- Background and conduct of the inquiry
- The Constitution is Australia’s founding legal document. It took effect on 1 January 1901, and has remained largely unchanged ever since. It does not recognise Aboriginal and Torres Strait Islander Peoples as the First Peoples of Australia. Despite being the first inhabitants of Australia, having occupied the Australian continent for over 65,000 years. Aboriginal and Torres Strait Islander peoples were not even represented at the Australian Federation Conventions where the draft of the Australian Constitution was developed.
- The Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (Constitution Alteration, the Bill) is intended to ‘rectify over 120 years of explicit exclusion in provisions of Australia's founding legal document’. The Bill would do this by amending the Australian Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.
- The Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum (the Committee) was tasked by both the House of Representatives and the Senate to review and report on the legislative provisions that, if passed, will be considered at referendum for incorporation into the Constitution. This report sets out the Committee’s review of the evidence, its findings and its recommendations.
Outline of the Constitution amendment process
1.4The Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (Constitution Alteration, the Bill) is designed to ‘amend the Australian Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice’. It proposes to achieve this through four elements in the legislation:
- introductory words to recognise Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia;
- subsection 129(i) to provide for the establishment of a new constitutional entity called the Aboriginal and Torres Strait Islander Voice;
- subsection 129(ii) to set out the representation-making function of the Voice; and
- subsection 129(iii) to confer upon the Parliament legislative power to make laws with respect to matters relating to the Voice, including its composition, functions, powers and procedures.
- If passed by the Parliament in accordance with section 129 of the Constitution, the Bill is then to be voted on at referendum by the Australian public. The referendum must then be held no sooner than two months and no later than six months after the legislation has passed Parliament. If successful, the legislation will alter the Constitution by including Chapter IX and section129.
- In his second reading speech, the Attorney-General explained that the proposed amendment to the Constitution is a simple but effective change that will not negatively impact the operations of the Parliament or the Executive Government, but will give Aboriginal and Torres Strait Islander peoples a voice:
This is an important reform. But it is modest. It complements the existing structures of Australia's democratic system and enhances the normal functioning of government and the law. It creates an independent institution that speaks to the parliament and the executive government, but does not replace, direct or impede the actions of either.
Recognising Aboriginal and Torres Strait Islander peoples in our founding legal document and listening to their views on laws and policies that matter to them will make a difference.
1.7This was reinforced in advice from the Solicitor-General, in Submission 64:
The proposed amendment is not only compatible with the system of representative and responsible government established under the Constitution, but it enhances that system.
The process of amending the Constitution
1.8This section provides a brief outline of how the Constitution is changed at referendum, and where this inquiry fits into the broader process in relation to this Bill in particular. Section 128 of the Constitution outlines the mode of altering the Constitution:
- The proposed law is to be passed by an absolute majority of each House of the Parliament, or under certain conditions, a law is to be passed by a majority of either House twice within three months.
- The proposal is to be put to the electors qualified to vote in elections for the House of Representatives between two and six months after the passage of the law.
- A majority of Australians are to vote to approve the change, as a total and in a majority of the six states (this is referred to as the ‘double majority’).
- This inquiry comprises part of the first stage of this process, representing the consideration and passage of the relevant proposed law by the Parliament. At the conclusion of this inquiry, the Parliament will further deliberate the legislation before voting on it, potentially with amendments. If it is passed by both Houses of Parliament within the space of three months, it will then meet the requirements to be considered at referendum.
- For a referendum to be successful, it requires a ‘double majority’:
- A national majority of voters (in other words, more than fifty per cent of voters) across all states and territories, and
- A majority of voters (over fifty per cent of voters) in a majority of states (at least four of the six states).
How did we get here? An overview of constitutional recognition of Aboriginal and Torres Strait Islander peoples
1.11The constitutional recognition of Aboriginal and Torres Strait Islander peoples has been debated for over a century. A range of inquiries, reviews and reports have been conducted over time, including:
- 1958: The Federal Council for Aboriginal Advancement’s campaign to amend the Constitution, culminating in the 1967 referendum which successfully amended the Constitution to ensure Aboriginal and Torres Strait Islander people were included in all formal population counts, and provided Parliament with power to legislate for Aboriginal and Torres Strait Islander peoples as well as other races of people.
