Norton Rose Fulbright LLP

06/01/2023 | News release | Distributed by Public on 05/31/2023 20:38

Comments on the proposed Voice to Parliament

As part of our pro bono commitment to supporting First Nations people in Australia, this publication provides background information about the proposed First Nations Voice in anticipation of the upcoming referendum, likely taking place later this year.


What is the proposal?

Australians will shortly be asked to vote about whether the Commonwealth of Australia Constitution Act (the Constitution) ought to be amended. When the nation is formally asked to decide about any proposed change to its Constitution, that process is called a referendum. Referenda in this country are relatively rare and do not enjoy a statistically high success rate. This is partly because any proposed alteration to the Constitution must receive a 'double majority' vote, being both a national majority in the states and territories, and a majority of voters in a majority of the states.

In his acceptance speech on 22 May 2022 following the latest Federal election, Prime Minister Anthony Albanese committed to the Uluru Statement from the Heart in full. Later that year, he proposed that at this next referendum (which will likely take place between October and December 2023), Australians should be asked a question in the manner of the following:

Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?

On the same occasion, the Prime Minister also recommended that the specific alteration - an addition - to the Constitution be as follows:

  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.

This initial proposed wording, while only a draft, became a useful point from which to commence a collective discussion.

In late March 2023, the Prime Minister then announced the proposed question that Australians would be asked to vote on at the referendum, as follows:

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?

He went on to set out the final form of the proposed wording that he would be seeking to include in the Constitution, in a new chapter titled, "Recognition of Aboriginal and Torres Strait Islander Peoples", being:

  1. In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

  2. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
  3. 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;
  4. 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.

The above revised wording is broadly consistent with the initial proposed wording (with an expansion of the Parliamentary power set out in subsection 3), and will be included in a bill that is set to face a final vote in Parliament in June 2023.

What is the rationale?

The proposed amendment to the Constitution gives practical effect to one key aspect of the Uluru Statement from the Heart, (the Uluru Statement), a written message produced as a result of the 2017 First Nations National Constitutional Convention of the Referendum Council (consisting of over 250 Aboriginal and Torres Strait Islander delegates from around the country), held at Uluru. This Uluru Statement distils in short form the long history of Aboriginal and Torres Strait Islander people in Australia, articulates the Council's intentions for the future of these First People and issues an invitation to all Australians to walk together toward "a better future". The Statement calls for three actions: Voice, Treaty and Truth. That part of the Uluru Statement which specifically calls for Voice, is set out below:

We call for the establishment of a First Nations Voice enshrined in the Constitution.

The Uluru Statement is an emotive text, which celebrates and centres the experience of Aboriginal and Torres Strait Islander people, touches on deep systemic failures and offers some insight into what is termed, "the torment of our powerlessness". It is a gesture both of hope and determination. However, the proposal that there be a First Nations Voice is not a purely symbolic concept. It is intended as a step to move our nation along the path of achieving self-determination and justice for First Nations people, reconciliation among all Australians, and an additional tool in addressing the systemic failures - the "gap" - highlighted in the Uluru Statement.

Although Prime Minister Albanese has committed to implement the Uluru Statement "in full", it is important to note that the referendum is only concerned with the first of three proposals: the Voice. Whilst there has been some debate which of three elements of the Uluru Statement should be prioritised, the proposed Constitutional change is relevant only to Voice (not to Treaty or Truth Telling).

Why is the detail behind the Voice mechanism not included in the proposed Constitutional amendment?

This referendum is about a potential amendment to the Constitution which, if passed, would establish the concept of the Voice. The detail regarding how the Voice would operate is not included in the proposed Constitutional amendment. As noted by (inter alia) constitutional and human rights lawyer, Professor Megan Davis, this is because a Constitutional change is a matter of principle. In the event of a successful referendum, the intricacies of the Voice model will then fall to Parliament to determine via legislation.

