Bills Digest No. 80, 2022–23

Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023

Attorney General's

Author

Jonathan Mills, Sally McNicol, James Haughton

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Key points

  • The purpose of the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (the Bill) is to amend the Constitution to:
    • recognise Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia
    • establish an advisory body known as the Aboriginal and Torres Strait Islander Voice (the Voice)
    • provide that the Voice may make representations to Parliament and the Executive on matters relating to Aboriginal and Torres Strait Islander peoples, and
    • give Parliament the power to pass legislation with respect to matters related to the Voice.
  • The Bill, as a proposed law to alter the Constitution, must not only be passed by Parliament but must also then be voted on by the electors of Australia at a referendum.
  • There is a long history of advocacy and support for recognition of Aboriginal and Torres Strait Islander peoples within Australia’s Constitution. This Bill responds to the invitation extended in the Uluru Statement from the Heart.
  • This Digest explores some of the key issues about the Bill and the Voice, including whether:
    • the Voice will be required to be representative
    • sufficient detail on the operation of the Voice has been provided
    • the ability for the Voice to make representations to the Executive Government will result in legal challenges
    • the Voice would create special rights or be discriminatory
    • the creation of the Voice could affect Aboriginal and Torres Strait Islander sovereignty
    • the Voice will produce practical results to improve the lives of Aboriginal and Torres Strait Islander peoples
    • the relationship between the Voice and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
Introductory Info Date introduced: 30 March 2023
House: House of Representatives
Portfolio: Attorney-General
Commencement: The Bill will commence on Royal Assent. For a constitutional alteration Royal Assent will only occur after a successful referendum vote.

Purpose of the Bill

The purpose of the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (the Bill) is to amend the Constitution to: recognise Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia; establish an advisory body known as the Aboriginal and Torres Strait Islander Voice (the Voice); and to give Parliament the power to pass legislation related to the Voice.

However, unlike other Bills, a proposed law to alter the Constitution must not only be passed by Parliament but must also then be voted on by the electors of Australia at a referendum before it can receive Royal Assent. As such, the effect of Parliament passing this Bill would be that the proposed constitutional amendment will go to a referendum to be decided by voters.

Importantly, this Bill does not contain the provisions of the legislation which would set out the details of the Voice. Rather, it contains the text of the proposed new provision of the Constitution that would formally establish the Voice and empower Parliament to later make laws with respect to matters relating to the Voice, in accordance with the terms of the proposed new constitutional provision.

Process and timing

Section 128 of the Constitution requires that if a proposed law for the alteration of the Constitution is passed by each House of Parliament, it must then be put to the people at a referendum within two to six months of its passing Parliament. If the proposed law is instead passed twice by one House, as described below, it may then be put to the voters. The Prime Minister has stated that ‘we hope to pass the legislation through the Parliament by the end of June, with the referendum to be held between October and December this year.’

Section 128 of the Constitution provides for the alteration of the Constitution and for referendums to do so. In particular, section 128 specifically states that a proposed law for the alteration of the Constitution must first be passed by Parliament before being put to the people. However, it is not necessary for both houses of Parliament to pass such a Bill. The first option is for the Bill to be passed by an absolute majority of each House of the Parliament. Alternatively, if the Houses cannot agree, then the House that passed it may pass it again after 3 months and even if the other house again rejects it (or will only pass it with amendments that are not acceptable to the originating House), the Government can request the Governor‑General to submit the proposed law to the voters.

Section 128 of the Constitution also provides that, when the proposed law is put to the voters at a referendum, it must be approved by a majority of all voters, as well as a majority of voters in a majority of states, before it is assented to. This is sometimes referred to as a double majority, and if it is achieved the Constitution will then be altered.[1]

Structure of the Bill

The Bill consists of one schedule.

Item 2 of Schedule 1 sets out the text of the alteration to the Constitution to insert a new Chapter, comprised of one section, to provide for a body called the Aboriginal and Torres Strait Islander Voice and to provide Parliament with the power to make laws with respect to that body.

Background

Past proposals for recognition and representation of Aboriginal and Torres Strait Islander peoples

Australia has seen almost a century of debate over how to best recognise prior occupation of Australia by Aboriginal and Torres Strait Islander people, and how they should be represented to decision makers. From the 1920s and 1930s onwards, this has included calls for Aboriginal and Torres Strait Islander representatives in Canberra. From the 1970s onwards, this has included government-supported representative bodies to advise government (see below).

In 2000, the Final Report of the Council for Aboriginal Reconciliation recommended a constitutional amendment to both recognise Aboriginal and Torres Strait Islander peoples as the first peoples of Australia, and to enshrine a constitutional protection against racial discrimination. Following this report, public debate about Indigenous issues has increasingly focussed upon constitutional recognition. Aboriginal and Torres Strait Islander leaders and organisations (and opinion polls) have repeatedly stated that minimalist or symbolic constitutional recognition which does not produce substantive change will be rejected by the Aboriginal and Torres Strait Islander peoples. As a result, most recent proposals for constitutional change have proposed amendments beyond simple recognition, such as a symbolic preamble would provide.

The last decade has seen proposals related to constitutional recognition made by the:

Some of these processes and reports are discussed in more detail below.

Uluru Statement from the Heart

In May 2017, the First Nations National Constitutional Convention (convened by the bipartisan‑appointed Referendum Council) met to develop an approach to constitutional reform to recognise Aboriginal and Torres Strait Islander peoples, drawing on a series of preceding First Nations Regional Dialogues.

The majority resolved, in the Uluru Statement, to call for ‘constitutional reforms to empower our people and take a rightful place in our own country’. A minority, including now-independent Senator for Victoria, Lidia Thorpe, walked out of the Convention as they believed recognition of Aboriginal Sovereignty and a treaty (or treaties) were preferable to inclusion in the Constitution.

The Uluru Statement called for ‘the establishment of a First Nations Voice enshrined in the Constitution’ that will empower Aboriginal and Torres Strait Islander peoples to shape the policy and legislation governing their affairs. It suggested that the establishment of a Voice to advise the Australian Parliament will address structural disempowerment. It did not define the form such a body should take.

The Uluru Statement also proposed that a Makarrata Commission be established to ‘supervise a process of agreement-making between governments and First Nations and truth-telling about our history’.[2]

Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples

The 2018 Joint Select Committee was asked to consider the work of the 2012 Expert Panel, the previous Joint Select Committee, the Uluru Statement and the Referendum Council. Its Final Report acknowledged that the Uluru Statement from the Heart largely defines the parameters of the current debate:

Although the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander peoples was asked to consider the work of the Expert Panel, the former Joint Select Committee, the Statement from the Heart and the Referendum Council, the Statement from the Heart was a major turning point in the debate.

Not only did it bring a new element, The Voice, into the debate but it rejected much that had gone before in terms of proposals for constitutional recognition.

The rejection of all previous proposals was a shame because there were previous proposals which would command broad political support; but we acknowledge that at Uluru they seem to have been taken off the table.

At the centre of the Statement from the Heart is The Voice. The Voice is the matter on which we have focused most of the efforts of this Committee (Final Report of the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander peoples, pp. vii–viii).

The Committee concluded by recommending a detailed design process for both a national Voice and local and regional Voices, that the government consider legislative, executive and constitutional options to establish the Voice, support for truth-telling, and a national resting place.

Indigenous Voice co-design process

In October 2019, then-Minister for Indigenous Australians, Ken Wyatt, announced a 2-stage Voice co-design process, with 2 co-design groups tasked with developing options at the local and regional and national levels. The process was overseen by a Senior Advisory Group chaired by eminent Aboriginal leaders Professor Tom Calma AO and Professor Marcia Langton AO. A National Co-design Group and a Local & Regional Co-Design Group were also established. The terms of reference (pp. 239–245) made explicit that constitutional reform was out of scope.

The Indigenous Voice co-design process: final report was provided to the Australian Government in July 2021 and publicly released in December 2021. The Final Report set out:

… proposals and recommendations for an Indigenous Voice—a cohesive and integrated system comprised of Local & Regional Voices and a National Voice—with connections to existing Aboriginal and Torres Strait Islander bodies. This Final Report also presents considerations for implementing an Indigenous Voice and details the consultation and engagement process. (Indigenous Voice co-design process: final report, p. 9)

Former and current Aboriginal and Torres Strait Islander Commonwealth representative and advisory bodies

Previous elected representative national Aboriginal and Torres Strait Islander bodies created and supported by the Commonwealth government are the:

The Torres Strait Regional Authority (TSRA) has continuously represented Torres Strait Islanders in the Torres Strait since being fully separated from ATSIC in 1997.

These bodies were explicitly created in recognition of the need for Aboriginal and Torres Strait Islander people to have a voice to government and a say in the design of programs directed at them. For example, the Aboriginal and Torres Strait Islander Act 2005 (previously the Aboriginal and Torres Strait Islander Commission Act 1989) recognises the need for a representative mechanism for Aboriginal and Torres Strait Islander peoples in section 3 (‘Objects’) and its preamble:

… AND WHEREAS it is also appropriate to establish structures to represent Aboriginal persons and Torres Strait Islanders to ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of programs and to provide them with an effective voice within the Australian Government;

The Attorney-General’s Department’s Public sector guidance sheets on the right to self-determination and the right to take part in public affairs and elections (still) state:

You will need to consider the right whenever you are working on legislation, a policy or a program that will have a particular impact on Aboriginal and Torres Strait Islander peoples or other peoples with a common racial, ethnic or cultural identity which has been built up over a long period of time. The people impacted should be closely involved in the development and implementation of policies and programs that impact on them and with consultation and engagement strategies that facilitate this. The establishment of the National Congress of Australia's First Peoples is a leading example of this…

The National Congress of Australia's First Peoples provides a national platform for Aboriginal and Torres Strait Islanders to have a say on important issues and creates a national voice for the opinions of for [sic] Aboriginal and Torres Strait Islanders to be heard by all Australians.

Previous Commonwealth government-appointed advisory bodies include the Council for Aboriginal Affairs (1967–1976), the National Conference of Aboriginal and Torres Strait Islander Advisory Councillors (1972), the National Indigenous Council (2005–07), and the Prime Minister’s Indigenous Advisory Council (2013–c. 2019).

Not completely fitting the definition of a government-created elected or appointed representative and advisory body, but also relevant, are the Council for Aboriginal Reconciliation (1991–2000), the Special Envoy on Indigenous Affairs (2018–19) and the Coalition of Peaks (2018–present). In addition, Northern Territory Land Councils under the Aboriginal Land Rights Act (Northern Territory) 1976 and Native Title Representative Bodies under the Native Title Act 1993 have some statutory representative functions, chiefly to do with land rights, for traditional owners and native title holders in their regions.

