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Indigenous Voice to Parliament

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Natural-coloured dots in the pattern of the Southern Cross, next to the words "Aboriginal and Torres Strait Islander Voice"
Logo of the Aboriginal and Torres Strait Islander Voice, produced by the National Indigenous Australians Agency
This article is part of a series on the
Aboriginal and
Torres Strait Islander Voice
Proposed Australian federal Indigenous advisory body to represent Indigenous communities.
Background
2023 referendum
See also

The Aboriginal and Torres Strait Islander Voice, also known as the Indigenous Voice to Parliament or the Voice, is a proposed Australian federal advisory body to comprise Aboriginal and Torres Strait Islander people, chosen according to the wishes of Indigenous communities.[1] If approved in an upcoming referendum called by the Albanese Government, the Australian Constitution would prescribe the Voice, which could make representations to the Parliament of Australia and executive government on matters relating to Indigenous Australians.[2] If the referendum vote is successful, the government will then design the specific form of the Voice, which will then be implemented via legislation passed by Parliament.[3]

Under the current design principles of the Albanese Government's Referendum Working Group, the Voice would be enshrined in the Constitution and have 24 members, selected by Aboriginal and Torres Strait Islander communities across the country, with enforced gender balance.[4][5] Under alternative proposals, or in the event of an unsuccessful referendum vote, it is legally possible for the Voice to be introduced by legislation rather than enshrined in the Constitution.[6]

The proposal for the Voice was formally endorsed by Indigenous leaders with the 2017 Uluru Statement from the Heart, delivered at the First Nations National Constitutional Convention. The statement formally petitioned the public and government to support a voice to parliament in order to aid self-determination and help solve the severe inequality facing First Nations communities. The concept was rejected at the time by the Liberal-National Turnbull government.[7]

In October 2019, the Liberal-National Morrison government discussed an "Indigenous voice to government" which would be legislated but not enshrined in the Constitution. A co-design process organised by Ken Wyatt was completed in July 2021 proposing for local and regional voices and a National Voice.[8] While the Morrison government committed to implementing the recommendations of the report, no legislation was passed between the release of the report in July 2021 and the election in May 2022.[9]

Following the 2022 election which saw the Albanese Labor government elected, Prime Minister Anthony Albanese pledged that a referendum on a constitutionally enshrined Voice would be held within his term of office.[10] In March 2023, the prime minister released the design principles of the Voice and confirmed that a referendum would occur in 2023.[11][12] This process is being overseen by Linda Burney, who succeeded Wyatt as Minister for Indigenous Australians.[10] Both parties in the Peter Dutton-led Liberal-National Federal Opposition have announced their opposition to a national Voice, whether legislatively or constitutionally implemented.[13][14] [15]

Structure and powers of the Voice

On 23 March 2023 the Australian Cabinet endorsed a set of design principles that would be used in the design of the Voice in the event the referendum is successful, with Prime minister Anthony Albanese stating that these principles will "underpin the shape and function of the Voice".[16][17] Additionally he stated that if the referendum is successful, another process would be established to work on the final design, with a subsequent government produced information pamphlet stating that this process would involve Indigenous Australian communities, the Parliament and the broader community, with any legislation going through normal parliamentary scrutiny procedures.[17][18]

The design principles are that:[16][19]

The Voice will give independent advice to the Parliament and Government

  • The Voice would make representations to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.
  • The Voice would be able to make representations proactively.
  • The Voice would be able to respond to requests for representations from the Parliament and the Executive Government.
  • The Voice would have its own resources to allow it to research, develop and make representations.
  • The Parliament and Executive Government should seek representations in writing 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

  • Members of the Voice would be selected by Aboriginal and Torres Strait Islander communities, not appointed by the Executive Government.
  • Members would serve on the Voice for a fixed period of time, to ensure regular accountability to their communities.
  • To ensure cultural legitimacy, the way that members of the Voice are chosen would suit the wishes of local communities and would be determined through the post-referendum process.

The Voice will be representative of Aboriginal and Torres Strait Islander communities, gender balanced and include youth

  • Members of the Voice would be Aboriginal and/or Torres Strait Islander, according to the standard three-part test.[a]
  • Members would be chosen from each of the states, territories and the Torres Strait Islands.
  • The Voice would have specific remote representatives as well as representation for the mainland Torres Strait Islander population.
  • The Voice will have balanced gender representation at the national level.

