, such as the Voice to Parliament, would be perfectly compatible with the constitutional system we have.”
Dr Linder and Dr Lino are united in their assertion that Indigenous institutions – whether federal or sub-national – need to be co-designed with Indigenous Australians.
“There needs to be a mandated and ongoing process of good faith consultation and negotiation, of seeking Free, Prior and Informed Consent from Aboriginal and Torres Strait Islander people,” Dr Linder says.
“Law reform is an iterative process; it’s about designing something that is thoroughly and regularly consulted on by experts, stakeholders and people impacted by that particular policy and law.”
UQ Law School experts continue to shape the conversation around Indigenous self-determination and offer a blueprint for policymakers ready to move from principle to practice, with Indigenous Australians shaping every step.
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