Australia Communities and society , Welfare and equalities

Unpacking common concerns about the Voice

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Summary

The Prime Minister of Australia recently announced the wording of the proposed amendment and question for the people of Australia for an Aboriginal and Torres Strait Islander Voice to Parliament to be inserted into the Australian Constitution. This Q&A briefing helps local government fully understand the proposal and its implications.

Briefing in full

The forthcoming constitutional referendum is a significant milestone in the evolution of Indigenous policy in Australia. It is important to reflect on the fact that this has emerged from almost two decades of discussion and debate about the lack of recognition of the First Peoples of Australia in our founding rulebook, the Constitution.

It is vital therefore that Australians understand the proposal and understand why Aboriginal and Torres Strait Islander peoples have called for a Voice to be incorporated into the Constitution.

The First Nations Portfolio at The Australian National University has prepared a briefing addressing some common concerns currently being raised about the Voice. It is intended to help people better understand some of the complex issues and confusing commentary that has surrounded the Voice proposal, so they can make an informed decision when they vote at the referendum later this year. The following is a shorter version of that briefing.

1. Do we need an Aboriginal and Torres Strait Islander Voice when there are already elected Indigenous parliamentarians?

Electing Aboriginal and Torres Strait Islander people to the Commonwealth Parliament is important. However, Aboriginal or Torres Strait islander Members of Parliament cannot solely represent Aboriginal and Torres Strait Islander interests in their electorates: they need to prioritise the interests of their party and their electorate if they are to remain in the Parliament. An Aboriginal and Torres Strait Islander Voice, therefore, serves a distinctly different but complementary function.

2. Why do we need a Voice if prominent Indigenous Australians and Indigenous organisations can already speak to government?

Since 1967, successive federal governments have recognised the need to engage with Aboriginal and Torres Strait Islander peoples and many advisory groups, consultative bodies or councils have been established and subsequently abolished. There is no evidence to suggest they did not work. Each of them was abolished at the whim of government. In the absence of such structures, about 80 Aboriginal and Torres Strait Islander organisations have organised themselves into a Coalition of Community-Controlled Peak Organisations (Coalition of Peaks). The Coalition of Peaks was instrumental in the development of the National Agreement on Closing the Gap.

Their success does not diminish the need for an Aboriginal and Torres Strait Islander Voice. The community-controlled sector needs funding, usually from the Commonwealth, to survive and influence policy and programs. A Voice, however, would be a permanent institutional presence in the nation’s Constitution. It would demonstrate Australia’s commitment to recognising and protecting the rights of Aboriginal and Torres Strait Islander peoples. It would also ensure that Aboriginal and Torres Strait Islander people can select their own representatives to speak to the Parliament and government when debating law and policy that will affect them.

3. Would a separate body for Indigenous Australians divide Australia based on race, or give Aboriginal and Torres Strait Islander people special rights?

Some commentators have argued that an advisory body open only to Indigenous Australians will divide the country on the basis of race, or that it breaches important principles of equality because it will give one group of people more rights than other groups. Are they correct? The answer is no, for several reasons. The Voice does not confer ‘special’ rights on anyone. The Voice recognises Aboriginal and Torres Strait Islander peoples as the First Australians. The Parliament can make laws that only affect Aboriginal and Torres Strait Islander peoples.

Furthermore, there is no such thing as ‘race’. To even speak of the notion of race is misguided. There is no scientific or biological foundation for the idea of race (American Society of Human Genetics, 2018). Scientists that have mapped the human genome have found there is no basis in the genetic code for race. Race is a social construct. This emphasises again that the Aboriginal and Torres Strait Islander Voice reflects the inherent rights Aboriginal and Torres Strait Islander peoples hold as the original inhabitants of the Australian continent. It is not based on race.