The Voice will be empowering, community-led, inclusive, respectful and culturally informed

  • Members of the Voice would be expected to connect with – and reflect the wishes of – their communities.
  • The Voice would consult with grassroots communities and regional entities to ensure its representations are informed by their experience, including the experience of those who have been historically excluded from participation.

The Voice will be accountable and transparent

  • The Voice would be subject to standard governance and reporting requirements to ensure transparency and accountability.
  • Voice members would fall within the scope of the National Anti-Corruption Commission.
  • Voice members would be able to be sanctioned or removed for serious misconduct.

The Voice will work alongside existing organisations and traditional structures

  • The Voice would respect the work of existing organisations.

The Voice will not have a program delivery function

  • The Voice would be able to make representations about improving programs and services, but it would not manage money or deliver services.

The Voice will not have a veto power

Legislation and referendum

Main article: 2023 Australian Indigenous Voice referendum

In the upcoming 2023 referendum, voters will be presented with the following question for them to approve or disapprove. If the referendum is successful, the following proposed amendment will be added to the constitution.

Question

The question that will be put to the Australian people at the 2023 referendum is:[17]

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?

Proposed amendment

The current proposal for the amendment to be inserted into the Constitution is:[17]

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.

Background

History of Indigenous Australians

Main article: History of Indigenous Australians

Aboriginal peoples have inhabited the continent of Australia for at least 65,000 years and Torres Strait Islanders have inhabited the Torres Strait for thousands of years.[20][21][22] They had complex cultural societies with hundreds of languages and varying degrees of sedentary settlements and technology. Each group of Aboriginal peoples lived on and maintained their own country and developed sophisticated trade networks, inter-cultural relationships, law, and religions.[23][24][25] They were relatively isolated from the rest of the world, but there were extensive networks within the Australian continent and from Torres Strait Islanders to Papuans, certain Aboriginal peoples to Torres Strait Islanders, and certain Aboriginal peoples to the Makassar people of modern-day Indonesia.[26][27]

The colonisation of Australia began with the arrival of the British First Fleet in 1788. No treaties were signed between British officials and Aboriginal Australian peoples; instead the British merely asserted ownership of the continent and responded with violence to any organised resistance to their rule.[28] These violent conflicts between the settlers and the native inhabitants are known as the Australian frontier wars.[28] Along with various epidemics (including influenza and smallpox) and starvation, this led to drastic population decline among Indigenous peoples during the 18th–19th century. Indigenous peoples faced ongoing systematic persecution and were deprived of much of their ancestral land, culture, and language.[25]

The Commonwealth of Australia with its Australian Constitution was founded on 1 January 1901, gathering together the six former British colonies. This followed a series of referendums in which all women (except those in Western Australia and South Australia), and non-propertied Indigenous men in Western Australia and Queensland, could not take part.[29] Indigenous Australians became British subjects upon assertion of British sovereignty to their land, and became Australian citizens in 1948, along with all other Australians. Until the 1960s, Indigenous Australians' voting rights and their right to stand for Australian Parliaments were limited.[30] Indigenous Australians face significant adversity in modern Australian society, particularly in education and employment.[31]

Indigenous Australians in the Constitution

See also: Constitutional recognition of Indigenous Australians

Two changes to the Constitution have previously been proposed in referendums, to add or remove references to Indigenous Australians. These are the 1967 Indigenous referendum and the 1999 preamble referendum.

Prior to 1967, the federal government did not have the power to create laws specifically for Indigenous Australians, with section 51(xxvi) giving the Parliament the power to make laws with respect to the "the people of any race, other than the aboriginal race in any State".[32] This exclusion, along with another provision that prevented the counting of Indigenous Australians in the population for constitutional purposes, was deleted following the 1967 referendum in which over 90% of Australians voted yes to the changes.[32][33]

The 1998 Australian Constitutional Convention, called to discuss whether or not Australia should become a republic, almost unanimously supported the idea of a preamble that included a recognition of Indigenous Australians as the original inhabitants and custodians of Australia be inserted into the constitution. This, along with the convention's endorsement of an Australian Republic, was voted on in the 1999 referendum, with both questions being defeated. The first draft of the preamble voted on was written by Prime Minister John Howard, along with poet Les Murray and received much criticism after being released. Indigenous leaders specifically objected to their failure to be consulted and the reference only to the prior occupancy of Indigenous peoples and not their continuing custodianship. A continuing lack of consultation in the creation of the final draft led to Indigenous leaders calling for the preamble question to be dropped. Debate on the preamble question was limited, with much of the focus on the other republic question and the question was eventually defeated, with only 39.34% of Australians voting yes.[34]