Historically, appointed Aboriginal and Torres Strait Islander advisory bodies have twice (in 2005 and 2013) been used to replace or sideline Aboriginal and Torres Strait Islander representative bodies. Given these historical precedents, there may be a concern that the proposed constitutional amendment does not require that the Voice will be representative, or be chosen (directly or indirectly) by the Aboriginal and Torres Strait Islander peoples of Australia. This issue is discussed in more detail in ‘Key issues and provisions’ below.

2022 Election platforms of the major parties

Australian Labor Party

During the 2022 election campaign, the Australian Labor Party committed to fully implementing the Uluru Statement from the Heart, stating that it was the only political party committed to doing so. This was reaffirmed upon election. The Australian Labor Party has an existing First Nations Caucus Committee (established in 2016) that reviews legislation impacting First Nations people and is a platform for raising matters of concern for First Nations people to party members and leadership. In 2021, Senator Malarndirri McCarthy reportedly observed that ‘If we are talking about a First Nations Voice to the Parliament, we need to make sure we have a First Nations Voice within the practice of a party'.

The Greens

In April 2022, the leader of the Greens, Adam Bandt, stated that ‘The Australian Greens were the first party to support the Uluru Statement from the Heart in full, and we still do’ and they would not block legislation for a Voice. The Greens campaigned for a national Truth and Justice Commission (p. 2), stating that this would lay the foundations for developing a Treaty or Treaties. At his address to the National Press Club during the election campaign, Mr Bandt, reaffirmed the Greens’ position that a Truth and Justice Commission should precede the creation of a Voice.

Liberal Party

The Liberal Party’s Plan for Northern Australia restated its commitment to implementing Local and Regional Voices (p. 9). During the campaign, when then Prime Minister Morrison was asked whether a Coalition Government would hold a referendum on a constitutionally enshrined Voice, he replied ‘It’s not our policy to have a referendum on the Voice, so why would I be doing that?’.

Current government actions ahead of a referendum on an Aboriginal and Torres Strait Islander Voice

Anthony Albanese began his election night victory speech by committing to the Uluru Statement from the Heart ‘in full’. At the 2022 Garma Festival, he announced a draft referendum question and draft words to be added to the Constitution, ‘as the basis for further consultation.’

On 17 August 2022, a meeting of Indigenous Affairs ministers from all states and territories and the Commonwealth agreed to support the Government’s work for an Aboriginal and Torres Strait Islander Voice.

The first meetings of the First Nations Referendum Working Group and the First Nations Engagement Group were held on 29 September 2022. A Constitutional Expert Group was also established that ‘provided legal support to the Referendum Working Group on key issues relating to the content and drafting of the constitutional amendment and the referendum more generally.’ Communiques from the meetings of the 2 First Nations groups have been published on the Aboriginal and Torres Strait Islander Voice website.

On 3 February 2023, National Cabinet signed a statement of intent to work collaboratively to support a constitutionally enshrined Voice.

On 23 March 2023, at a press conference at Parliament House, the Prime Minister announced the constitutional amendment and referendum question that were agreed to by the Referendum Working Group and the Government. The design principles of the Aboriginal and Torres Strait Islander Voice, agreed by the First Nations Referendum Working Group, were also discussed and released.

Committee consideration

Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum

At a press conference on 23 March 2023, the Prime Minister announced that a Joint Parliamentary Committee would be established to consider submissions before the Bill is put to a final vote in June.

The Bill was referred to the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum (the Voice Referendum Committee) for inquiry and report by 15 May 2023. Details of the inquiry are at the inquiry webpage. The Committee report was released on 12 May 2023.

Chapter 4 of the report (Committee View and Recommendations) begins with the statement:

4.1  The ultimate aim of the Bill is to recognize Aboriginal and Torres Strait Islander peoples in the Australian Constitution in a manner that reflects their wishes to have power over their own destiny through constitutional change, and appropriately acknowledges their status as the First Peoples of Australia. As outlined in the Attorney-General’s Second Reading Speech:

This bill is about recognising and listening. It recognises Aboriginal and Torres Strait Islander peoples as the First Peoples of this land. It is about creating a voice, and it is up to the parliament and the Executive to listen.

The Committee made one recommendation:

4.18    The Committee recommends that the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 be passed unamended.

The report also contains 2 dissenting reports (Liberal members and National members) and additional comments from Senator Andrew Bragg and from Australian Greens members (Senator Dorinda Cox).

The Liberal members’ dissenting report focussed on the inclusion of the words ‘Executive Government’:

1.9  Evidence presented to the Committee demonstrated that if the Constitution is amended in accordance with the Bill, there is a risk that government could become unworkable. The risk arises from the proposal to entrench in the Constitution the Voice’s power to make representations to the Executive.

Their report considered 4 options for addressing this stated risk and made 3 recommendations:

Recommendation 1

1.124  The proposal for an Aboriginal and Torres Strait Islander Voice should not be adopted in its current form.

Recommendation 2

1.125  Noting the Coalition will not stand in the way of Australians having their say on the proposal, the Government should amend the drafting of the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 to address the significant risks identified through the Committee process.

Recommendation 3

1.126  The People should never again be asked to vote on constitutional amendments that do not have the benefit of detailed public debate, in the form constitutional conventions or similar.

Liberal Senator Bragg began his Additional Comments by stating:

The Voice is a concept which provides Indigenous people with a say on special laws and policies. This recognises Indigenous people are the only Australians for which a large body of special laws and policies exist. The Voice is a good and fair idea.

He noted that ‘The Liberal members of this Committee have different views about the level of risk the proposed amendment presents to Australia’s institutional framework’, further stating:

There is one outstanding risk with the proposed wording before this Committee: whether the proposed constitutional amendment to enshrine a Voice would deliver an effective transfer of power from the Parliament to the High Court.

Senator Bragg discussed 4 alternative sets of words for proposed section 129(ii) to address this stated risk and made 1 recommendation: that the ‘“seven words” model be adopted into the constitutional amendment’. That is, the words “and the legal effect of its representations” should be added to the end of proposed section 129 (iii).

The National members’ dissenting report stated:

The Nationals do not support the Report of the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum or its recommendations.

And that:

Ultimately, The Nationals believe that adding another layer of bureaucracy in Canberra will not genuinely close the gap for Aboriginal and Torres Strait Islander Australians.

In the Additional Comments from Australian Greens members, Senator Dorinda Cox stated that the Greens were ‘disappointed that the final bill did not take the obvious extra step and refer to the First Nations of this country’ and flagged:

1.4  Noting that we do not have a model of what the Voice would look like and that is beyond the scope of this inquiry, the Australian Greens nonetheless reiterate the importance of the final model being both democratic and consulted with First Nations People before it’s [sic] adoption.

Senate Standing Committee for the Scrutiny of Bills

The Senate Scrutiny of Bills Committee had no comment on the Bill.[3]

Parliamentary Joint Committee on Human Rights

The report of the Parliamentary Joint Committee on Human Rights is discussed below under ‘Statement of Compatibility with Human Rights’ and ‘Issue – Special rights or racial discrimination’.

Policy position of non-government parties/independents

Non-government parties and independents have a broad range of views on whether a Voice should be enshrined in the Constitution. Some have also publicly expressed views on the proposed wording of the Constitutional alteration as set out in the current Bill, or versions that have preceded it.

National Party

On 28 November 2022, the Leader of The Nationals, David Littleproud, confirmed the Nationals would not support the proposal to establish an Aboriginal and Torres Strait Islander Voice to Parliament in the Australian Constitution:

The Voice will not advance the primary aim of Closing the Gap and dealing with the real issues faced by Aboriginal and Torres Strait Islander people. It will not economically empower Indigenous people. We believe this will be a voice for Redfern, not for Indigenous communities in regional, rural and remote Australia, in places like Cunnamulla, Alice Springs and Carnarvon … The Nationals believe the Voice devalues the 11 elected Indigenous MPs, including Senator Jacinta Nampijinpa Price. The Nationals are also concerned the Voice will undermine democracy … A constitutionally enshrined advisory body to Parliament based solely on a person’s race is the antithesis of the values that we share as The National Party.

Two days later, then-Nationals MP Andrew Gee affirmed his long-standing support for a constitutionally enshrined Voice, and a month later resigned from the National Party.

Following her recent appointment as Shadow Minister for Indigenous Australians, Country Liberal Party Senator Nampijinpa Price stated that while she supported ‘the recognition element’, ‘the other element of it is this bureaucratic structure, which I think is divisive and it’s dangerous and it undermines democracy as we know it.’ Senator Price has consistently expressed her opposition to an Aboriginal and Torres Strait Islander Voice, well before entering federal parliament, in her First Speech and regularly thereafter.

Liberal Party

In an early post-election interview, in June 2022, Opposition Leader Peter Dutton stated that he was ‘open to the discussion’ and wanted ‘to look at the detail’ of the Voice proposal. The appointment of Julian Leeser as Shadow Minister for Indigenous Australians reflected this position (Mr Leeser was the co-chair of the 2018 Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples and a prominent supporter of a constitutionally enshrined Voice).

In early January 2023, Mr Dutton wrote to the Prime Minister expressing his concern over the lack of detail on the Voice and seeking answers to 15 questions. These questions were not formally addressed by the Government, with one of the key proponents of the Uluru Statement, Professor Megan Davis, stating that not all of the questions will be possible to answer.[4]

On 3 April 2023, Julian Leeser, then-Shadow Minister for Indigenous Australians, outlined his concerns about the wording in the current Bill, and the Government’s general approach to the Voice in an address to the National Press Club. He argued for a return to a focus on and support of local and regional voices, including their connection to a national Voice.[5] He also advocated for the removal of proposed subsection 129(ii), ‘the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples’. Mr Leeser suggested the constitution alteration can work without this subsection and that its inclusion risks a positive outcome for the referendum because the clause ‘will be at the centre of the no case’.

On 5 April 2023, Mr Dutton announced that the Liberal Party would not be supporting a constitutionally enshrined Voice, labelling it a ‘Canberra Voice’:

The Liberal Party resolved today to say ‘yes’ to constitutional recognition for Indigenous Australians, ‘yes’ to a local and regional body so that we can get practical outcomes for Indigenous people on the ground, but there was a resounding ‘no’ to the Prime Minister's Canberra Voice. It should be very clear to Australians by now that the Prime Minister is dividing our country and the Liberal Party seeks to unite our country. We want to make sure that we can get the best possible outcomes for Indigenous Australians and we do that through recognising Indigenous Australians in the Constitution, and by providing for their say, their voice, to be heard by government in a very clear way – but at a local level. Having a Canberra Voice is not going to resolve the issues on the ground in Indigenous communities.

