For months, opponents of the Voice to Parliament have cast the proposal as a direct threat to democracy: something altogether too chancy and too radical or, if none of those things, an affront to the country’s values of equality and egalitarianism.
Those in the Yes camp, by contrast, have framed the Voice as a necessary, albeit modest, proposal: a means by which Aboriginal and Torres Strait Islander peoples can be afforded both the dignity of constitutional recognition as well as a platform from which to advise government on the impact of existing and proposed laws on their communities.
As the campaign enters its final week, the ability of all voters to navigate the thick fog of misinformation and confusion around the proposal is at best questionable; a reality only deepened by the government’s official Yes/No pamphlet, which wasn’t subject to fact-checking prior to publication.
To help readers parse reality from fiction and wade through these thickets of confusion, false claims and lies, from now until Friday Crikey will answer your fundamental questions and queries on the proposal, updating this page as required. Among the questions answered today are: would the Voice have a say over everything and everyone? Could the government of the day repeal the Voice? And what happens to the Voice if we one day close the gap?
To begin with, however, it’s helpful to start with the words of the proposed amendment, if only because the text answers so many of the misconceptions and fears over the Voice:
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:
- there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
- 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;
- 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.
Why has an Indigenous Voice to Parliament been proposed? How did it emerge?
The call for a Voice to Parliament finds reflection in the Uluru Statement from the Heart, which in turn was the product of the historic regional dialogues that culminated in the 2017 National Constitutional Convention.
Contrary to popular perception, poll after poll has shown Indigenous peoples overwhelmingly support the Voice, the purpose of which is two-fold. First, as former High Court chief justice Robert French put it, to recognise and acknowledge the unique historic status of Indigenous peoples “as the bearers of the first history” of the continent (see opening words: “in recognition of”); and second, to establish a nationwide body (“there shall be a body”) to assist lawmakers to better respond to the many sustained and overlapping areas of Indigenous disadvantage: health, education, lower life expectancy, employment, housing and gross over-representation in prisons.
As to the latter, the Productivity Commission recently made the point that it is the repeated failure of government to meaningfully partner with and consult Indigenous communities under the Closing the Gap agreement which continues to fuel this dismal state of affairs.
Wouldn’t the Voice introduce race into the constitution and ‘permanently divide us by race’?
No. The concept of the Voice rests not on any ill-defined notion of race but the historical status of Aboriginal and Torres Strait Islander peoples as the country’s original inhabitants.
To tease this out, consider the following: many within the No camp, including Opposition Leader Peter Dutton and former prime minister Tony Abbott, claim to support constitutional recognition of Indigenous peoples as the nation’s First Peoples. If that is so, how can it follow that a Voice comprised of and representing Indigenous peoples is based on race? The same logic exposes the fallacy of the argument the Voice is inherently racist or otherwise offends anti-discrimination laws.
The second point is the constitution, in its current form, already contains provisions which refer to race, including most obviously its so-called “race power” (Section 51, xxvi), which in its practical operation allows the government to pass laws specific to Indigenous peoples. These include native title and Indigenous heritage laws, but extend to those that turn on efforts to close the gap.
Contrary to claims by the No camp, the achievement of the 1967 referendum was not to “remove race” from the constitution but to empower the Commonwealth to make special laws (under its race power) for Indigenous peoples. This reduced racial discrimination in the country so far as it enabled the Commonwealth to override decades of legislative discrimination against Indigenous peoples by the states.
But to this day, there’s nothing stopping the federal Parliament from itself relying on the race power to pass racist or discriminatory laws against Indigenous peoples, as the famous Hindmarsh Island Bridge case confirmed.
In such circumstances, does this mean our existing constitutional structure is racially divisive? Yes and no. Yes, so far as the power of Parliament to use the race power to pass discriminatory laws against Indigenous peoples still exists. And no, given the ability of Parliament to use the race power to pass positive laws for Indigenous peoples in the areas of housing, health etc is a necessary force for equality.
Against this backdrop, the special function of the Voice would simply be to ensure Indigenous people are at least given an opportunity to help lawmakers exercise such powers in their communities’ best interests. It bears emphasising that this basic expectation — that Indigenous peoples, by virtue of their distinctive collective identity and history of disadvantage, ought to be consulted on laws that directly affect them — finds reflection in international law.
Wouldn’t the Voice create or deepen political inequality by creating ‘special rights’ others lack?
The short answer is no. For one thing, the question wrongly assumes that ours is a democracy that takes equality in political power as a fundamental organising principle, when that is manifestly not true.
Consider, for instance, the power money in this country wields through (secret) political donations and lobbying. Consider also the political inequality the Constitution spells for representation in the Senate and, ironically, in the procedure for referenda.
Indeed, the very existence of the race power in the constitution calls into question the assumption of substantive equality, as former High Court chief justice Murray Gleeson has pointed out.
Here, the proposed constitutional amendment merely empowers Parliament to establish an Indigenous body to advise on proposed laws relating to Indigenous affairs. It neither removes the power of non-Indigenous Australians to make representations to Parliament, nor the power of other groups, including industry, unions, charities and business organisations, to do so.