Beginning with John Howard in 2007, governments have continually stated their commitment to hold a referendum on constitutional recognition; however, no previous proposal was taken to a vote.[35] In 2017 following the Uluru Statement, debate consolidated around a voice to parliament, as the best form of recognition likely to be both acceptable to Indigenous Australians and passed in a referendum.[36][37]

Indigenous Australians in Parliament

See also: List of Indigenous Australian politicians
Liberal Senator Neville Bonner, Australia's first Aboriginal federal parliamentarian

The rights of Indigenous Australians to vote and stand for parliament faced uneven restrictions across state and federal jurisdictions up until the 1960s. The Menzies government dismantled remaining restrictions on federal voting rights between 1949 and 1962, finally granting all Indigenous people the option to enrol and vote in federal elections. Queensland became the last state to remove restrictions on state voting in 1965.[38][39][40]

The first acknowledged Aboriginal parliamentarians began to emerge at a state level from 1969 and, in 1971, Liberal Neville Bonner, the first Aboriginal Federal Parliamentarian, entered the Senate as representative for Queensland.[41] Indigenous representation in both state and federal parliaments has grown considerably in the 21st century. In 2010, Liberal Ken Wyatt became the first Aboriginal member of the House of Representatives, and in 2019, the first Aboriginal cabinet minister. In 2013, Northern Territory Chief Minister Adam Giles of the Country Liberal Party became the first Aboriginal person to lead an Australian state or territory. The 2022 Australian federal election resulted in a record 11 Aboriginal parliamentarians, representing 4.8% of all parliamentarians, which is higher than the Indigenous Australian population of 3.3%.[42]

Previous national Indigenous advisory bodies

Since 1973, there have been five national Indigenous bodies advising Australian governments.[43] Three were elected and one (the National Indigenous Council) was appointed by the federal government.[44][45]

1973–1976: NACC

The National Aboriginal Consultative Committee (NACC) was created in February 1973 by the Whitlam government's Minister for Aboriginal Affairs, Gordon Bryant, with the help of Charles Perkins.[46] Its principal function was to advise the Department of Aboriginal Affairs (DAA) and the Minister on issues of concern to Aboriginal and Torres Strait Islander peoples. Its members were elected by Indigenous people, who had a turnout of 78% of the 36,338 people on its electoral roll, in November 1973.[46][47] While it maintained a good relationship with Bryant, it had strong detractors in the DAA.[46][48] The NACC saw itself as a legislative body, while the government expected them to be purely advisory, and this, along with other conflicts over the name, funding levels and control led to the end of the organisation.[45] The Fraser government commissioned the 1976 Hiatt Committee review of the body,[49] which concluded that it had not functioned as a consultative committee nor been effective in providing advice to government or making its activities known to most Aboriginal people.[43][unreliable source?][45]

1977–1985: NAC

The NACC was reconstituted in 1977 as the National Aboriginal Congress (NAC).[50] Changes included a move to indirect voting of members through regional representatives, a lower budget and a more explicit advisory role.[45] The Hawke government commissioned the Coombs Review into the NAC in 1983,[51] which found that the body was not held in high regard by the Aboriginal community.[45] After being starved of funds, some financial irregularities were found (attributed[by whom?] to inexperienced staff).[45][46] The NAC was abolished by the Hawke government in 1985.[52] In 1988, the Barunga Statement called for a new elected body to be created.[53]

1990–2005: ATSIC

The Aboriginal and Torres Strait Islander Commission (ATSIC) was established by the Hawke government on 5 March 1990 as an elected body which had responsibility for administering Indigenous programs and service delivery. It was successful in some areas as being a combined deliverer of services; however, there was a low voter turnout for ATSIC elections, allegations of corruption and a lack of government support led to the demise of the organisation.[45] A 2003 review recommended various reforms, including more control of the organisation by Aboriginal and Torres Strait Islander people at a regional level.[54] ATSIC was abolished by the Howard government, with Amanda Vanstone as Aboriginal Affairs Minister, on 24 March 2005,[55] with the support of the Labor party under Mark Latham.[54]