The Party Room decision is binding on Shadow Cabinet members and Mr Leeser subsequently resigned from his shadow ministerial roles stating it was his intention to campaign for a yes vote, ‘keeping faith with an issue that I have been working on for almost a decade’ while also ‘arguing for the changes to the referendum wording that I detailed in my National Press Club address last Monday.’

Backbenchers are not bound by the Party Room decision, and news reports show Liberal Party parliamentarians both for and against enshrining a Voice in the Constitution.

Ken Wyatt, the former Liberal Minister for Indigenous Australians who oversaw the previous government’s Voice Co-Design process, resigned from the Liberal party the day after the Party Room decision saying ‘Aboriginal people are reaching out to be heard but the Liberals have rejected their invitation.’ He also rejected Mr Dutton’s assertion that the Voice was a ‘Canberra Voice’:

It is about local community designing their regional Voice and then the regional Voice selecting people they want to represent them in Canberra. It's not a Canberra voice. It is not elite. It is people from the grassroots.

Other prominent Liberal Party members or former members not in federal Parliament, including Tasmanian Premier Jeremy Rockliff, and 3 former Indigenous Affairs ministers, Ian Viner, Fred Chaney and Peter Baume, have also spoken out against the Party Room decision or confirmed that they will be campaigning for a yes vote in the referendum. However former Prime Minister Tony Abbott has campaigned against the Voice.

The Greens

In August 2022, The Greens party room formally backed Leader Adam Bandt and Senator Lidia Thorpe to negotiate with the Government over the Voice referendum, identifying 3 key issues:

On 26 January 2023, Invasion Day rallies were held across Australia. Senator Thorpe spoke at the Melbourne/Naarm rally, arguing that a treaty recognising Indigenous sovereignty should come before any vote on a Voice.

On 5 February 2023, Senator Thorpe announced she was moving to the Senate crossbench to lead the Blak Sovereign Movement:

Greens MPs, members and supporters have told me they want to support the Voice. This is at odds with the community of activists who are saying Treaty before Voice, this is the message delivered on the streets on Jan 26. This is the movement I was raised in – my Elders marched for Treaty. This is who I am.

I am not announcing my final position on the Voice today, I want to continue my negotiations with the government. First Nations Sovereignty is crucial but so is saving lives today. They could do that by implementing the recommendations from the Royal Commission into Aboriginal Deaths in Custody and the recommendations from the Bringing Them Home report.

A day later, the Leader of the Greens announced that ‘the Federal Greens Party Room resolved to support legislation to enable a referendum for a Voice to Parliament and to campaign for a Yes vote in the Referendum, pending sighting of the final Bill.’

The Greens also continue to advocate for support to implement the other 2 elements of the Uluru Statement from the Heart: Treaty and Truth-telling. The current Greens Indigenous Australians spokesperson, Senator Dorinda Cox is on record as supporting all three elements of the Uluru Statement, and has stated that ‘There is no pathway to Truth and Treaty if we have a No vote to Voice.’

At the time of writing, The Greens have not commented specifically on the current Bill.

Independents and other non-government parties

In response to the current Bill, Senator Lidia Thorpe issued a media release stating:

The PM and this group talk about showing respect to First Nations people while their campaign continues to disrespect the voices that have rejected constitutional recognition and have called for self-determination and Treaty for generations.

It might sound lovely and may make people feel good, but this proposed Voice goes against the governance structures that have existed in our communities since time immemorial. It moves our Elders further away from decision-making roles which goes against our cultural protocols.

One Nation issued a media statement stating ‘One Nation to lead NO case on voice’ on 5 August 2022:

Senator Pauline Hanson said the 'voice' would be a step backwards for the Constitution and risked forever dividing the Australian people on race.

"There is nothing in this proposal which addresses real indigenous disadvantage," Senator Hanson said. "There is nothing in this proposal that will end the violence, poverty and failure of service delivery in Aboriginal and Torres Strait Islander communities. There is nothing in this proposal that is remotely unifying.

"I'm confident all of us want indigenous people to be empowered to seize the many opportunities which co me with living, learning and working in Australia. I'm equally confident many Australians will resist giving a minority of people more political power than the majority based on race.

One Nation has not commented on the current Bill.

Senator Jacquie Lambie of the Jacquie Lambie Network has not spoken extensively on the Voice. On 1 May 2023, ABC News Online quoted her as saying:

I support the principles of the Voice, but I want more detail. I want to know what a Voice to Parliament will do to close the gap. Right now we're being told a lot of words, but not a lot about the substance behind it and how it might actually work.

Senator David Pocock expressed his support for the Uluru Statement during the 2022 election campaign and called it ‘a generous offer’ in his First Speech. In late March he arranged an information session at the Canberra Theatre for over 1,000 attendees with 2 of the Uluru Statement’s key proponents, Pat Anderson and Megan Davis. He has expressed disappointment at the ‘politics being played with this by the Leader of the Opposition.’

As noted earlier, Independent Andrew Gee MP resigned from the National Party in December last year, stating ‘The recent decision by the National Party to oppose the Indigenous voice to parliament – and also witnessing the devastation our region has experienced over the past few weeks – has really brought home to me the importance of being able to stand up and be counted.’

On 17 February 2023, Katter’s Australian Party (KAP) leader, Robbie Katter, announced that its MPs will not support the Indigenous Voice to Parliament, labelling it as ‘separatist, tokenist and paternalist.’ KAP has not commented on the current Bill.

United Australia Party Senator Ralph Babet, also opposed to the Voice, has also made no comment on the current Bill.

Independent MPs Kate Chaney, Zoe Daniel, Helen Haines, Monique Ryan, Sophie Scamps, Allegra Spender, Zali Steggall, Kylea Tink and Andrew Wilkie have all expressed support for a Voice to be enshrined in the Constitution. Many are planning education campaigns within their electorates. None have issued a statement about the current Bill.

ABC News Online has also published a summary of the views of all 11 current Aboriginal and Torres Strait Islander parliamentarians on the Voice.

Parliamentary Friends of the Uluru Statement

Parliamentary Friends of the Uluru Statement (Co-Chairs are MPs Bridget Archer, Gordon Reid and Allegra Spender) have stated an intention to:

… provide a non-partisan forum for parliamentarians to meet and interact with relevant stakeholder groups on matters relating to The Uluru Statement from the Heart.

Position of major interest groups

There are a broad range of views on whether a Voice should be enshrined in the Constitution. Many of those supporting a constitutionally enshrined Voice have not expressed views on the proposed wording of the constitutional alteration as set out in the current Bill.

A brief summary of key interest groups and individuals aligned with the ‘Yes’ and ‘No’ campaigns is set out below, as well as information on those who have commented on the proposed wording.

Support for a constitutionally enshrined Voice

Existing Aboriginal and Torres Strait Islander representative bodies

A number of government-recognised Aboriginal and Torres Strait Islander representative or quasi-representative[6] bodies currently exist at state/territory/regional level, or (in the case of the Coalition of Peaks) organised informally along functional lines at the national level. Many of these bodies have issued statements in support of the proposed Voice to Parliament, including as outlined in the table below.

Table 1      Statements by Aboriginal and Torres Strait Islander representative bodies in support of a Voice to Parliament
Representative Body Statement (link)
Aboriginal and Torres Strait Islander Elected Body (ATSIEB) (ACT) ATSIEB supports the First Nations Voice to Parliament (23 March 2023)
NSW Aboriginal Land Council (NSWALC) Week of Action for the Voice referendum (20 February 2023)
NSWALC believes the Voice to Parliament will help ensure the voices of Aboriginal people are heard loud and clear. We support a Constitutionally enshrined First Nations Voice to Parliament and a Makarrata (truth-telling) Commission as the best step forward for this country.
The Voice was also conditionally supported by the NSWALC in a submission to the Joint Select Committee.
First Peoples Assembly of Victoria (FPAV) and Federation of Victorian Traditional Owner Corporations (FVTOC) (Vic) Victoria’s Treaty Assembly backs national Voice to Parliament (17 March 2023) The Voice was also supported by the FVTOC in a submission to the Joint Select Committee.
Northern Territory Land Councils: Northern Land Council, Central Land Council, Tiwi Land Council and Anindilyakwa Land Council.
See also the Central Land Council submission and Northern Land Council submission to the Joint Select Committee. 		Historic meeting of NT Land Councils held on Gurindji country (26 August 2022)
The combined Executives passed a resolution supporting implementation of the Uluṟu Statement from the Heart in full and changing the Australian Constitution to enshrine a Voice to Parliament within this term of Government.
Torres Strait Regional Authority (TSRA) (Qld)[7] Indigenous Voice report supports Torres Strait representation from the region and mainland Australia (24 December 2021)
Queensland Land Councils (NTRBs): Cape York Land Council, North Queensland Land Council Resolutions of the Pama Futures 2018 Summit What Aboriginal land councils want out of Anthony Albanese's Labor government (3 June 2022):
North Queensland Land Council chairman Richard Hoolihan said…"We also look forward to Prime Minister Albanese's promise to follow through with his commitment of an Indigenous voice to parliament and the recognition of First Nations people within Australia's constitution"
WA Land Councils (NTRBs): Kimberley Land Council (KLC); South West Aboriginal Land and Sea Council (SWALSC); Yamatji Marlpa Aboriginal Corporation (YMAC) KLC Welcomes Next Steps Towards Voice Referendum (23 March 2023)
Uluru Statement from the Heart (nd)(YMAC)
26th of January: Not a date to celebrate (26 January 2022) (SWALSC):
We cannot move forward without a voice to parliament that gives Aboriginal people an ongoing role in addressing the disadvantage and suffering that continues today as a result of this history.
Coalition of Peaks A Voice to Parliament (n.d.):
A Constitutionally enshrined Voice won’t negate the work governments are required to do under the National Agreement [on Closing the Gap]. Neither will the Voice change the necessary role of community-controlled peak bodies and organisations to deliver services and supports for our people, and to advocate for Aboriginal and Torres Strait Islander people in the areas we have expertise. Alongside the National Agreement and the partnership between governments and the Coalition of Peaks, the Voice, Truth Telling, and Treaty will provide our nation with the complete roadmap to improve the life outcomes of our people.

National Cabinet Statement of Intent on a Voice to Parliament

On 3 February 2023, all members of National Cabinet (State Premiers, Territory Chief Ministers, and the Prime Minister) signed a Statement of Intent, committing to ‘working collaboratively to support a constitutionally enshrined Voice to Parliament’ reaffirming a commitment made at the June 2022 National Cabinet meeting.