At first glance, this might appear surprising. However, there are a number of reasons why those framing the referendum question have chosen to adopt this approach. This includes because any number of minor objections to the legislation might result in a referendum outcome which does not faithfully reflect the will of the people as to the principle. Equally, the level of detail required in the ancillary legislation cannot sensibly be contained within the Constitution. This legislation may be amended from time to time by Parliament as necessary, as often occurs with many other pieces of legislation. This process of refinement is important to ensure that any Voice would remain flexible, appropriate and responsive to its context. If such legislation were contained within the body of the Constitution itself, each instance of such amendment would trigger further (impractical and unnecessary) referenda.

While the referendum is about principle, there is detail available about what the Voice might look like in practice if the referendum is successful. To shape our consideration of whether the constitutional amendment ought to be made, we have the benefit of a number of detailed reports (themselves the product of long periods of consultation and reflection) which consider what the supporting legislation might include. Drawing from the findings of the 2016-17 Referendum Council First Nations Constitutional Dialogues, the Final Report of the Referendum Council of 30 June 2017 (Referendum Council Report) offers guidelines for the formation of the Voice body, including that it, "have authority from, be representative of, and have legitimacy in Aboriginal and Torres Strait Islander communities across Australia. It must represent communities in remote, rural and urban areas, and not be comprised of handpicked leaders. The body must be structured in a way that respects culture."

The first recommendation of the Final Report of the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples of November 2018 (Leeser/ Dodson Report) is that the Australian Government initiate a process of co-design with Aboriginal and Torres Strait Islander people. This process of co-design would consider national, regional and local elements of the Voice and how they interconnect, and discuss options including the structure, membership, functions, and operation of the Voice. This Lesser/ Dodson Report sets out a list of principles for the design of the Voice, including that the members of the Voice should be chosen by Aboriginal and Torres Strait Islander people, that there should be equal gender representation, that at the various levels (local, regional and national) the Voice should provide oversight, advice and plans, that the Government should be able to use the Voice (at its various levels) to road test and evaluate policy, and that advice should be sought at the earliest available opportunity.

Following the Leeser/ Dodson Report, the Indigenous Voice Co-design Process Final Report of July 2021 (Calma/ Langton Report) "presents the proposals and recommendations for an Indigenous Voice - a cohesive and integrated system comprised of Local & Regional Voices and a National Voice - with connections to existing Aboriginal and Torres Strait Islander bodies". This Calma/ Langton Report draws upon 18 months of public consultation and engagement through community consultation sessions and stakeholder meetings throughout the country, as well as online submissions, and the learnings of preceding Aboriginal and Torres Strait Island bodies with advisory and advocacy functions.

Over some 272 pages, the Calma/ Langton Report makes, inter alia, the following proposals:

  1. That there be Local & Regional Voices which are community-led, -designed and -run, with flexibility to permit functions, membership and governance to be decided locally. These Voices would provide advice to the National Voice on systemic issues, with a clear, two-way flow of advice and communication between levels of the Voice and opportunities for community members to contribute input.
  2. That there be a National Voice, being a small national body of Aboriginal and Torres Strait Islander members tasked with advising the Australian Parliament and Government. The National Voice would provide the mechanism to ensure Aboriginal and Torres Strait Islander peoples have a direct say on any national laws, policies and programs affecting them.
  3. The model for the National Voice would include a set of consultation standards for when, how and on what types of matters the Australian Parliament and/ or Government should consult with the National Voice. The National Voice would determine issues to advise on, focussing on national level issues, and would prioritise its resources at it sees fit. In general, the formal advice provided by the National Voice would be made public.
  4. Existing Aboriginal and Torres Strait Islander organisations and individuals would be integrated through their Local & Regional Voice arrangements, and the National Voice would also engage with existing bodies and organisations in making representations to Parliament and the Government. There would be no duplication or undermining of roles as between Local and Regional Voices and existing bodes.

What is the Voice not about?