2004–2008:NIC

In November 2004 the Howard government established the National Indigenous Council (NIC), following a proposal earlier in the year.[55] A government inquiry into the demise of ATSIC recommended in March 2005 "that the NIC be a temporary body, to exist only until a proper national, elected representative body is in place".[56] The same inquiry found that, although the members were respected, there was absolutely no support for the institution; only the government regarded it as legitimate.[44] In early 2008, the NIC was disbanded.[57]

2009–2019: National Congress of Australia's First Peoples

In December 2008, the Rudd government asked the Australian Human Rights Commission to develop a new elected Indigenous representative body.[57] This was announced as the National Congress of Australia's First Peoples in November 2009,[58] and was established as a body independent of government.[59] Fewer than 10,000 Indigenous people signed up as members to elect congress delegates,[43] and the Abbott government cut off its main funding stream in 2013. It went into voluntary administration in June 2019,[60] before ceasing completely in October 2019.[61] Calls for a new voice came from the Cape York Institute, headed by Noel Pearson, in 2012 and 2015.[62][63]

Modern development of a constitutional voice to Parliament

Background

Indigenous Australians have long called for better representation, with William Cooper seeking in 1933 to petition King George V for the inclusion of a member of Parliament to represent Indigenous people.[64] However, modern discussion of recognition of Indigenous Australians in the constitution did not begin until 1992, with the Keating Government's repsonse to the Mabo decision. Along with the passage of the Native Title Act, the government proposed that, as a part of a broader social and justice reform package, negotiations should be entered into with Indigenous leaders to develop a mutually acceptable form of constitutional recognition.[65] This did not eventuate however, and formal consultation with Indigenous leaders on a new proposal did not begin again 2012 under the Gillard government.[65] This resulted in the creation of an expert panel, which recommended, amongst other things, the insertion of a prohibition on racial discrimination.[66] The report was not acted on by the govertment and was criticised by the opposition.

This led to a stalemate, which was not broken until the bipartison creation of the Referendum Council in 2015

Origin of proposal

The concept of an Indigenous advisory body enshrined in the Constitution originated in Noel Pearson's Quarterly Essay A Rightful Place: Race, Recognition and a More Complete Commonwealth,[67][68] and further expanded on by Greg Craven.[69] This proposal was in part designed as a compromise to address the concerns constitutional conservatives had with constitutional recognition through a symbolic statement or with a constitutional racial discrimination clause.[70]

Development under Liberal government

Bipartisan Referendum Council and committees

On 7 December 2015 a 16-member Referendum Council was appointed by Liberal prime minister Malcolm Turnbull and the ALP's Bill Shorten.[71] In October 2016, the Council released the Discussion Paper on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, which included a call for "An Indigenous voice",[72] before meeting with over 1,200 people. This led to the First Nations National Constitutional Convention on 26 May 2017, whose delegates collectively composed the Uluru Statement from the Heart. This statement included the request, "We call for the establishment of a First Nations Voice enshrined in the Constitution."[73]

On 13 June 2017, the Referendum Council released their final report. This included the following recommendation:[74]

That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament. One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51(xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.

In response to this, the federal government established the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples in March 2018.[75] It was tasked with reviewing the findings of the Uluru Statement delegates, Referendum Council, and the two earlier constitutional recommendation bodies. Its final report, published in November 2018, included four recommendations, the first of which was to "initiate a process of co-design with Aboriginal and Torres Strait Islander peoples".[76] It stated that the delegates at the 2017 Convention "understood that the primary purpose of The Voice was to ensure that Aboriginal and Torres Strait Islander voices were heard whenever the Commonwealth Parliament exercised its powers to make laws under section 51(xxvi) and section 122 of the Constitution".[77]

Co-design of the Voice

Ken Wyatt, Minister for Indigenous Affairs in the Morrison government

On 30 October 2019, Ken Wyatt AM, Minister for Indigenous Australians in the Morrison government, announced the commencement of a "co-design process" aimed at providing an Indigenous voice to government. A Senior Advisory Group (SAG) was co-chaired by Professor Tom Calma AO, chancellor of the University of Canberra, and Marcia Langton, associate provost at the University of Melbourne, and comprising 20 leaders and experts from across the country.[78] The body was described as a "voice to government", rather than a "voice to parliament".

