Warning: Some material is this article may cause concern and be triggering for First Nations Peoples
A referendum on a Voice for First Nations Peoples is to be put to the people of Australia in 2023. In this article Partner Jonathan Fulcher and Solicitor Peter Hiotis cover the Voice to Parliament from a legal perspective.
45 years have passed since Australia last changed its Constitution and it is quite difficult to do. Since federation, 44 referenda have been put to the people. Only eight have succeeded. Of those eight, only one was proposed by a Labor Government.
Steps to changing the Constitution
There are several steps which must be followed when seeking to change the Constitution:
- The Commonwealth Parliament must pass a proposed law, by an absolute majority, for changing the text of the Constitution.
- Under current law (which the Australian Labor Party is proposing to amend) the Electoral Commissioner must prepare a pamphlet outlining the proposed amendment, and 2000 words each on the arguments for and against the proposal.
- The Electoral Commissioner must send that pamphlet to each household in Australia at least two weeks before voting day for the referendum.
- For a referendum to be successful, it must be passed by a double majority: a majority of people across the Commonwealth must vote yes, and a majority of people in a majority of states (four out of six states, in other words) must vote yes. Votes from people living in the Australian Capital Territory and the Northern Territory count against the national total (however, these votes do not count against the majority of states).
Referendum proposed changes and question
A referendum on a Voice for First Nations Peoples is to be put to the people of Australia in 2023. The draft words to be added to the Constitution are:
- There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice [National Voice].
- 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.
- 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.
The draft referendum question is:
"Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?"
Parliament’s role under the Australian Constitution
There are many provisions of the Australian Constitution which allow the Commonwealth Parliament to ‘fill in the blanks’ where the Constitution provides the point of principle, and Parliament is left to fill in the details. For instance, laws relating to elections in the states apply, as nearly as practicable, to the election in the State of members of the Commonwealth House of Representatives, “until the Parliament otherwise provides.”
That is the idea with the referendum on the Voice. The people of Australia decide whether or not the principle of the Voice should be made a part of the Constitution. If they do, it becomes a matter for the Parliament to legislate in detail about what it looks like. If the people do not vote for the Voice, the Parliament can still legislate. But future Parliaments can legislate to repeal what the previous Parliament legislated. If the Voice is enshrined in a simple Constitutional provision, future Parliaments cannot remove the Voice from the Parliamentary structure. But they can amend how it works as long as the Voice of First Nations Peoples remains in place in some form, determined by Parliaments from time to time.
Uluru Statement from the Heart
At its core, this proposal seems reasonable enough. The Indigenous people of Australia made an offer to their fellow Australians in 2017 through the Uluru Statement from the Heart. This Statement says that Indigenous disadvantage cannot be fixed by practical measures alone. Such measures need the additional measures of substantial constitutional change and structural reform to recognise Indigenous ancestral ties between the land and the Aboriginal and Torres Strait Islander Peoples “who were born therefrom”. This reform should enshrine a First Nations’ Voice in the fabric of the Australian Constitution itself. The Voice, the Statement says, will empower First Nations People to take a rightful place in their own country.
The Voice is designed to enable First Nations People to have a say on issues which affect them. It does not have decision-making power. Its function is an advisory one, helping to shape laws and policies which affect First Nations Peoples through a constitutionally enshrined structure, enabling Parliament to directly access First Nations input.
The proposal for this Voice is, however, creating some controversy. The National Party has refused to support it, on the ground principally that it will not assist in the Party’s view to aid the practical measures designed to address what the Uluru Statement eloquently calls “the torment of our powerlessness”.
Opposition leader Peter Dutton has issued an open letter to the Prime Minister asking 15 questions which seek more information about how the Voice is designed to work and what it will cost. The Prime Minister has labelled this “disingenuous”.
One of the most important criteria for success in referenda is bipartisanship. If both major parties support a referendum, it is not guaranteed success, but it is more likely to succeed. So, as a start, this opposition from the Nationals and bickering between the leaders of the major parties is a little inauspicious.
Indigenous Voice Co-Design Process Final Report
Fortunately, all is not lost. There is enough information capable of being accessed on the internet and in the press which enables people to become informed.
However, the best place to start is the report by Professors Langton and Calma entitled the Final Report to the Australian Government: Indigenous Voice Co-design Process (Report). This explains the basic structure and purpose of the Voice and the process by which the Commonwealth worked with Indigenous Peoples (and hence, ‘co-design’) to develop the concept of the Voice.
