06/01/2023 | News release | Distributed by Public on 05/31/2023 20:38
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.
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:
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:
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
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.
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).
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:
It has been suggested that the Voice might variously amount to:
a.be 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.
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.