What powers would the Voice have? Would it have a power of veto?
Though some in the No camp have claimed the Voice would operate as a “fourth arm of government”, this is categorically false.
The Voice would be advisory only, as the words “make representations” in the second part of the proposed amendment make clear. It would have no power to make laws, administer laws or adjudicate on laws. Its power, in other words, cannot sensibly be described as legislative, executive or judicial, which is the central reason Parliament decided to set the Voice out under a separate chapter in the constitution.
Distilled, the Voice would have at best a potential, if not limited, “power of influence”. Limited, because, depending on the legislative framework Parliament uses to establish the Voice, it may ultimately fall short of actual consultation. And potential, because neither the government of the day nor Parliament will be constitutionally or legally bound to listen to, much less act on, the views, submissions and advice relayed by the Voice.
Its constitutional footing, however, would probably over time give way to a democratic convention to respect the Voice’s views or at least acknowledge them, as others have noted. But either way, there are no circumstances under which the Voice could ever dictate the content of laws and policies to government.
Would the Voice have a say over everything and everyone?
Because the Voice would lack any veto power over government or Parliament, the idea it has an automatic say over everything and everyone is a distortion of reality.
It’s true, however, that the proposed constitutional amendment affords the Voice a potentially wide remit, permitting it to advise on laws that directly relate to Indigenous peoples, such as native title, as well as laws of general application, that apply to everyone. But the logic for this is fairly obvious. If, for instance, the government were minded one day to pass voter identification laws (i.e. a law of general application), the Voice would be able to advise government on how those laws would disproportionately impact Indigenous communities in remote areas.
In any event, legal experts have noted that the chances of the Voice wasting its energy and influence on matters that are peripheral to Indigenous affairs, such as defence policy, are remote. And, even if the Voice chose to diminish its political weight in this way, conservative anxieties to that end are overstated given the Voice would be limited to a purely advisory role.
Would Parliament have to implement the Voice’s view? Could the courts force Parliament to give effect to the Voice’s views?
The short answer is no and no. The constitutional amendment would not impose any legal obligation on Parliament or the executive to listen to, much less give effect to, submissions and advice from the Voice.
Earlier in the year, there were some No campaigners who suggested otherwise, but the words added to part three of the proposed amendment (which spells out Parliament’s power to legislate on “matters relating to” the Voice, “including its composition, functions, powers and procedures”) fully dispel that fear. Those words give the Parliament a broad and sweeping power to pass laws on the legal effect of the Voice’s representations, which is to say that it’s wholly within Parliament’s power and control to decide whether or not decision-makers must consider the Voice’s views and in what way.
Even if a law was passed — say, on Indigenous housing — that required decision-makers to take into account the Voice’s views, the most a court could do is declare any decision which failed to do so invalid and send it back to the decision-maker for reconsideration. In these circumstances, the decision-maker could arrive at precisely the same conclusion, provided it’s clear they took into account the Voice’s views. For the avoidance of any doubt, the words “subject to this Constitution” in part three reinforce the reality the Voice would in no way impinge upon Parliament’s supremacy, much less alter the existing structure of government the constitution gives expression to.
This is why a legion of eminent legal experts have said the prospect of endless litigation and clogging up the courts is removed from reality, and why many of the same have found the endless doubt cast on the judiciary to abide by the separation of powers so offensive.
If the referendum succeeds, will Parliament be legally compelled to create or give effect to the Voice?
Interestingly, the answer to this question is no. There’s nothing in the constitutional amendment which imposes a legal obligation on the government of the day to pass laws which give effect to a “body” called the Voice.
It’s true the phrase “there shall be a [Voice]” sounds like words of compulsion, but almost identical words elsewhere in the constitution (for example, Section 101: “there shall be an Inter-State Commission”) haven’t been construed in that way. An inter-state commission hasn’t existed in substance for over a century, notwithstanding Section 101 of the constitution.
Obviously, however, the political pressure to give effect to the Voice would be immense, given a failure to do so would appear to thwart the will of the people.
Would the government of the day be able to repeal the Voice to Parliament?
Yes. Contrary to the fears conjured up by the No camp, there’s nothing to stop the government of the day from repealing the Voice. The constitutional amendment makes permanent provision for a Voice to Parliament; it does not make the actual advisory body to be called the Voice permanent (see above). Should an incoming Dutton government, for instance, repeal the Voice, it cannot be forced to create a new Voice.
Having said that, a decision to repeal the Voice would obviously be a heroic thing to do, given it would run contrary to the will of the people (as expressed in a successful referendum), assuming the new government didn’t run hard on the issue in the lead-up to the election. Subsequent governments, in any event, could invoke the constitutional provision to re-establish the Voice.
Can the government of the day change the model and composition of the Voice?