Australia’s Race Discrimination Commissioner, Mr Chin Tan

In an April 2023 opinion piece, the Race Discrimination Commissioner, Mr Chin Tan, stated that ‘Equality does not mean everyone should be treated exactly the same. It has always been true that... marginalised or disadvantaged groups sometimes require unique representation.’ He goes on to say [emphasis added]:

This is particularly so with indigenous peoples, which is why the United Nations Declaration on the Rights of Indigenous Peoples bestows unique rights to the original inhabitants of countries that have been colonised.

The rights of Indigenous people – which Australia has long acknowledged in both domestic and international law – include the right to self-determination, to create representative structures and to self-govern, to participate in decisions that affect them, and to be free from any form of discrimination. The voice proposal is not just an outcome in itself but a tool for realising these rights and one that we all hope will help create better outcomes for First Nations people.

The policies and approaches of successive Australian governments towards Aboriginal and Torres Strait Islander peoples have too often been developed and applied without the input and agreement of First Nations. This has resulted in significant structural and systemic harm. Mechanisms to promote independence, representation, empowerment, accountability and transparency are a critical step towards addressing this harm.

Law Council of Australia

The Law Council of Australia (LCA) issued a media statement on 23 March 2023 stating that the Law Council ‘unwaveringly supports Constitutional recognition of First Nations peoples.’ On 21 April 2023, the LCA made a submission to the Joint Select Committee arguing that the proposed amendment is appropriate, just, legally sound, and is a means to give effect to the right to self‑determination. The LCA argues that the scope and level of detail of the constitutional amendment is appropriate, and does not conflict with international human rights obligations.

Federation of Ethnic Communities’ Councils of Australia & Multicultural Australia

The Federation of Ethnic Communities’ Councils of Australia (FECCA) and Multicultural Australia have published a Joint Resolution of Multicultural Community Organisations in support of a First Nations Voice stating:

As leaders of diverse multicultural community organisations, we endorse the Uluru Statement and its call for a First Nations voice guaranteed by the Constitution. This reform is modest, practical and fair.

We call on our political representatives to lead this referendum in the spirit of bipartisan and broad cooperation… Let us co-operate across differences of politics and diversities of culture and faith, to heal our country and unify the nation.

FECCA has also made a submission to the Joint Select Committee expressing support for the constitutional amendment.

Religious and faith leaders

On 22 February 2023, leaders of Australia’s major religious faiths issued a joint statement of support for the Uluru Statement from the Heart and ‘the modest constitutional recognition First Nations people seek: a constitutionally guaranteed Voice in their own affairs.’ Many church groups have also submitted statements of support to the Joint Select Committee. A number of religious leaders and thinkers also collaborated to issue Statements from the Soul: The Moral Case for the Uluru Statement from the Heart in 2023.

The Uluru Dialogue

The Uluru Dialogue (Co-Chairs Megan Davis and Pat Anderson) fully supports the wording in the current Bill.

Uphold and Recognise

Uphold and Recognise was founded by Julian Leeser (MP for Berowra, former Shadow Minister for Indigenous Australians) and Damien Freeman in 2015, as a conservative/liberal organisation ‘committed to both upholding the Australian Constitution and the substantive recognition of Indigenous Australians’. It has supported the concept of the Voice both before and after the Uluru Statement from the Heart and presented a number of options for constitutional amendments in several publications and statements.

As outlined in its submission to the Joint Select Committee, its members (including former Minister for Indigenous Australians Ken Wyatt) generally support the Voice and its constitutional entrenchment. However, some members, including constitutional lawyer Greg Craven, have expressed concerns about the wording of some parts of the current Bill (discussed further in the ‘Key issues and provisions’ section).

Australians for Indigenous Constitutional Recognition and Yes 23

Australians for Indigenous Constitutional Recognition (AICR) and their Yes23 campaign issued a media statement on 6 April 2023 advising of the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum and encouraging people to ‘share their support for constitutional change with the committee’:

We encourage our supporters to voice their support for the current wording, and provide their own insights about how the proposal for constitutional recognition through a Voice to Parliament was developed by Aboriginal and Torres Strait Islander people, and why it is so important.

Their submission to the Joint Select Committee states their support for the current Bill.

Opinion polls

Aboriginal and Torres Strait Islander People

Opinion polls of Aboriginal and Torres Strait Islander people over several years and recently have demonstrated extremely high (80–90%) levels of support for a constitutionally enshrined representative body.

Australian Public

Public opinion polls have consistently shown majority support for the Voice, although this support appears to have declined recently as clear political divisions emerged between the major parties.

Against a constitutionally enshrined Voice

Recognise a Better Way

Recognise a Better Way committee members include Mr Nyunggai Warren Mundine and former Ministers John Anderson AC and Dr Gary Johns.

On 31 March 2023, Senator Pauline Hanson and Barnaby Joyce MP were part of a panel at a town hall forum in Tamworth to launch the Recognise a Better Way Voice to Parliament 'No' campaign. Warren Mundine has been interviewed and written extensively on the Voice. In his submission to the Joint Select Committee he states:

The Parliament should reject any Constitutional amendments that will entrench Aboriginal and Torres Strait Islander people as one race of people and who can be spoken for by one uniform Voice to the exclusion of the first nations of this continent.

Fair Australia

Fair Australia, led by Senator Jacinta Nampijinpa Price, considers the Voice to be ‘divisive, dangerous, expensive and not fair.’ It has not made a specific statement about the current Bill.

At the time of writing, it had been reported that Recognise a Better Way and Fair Australia had agreed to merge their campaigns under a new name, Australians for Unity.

Aboriginal Land Council of Tasmania

The Aboriginal Land Council of Tasmania issued a media release in July 2022 suggesting that the Voice to Parliament is ‘patronising, marginalising and a racist double standard’:

The idea of a Voice to Parliament is one idea about how indigenous peoples can get greatest access to power, but of all the options the advisory body is the weakest, most intellectually shallow and conservative. Aborigines are looking to become decision makers, not advisers. To limit Aboriginal empowerment within Australian democracy to advice only is belittling, patronising and a racist double standard. To go further by installing a restricted right only for Aborigines in the constitution permanently marginalises us.

The Prime Minister said he was committed to the Uluru statement in full, including treaty. A component of treaty is empowerment. A constitutionally entrenched advisory role for Aborigines would kill off any hopes of a treaty giving serious and equal access to power. Designated seats in Parliament would be ruled out as inconsistent with a constitutional role limited to advice.

Blak Sovereign Movement

Public figures representing the Blak Sovereign Movement, sometimes called ‘the progressive no’, include Senator Lidia Thorpe, Aboriginal historian and rights campaigner Gary Foley, and pakana lawyer and activist Michael Mansell.

While Senator Thorpe has not confirmed whether or how she will campaign in the upcoming Voice referendum, various Aboriginal and Torres Strait Islander people have publicly expressed concern about the recognition of Aboriginal and Torres Strait Islander peoples in the Constitution, including the enshrinement of a Voice, due to concerns that this would undermine First Nations claims to sovereignty. Michael Mansell’s article, ‘Depending on Your Reasons, It’s Okay to Oppose the Voice’, sets out the arguments in some detail, as does the submission to the Joint Select Committee from the organisation Treaty before Voice. Issues surrounding sovereignty are discussed later in this Digest (under the ‘Issue – Sovereignty’ heading).

Indigenous and minority representation mechanisms in other countries

Constitutional or legal mechanisms ensuring representation of Indigenous people or other national, ethnic or religious minorities above and beyond the electoral franchise, or of Indigenous or customary rights, are fairly common worldwide. They can be found in OECD countries and developing countries, in free and unfree states, and in many other Commonwealth countries.

A survey by the Parliamentary Library has identified 44 states or state-like entities[8] which have some mechanism for special representation of such minorities in their parliaments. These include reserved seats (such as the 7 Māori reserved seats in New Zealand’s Parliament), providing seats for regions in which minority peoples are the majority in excess of the region’s population share (such as through the Canadian creation of Nunavut territory, or seats in the Danish Parliament representing Greenland), candidate quotas for parties (such as the GRC system used in Singapore), or lowering or exemption from minimum vote quotas for parties representing minorities in multi-member electoral systems (common in Europe).

A number of other countries have constitutionally or legally recognised representative bodies outside their parliaments which may be similar to the Voice. Many of these have a formal advisory or review function, particularly when laws relating to Indigenous peoples or customary practices (especially customary land) are concerned. A non-exhaustive list of such bodies includes the Sámi Parliaments of Finland, Norway, and Sweden, the Customary Senate of New Caledonia, the New Zealand Māori Council, the Malvatumauri Council of Chiefs in Vanuatu, the National House of Traditional Leaders of South Africa, the Senate of Lesotho, the Council of Traditional Leaders of Namibia, the House of Chiefs in Zambia, and the Ntlo ya Dikgosi (House of Chiefs) in Botswana.

The United States (US) Congress is currently debating the proposed seating of a non-voting representative of the Cherokee Nation in Congress, with powers similar to the other six non-voting representatives (who represent offshore US territories, such as American Samoa, and the District of Columbia). A Cherokee representative was promised in the 1835 Treaty of New Echota, but this treaty obligation has never been fulfilled, nor had the Cherokee formally nominated a representative until 2019.

Financial implications

Referendum Costs

Since the 2016 Pre-election economic and fiscal outlook statement, $160 million has been included in the Contingency Reserve for the cost of an Indigenous Recognition referendum (pp. 20, 36–37). However, the Parliamentary Budget Office estimated in 2021–22 that, due to inflation since 2016, the (2021) cost of a referendum would be $188 million. This increased cost may be covered by the Contingency Reserve’s Conservative Bias Allowance.

In the October 2022–23 Budget, the Government included a measure: ‘Delivery of a First Nations Voice to Parliament Referendum – preparatory work’ (October 2022–23 Budget measures: budget paper no. 2, p. 107) providing $75.1 million over two years from 2022–23, of which $65.3 million is in 2022–23. This includes measures to boost First Nations voter enrolment generally, beyond referendum-related costs. For a detailed breakdown, see the Parliamentary Library budget review 2022–23 article ‘Responding to the Uluru Statement from the Heart’. The Explanatory Memorandum lists two components of this budget measure as specifically relevant to the current Bill:

  • $50.2 million to the AEC for operational preparations
  • $8.9 million to the National Indigenous Australians Agency (NIAA), the Department of Finance and the Attorney-General’s Department ‘to support the work necessary to deliver the referendum’.