4. Is the Voice a Third Chamber? Will the Voice delay Parliament or make governing more difficult?

The Voice is not a Third Chamber of Parliament. The Voice will not be able to introduce bills into Parliament or vote on legislation. The Voice will have no ability to delay or frustrate Parliament. As former High Court judge Kenneth Hayne (2023) has said, the Voice “will not impede the ordinary working of government”. The Voice will simply be able to make representations to Parliament and the government. Parliament retains full control over its own procedures. The Voice is subservient to the Parliament.

5. Should the Voice be allowed to speak on things that affect all Australians?

The proposed constitutional amendment allows the Voice to make representations on matters relating to Aboriginal and Torres Strait Islander peoples. This means it will be able to speak on matters specific to Aboriginal and Torres Strait Islander peoples as well as on matters relevant to all Australians, but which affect Aboriginal and Torres Strait Islander peoples differently. There are four reasons why the Voice should be able to speak on matters that directly or indirectly affect Aboriginal and Torres Strait Islander peoples:

  • It is not feasible to limit the Voice to Indigenous-specific legislation.
  • Laws of general application sometimes affect Indigenous Australians differently.
  • The Voice should be able to choose what it focuses on.
  • The Voice is advisory only.

6. Will the Voice just be another ATSIC?

The Aboriginal and Torres Strait Islander Commission (ATSIC) was a national Indigenous representative body that existed between 1989 and 2004. The Commission combined representative and administrative roles. Elected Indigenous representatives could identify funding priorities, formulate, and implement policy and plans, make decisions over public expenditure, and protect cultural material and information. ATSIC faced several structural problems and was abolished in 2004.

Is the Aboriginal and Torres Strait Islander Voice going to be another ATSIC? No. The structure of the Voice will be different. The Voice will not deliver government programs. It will be a representative body that makes representations to Parliament and the government on law and policy that affect Aboriginal and Torres Strait Islander people. This more limited role will avoid the structural complications that ATSIC faced.

7. Is the Voice a radical change that goes against the nature of our Constitution?

The Australian Constitution is a rulebook for governance. It establishes and distributes power among the three arms of the federal government: the executive, the legislature, and the judiciary. It also divides law making power and outlines the relationship between the Commonwealth Government in Canberra and the several States.

The Voice also does not cut against the nature of our Constitution. It is not a radical change. It is a modest addition to our Constitution and to our nation. It simply provides Aboriginal and Torres Strait Islander peoples with the opportunity to speak to the Parliament and government when they are debating laws and policy that will affect them.

8. Will activist Judges turn the Voice into something radical?

The Voice is not a radical change, and it will not be turned into something radical by Judges. As Former Chief Justice Robert French (2023) has explained, ‘there is little or no scope for any court to find constitutional legal obligations’ in the proposed amendment. This point is supported by former High Court Justice Kenneth Hayne (2023) who has explained that there are no reasons to fear what has been proposed.

The Voice will be a political institution subject to Parliament. This means Parliament will retain the ability – and the responsibility – to design how the Voice looks and operates, including whether and how public officials engage with representations made by the Voice.

9. Will the Voice improve the lives of Aboriginal and Torres Strait Islander people?

There is compelling evidence that the direct involvement of Aboriginal and Torres Strait Islander peoples in the design and implementation of laws and policies produces much better outcomes. This is agreed across political parties in the Parliament and it is the core premise of the National Agreement on Closing the Gap, developed by the Coalition Government in 2020 and now being implemented by the current Labor Government.

10. Why do we need to put the Voice in the Constitution?

The Parliament could pass a law tomorrow that establishes an Aboriginal and Torres Strait Islander Voice. However, there are three good reasons why the Voice needs to be put in the Constitution:

  • Inserting the Voice into the Constitution will provide the Voice with security and stability.
  • Putting the Voice in the Constitution will make it more likely to succeed.
  • Putting the Voice in the Constitution is an act of recognition and respect.

11. How can I vote for the Voice if I do not know what it will look like?

A considerable amount of detail about the Voice already exists. Key design principles have already been agreed.