- 1995: The Aboriginal and Torres Strait Islander Commission (ATSIC) published a report stating that constitutional reform should be considered a priority and provided evidence for widespread support of such a change.
- 1999: A pre-amble to the Constitution was proposed to recognise Aboriginal peoples as the First peoples of Australia in a referendum. This referendum was not successful.
- 2007: Bipartisan support for constitutional recognition was taken to the 2007 election, which Professor Megan Davis specifically referenced in her evidence to the committee as the start of the ‘contemporary consideration of constitutional recognition’.
- 2012: A government-established Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (the Expert Panel) delivered a report recommending the removal of sections 25 and 51(xxvi) of the Constitution, and the insertion of new sections.
- 2015: The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, established in 2013, provided a final report recommending that a referendum be conducted to recognise Aboriginal and Torres Strait Islander peoples in the Constitution. In its recommendations, it suggested similar amendments to those proposed by the Expert Panel in 2012.
The Uluru Statement from the Heart
1.12In December 2015, then-Prime Minister the Hon Malcolm TurnbullMP announced the establishment of the Referendum Council to progress towards a referendum on constitutional recognition. The Referendum Council was designed to be led by Aboriginal and Torres Strait Islander peoples to oversee the process and advise the Prime Minister and Leader of the Opposition on how to best recognise Aboriginal and Torres Strait Islander peoples in the Constitution. The Referendum Council conducted extensive consultations across the nation, including regional dialogues with local communities. Unlike the many historical processes exploring options for recognition, this was to be First Nations led.
1.13The Uluru Statement from the Heart (the Uluru Statement) was a product of these comprehensive public consultations, a process outlined by the Indigenous Law Centre:
Ultimately, between December 2016 and May 2017, deliberative Dialogues were held in 12 locations around Australia, with an additional meeting in the ACT. Each Dialogue brought together around 100 men and women, drawn in fixed proportions from traditional owner groups, regional organisations and significant individuals.
1.14These regional deliberations were then fed into a First Nations Constitutional Convention at Uluru, where:
after several days of intensive discussions, they endorsed a reform agenda expressed in the Uluru Statement from the Heart.
1.15This proposal was presented to the Referendum Council during the convention. The Uluru Statement from the Heart lists three main proposals, colloquially known as ‘Voice. Treaty. Truth.’ These are:
1The establishment of a First Nations Voice to Parliament, enshrined in the Constitution and
2The establishment of a Makarrata Commission to supervise a process of agreement-making and truth-telling.
1.16In its final report, the Referendum Council reiterated the concerns expressed by the Uluru Statement from the Heart and called for the Uluru Statement’s requests for constitutional amendment to be taken to a referendum.
1.17In 2018, the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples recommended that the Australian Government ‘initiate a process of co-design with Aboriginal and Torres Strait Islander peoples’ in developing a design for the Voice. This recommendation was agreed to by the Australian Government, which in 2019 established an Indigenous Voice Co-Design Process to achieve a design for The Voice that best suits the needs and aspirations of Aboriginal and Torres Strait Islander peoples.
1.18In July 2021, the Indigenous Voice Co-design Process presented its Final Report to the Australian Government, outlining the possible linkages of a Local and Regional Voice to the National Voice. It presented the possible structure, membership, and functions of the National Voice and how the National Voice can achieve its intention and meet expectations.
Conduct of the inquiry
1.19On 30 March 2023 the Attorney-General, the Hon Mark Dreyfus SC, MP, introduced the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (the Constitution Alteration, the Bill) to the House of Representatives (the House). Following the introduction of the Bill, both the House and the Senate agreed to the establishment of the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum (the Committee). The Committee was tasked with reviewing the Constitution as per the resolution of appointment, which is contained in the Terms of Reference section in this report at page ix.