The Explanatory Memorandum states that ‘Additional funds for the operation of the referendum have not yet been announced at the time of the introduction of this Bill into the Parliament.’(p. 6) Additional funding was announced in the 2023–24 Budget: $364.6 million over 3 years from 2022–23 under the measure ‘Delivering the Referendum to Recognise Aboriginal and Torres Strait Islander Peoples in the Constitution through a Voice to Parliament’ (2023–24 Budget measures: budget paper no. 2, p. 85). The measure’s components are:

  • $336.6 million for the AEC to deliver the referendum, including $10.6 million to produce information pamphlets for the ‘yes’ and ‘no’ cases for distribution to all Australian households
  • $12.0 million for the NIAA and the Museum of Australian Democracy for neutral public civics education and awareness activities
  • $10.5 million for the Department of Health and Aged Care to increase mental health supports for First Nations people during the period of the referendum
  • $5.5 million in 2023–24 to the NIAA for consultation, policy and delivery.

In addition, $20 million of the previous government’s May 2022 budget measure to implement local and regional Voices is extended until 30 June 2025.

The 2023–24 Budget measure is partially funded by the $160 million provisioned in the 2016–17 Budget (discussed above). $31.5 million in new money is committed in the 2023-24 financial year.

Ongoing cost of a representative body

As the design of the proposed Aboriginal and Torres Strait Islander Voice to Parliament has not been finalised, it is not possible to say how much it would cost. The Explanatory Memorandum states only that ‘Implementation of the Voice would have a financial impact’. However, some indication of likely costs may be gained from the originally intended government contribution to the budget of the former National Congress of Australia’s First Peoples (NCAFP), which was intended to be an elected representative body with a similar independent, advisory, non‑program‑delivery role as the proposed Voice.

In 2010–11, the Rudd Government budgeted $29.2 million over 5 years for the NCAFP’s establishment and ongoing costs (2010–11 Budget measures: budget paper no. 2, p. 179), or an average of $5.84 million per year. In 2022 dollars, adjusted for inflation using CPI deflator, this would be $7.7 million per year. It should be noted that as the NCAFP was a non-government body, it may have had additional costs which would not necessarily be borne upfront by a statutory body, such as rental of office space.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[9] The Government also notes that the Bill is compatible with the principles expressed in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Parliamentary Joint Committee on Human Rights

On 9 May 2023, the Parliamentary Joint Committee on Human Rights tabled its report commenting on the Bill.[10] The Committee considered that the Bill engages and promotes the rights to participate in public affairs, self-determination and equality and non-discrimination. By facilitating a referendum on the proposed constitutional amendment, the Committee considered that the Bill ‘promotes the right of all citizens to take part in public affairs’ (p. 8).

If the referendum were to be successful in amending the Constitution, the Committee considered that this would also promote:

  • the rights of Aboriginal and Torres Strait Islander peoples to participate in public affairs
  • the right to self-determination, particularly the obligation to consult with Indigenous peoples in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them and
  • the right to equality and non-discrimination.

Notably, the Committee did not consider that the Bill would facilitate a (race-based) special measure under international human rights law.[11] Rather, the Committee found that the Bill is designed to ‘promote the permanent rights of Aboriginal and Torres Strait Islander peoples as recognised in the international treaties’. The Committee concluded that the Bill aims to achieve the ‘legitimate objective of realising Aboriginal and Torres Strait Islander peoples' right to self-determination and would not negatively affect the ability of others to enjoy or exercise their rights or freedoms’ (p. 9).

Key issues and provisions

The Question

The long title of the Bill is ‘A Bill for an Act to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice’. By convention, and the forms prescribed in Schedule 1 of the Referendum (Machinery Provisions) Act 1984, the title of the Bill in effect becomes the question printed on the referendum ballot paper, with voters asked to write ‘YES’ or ‘NO’ to indicate if they approve that proposed alteration. The Government has accordingly stated that the intended question to be put will be:

A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.

Do you approve this proposed alteration?

Text of the proposed alteration of the Constitution

Schedule 1 of the Bill sets out the text of the proposed alteration to the Constitution. Item 2 inserts a new chapter heading and proposed section 129 that would be inserted into the Constitution. The text reads:

Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples

129 Aboriginal and Torres Strait Islander Voice

In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

  1. there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
  2. the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
  3. the Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.

Proposed section 129 has four key features. It:

  • recognises Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia
  • establishes constitutional authority for the existence of a body, known as the Aboriginal and Torres Strait Islander Voice (the Voice)
  • provides that the Voice may make representations to both the Parliament and the Executive on matters relating to Aboriginal and Torres Strait Islander peoples and
  • provides that Parliament may legislate on matters relating to the voice.

In his announcement on 23 March 2023, the Prime Minister said that the text was arrived at following consultation with the community, the First Nations Referendum Working Group and its Constitutional Expert Group.

As noted above, the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum reported on 12 May 2023 and the Government has stated that it will consider changes to the wording of the Bill. ABC News reported that the Minister for Indigenous Australians, Linda Burney, ‘said her door remained open to anyone with suggestions for amending the wording as part of the six-week committee process.’

The introductory words

The introductory words of the proposed section explain that proposed section 129 is in recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia. Constitutional recognition has had a long history of debate and discussion in Australia, as discussed in the background section of this Digest and a recent Parliamentary Library Briefing Paper entitled Indigenous constitutional recognition and representation. Constitutional recognition was previously put to the voters at the failed 1999 referendum, with a form of recognition included in the text of the proposed preamble, set out in the Constitution Alteration (Preamble) 1999.

The possible legal impact of this phrase will be, as always in constitutional interpretation, up to the High Court to decide if necessary. However, on its face it appears to be no more than a statement of historical fact which the High Court has itself affirmed, most famously in its decision rejecting the applicability of the doctrine of terra nullius in the Mabo case in 1992.

The former Shadow Attorney-General and former Shadow Minister for Indigenous Australians, Julian Leeser, at his National Press Club Address of 3 April 2023, raised concerns about the inclusion of the statement of recognition in the introductory words, and suggested that their presence may alter the interpretation of the remaining subsections of the provision. Mr Leeser stated:

… the issue with it [the chapeau] is that it can frame the interpretation of the provision that sits underneath it, or in this context, can be called in aid in relation to the interpretation of other provisions in the Constitution, and that raises questions.

For instance, as I’ve said, the Government proposes to confer constitutional function of making representations to the Parliament and the Executive. But by putting that provision under the chapeau, it would be implying that representations can only be made, if in some way, they are in recognition of Aboriginal and Torres Strait Islander peoples as First Peoples of Australia. In other words, in simple terms, what rights, privileges, and obligations are implied by being recognised as First Peoples and what does that term imply at all?

Mr Leeser also stated that, in the absence of a Constitutional Convention having discussed the text, the courts will lack material to assist in properly interpreting the provision. The Explanatory Memorandum for the Bill would be relevant in interpreting the provisions if necessary and does contain some discussion of the provisions and their intent. Regarding the introductory words, the Explanatory Memorandum states:

This introductory text explains that enacting s 129 formally acknowledges Aboriginal and Torres Strait Islander peoples as Australia’s First Peoples in the Constitution.[12]

Regarding the scope of representations that could be made, the Explanatory Memorandum further states:

The purpose of this function is to ensure that Aboriginal and Torres Strait Islander peoples, through the Voice, can provide advice to the Parliament and the Executive Government on matters relating to them.

…

While the Voice would be able to make representations on a broad range of matters, it would be both impractical and unrealistic to require or expect the Voice to make representations about all matters relating to Aboriginal and Torres Strait Islander peoples.[13]

Statements of recognition of different formulations have also been included in the preambles of the state Constitutions of Queensland, Western Australia and Tasmania and in the bodies of the Constitutions of South Australia, Victoria and New South Wales.

The Voice

Proposed subsection 129(i) provides simply that there will be a Voice body, and that its official title will be ‘the Aboriginal and Torres Strait Islander Voice’.

As mentioned in the Background section of this Digest, since 1998, national Indigenous representative bodies have twice been abolished or defunded in favour of non-representative bodies. In 2005, ATSIC was abolished and replaced by a National Indigenous Council (NIC) picked by then Prime Minister John Howard. In 2014, the National Congress of Australia’s First Peoples (NCAFP) was defunded (and eventually closed down) in favour of the Prime Minister’s Indigenous Advisory Council (PMIAC) picked by Tony Abbott,[14] itself then somewhat sidelined by Mr Abbott’s appointment as Special Envoy for Indigenous Affairs. Other special-purpose Indigenous bodies have had members chosen by the minister added to their composition, or had ministerial vetos placed over their selection of CEO.

Attorney-General Mark Dreyfus acknowledged this in his second reading speech in March 2023:

For decades there have been calls for an enduring representative body... However, votes in this parliament or the stroke of a minister's pen have seen previous bodies abolished or defunded, and there is currently no independent, nationally representative body with the purpose of providing informed advice to the parliament and the executive government of the Commonwealth.

The proposed constitutional alteration therefore aims to ‘enshrine’ the Voice in the Constitution. However, concerns have been expressed that details, such as the composition and selection process, will be left to future parliaments and there are no guarantees that the Voice will be appropriately representative.[15] These concerns are discussed further in the ‘Issue – level of detail’ section below.

The ability to make representations

Proposed subsection 129(ii) provides that the Voice may make representations to both the Parliament and the Executive Government of the Commonwealth on ‘matters relating to Aboriginal and Torres Strait Islander peoples’. The term ‘may’ ensures that no obligation is placed on the Voice to make representations, nor is there any textual requirement or obligation placed on the Parliament or Executive Government relating to the representations.

The Explanatory Memorandum, at pages 11 and 12, states that this provision does not impose any obligations or requirements on Parliament or the Executive, and that any obligations on the Executive will be a matter for Parliament to decide and legislate on. The Explanatory Memorandum also provides some examples of the matters on which the representations may be made by the Voice. Representations to the Parliament could include:

… making representations about existing or proposed laws, as well as representations in relation to the Parliament’s other functions, such as parliamentary committee inquiries, on matters relating to Aboriginal and Torres Strait Islander peoples.[16]

Representations to the Executive Government could include:

… representations about any matter within the executive power of the Commonwealth, such as law reform, policy development, decisions made under specific legislation, and other matters of government administration, provided they relate to Aboriginal or Torres Strait Islander peoples.[17]

The Explanatory Memorandum also provides examples of what could be included in the scope of ‘matters relating to Aboriginal and Torres Strait Islander Peoples’:

  1. matters specific to Aboriginal and Torres Strait Islander peoples; and
  2. matters relevant to the Australian community, including general laws or measures, but which affect Aboriginal and Torres Strait Islander peoples differently to other members of the Australian community.[18]

Potential issues raised by the inclusion of the ability to make representations, in particular to the ‘Executive Government’, are discussed below.

Legislative powers of Parliament

Proposed subsection 129(iii) would become the constitutional basis for Parliament making a subsequent law or laws that will set out the details of the Voice as a body and how it operates and interacts with the Parliament and Executive Government. The formulation of the provision provides Parliament with a wide scope of legislative control over ‘matters relating to’ the Voice, and this is not limited by or to the matters listed as being included in that scope, that is ‘its composition, functions, powers and procedures.’