Prime Minister Scott Morrison rejected the proposal in the Uluru Statement for a voice to parliament to be put into the Australian Constitution; instead, in his government's model, the voice would be enshrined in legislation. The government also said it would run a referendum during its present term about recognising Indigenous people in the Constitution "should a consensus be reached and should it be likely to succeed".[79]

2021 Senior Advisory Group reports

An interim report by the Senior Advisory Group led by Langton and Calma was delivered to the government in November 2020,[80] and officially published on 9 January 2021. It included proposals that the government would be obliged to consult the Voice prior to passing new legislation relating to race, native title or racial discrimination, where it would affect Indigenous Australians. However, the Voice would not be able to veto the enactment of such laws, or force changes to government policies. The Voice would comprise either 16 or 18 members, who would either be elected directly or come from the regional and local voice bodies.[81] On the same day, Wyatt announced a second stage of co-design meetings lasting four months, involving more consultation with Indigenous people.[82] Calma reported in March 2021 that about 25 to 35 regional groups would be created, with a mechanism for individuals to pass ideas up the chain from local to regional.[83]

In July 2021 the Indigenous Voice Co-design Process panel released its final report.[84][85] It proposed a series of Local and Regional voices, able to provide advice to all levels of government, and a National Voice, made up of a smaller number of members, able to provide advice to both Parliament and Government.[8] The members of the National Voice would be chosen by the Local and Regional Voice for each area. The parliament would be 'obliged' to consult the national voice on a limited number of matters that overwhelmingly affect Indigenous Australians and 'expec[ted]' to consult the National Voice on other matters that 'significantly affect' Indigenous Australians. The report did not cover changing the Constitution (as this was outside its terms of reference)[86] and these bodies would be created via legislation rather than through a constitutional amendment.[9] While the government announced that the report would be considered in Parliament as soon as possible, no legislation was passed by the election of May 2022.[9]

Development under Labor government

Linda Burney, Minister for Indigenous Australians in the Albanese government

In the May 2022 Australian federal election a Labor government was elected with Anthony Albanese as Prime Minister of Australia. In his victory speech, Albanese said that a referendum to decide the Indigenous Voice to Parliament would be held within his term of office, with Minister for Indigenous Australians Linda Burney overseeing the process.[10]

At the Garma Festival of Traditional Cultures in July, Albanese spoke in more detail of the government's plans for a Voice to Parliament. He proposed to add the following three lines to the Constitution:[87][88][89]

  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 Parliament and the Executive Government 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 the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

He also proposed that the actioning referendum ask the question:"Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?"[87]

On 23 March 2023, the Australian Government released a proposed question and amendment for consideration by the Australian Parliament, following advice from the Referendum Working Group.[2]

The proposed question is:

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?[12]

The proposed amendment is:[12]

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.

Referendum preparation

See also: 2023 Australian Indigenous Voice referendum

The first meetings of the Referendum Working Group (RWG) and the Referendum Engagement Group (REG) were held in Canberra on 29 September 2022. The RWG, co-chaired by minister Linda Burney and special envoy Patrick Dodson, includes a broad cross-section of representatives from First Nations communities across Australia. Their remit is to provide advice to the government on how best to ensure a successful referendum, focusing on the key questions that need to be considered, including:[90]

  • The timing to conduct a successful referendum
  • Refining the proposed constitutional amendment and question
  • The information on the Voice necessary for a successful referendum

The RWG includes Ken Wyatt, Tom Calma, Marcia Langton, Megan Davis, Jackie Huggins, Noel Pearson, Pat Turner, Galarrwuy Yunupingu, Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar, and a number of other respected leaders and community members. The REG includes those on the RWG as well as other Aboriginal and Torres Strait Islander representatives from across the country, including land councils, local governments and community-controlled organisations. Mick Gooda, Kado Muir, and Hannah McGlade are included in this larger group. They will provide advice about building community understanding, awareness and support for the referendum.[90]

On 28 December 2022 at the Woodford Folk Festival, the prime minister said that the referendum would be held within a year,[91][92] and on 21 February 2023 he announced that it would be held between October and December 2023.[93] It is likely to be held on a Saturday,[94] and an official pamphlet, with details of the proposed change to the constitution and a summary of both yes and no arguments, will be mailed to every household before the vote.[95]

Former High Court Judge Ian Callinan

Legal opinion in Australia is divided over the suitability of the current wording of the proposed constitutional amendment.[96][97][98][99][100]