How is the Voice proposed to be set up?
The Voice is proposed to be a new independent Commonwealth entity. It would have an administrative arm called the Office of the National Voice, with a CEO. That Office would support the 24 members of the Voice, with gender balance guaranteed. Each state, the Northern Territory (NT), the Australian Capital Territory and the Torres Strait would provide the base membership. An additional member would represent Torres Strait Islanders on the mainland. A further five members would represent remote areas, one member from each of the NT, Western Australia , Queensland, South Australia and New South Wales . These additional five members would be elected by the Local and Regional Voices. The latter are likely to be designed based on the distinctiveness of the relevant local or regional areas, but are intended to have direct links to the national Voice by way of the provision of advice and the election of National Voice membership. Members of the National Voice would serve four-year terms, on a two-year rotational basis. Each member would be limited to two terms. A small Ethics Council would assist the membership to address membership eligibility issues, probity and governance issues.
Voice core function and what it is not intended to do
The core function of the National Voice would be “to advise on matters of national significance to Aboriginal and Torres Strait Islander Peoples relating to their social, spiritual and economic well-being”. The Voice would decide how to prioritise what was most important to the nation’s First Nations Peoples. The giving of advice to Parliament or the government could be active, or in other words by the Voice initiating the provision of advice, or responsive to law and policy matters of the day. As well, this report sets out what, among other things, the National Voice’s functions are not: Delivering government programs, clearing house for research, provision of mediation services between Indigenous organisations, or between Indigenous organisations and governments.
It is not intended that government engagement with existing First Nations organisations is to be interfered with by the National Voice. But the Voice should engage with and form links with existing First Nations organisations as a core part of its business. Thus, it would ensure the advice from the National Voice captures the expertise and networks of these existing structures. For example, the Voice would not interfere with the National Agreement on Closing the Gap in any way. Organic development would of course be fostered between the Closing the Gap and Voice personnel.
As far as Commonwealth Parliament and Government are concerned, each would be expected to consult the Voice on laws which had a significant or distinctive impact on First Nations Peoples, and would be required to consult on special measures under the Racial Discrimination Act 1975 (Cth) (RDA) and about legislation, like, for instance, The Native Title Act 1993 (Cth), which overwhelmingly affects Indigenous Australians. Consultation standards will be developed but are intended not to be capable of challenge in any court.
Transparency mechanisms are proposed to be developed such as statements in explanatory memoranda about consultation with the Voice, the tabling in Parliament of advice from the Voice and possibly even the establishment of a new parliamentary joint standing committee designed to officially receive advice from the Voice.
As for the costs associated with these proposals, obviously it is likely to be expensive for this to established and to be run. But its advocates say that the costs are outweighed by the fundamental benefits to First Nations Peoples of having a say about laws and policies that affect them. This is the key difference from what we have now, as the Uluru Statement makes clear. The Voice will enable First Nations Peoples to reinforce and protect their ancient traditions through these mechanisms designed for them to control their own destiny more easily. By working hand-in-hand with the people of Australia through the Commonwealth Parliament, the Voice will assist with closing the gap between First Nations Peoples’ lives and the lives of their fellow Australians.
There appears from this very brief summary to be enough information in the Report for the Australian people to be confident that there is a reasonable plan which the referendum, if successful, will allow the Parliament to refine and implement. There may be enough information available, but it is not yet in a digestible form. This needs to be rectified as soon as possible and, in part, this summary is designed to help with that.
This information should also allow people to make an informed decision about whether or not to support the referendum. There needs to be widespread education of the public now about this proposal so that there can be widespread popular ownership of the idea of a National Voice. If these elements are undertaken, the Voice has every chance of becoming part of the Constitutional fabric of the Australian Nation. Changing Australia’s Constitution is hard, but many First Nations People’s lives are harder. This proposal for a National Voice may just be the catalyst needed to close the gap and produce real improvement in the lives of First Nations Australians. These improvements will not just be practical, but will give a voice to those who are asking the rest of Australia to respond positively to their respectful plea movingly made in the Uluru Statement to enable them to feel that their ancient traditions are respected.
No more detail is necessary at this stage. It is now a decision for individuals to support this simple referendum question or not. There will be ample time to debate the details when Parliament fully considers those details when it develops the Voice through designated laws. If the Voice is made a part of our constitutional fabric, successive Governments may, in discussion with First Nations Peoples, change the structure of the Voice and how it works. But the Voice itself will have to remain in some form or other.