In the opinion of the Solicitor-General, dated 19 April 2023, Stephen Donaghue explained his interpretation of the broad scope of powers provided to Parliament under the subsection:

The Parliament’s power under proposed s 129(iii) to make laws “with respect to matters relating to the … Voice” will be construed with “all the generality which the words used admit”. It plainly empowers the Parliament to make laws with respect to the four topics mentioned after the word “including”, being the “composition, functions, powers and procedures” of the Voice. However, unlike the Garma draft, the power conferred by proposed s 129(iii) extends well beyond those four topics. The double use of wide connecting language – to enact any law with respect to matters relating to the Voice – textually produces a legislative power of great width, because the subject-matter of the power is not “the Voice”, but the wider “matters relating to the Voice”. The result is that the Parliament may enact any law that has more than an insubstantial, tenuous or distant connection either to the Voice itself or to any subject relating to the Voice.[19]

There is some debate as to exactly how well this legislative power will ensure that Parliament is able to prescribe the operation and impact of the Voice, avoid any unintended issues, and remove or reduce the risk of constitutional challenges. However, the majority of expert commentators appear to be satisfied that Parliament will have sufficient power. The statements of various legal experts are further discussed below as relevant.

Issue – Level of detail

There have been criticisms regarding the lack of detail in the constitution alteration, as it relates to the Voice and its powers and operations. These criticisms appear to be calling for the full details and controls to be decided and published before the referendum. In particular, in January 2023, the Leader of the Opposition, Peter Dutton wrote to the Prime Minister and called for the Voice model legislation to be introduced ahead of the referendum:

Many Australians do not understand the scope and operation of the voice and expect comprehensive information before being asked to vote…I believe you are making a catastrophic mistake in not providing accessible, clear and complete information regarding your government’s version of the Voice, condemning it to failure and, in turn, damaging reconciliation efforts in our country. Your approach will ensure a dangerous and divisive debate grounded in hearsay and misinformation.[20]

Others have expressed concern that the details of the selection process and composition will be left to a future parliament and that the proposed amendment contains no clauses requiring that the members of the Voice be chosen, directly or indirectly, by Aboriginal and Torres Strait Islander peoples.[21] There is also no express guarantee of its members’ freedom of speech or independence from the government, nor an explicit constitutional requirement that the Voice’s members be Aboriginal or Torres Strait Islander people. This has contributed to opponents of the Voice claiming that the body could be ‘a small, hand-picked committee’, and significant Indigenous representative organisations qualifying their support for the proposed amendment.

As explained by the experts in the extracts below, broadly speaking the Constitution provides a framework for the lawmaking powers of Parliament and the organisation of the branches of government of the Commonwealth. Where needed, the Constitution provides for Parliament to establish (or amend) the details within that framework through legislation. Referendums solely decide the success or failure of proposed alterations of the Constitution, and the legislation that may be passed under the Constitution is then determined according to our usual parliamentary and democratic processes.

Professor Anne Twomey, member of the Constitutional Expert Group, disagrees with calls to release details ahead of the referendum and has explained why such details should be left for Parliament to decide and to change if needed:

"If you start putting out a detail with the bill, et cetera, people will think that that's what they're voting on in the referendum."…

"The voting in the referendum is on the words and the change that you put into the constitution," Professor Twomey said…

"We don't want things frozen into the constitution that might be hard to change in the future. We want to have flexibility," she said.[22]

Robert French (former Chief Justice of the High Court) and Kenneth Hayne (former Justice of the High Court) have also been reported as supporting the proposed approach, believing that it is more appropriate for details to be enacted through legislation after the referendum:

Ex-chief justice Robert French and his former colleague Kenneth Hayne, who are proponents of the constitutional change, defended the government’s decision to keep the voice details “vague”, saying Australians should refrain from “anticipating things that have not yet happened” and instead trust the elected government…

Mr Hayne, who served from 1997 to 2015, dismissed Peter Dutton’s calls for greater detail than the design principles, saying “constitutions are places for principle, not places for machinery”.

“There are many forms of law which parliament might like, which you or I, or all of us might say, ‘No, that’s not a very good law, or that’s a very bad law,” he said. “The notion that you test things according to extreme or distorting examples is something that is simply not to be countenanced.”[23]

Any further details regarding the laws ‘relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures’ will be contained in future legislation to be introduced if the Referendum succeeds. These details will be discussed further once the relevant Bill or draft legislation is available. Nevertheless, at the time of announcing the text of the present Bill, the Prime Minister also announced principles ‘that will underpin the shape and function of the Voice’ if the Referendum is successful. These principles were developed by the Referendum Working Group and adopted by Cabinet:

Firstly, the Voice will give independent advice to the Parliament and Government. It will be able to make proactive representations – as well as respond to requests. And the Parliament and Executive Government should seek written advice from the Voice early in the development of proposed laws and policies. The Voice will be chosen by Aboriginal and Torres Strait Islander people, based on the wishes of local communities – not appointed by the government. Members will serve for a fixed period of time to ensure accountability. It will be representative of Aboriginal and Torres Strait Islander communities, with a gender-balance and include youth. Members will come from every state and territory, the Torres Strait Islands and specific remote representatives. It will be accountable and it will be transparent, subject to the standard governance and reporting requirements. The Voice will work alongside existing organisations and traditional structures, respecting their work. And, as has been made clear very many times, the Voice will not have a veto power, and it will not deliver programs or manage funding.[24]

One other aspect of the wide legislative powers that proposed subsection 129(iii) would provide to Parliament is that a future Parliament would be able to pass laws altering the Voice, including its composition, functions, powers and procedures. In so doing a future Parliament could choose to improve, enlarge, reduce or restrict it, within the scope of proposed section 129.

Issue – Risk of High Court challenges due to the inclusion of ‘the Executive’ and a possible obligation to consult

As discussed in further detail below, there have been some concerns expressed that the Voice may be held to impose a requirement or obligation on the Government to consult before legislating or making decisions in areas relating to Aboriginal and Torres Strait Islander peoples. It has been suggested this could become a ground for challenging laws or decisions where the consultation is argued to be unsatisfactory.

In this context, the inclusion of the reference to the Voice being able to make representations to ‘the Executive Government’, as well as the Parliament, has been of particular concern for some. This is because, while the courts will not consider ruling on the internal deliberations of the Parliament,[25] they routinely make rulings on executive decision making. As such, the inclusion of that arm of Government in the provision has raised some concerns over the likelihood of increased litigation or delays on decision making.

Meaning of ‘Executive Government’

While there may be some room for argument on the intended scope of the term ‘the Executive Government of the Commonwealth’, the Explanatory Memorandum states (p. 12) that the term ‘has the same meaning as elsewhere in the Constitution’. Chapter II of the Constitution deals with the Executive Government, and provides for the Governor General, the Executive Council, Ministers of State, departments of State and civil servants.

Father Frank Brennan has recommended that the words ‘Executive Government’ be replaced with ‘Ministers of State’ to resolve the problems suggested by other commentators and improve the chances of a successful referendum.[26] However, others disagreed with this approach on the grounds that it would lead to legal challenges and limit practical outcomes, as discussed in Chapter 3 (pp. 20–22) of the majority report of the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum.

Consultation with the Executive Government

It must be noted that all levels of the Executive Government routinely consult with the public and stakeholders when developing policy and legislation, and when making decisions.

As the Solicitor-General noted in his advice on the proposed alteration, our system of representative and responsible government established under the Constitution requires our representatives to be accountable to the people, and our executive to be responsible to the legislature and, through it, the people.[27] The Solicitor-General further noted that ‘in my opinion proposed s 129 is not just compatible with the system of representative and responsible government prescribed by the Constitution, but an enhancement of that system.’[28]

Many representations are made by organised stakeholder representative bodies, others by consultative bodies that are established by legislation. Often the input of stakeholders is sought by government, and at other times unsolicited input is received. In many instances, the consultation process is established by legislation or regulation, and consultation may be mandatory, voluntary, required to be considered in making a decision or simply required to be conducted.[29]

Consultation with people who may be affected by decision making, policy or legislation is not just usual: it is best practice. For example, the Office of Impact Analysis in the Department of the Prime Minister and Cabinet provides guidance for Commonwealth Government policy development and decision making and requires consultation on costs and benefits as part of the impact analysis process for new proposals. The Best Practice Consultation guidance note states:

Policy makers should consult in a genuine and timely way with affected businesses, community organisations and individuals, as well as other policy makers to avoid creating cumulative or overlapping regulatory burdens. This is one of the principles for Australian Government policy makers in the Australian Government Guide to Regulatory Impact Analysis (the Guide).

The principle of procedural fairness in decision making is a common law duty to allow a person who may be affected by a decision to be heard. It is considered to promote sound decision making for several reasons:

A failure to give a person affected by a decision the right to be heard and to comment on adverse material creates a risk that not all relevant evidence will be before the decision-maker, who may thereby be led into factual or other error. Apparent or apprehended bias is likely to detract from the legitimacy of a decision and so undermine confidence in the administration of the relevant power.[30]

The Australian Law Reform Commission, in its Report on Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, explored the issues further, noting that ‘(a) person may seek judicial review of an administrative decision on the basis that procedural fairness has not been observed’ and that ‘the High Court succinctly stated that, in “the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions.”’ (p. 394)

Consultation, procedural fairness, and the ability of people to seek judicial review of executive decisions are not unusual features. They are important aspects of our constitutional systems of governance and law. As explained by the Law Council of Australia in its submission to the Voice Referendum Committee:

There is a further and more fundamental point. The role of the courts in declaring and enforcing the legal limits to the exercise of Executive power is not to be feared. Judicial review of administrative action is the application of the rule of law. The possibility of a challenge to Executive decision or action is not unusual within the Australian legal system. Judicial review is available to correct errors of governments and government agencies which affect people’s legal rights and contravene existing law.[31]

What does proposed section 129 require of the Executive?

Proposed subsection 129(ii) simply provides that the Voice ‘may make representations’ to the Parliament and Executive on ‘matters relating to Aboriginal and Torres Strait Islander peoples’. There are no textual requirements or obligations placed on the Executive Government at the constitutional level.

Parliament will be able to determine further legislative requirements for how the Executive Government deals with representations from the Voice, under the lawmaking power in proposed subsection 129(iii). Regarding these future legislative details, the Government has indicated that it intends to follow the principles quoted above, developed by the Referendum Working Group and adopted by Cabinet, so that the Voice:

… will be able to make proactive representations – as well as respond to requests. And the Parliament and Executive Government should seek written advice from the Voice early in the development of proposed laws and policies…And, as has been made clear very many times, the Voice will not have a veto power.