Draft

Following release of the draft wording of the amendment, former High Court of Australia judge Ian Callinan (who opposes the Voice), as well as constitutional experts Frank Brennan and Emeritus Professor Greg Craven (who support the Voice) argued against the Voice being granted the power to make representations to "executive government" (rather than simply Parliament), as it would raise the prospect of many legal challenges.[96] They also argued that the Albanese government's definition of what issues the Voice body should be empowered to advise upon is too broad, and represents a radical change to Australia's system of government.[101] In December 2022 Callinan called for clarification of the intended franchise and financial and judicial oversight methods.[102] Brennan has worked on the Senior Advisory Panels working towards the Voice, but disagreed with the draft wording and in February 2023 proposed alternative wording.[103][104]

March 2023 final wording

The government, after consulting with its Indigenous working group and legal experts,[105] confirmed its wording on 23 March 2023, with an amendment to clarify that other arms of government could ignore the advice of the Voice, stating that parliament would "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".[98] Attorney-General Mark Dreyfus had sought the addition of the words "and the legal effect of its representations" to this third line of the proposed Constitutional amendment to emphasise Parliamentary supremacy, but this was rejected by the Working Party.[106]

Greg Craven, a member of the government's Constitutional Expert Group, criticised the government's failure to heed warnings about the legal and administrative implications of the scope of the wording, and feared that the referendum would fail.[107] Other constitutional experts have backed the proposal as a "safe and sensible" legal option. Former High Court judge Kenneth Hayne wrote that the Voice would not obstruct the government's function. Anne Twomey, a legal expert at the University of Sydney, pointed out that there was no legal obligation for Parliament to carry out the Voice's suggestions. George Williams, law professor at the University of New South Wales agreed, calling the proposal a modest one. The Law Council of Australia supported the model, calling it a "modest step". The attorney-general, Mark Dreyfus, said that the amendment made clear that parliament would have the power to legislate the functions and powers of the Voice.[98] He said that the proposed constitutional change "would not oblige the parliament or the executive government to consult the Voice prior to enacting, amending or repealing any law, making a decision, or taking any other action". Barrister Bret Walker and former High Court justice and chief of the court Robert French are happy with the proposal as it stands.[105]

A major sticking point among experts is the inclusion of the phrase "executive government"; the Voice as proposed would have the power to make representations to parliament as well as executive government. In Australia, "executive government" comprises ministers and the departments they oversee.[105] It is a broad term, which covers a wide range of people from the governor-general to the cabinet and public servants.[96] Opponents argue that it makes it possible that the whole of the federal government, including its agencies, would be under an obligation to consult the Voice, and that the wording could allow judges could make rulings about its nature. However Anne Twomey argues that there is no such obligation in the proposal, and that past High Court rulings have found that the term extends to ministers and government departments, but not statutory bodies, which are distinct legal entities.[105]

Then shadow attorney-general, Julian Leeser, outlined his concerns about the "executive government" clause to the National Press Club on 3 April, namely that that the clause's meaning is unclear and may be interpreted by the High Court in a way unexpected and unable to be modified later by legislation. Additionally, he argued for the deletion of the clause to improve the success of a successful referendum as the clause would likely be central to the arguments of the no case. He also expressed concerns with the preambular statement "In recognition of Aboriginal and Torres Strait Islander Peoples as the First Peoples of Australia:" as this may be used in interpreting the provision and its legal effect is unclear.[108][109] However, despite these concerns, Leeser has stated he will vote yes and will continue to campaign for a successful referendum.[110]

On 21 April, legal advice from the solicitor-general, Stephen Donaghue, was released by the federal government. Donaghue's advice stated that the Voice would be compatible with the current system of government and refuted suggestions the Voice would lead to a large number of legal challenges.[111][112] He also stated that the Voice would be an enhancement to the Australian Constitution and would help in "overcoming barriers that have historically impeded effective participation by Aboriginal and Torres Strait Islander peoples in political discussions and decisions that affect them" and would also "rectify a distortion in the existing system".[113]

In May 2023 constitutional law professors Nicholas Aroney and Peter Gerangelos's submission to the Joint Select Committee highlighted a number of issues with the proposed constitutional amendment.[114] This included the Voice having similar constitutional status as the Parliament, the executive and the High Court, that could lead to the High Court implying a higher fiduciary duty owed by the Commonwealth to all Indigenous people over an above other citizens. The professors also identified the amendment would represent a “positive right” which are currently unknown to the Australian Constitution. Sydney barrister Louise Clegg has noted that this advice contradicts the government's Constitutional Expert Group's advice (that no new rights would be inserted by the proposal) and claims this also counteracts the solicitor-general’s advice.[115] It has also been stated by the Rule of Law Institute of Australia vice-president, Chris Merritt, that it would “clearly restrict the sovereign power of the Commonwealth in a way that nobody has even considered. It's very, very worrying.”[116]