On 23 March 2013, when the Prime Minister announced the details of the proposed constitutional amendment and the referendum question, he also made the following things clear:

  1. The Voice will give independent advice to Parliament and Government.
  2. The Voice will be chosen by Aboriginal and Torres Strait Islander people based on the wishes of local communities.
  3. The Voice will be representative of Aboriginal and Torres Strait Islander communities, gender-balanced and include youth.
  4. The Voice will be empowering, community-led, inclusive, respectful and culturally informed.
  5. The Voice will be accountable and transparent.
  6. The Voice will work alongside existing organisations and traditional structures.
  7. The Voice will not have a program delivery function.
  8. The Voice will not have a veto power.

The referendum is about the principle. It is important to remember that the Uluru Statement from the Heart asks Australians to support the principle of a Voice rather than a particular legislative version. The finer details of what the Voice will look like and how it will work is the responsibility of the Parliament, to be worked out after the referendum through consultation with Aboriginal and Torres Strait Islander peoples and debate in Parliament. The Parliament can always change what the Voice looks like, but a referendum is the opportunity for Australians to say whether they think a Voice is a good idea.

12. Will an Aboriginal and Torres Strait Islander Voice cede Aboriginal and Torres Strait Islander peoples’ sovereignty?

An Aboriginal and Torres Strait Islander Voice cannot and will not cede Indigenous peoples’ sovereignty, for several reasons:

  • Aboriginal and Torres Strait Islander sovereignty cannot be ceded except by agreement and the Voice proposal says nothing about Aboriginal and Torres Strait Islander sovereignty.
  • Aboriginal and Torres Strait Islander sovereignty cannot be extinguished by the Australian Constitution.
  • The Participation of Aboriginal and Torres Strait Islander peoples in Australian governance does not cede sovereignty.

Putting an Aboriginal and Torres Strait Islander Voice in the Australian Constitution will have no effect on Indigenous sovereignty. It will simply provide Aboriginal and Torres Strait Islander peoples with an opportunity to inform the development of laws and policies that affect Indigenous Australians.

Comment

Australia is at a turning point in the history of its relations with Aboriginal and Torres Strait Islander peoples.

It is a fact of history that Aboriginal and Torres Strait Islander peoples were not accorded respect and recognition when the British arrived to colonise these lands and waters in 1788.

The forthcoming referendum is an opportunity to address that history. As the former Chief Justice of the High Court of Australia says:

The Voice is a big idea, but not a complicated one. It is low risk for a high return. The high return is found in the act of recognition, historical fairness and practical benefit to law-makers, governments, the Australian people and Australia’s First Peoples. It 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.

The full version of the First Nations Portfolio briefing on Responding to Common Concerns about the Aboriginal and Torres Strait Islander Voice can be found here.

For more information on this briefing contact LGIU Australia by emailing [email protected]

References

American Society of Human Genetics (2018), ‘ASHG Denounces Attempts to Link Genetics and Racial Supremacy’ 103(5) ASHG Perspective 636.

French, R. and Lindell, G. (2023) ‘The Voice—High Return, Low Risk’ (Presented at the Judicial Commission of New South Wales Exchanging Ideas Symposium, 4 February 2023).

Hayne, K. (2023) ‘All Australians own the Constitution. Now we have the words to prove it’, Guardian Australia (online, 23 March 2023) <https://www.theguardian.com/commentisfree/2023/mar/23/all-australians-own-the-constitution-now-we-have-the-words-to-prove-it>.

Related briefings

The Uluru Statement from the Heart: Understanding Local Government’s role

A First Nations Voice to Parliament: Local Government’s role

Treaty: What is it? Why does Australia need it? What’s happening around Australia? How will they affect local government?

Truth Telling: What is it, and what role can local government play?

The Indigenous Voice co-design process report: What they recommended

A Human Rights Act for Australia: How will it affect local government?


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