The distinguishing feature of the Voice, compared to other advisory bodies, is that, in addition to any potential future legislative provisions relating to its operation, it would be supported by a constitutional provision stating that it ‘may make representations’ to Government. This novel arrangement clouds any attempts to provide definitive statements on the potential legal implications of the provision.

Importantly however, the text of proposed section 129 very clearly does not impose any explicit obligations or requirements on the Parliament or Executive Government with regard to representations that may be made by the Voice, so any attempt to assert that there was a legally enforceable constitutional requirement, duty to consult or similar would face the potentially difficult task of showing that such a requirement was implied by the provision.

The Solicitor-General’s opinion is that proposed subsection 129(ii) does not ‘impose any obligations upon the Executive Government to follow representations of the Voice, or to consult with the Voice prior to developing any policy or making any decision’.[32] It is also the Solicitor‑General’s opinion that while there may be an argument that decision makers may be required to consider representations in certain contexts, proposed subsection 129(iii) empowers Parliament ‘to legislate to specify the extent to which any such consideration is required.’[33]

The Explanatory Memorandum, which could be relevant to any further interpretation of the text, states at pages 11 and 12:

  1. Subsection 129(ii) would not require the Parliament or the Executive Government to wait for the Voice to make a representation on a matter before taking action. Nor would s 129(ii) require the Parliament or the Executive Government to seek or invite representations from the Voice or consult it before enacting any law, taking any action or making any decision. Subsection 129(ii) would also not require the Parliament or the Executive Government to furnish the Voice with information about a decision, policy, or law (either proposed or in force) at any time.
  2. Finally, s 129(ii) would not oblige the Parliament or the Executive Government to follow a representation of the Voice.

Only the High Court could provide a definitive answer to a constitutional question such as the existence of an implied obligation or duty on the executive, and it would only do so if a relevant matter came before it. The opinions of various constitutional experts on this and related issues are covered below.

Expert opinions on the likelihood of constitutional challenges

It is always possible for parties to challenge laws or decisions, and where there is a matter of constitutional interpretation it is the place of the High Court to provide a decision. However, as noted above, the proposed alteration of the Constitution does not explicitly impose any textual constitutional obligation on the Parliament or Executive Government. Asserting a constitutional obligation would require any challenge to establish some form of implied requirement.

Opinions are divided on the likelihood of constitutional challenges arising from the wording of proposed section 129, and particularly the inclusion of the ability for the Voice to make representations to ‘the Executive’. However, it appears fair to say that, of the published expert opinions, more are satisfied with the proposed text than are not.[34]

Journalist Michelle Grattan has outlined some of the fears that the Voice may ‘unleash a lawyers' picnic’ in a recent article, in particular noting the concerns of the most prominent legal critic, Greg Craven, a member of the Constitutional Expert Group:

Objections go to the potential scope it would give the Voice in relation to advising executive government, and especially the public service.

Greg Craven, a member of the constitutional expert group that has been advising on the referendum, said: "The problem is executive government covers the whole of the decision-making of the Commonwealth government [...] Now, if you get into a situation where, for example, the Voice hasn't yet made a representation on some important view and the Commonwealth has not told the Voice and given it that chance, then legally it is entirely practicable for someone to take a challenge to a court to stop that action until the Voice has made a representation."[35]

Nevertheless, while Greg Craven ‘said he'd keep fighting for altered wording’, when asked how he would vote if the wording did not change, he said:

"I would vote for it because if I was forced to take a position as to the sort of advanced morality of doing justice to our indigenous brothers and citizens, I could not vote against it”.[36]

The ABC has also reported that the proposed wording concerned two other experts, constitutional lawyer Father Frank Brennan and former High Court Justice Ian Callinan:

Their concerns have related to the potential for the High Court to determine that the executive government — including the public service — could be legally obliged to consult and consider the recommendations of the Voice on a range of issues before making a decision, and a failure to do so could lead to High Court action.[37]

Notably, however, other legal experts are satisfied that these concerns are unfounded. Some who have made statements supporting the proposed law include Anne Twomey, George Williams, Asmi Wood, Kenneth Hayne, Robert French and the Law Council of Australia, quoted below.

Robert French provided an analysis of the likely legal implications of the text and the low chance of a court finding a legal obligation in proposed section 129:

There is no constitutional legal obligation for the Parliament or the Executive to accept or be bound by such submissions or advice. There would, however, be a high democratic obligation to respect them and take them into account…

As to litigation, there is always the possibility that someone, someday will want to litigate matters relating to The Voice as can anybody who seeks recourse to the courts. That flows from the fact that Australia is governed by the rule of law which provides access to the courts where it is said that public officials have exceeded their power. That said, there is little or no scope for any court to find constitutional legal obligations in the facilitative and empowering provisions of the amendment. And if Parliament made a law which created unintended opportunities for challenges to executive government action, the law could be adjusted.[38]

Anne Twomey, constitutional lawyer and member of the Constitutional Expert Group, has pointed out both the lack of any explicit obligation in the wording of the alteration as well as the wide power granted to Parliament to legislate to control the legal effect of the Voice:

.. [there is] a wide range of matters on which this body, now called the Voice, can make representations. But there is nothing in the proposed amendment about how the executive or parliament deals with those representations.

This has left a void in the proposed amendment. There are no words in it that impose any obligation on the executive government or parliament to respond to the Voice’s representations. Nor, as the government has often said, is there any intention to impose such an obligation.

Critics, however, have taken that void and argued that it would be filled by a constitutional implication that the representations of the Voice must be considered by the executive government in all its decision-making.

This is a heroic assumption. It would require the High Court to ignore the text of the Constitution, or see an imaginary ambiguity in it, and then build an implication from it which is contrary to the original intent as expressed by the government…

The power of parliament was expanded, so it can make laws ‘‘with respect to matters relating to the Aboriginal and Torres Strait Islander Voice’’. Within these apparently innocuous words lies the power for parliament to make laws about when, whether and how the executive responds to the representations of the Voice.[39]

The Solicitor-General’s opinion also states that the legislative power in proposed subsection 129(iii) would, by providing a broad power to make laws with respect to the Voice, ‘empower the Parliament to specify whether, and if so, how, Executive Government decision-makers are legally required to consider relevant representations of the Voice’.[40]

A Guardian article from March 2023 further cites George Williams and others explaining their support for the proposed text and noting that Parliament will be able to legislate to deal with any problems:

“It’s actually strikingly modest. If other arms of government hear the voice’s representations and aren’t persuaded, they can continue on their course. There’s no requirement to follow the advice of the voice,” said George Williams, professor of law at the University of New South Wales…

“Parliament can legislate generally about the voice, as opposed to only being able to legislate the four matters listed,” he said.

“It increases power of parliament over the voice. It should remove doubts that parliament is fettered or limited. It now has a general power to legislate about the voice, so if problems arise, parliament can legislate a response.” Williams called the amendment “safe and sensible”.[41]

The Law Council of Australia also noted the broad legislative ability that Parliament would be granted to determine the legal effect of representations.[42] The Law Council of Australia ‘supports the Constitution Alteration being passed in its present form’ and ‘considers that the constitutional amendment, as proposed, is just and legally sound.’[43]

Issue – Special rights or racial discrimination

The Law Council of Australia addressed the question of whether the proposed alteration may create special rights or implement a discriminatory body, finding that it did not:

The proposed amendment does not create special rights for Aboriginal and Torres Strait Islander peoples, nor discriminate based on race. Nor does it amount to a ‘special measure’ under the International Convention on the Elimination of all Forms of Racial Discrimination (CERD). Its foundation is in the right of self-determination of peoples, rather than distinction on the basis of race. The Voice also gives effect to other fundamental human rights accorded to Aboriginal and Torres Strait Islander peoples, such as the right to equality and non-discrimination and the right to take part in public affairs.[44]

As quoted by the Law Council of Australia, former Chief Justice of the High Court, Robert French, has said:

The Voice … rests upon the historical status of Aboriginal and Torres Strait Islanders as Australia’s indigenous people. It does not rest upon race. It accords with the United Nations Declaration on the Rights of Indigenous Peoples for which Australia voted in 2009. It is consistent with the International Convention on the Elimination of all Forms of Racial Discrimination. Suggestions that it would contravene that Convention are wrong.[45]

In its Communique of 12 December 2022, the Referendum Working Group published Advice from the Constitutional Expert Group including the following statement regarding special rights:

4. The Voice does not provide anyone with “special rights”

The Voice gives Aboriginal and Torres Strait Islander peoples an opportunity to make representations to the Parliament and the Executive, and this is an opportunity available to any individual or organisation.

The Voice does not confer “rights”, much less “special rights”, on Aboriginal and Torres Strait Islander peoples. Nor would the Voice change or take away any right, power or privilege of anyone who is not Indigenous.

As discussed earlier in this Digest, in its report commenting on the Bill, the Parliamentary Joint Committee on Human Rights similarly did not consider that the Bill would facilitate a race-based ‘special measure’ under international human rights law. Rather, the Committee found that the Bill is designed to ‘promote the permanent rights of Aboriginal and Torres Strait Islander peoples as recognised in the international treaties’ and ‘would not negatively affect the ability of members of the broader community to enjoy or exercise their rights and freedoms’ (p. 9).

See also the April 2023 article by Race Discrimination Commissioner Mr Chin Tan quoted above.

Issue – Sovereignty

There has been some reported concern that recognising Aboriginal and Torres Strait Islander peoples in the Constitution and establishing the Voice as a constitutional body could in some way adversely affect Aboriginal and Torres Strait Islander sovereignty, particularly any future potential sovereignty claims and treaty or treaties.[46]

It is not apparent that the Voice would have any impact on such issues from a legal or constitutional point of view, but it must be noted that it is difficult to adequately address the issue from a purely legal point of view because it can encompass other aspects for many people. In particular, the term ‘sovereignty’ can and does mean many different things to different people and communities.[47]

The issue of sovereignty in the context of a constitutional recognition was considered in 2015 by the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. The Committee considered legal advice provided to an Expert Panel and concluded that constitutional recognition would not affect future aspirations for recognition of sovereignty and treaty.[48] The Final Report expanded on some particular issues:

7.17 The committee has considered advice regarding the ability of Aboriginal and Torres Strait Islander peoples to pursue sovereignty and treaty aspirations in the future, if constitutional recognition occurs. The committee was provided with the legal advice given to the Expert Panel, which clearly stated that sovereignty claims would not be negated by constitutional recognition:

…recognition of Aboriginal and Torres Strait Islanders in the Constitution as equal citizens could not foreclose on the question of how Australia was settled, because the reasoning noted above proceeds on the basis of the common law constitutional consequences of perceived (and judicially received) history. That will not be altered by future amendments of the text of the written Constitution.[49]

…

7.21 The committee affirms the finding of the Expert Panel that constitutional recognition would not preclude pursuit of the aspirations for recognition of sovereignty and treaty. The committee has received advice throughout its inquiry which supports the finding of the Expert Panel, and has sought to reassure Aboriginal and Torres Strait Islander peoples that recognition is unlikely to preclude future claims for sovereignty and treaty-making.