1.20Given the scope of the resolution of appointment and its focus on the provisions of the Constitution Alteration, the Committee determined that the inquiry should concentrate on the Bill’s provisions rather than the Voice as a general proposition. The Committee was not asked to assess the merits of the proposal more broadly, or to assess the cases for either a ‘yes’ or ‘no’ vote in the proposed referendum.
1.21The resolution of appointment determined that the Committee provide its final report by 15 May 2023. The Committee resolved to receive submissions up until 5.00pmAEST on Friday,21 April 2023. A number of late submissions were received and agreed to by the Committee. A total of 270 submissions were received by the Committee. AppendixA sets out a list of submissions received.
1.22In particular, the Committee notes the submission provided by the Attorney-General, Mr Mark Dreyfus SC, MP, who provided the Committee with the Solicitor-General’s legal opinion on the Constitution Alteration.
1.23The Committee received the following groups of campaign material during the course of the inquiry:
- Form letter 1, comprising two documents;
- Form letter 2, comprising 20 documents;
- Form letter 3, comprising 871 documents;
- Form letter 4, comprising 909 documents; and
- Form letter 5, comprising nine documents.
- These documents contained identical or near-identical text across multiple authors, or self-identified as originating from a campaign source. While the Committee did not accept these documents as submissions to the inquiry, it agreed to publish illustrative examples of each form letter group to the webpage. Further, the Committee acknowledges that many of these contributions to the inquiry contained the views and experiences of ordinary Australians who wanted to participate in the inquiry, including Aboriginal and Torres Strait Islander people.
- Similarly, several hundred contributions received by the Committee were not accepted as submissions due to not addressing the terms of reference (that is, the specific provisions of the legislation). These contributions generally addressed broader issues regarding the Voice, including the merits of the model chosen, the process in which the model has been chosen, and expressing generalised support or dissent for the concept. Given the inquiry’s focus on the specific terms of the legislation, the Committee determined not to accept contributions that fell outside the terms of reference as formal submissions.
- The Committee notes the strong views in the community which prompted the large number of contributions, indicating the importance of this issue to the Australian public. Over a period of three weeks, the Committee received more than 3,000 contributions via electronically submitted documents, videos, songs, poems and handwritten letters. It thanks all participants to the inquiry for their input, and assures those whose submissions were not formally published as part of the inquiry that their contributions were considered.
- A significant majority of submissions were in support of the legislation and the proposal for a Voice enshrined in the Constitution.
- The Committee held five public hearings:
- Friday, 14 April 2023 in Canberra, Australian Capital Territory
- Monday, 17 April 2023 in Orange, New South Wales
- Wednesday, 19 April 2023 in Cairns, Queensland
- Friday, 28 April 2023 in Perth, Western Australia
- Monday, 1 May 2023 in Canberra, Australian Capital Territory
- The hearings attracted a wide range of participants who provided evidence, including prominent former jurists, legal academics, representatives from local Aboriginal and Torres Strait Islander communities, and individuals who had participated in the many reviews and processes that have informed the legislation. Appendix B sets out a list of witnesses who appeared at the public hearing.
- The Committee thanks all those who were involved in the hearings. In particular, the Committee expresses deep thanks to the local Aboriginal and Torres Strait Islander individuals and communities who welcomed the Committee to their lands of which they have been the Traditional Custodians for millennia. The Committee was also honoured to be received with a Welcome to Country by local Aboriginal and Torres Strait Islander representatives for many of its hearings, in addition to smoking ceremonies in Canberra and Orange, and traditional dances in Orange and Cairns. The Committee acknowledges and thanks:
- Mr Paul Girrawah House, Ngambri and Ngunnawal Nations (Canberra)
- Mr Doug Sutherland, Mr Ricky Ah-See and cultural dancers from the Wiradjuri Nation (Orange)
- The Minjil Cultural Group, Yidinydji, Djabuganydji and Gungganydji Nations (Cairns)
- The Gerib Sik Torres Strait Island Corporation Group, a Meriam group from Mer Island (Cairns)
- Mr Joseph ‘Joepossum’ Collard, Whadjuk Noongar Nation (Perth)