It has been suggested that the Voice might variously amount to:

  • A "third chamber" of Parliament (presumably with the same or similar powers and responsibilities as the House of Representatives and/ or Senate).
  1. This suggestion has been rejected by experts (including Constitutional Law Professor Anne Twomey AO and former Chief Justice of the High Court of Australia, the Honourable Robert French AC) - and abandoned by some of those who have previously relied upon this argument. It is important to keep in mind that the proposal does not contemplate that the Voice will:
  2. a Parliamentary structure that will have the power to pass or reject bills; or

    b. have the power to do any more than make representations.

  3. The ordinary meaning of the proposed addition to the Constitution does not extend to the establishment of a third chamber of Parliament. Parliament alone retains the right to determine the functions, powers and process of the Voice, through legislation, which legislation can be revised (by Parliament) in the usual way. As former Chief Justice of the High Court of Australia, the Honourable Murray Gleeson AC QC, has observed, "What would appear in the Constitution would be the minimum requirements necessary to guarantee [the proposed representative body's] continued existence and its essential characteristics". Simply put, there is no proposal which purports to empower the Voice beyond its establishment and its ability to make representations.
  • A merely symbolic gesture.
  1. While the proposed Constitutional amendment is clearly not unencumbered, its purpose is well-defined. Among others, the Referendum Council in drafting the Statement was guided by principles of seeking "substantive, structural reform" and not wasting "the opportunity of reform". It is worth noting that this opportunity to enshrine a Voice will almost certainly not come again.
  2. The Voice may carry extraordinary symbolic meaning, and some level of symbolism is an appropriate foundation for practical change. However, a Constitutionally protected, enduring ability to make representations to Parliament and the Executive is a not insignificant one. We have a history of law and policy making which has occurred in the absence of participation from Aboriginal and Torres Strait Islander people. We are being presented with an opportunity to change this. If the Voice becomes part of the Constitution, it may not be removed without enormous effort. This is a crucial difference between what is being proposed, and various other bodies which have existed from time in order to advise on First Nations matters.
  3. Some have suggested that it might not go far enough to empower Aboriginal and Torres Strait Islander people. The reality is that while it may not be wholly sufficient and nor may it be a perfect solution to a complex problem, it is a start. Any proposal that there be a Voice which required a radical shift in power or decision-making would likely not attract the level of support required to succeed. As noted in the Referendum Council Report, Constitutional enshrinement in the manner contemplated will provide "reassurance and recognition that this new norm of participation and consultation [will] be different to the practices of the past". To repeat the concluding remarks of that Report, this proposal is both "modest and substantive".
  • An obstruction to other work which improves outcomes for Aboriginal and Torres Strait Islander people.
  1. Among many of those who criticise the Voice, as among some of those who support it, is a concern that the Voice may come at the expense of other efforts toward promoting the interests of First Nations people.
  2. There have been and will continue to be groups, agencies, committees, Royal Commissions and other initiatives tasked with addressing the inequity experienced by First Nations people in Australia. The success of these efforts to date has been mixed. This work does not stop as we approach a referendum.
  3. The intention of the Voice is that, if enacted, two of the three branches of government will have the benefit of hearing from the Voice about First Nations matters. Improving outcomes for First Nations people will require more than the work of one group, or even one Voice. However, the intention is that it will afford Parliament and the Executive the opportunity, the additional resource, of counsel from the Voice on matters relating to Aboriginal and Torres Strait Islander people - no more and no less.
  4. The three pillars of the Uluru Statement - Voice, Treaty and Truth - are crucial and complementary parts of the narrative of Australia's reconciliation with First Nations people. They cannot, however, all be pursued at the Commonwealth level with the same intensity at the same time. Something must come first, and a decision has been made that the first order of business will be Voice. There are other efforts already underway in support of both Truth and Treaty, particularly at State level (for example, the Victorian Yoorrook Justice Commission and the introduction of the Path to Treaty Bill 2023 in Queensland). These initiatives progress concurrently with the proposal to enshrine the Voice.

A final point

There is time between now and the referendum to consider these issues properly, refer to the source material (including, but not limited to, what has been identified here) and come to an informed decision. We invite you to engage in that exercise.