A recent opinion piece by constitutional lawyers Gabrielle Appleby and Ron Levy also discusses concerns about sovereignty:

… it’s important to remember that the government and parliament do not have the constitutional power to declare that First Nations sovereignty exists – or is extinguished. This sovereignty is a consequence of the historic pre-existence of Aboriginal and Torres Strait Islander peoples on the continent since long before it acquired its name.

The Uluru Statement from the Heart, delivered by First Nations delegates to the Australian people, affirms First Nations sovereignty, rooting it in the prior occupation of the lands and seas. It offers a vision of co-existence of First Nations sovereignty with the sovereignty of the Crown, and this is the foundation from which it calls for a First Nations Voice.

The finest technical legal minds in the country have advised that a constitutional change that recognises Aboriginal and Torres Strait Islander people will not impact on the unceded, unextinguished sovereignty as is asserted by First Nations people. And we know from human rights expert Hannah McGlade that under international law, the Voice represents a recognition of the right to political participation enshrined in the UN Declaration on the Rights of Indigenous Peoples.

This right to participate offers an opportunity for us to see the co-existence of sovereignty play out. This will be operating within the Australian constitutional system, and with parliament’s ultimate law-making power preserved. But the Voice amendment provides a foundation for a living and evolving practice of shared authority.[50]

Issue – Will a Voice to Parliament have ‘practical’ results?

A frequently expressed concern with the Voice proposal is that it will not result in ‘practical’ improvements in the lives of Aboriginal and Torres Strait Islander people, for example in progress towards the Closing the Gap goals.[51]

While it may be difficult to draw direct connections between any high-level structural reform and future specific initiatives or results, it is generally acknowledged that the more control people have over their own affairs, and the more say they have in their governments, the better their results will be.

For Indigenous peoples, case studies of Indigenous communities in Canada and the United States have shown that greater cultural strength, stronger Indigenous property rights, and increased community self-governance are linked to reductions in Indigenous suicide rates,[52] better governance, and higher economic growth both for Indigenous communities and more generally.[53]

In Australia, Indigenous-focused programs rolled out after the abolition of ATSIC under the headings of ‘practical reconciliation’ or ‘Closing the Gap’ have generally failed to meet their targets. Rates of progress on a number of fundamental Closing the Gap indicators, such as Indigenous child mortality rates (p. 17), Adult mortality rates (pp. 81–83), and remote area life expectancy, while remaining positive, have declined since 2005–7. Other negative social indicators such as Indigenous suicide rates, Indigenous imprisonment rates, Indigenous student school attendance rates (p. 39), Indigenous employment rates (p. 67, when the former Community Development Employment Projects (CDEP) local employment scheme is included), Indigenous poverty rates in remote areas, and assault rates in the Northern Territory significantly worsened over this time. Correspondingly, many of the Indigenous Affairs-related policies of the last two decades have been shown by independent evaluations (which were rarely carried out) to have been both costly, and ineffective or even harmful in their effects.

It is not possible to say whether these results would have been different if strong Indigenous representative organisations had been in place. However, there has been bipartisan agreement, expressed by former Prime Minister Scott Morrison in his 2019 Closing the Gap refresh speech, that a key reason for failure was that too many policies were devised and applied without partnerships with Aboriginal and Torres Strait Islander people themselves. This insight led to former Minister Wyatt and Prime Minister Morrison giving a key partnership role to the informal Coalition of Peaks in the new National Agreement on Closing the Gap. Similarly, the Attorney‑General’s second reading speech suggests that the better outcomes achieved by partnering with Aboriginal and Torres Strait Islander communities are a key reason to support the constitutional amendment.

Among Indigenous communities and organisations, frustration and anger at the disempowerment and disruption caused by the abolition of ATSIC, the ‘top-down’ imposition of the Indigenous Advancement Strategy, and the resulting setbacks to their communities and programs on the ground, was a common recurring theme of the regional dialogues leading up to the Uluru Constitutional Convention. Indigenous scholars have noted the ways in which absence of Indigenous voices has led to legal changes which structurally disadvantage Indigenous peoples.[54] Absence of continuity of representation is a reason regularly cited by Pat Anderson and other prominent Indigenous leaders as an argument for a permanent representative body, as currently every administrative change means ‘we are going back to ground zero every single time’.

In summary, while there can be no guarantee that the Voice would produce positive results in the future, it is likely that absence of strong representative organisations has contributed to negative results in the recent past.

Other issues

The Voice and UNDRIP

It has been suggested that the Voice may assist Australia to fulfil its obligations under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), by creating a valid mechanism through which Indigenous peoples may be consulted in order to obtain their free, prior and informed consent (FPIC) for measures affecting them.[55] Conversely, UNDRIP has also been invoked in social media based misinformation about the Voice.

UNDRIP is a declaration of the United Nations General Assembly.[56] It is not a treaty between States[57] and, although it has been endorsed by Australia as ‘aspirational’,[58] it has not been incorporated into domestic law in a ‘formal and comprehensive way'.[59] In Australia, international law does not have the force of domestic law unless it is enacted in domestic legislation.[60] As such, UNDRIP is not legally binding.[61]

Free, Prior and Informed Consent

According to Mauro Barelli, FPIC can be explained as follows [emphasis added]:

Firstly, ‘free’ should imply no coercion, intimidation or manipulation. Secondly, ‘prior’ should imply that consent must be sought sufficiently in advance of any authorization or commencement of activities, and that the relevant agents should guarantee enough time for the indigenous consultation/consensus processes to take place. Thirdly, ‘informed’ implies that indigenous peoples should receive satisfactory information in relation to certain key areas, including the nature, size, pace, reversibility and scope of the proposed project, the reasons for launching it, its duration, and a preliminary assessment of its economic, social, cultural and environmental impact. Crucially, this information should be accurate and in a form that is accessible, meaning that indigenous peoples should fully understand the language used. Finally, ‘consent’ should be intended as a process of which consultation and participation represents the central pillars. While consultation should be undertaken in good faith, full and equitable participation of indigenous peoples should be guaranteed. Indigenous peoples should also have equal access to financial, human and material resources in order to engage constructively in this discussion. Moreover, they should be able to participate through their own freely chosen representatives and according to their customs.[62]

Despite these key features, FPIC has an ‘uncertain legal meaning and scope [which] allow[s] for very different interpretations’ of the underlying obligations.[63] Indeed, FPIC has no ‘universal definition’.[64] Some suggest that FPIC ‘approaches a veto right’[65] that encompasses ‘a right to say ‘yes’ or ‘no’ to a given project’,[66] while others argue that FPIC treats (perhaps as a bare minimum) ‘consent as a preferable but not necessarily mandatory outcome of consultation procedures’.[67]

State Duty to consult in order to obtain FPIC

Articles 5, 18 and 19 of UNDRIP provide [emphasis added]:

Article 5: Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 18: Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

Article 19: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 19 is the only provision in UNDRIP invoking FPIC that directly imposes a procedural obligation upon States to consult with indigenous peoples through their representative institutions before making decisions that may affect them. The Oxford Commentary on UNDRIP argues that [emphasis added]:

The expression ‘consult in order to obtain’ found in the final version of [Article 19] … should not be interpreted as imposing upon States an absolute obligation to obtain the consent of indigenous peoples before implementing a measure or project affecting them (p. 253)

However, given the wording of the provision, the obligation under Article 19 is more stringent than merely ‘seeking’ the consent of indigenous people.[68] Furthermore, it would be incongruous with the ‘spirit and normative context of the Declaration’ to read Article 19 in a way that would allow states to ‘indiscriminately implement measures or projects which may have serious negative consequences on the lands, cultures, and, ultimately, lives of Indigenous peoples’.[69]

The Voice and UNDRIP consultation standards

The constitutional amendment enshrining the Voice has the potential to enable Australia to meet the standard set by UNDRIP, but this largely depends upon the enabling legislation’s provisions for the Voice’s composition and consultation standards. Notably, given current debate, the Voice’s ability to make representations to both the Parliament and the Executive on a wide range of measures may enable Australia to meet Article 19’s requirement that FPIC be sought for ‘legislative or administrative measures that may affect [Indigenous peoples]’ [emphasis added].[70]

However, the Constitutional Amendment does not:

  1. enshrine any ‘right to participate in decision-making’, only the ability to make representations to decision-makers[71]
  2. guarantee that the Voice’s members will be ‘representatives chosen by [Indigenous peoples] in accordance with their own procedures’, although this is implied by the non-binding ‘design principles’
  3. impose any requirement for the Australian Government to consult or cooperate with the Voice, in order to obtain FPIC or otherwise.

In their report on the Bill, the Parliamentary Joint Committee on Human Rights was of the view that:

… if the Constitution were to be amended to establish the Voice, this would also promote the rights of Aboriginal and Torres Strait Islander peoples to participate in public affairs; the right to self-determination, particularly the obligation to consult with Indigenous peoples in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them; and the right to equality and non-discrimination, and is therefore compatible with these rights.[72]

Could the Voice provide FPIC to locally specific measures?

Commentary by the United Nations Permanent Forum on Indigenous Issues suggests that deciding which matters are appropriate to be considered by which Indigenous representative institution is a matter for Indigenous peoples themselves:

Indigenous peoples should specify which representative institutions are entitled to express consent on behalf of the affected peoples or communities.[73]

This means that whether the Voice was considered an appropriate body to express FPIC to a particular measure would be a matter for the affected Indigenous peoples of Australia to decide. Therefore, the Voice should not be able to override the wishes of, for example, native title holders or traditional owners to provide consent to matters relating to their lands to which they had not consented without being inconsistent with the principle of FPIC.[74] As a legal issue, unless the Parliament provided otherwise the Voice would have no capacity to interfere in the consent and veto rights of Traditional Owners under the Aboriginal Land Rights (Northern Territory) Act 1976, or what may be described as the free, prior and informed consultation and negotiation rights of native title holders and claimants under the Native Title Act 1993.[75] However, the Voice might constitute the most appropriate body to seek FPIC for national-level measures, such as changes to the Aboriginal and Torres Strait Islander Act 2005 or the Native Title Act 1993, as laws applied to Aboriginal and Torres Strait Islander peoples as a whole.[76]

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