Aboriginal and Torres Strait Islander Voice to Parliament

What is a referendum, and how would the Voice to Parliament work?

Professor Katharine Gelber
Head of the School of Political Science and International Studies

A referendum is a formal procedure, set out in s128 of the Constitution, to change the text of the Constitution. It is the only way to change our Constitution. To pass, a referendum needs both a majority of votes overall in the whole country, and a majority of votes in a majority of states (at least 4 states out of the 6). By making sure the only way the text could be changed was through the mechanism of a referendum, the drafters of the Constitution entrusted this foundational document to the people – to all of us. It is therefore our civic and democratic duty to make an informed choice. Voting in referendums in Australia is compulsory for all eligible citizens of voting age, just as it is in elections.

A plebiscite, such as the one conducted in 2017 over marriage equality, is not a formal decision-making procedure in the Australian system of government. The government of the day proposed a plebiscite as a way of collecting the views of Australians on marriage equality. However, in contrast to a referendum the result of the plebiscite was non-binding and voting in the plebiscite was voluntary. The word ‘plebiscite’ simply means a vote of all the people, but that term is not formally used in the Australian system of government.

The Voice will provide a constitutionally enshrined recognition of Aboriginal and Torres Strait Islander people for the first time in our history, and it will enable Indigenous people to make representations to the government and its department on policy affecting Indigenous peoples. Making it constitutionally enshrined means that governments cannot abolish the Voice in future, as has happened with previous representational bodies. This distinguishes the Voice from all other representative organisations that have existed in Australia previously. The First Nations Referendum Working Group advising the government on the referendum has developed 8 design principles which will frame how the Voice will be constituted if the referendum succeeds.

Each country has its own framework and history for how to incorporate the voices of Indigenous peoples into its governing frameworks, so the mechanisms are very diverse internationally. In some countries, like New Zealand and Canada, there are historic, colonial-era treaties, but Australia does not have this. Several Scandinavian countries have adopted a voice-like mechanism. Aboriginal and Torres Strait Islander peoples are asking the Australian people to recognise them as the First Nations peoples of this country in the form of a representational Voice to parliament.

How will a Voice to Parliament improve Indigenous political participation and representation, particularly in areas such as education and cultural continuity?

Professor Tracey Bunda
Professor of Indigenous Education
Acting Director of UQ's Aboriginal and Torres Strait Islander Studies Unit

The Voice will be a representative body of Aboriginal and Torres Strait Islander communities throughout the nation. I envisage this representation being inclusive of the diversity that can be found within our communities, for example Elders, youth, remote and rural. This representation is critical to being able to raise and address issues with Parliament that are important to Aboriginal and Torres Strait Islander peoples, from the perspective of Aboriginal and Torres Strait Islander peoples. Too often there is a failure to include Indigenous perspectives and to act in concert with Aboriginal and Torres Strait Islander peoples to find solutions, to engage in shared strategic thinking and to resource Aboriginal and Torres Strait Islander communities appropriately for life-sustaining futures. In the past, representative bodies such as the Aboriginal and Torres Strait Islander Commission (ATSIC) did not have the protection of being enshrined in the Constitution and operated at the goodwill of the government of the day. As a result, ATSIC was disestablished in 2005. Additionally, ATSIC was limited in its scope and did not represent on key matters such as health and education. 

In the matter of education, there remains much work to be done if Aboriginal and Torres Strait Islander peoples are to effectively contribute to their own communities and the nation at large. The Closing the Gap annual report (2020) identifies that there is a lag in Year 12 completions, while national minimum standards in literacy and numeracy are not being met by one in 4 Aboriginal and Torres Strait Islander students. Aboriginal and Torres Strait Islander families and communities differ very little from non-Indigenous families in seeking quality education for the next generations, leading to secure and worthy forms of employment that will help sustain Indigenous lives in rich and nourishing ways. As an Aboriginal person who has dedicated their working life to education, I believe a ‘yes’ vote that recognises Aboriginal and Torres Strait Islander peoples as the First Peoples is a necessary part of truth telling for the nation. A constitutionally enshrined Voice will be a mechanism that can represent to government to work towards, not only better educational outcomes, but also health, employment, and housing.

I dream of an Australian society where we are equal. Take courage, we – together – are almost there.

What constitutional implications could arise from a Voice to Parliament?

Professor Nicholas Aroney
Professor of Constitutional Law, TC Beirne School of Law

The High Court of Australia has made clear that there is more to the Constitution than the literal meaning of its express words. Its meaning includes implications derived from both the text and the structure of the Constitution, interpreted in the context of the Australian legal system as a whole as well as an array of politically binding constitutional conventions.

There are 8 potential implications of the proposed amendment of the Australian Constitution to establish an Indigenous Voice.

1. The recognition of Australia’s Indigenous peoples as ‘the First Peoples of Australia’ may impel the High Court to attribute a kind of sovereignty to Indigenous peoples over against the ultimate sovereignty of the Australian people, entailing Indigenous rights to self-determination and self-government under the Constitution.
2. The establishment of the Voice in its own chapter in the Constitution may lead the High Court to infer the existence of an implied separation of powers doctrine limiting the power of the Parliament to enact laws considered to compromise the independence and integrity of the Voice.
3. The constitutional right to make representations ‘to the Executive Government’ may entail the right to make representations not only to government ministers who are responsible to Parliament and ultimately to the Australian people, but also to individual civil servants as integral parts of the federal bureaucracy as defined in Chapter II of the Constitution.
4. The constitutional right to make representations may have the legal consequence that such representations, when relevant to a government decision, become mandatory considerations, with the further consequence that if a government decision-maker fails properly to take such representations into consideration the decision may be quashed by the courts and the decision-maker required to go through the decision-making process again.
5. The right to make representations may be interpreted in light of the principle that with every grant of a constitutional power or function there is implied everything necessary to enable that power or function to be exercised effectively, such as being provided by the government with sufficient information, and perhaps even resources and expertise, to enable the Voice to make effective representations.
6. The establishment of the Voice as a singular ‘body’ formed to make representations to the Federal Government may be interpreted to prevent the Parliament from establishing an additional 35 Regional Voices and numerous other Local Voices as recommended in the Calma & Langton report.
7. The reference to the Voice as a singular body may be interpreted to imply that the Voice must ultimately present a particular perspective in each representation, speaking with ‘one voice’ as it were, analogously to the principle of Cabinet solidarity and the sole right of the Speaker to communicate on behalf of the House of Representatives, notwithstanding calls for the Voice to present the diversity of views that exists among Aboriginal and Torres Strait Islander peoples.
8. The power of the Parliament to make laws ‘with respect to matters relating to’ the Voice — being a ‘double use of wide connecting language’ producing ‘a legislative power of great width’ — may be interpreted by the High Court to enable the Commonwealth to make laws implementing the policy recommendations of the Voice, altering the existing constitutional distribution of powers between the Commonwealth and the states, analogously with the power of the Parliament to make laws implementing international treaties on any topic.

No one can be absolutely sure about the likelihood that these, or similar legal consequences, will be found by the High Court to be implied by the proposed constitutional amendment. This uncertainty is magnified by the fact that the concept of an Indigenous Voice is a very recent idea with only limited past practices and no specific legislative precedent to guide constitutional interpretation.

There have been many cases in which judges of the High Court have disagreed among themselves about these sorts of matters. But there are certainly many cases in which similar implications have been found to exist. Views may differ as to whether such implications would or would not be desirable. But it is important that the Australian people, in exercising their responsibility to vote in the forthcoming referendum, are aware of the potential implications.

More information about these potential implications can be found here and here.