It falls entirely to the government of the day to decide or revise the model and composition of the Voice, including its functions, powers and procedures (see part three of the proposed amendment). This means the many questions over eligibility of election to the Voice, transparency, accountability and oversight of the body, conflicts of interest, funding and so forth will be determined by parliament in the event of a successful referendum in the usual way.
It bears emphasising that there is nothing remotely odd or peculiar about this arrangement. Most obviously, the numerous heads of powers conferred on Parliament under Section 51 of the constitution are framed in a similar manner — that is, they do not spell out how Parliament is to exercise the relevant power. Contrary to the fearmongering from the Coalition, this means it could easily regulate, modify (or even repeal — see above) the model of the Voice to its desired end, should it one day be returned to government.
What would the Voice look like?
As stated above, the text in part three of the proposed amendment makes it plain that the Parliament has an overriding power to determine how the Voice would operate and who would comprise its membership. It might, for instance, decide to establish a standing committee or designate a particular minister as the recipient of representations from the Voice.
For its part, the Albanese government has released eight essential design principles on the Voice, stating among other things that its members would be “chosen by Aboriginal and Torres Strait Islander people” from every state and territory “based on the wishes of local communities”.
Wouldn’t the Voice be just another ‘elite Canberra bureaucracy’?
This criticism of the Voice proposal is yet another distortion of reality. As others have noted, to describe the Voice as a bureaucracy “reflects a fundamental misunderstanding of its place in the Constitution”.
The overriding reason the constitutional amendment sets out the Voice in a separate chapter from the other arms of government owes to its unique advisory function. It would not be part of the executive and therefore won’t comprise of government officials. It would conversely stand outside both government and Parliament, and be made up of Indigenous peoples who represent First Nations communities from around the country.
What happens if, say, in 50 years’ time, we’ve closed the gap? What role would the Voice fill then?
As explained above, there’s nothing to stop any government of the day from repealing the Voice. The constitutional amendment makes permanent provision for a Voice to Parliament; it does not make the actual advisory body to be called the Voice permanent. This means there wouldn’t be any practical need to go to a referendum to remove the provision for the Voice should we one day close the gap and achieve substantive equality between Indigenous and non-Indigenous peoples.
But given there will always be a need to make or amend laws specific to Indigenous people, such as native title or cultural heritage laws, the purpose and function of the Voice will never truly be spent.
How would the Voice work if it’s advising on areas like health, education and the environment for which responsibility is shared between federal and state governments?
Again, this depends on the precise model the federal government chooses to implement the Voice (see above). It might be that it decides to establish a means or avenue through which the advice of the Voice can easily be relayed to state and territory governments.
In any event, if the federal government were to pass a law that reflected the advice of the Voice, and that law was inconsistent with any existing state law, the usual rules would apply. Namely, the federal law would override the state law to the extent of any inconsistency (Section 122).
How do we know the Voice will be effective?
It’s impossible to say how effective the Voice will be. As an advisory body only, its effectiveness will turn on first, the goodwill and willingness of government to listen to and act on its advice, and second, the quality of its advice.
But as former prime minister Paul Keating writes today, it’s reasonable to assume the Voice (if both those conditions are met) would prove effective. Thirty years ago, when his government was overseeing the development of a “workable and fair system” for native title, Keating initiated, in his words, “the only structured consultation by government that Indigenous Australians have been party to since the referendum in 1967”.
“The consultation was the very first episode of an Indigenous “voice” speaking directly to the executive government on a matter central to Indigenous people [native title],” he writes. “Without an Indigenous “voice” to the executive government, and with that, to the parliament, this historic opportunity would not have produced an optimum outcome of the kind that [it did].”
Given the failure of decades of government policies to materially improve the lived conditions and life expectations of Indigenous peoples, it likewise stands to reason any future outcomes in this space can only be improved by a Voice.
Will the Voice pave the way for treaties and reparations?
Claims from the No camp that the Voice will inexorably lead to treaties and reparations blissfully ignore the central function of the Voice, which is advisory only. It cannot on any view compel or force government to accede to its wishes or demands, or override the function of parliament. So, while the Voice could propose a process for treaty-making or reparations, it doesn’t follow that the government of the day will heed this advice.
For what it’s worth, a number of Australian states and territories have already committed to a treaty with Indigenous peoples, while the Albanese government has ruled out reparations.
Is the Voice really a ‘modest’ suggestion, as the Albanese government suggests?
Yes. Its modesty, as a purely advisory body, is reflected in the exceedingly more ambitious constitutional arrangements for Indigenous recognition that exist elsewhere in the world and under international law.
From New Zealand, where designated Māori seats in Parliament have existed since 1867; to Sweden, Norway and Finland, where there are permanent (though consultative) Sami parliaments; to Canada, which has long recognised the special status of Indigenous peoples in its constitutional arrangements and formal treaties; and the United States, which acknowledges forms of Native American self-determination. Australia is well behind global norms in this space.
The Voice proposal promises none of these things to Indigenous peoples in Australia, still less any semblance of real and practical methods of self-determination or control.
Do you think we’ve missed anything? Let us know below