Stances and opinions

Political parties

Main articles: 2023 Australian Indigenous Voice referendum § Positions, and Endorsements in the 2023 Australian Indigenous Voice referendum

The Anthony Albanese led Labor government supports the Voice,[117] arguing in the official Yes referendum pamphlet that the Voice will recognise Indigenous Australians in the constitution in the way they requested, improve government decision making through listening to advice on matters that affect Indigenous Australian lives, and make practical progress in closing the gap.[118]

Both the Liberal[119] and National parties however oppose the voice, arguing in the official No referendum pamphlet that the Voice is legally risky, divisive and far too broad in its scope.[120] Peter Dutton has instead argued for a more symbolic inclusion change in the Constitution as a form of recognition, with local and regional voices to be legislated (without a national Voice).[121]

Public opinion

This section is an excerpt from Opinion polling for the 2023 Australian Indigenous Voice referendum.[edit]
External poll aggregations
image icon Nick Evershed and Josh Nicholas for The Guardian
image icon Kevin Bonham, electoral analyst[122]
image icon Simon Jackman, University of Sydney professor[122]
Graphical summary – binary choice

State and territory voices

ACT Aboriginal and Torres Strait Islander Elected Body

The ACT Aboriginal and Torres Strait Islander Elected Body was established in 2008.[123]

First People's Assembly of Victoria

In November 2019, the First Peoples' Assembly of Victoria was first elected, consisting of 21 members representing Aboriginal Victorians, elected from five different regions in the state, and 10 members to represent each of the state's formally recognised traditional owner corporations (excluding the Yorta Yorta Nation Aboriginal Corporation, who declined to participate in the election process).[124] This body provides an Indigenous voice to the Victorian parliament.

South Australian First Nations Voice

In May 2021, South Australian Premier Steven Marshall announced his government's intention to create the state's first Indigenous Voice to Parliament.[125] After the election of a state Labor government in 2022, new premier Peter Malinauskas pledged to implement this state-based voice to parliament, as well as restarting treaty talks and greater investment in areas affecting Aboriginal people in the state.[126] In July 2022 Dale Agius was appointed as the state's first Commissioner for First Nations Voice, with the role commencing in August and responsible for liaising with federal government. Kokatha elder Roger Thomas would continue as Commissioner for Aboriginal Engagement for a further six months.[127]

In January 2023 the government secured the support of the Greens for a bill which would be debated in parliament later in the year.[128] The process would include the election of 40 people by Aboriginal and Torres Strait Islander people enrolled to vote ore members specific to their geographic area, with 12 of these forming a statewide Voice, which would be entitled to address the parliament on any bill being debated.[129] An open letter was sent in early January to Agius and Kyam Maher (Attorney-General of South Australia and Minister for Aboriginal Affairs) by Native Title Services SA on behalf of most of the native title bodies, voicing some concerns about aspects of the model, saying the proposal would bypass established individual native title groups' voices. Maher said later that their concerns would be taken into consideration, and the bill would ensure the Voice would not impinge on what the groups do, and would ensure the existence of a formal structure to take into account their views.[130]

One Nation's sole MP Sarah Game expressed her opposition to the legislation, saying it would divide South Australians based on race.[131] In February 2023, the South Australian Liberal Party announced its opposition to the Voice proposed by the government, saying that it was flawed.[132][133]

The bill passed in a special Sunday sitting of parliament on 26 March 2023 and was given royal assent immediately after[134][135] in a public event on the steps of Parliament House.[136] Thousands of onlookers attended the event, watching some of the events inside the building projected live onto large screens. The premier said in a radio interview the next morning that he would deem the Voice as a failure if there was not a measurable improvement in the Closing the Gap statistics in the years ahead.[137]

See also

Footnotes

  1. ^ See Proof of Aboriginality on the AIATSIS website.

References

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Further reading

Retrieved from "https://en.wikipedia.org/w/index.php?title=Indigenous_Voice_to_Parliament&oldid=1172154089"