The Yes / No choice regarding a Voice to Parliament has been prevalent in the news of late, and the government has also posted Referendum Booklets to our homes.  We’ve all observed that polls are favouring ‘No’ at this stage. The Guardian newspaper has released these poll figures, “47 per cent of 1150 respondents do not approve of the Voice, with 43 per cent in favour, and the remaining 10 per cent unsure. But every state queried on the issue returned a result against the Voice proposal, except for Victoria.”

What’s at stake?

The voice would advise the Australian parliament and government on matters relating to the social, spiritual and economic wellbeing of Aboriginal and Torres Strait Islander people (hereafter collectively referred to as Aboriginal, except where directly quoted). 

“The Voice will give Aboriginal and Torres Strait Islander people a constitutionally guaranteed right to speak to government and the parliament about what's needed for practical improvements to people's lives. This in turn would help address disadvantage and systemic discrimination,” say UNSW researchers.  

Taking a different view, Chris Merritt, Vice President of the Rule of Law Education Centre, says “Eight years ago I saw nothing wrong with requiring parliament to listen to Aborigines and Torres Strait Islanders before using its power under section 51(xxvi) of the Constitution to make special laws that only affect Indigenous people. I still hold that view. This early model is what many people believe they are being asked to endorse. They are wrong. This is not what is on offer at this referendum.”

“Constitutional recognition of Indigenous people is desirable and can be achieved. However, this referendum on the Voice is the wrong way to achieve that goal as it creates a Constitutional entity with unlimited scope that erodes a fundamental principle of democracy, the equality of citizenship,” the Rule of Law Education Centre says.

The No voters assert that the real purpose of this referendum is to change our system of government by injecting a permanent element of racial privilege into the heart of the Constitution. They say that it would give Indigenous Australians – and their descendants for all time – a second method of influencing public policy that goes beyond the benefits of representative democracy that are already enjoyed by all citizens regardless of race.

They feel that it would constitutionalise a race-based lobby group, equipped with a separate bureaucracy, that would give Indigenous citizens the ability to have an additional say on every law and administrative decision, not just those relating specifically to Aboriginal people.

Since mis- and disinformation about the Voice to Parliament proposal are rife, three experts at law at have sought to address the most common questions and myths, and their insightful article was originally published in www.theconversation.com There is a link to their full piece in the credits to this article.

Let’s unravel, with this summary of concerns. 

It’s fair to ask if Aboriginal people support the Voice. There is never a single view, but polling confirms the Voice continues to receive overwhelming Indigenous support. Two polls from 2023 confirm that 80% and 83% of Indigenous people support the Voice.

There are concerns that the Voice will insert race into the Constitution. In fact, the concept of race is already in Section 51 of the Constitution, which was amended in 1967 following a nationwide campaign for change. 

The law experts have pointed out, “As was intended in 1967, the power has been exercised for the benefit of Aboriginal and Torres Strait Islander people (such as in relation to native title and cultural heritage protection laws). On the other hand, the same power could also arguably be used to pass laws that operate to their detriment. Its existence and breadth underscore the need for a mechanism – the Voice – to listen to the very people to whom those laws would apply.” 

In terms of whether the Voice will make a practical difference to improve people’s lives, the experts acknowledge that, “Aboriginal and Torres Strait Islander people have answers to many pressing issues confronting their communities, but all too often are not heard. The positive impact of listening to Indigenous voices is supported by research.”

The Voice is seeking to give Aboriginal people a constitutionally guaranteed right to speak to government and the parliament about what is practically needed and aims to help address systemic discrimination and disadvantage.

Whether the Voice can represent the diversity of Aboriginal views is another concern. The constitutional provision requires only that the Voice is an “Aboriginal and Torres Strait Islander Voice” and leaves the rules governing its composition to be determined by parliament. 

The identity, experience, culture and views of First Nations people across Australia are complex and diverse, which means that the government will need to engage in further consultation with Indigenous people on the specific design of the Voice to ensure the Voice is representative of the diversity of Aboriginal views. 

The experts agree that the Voice is supported under international human rights law as it recognises Indigenous peoples’ rights to political representation and is consistent with the UN Declaration on the Rights of Indigenous Peoples. The Voice has been endorsed by several UN treaty bodies; however they have also expressed serious concern about the human rights violations that Indigenous people in Australia continue to experience.

In terms of whether Aboriginal people already have many ‘voices’ to government and parliament, the law experts say not. They take the view that although there may be more Aboriginal parliamentarians than ever, these individuals do not primarily represent Aboriginal people. They are party members bound by party policy, or individual MPs, who represent the whole of their constituencies. There is currently no representative body to provide parliament, in a nationally coordinated way, the views and experience of the Aboriginal people who will be affected by their decisions.

The concern as to whether the Voice give rise to High Court litigation and clog up parliamentary work, according to informed legal opinion, the establishment of the Voice does not pose any abnormal risk of excessive litigation. Parliament has the ability to determine its own business, and the parliament has legislative power to determine how the Voice will engage with the government.

Monarchists are concerned as to how the Voice may affect sovereignty. The Voice proposal interacts with sovereignty at three different levels. Firstly, the call for the Voice reform is based on the strong assertion in the Uluru Statement from the Heart of the continuing and unceded sovereignty of Aboriginal and Torres Strait Islander peoples. There is nothing in the Voice proposal which alters the British Crown’s assertion of sovereignty at settlement. Lastly, international treaty bodies have repeatedly confirmed that the Voice would be a positive step for the recognition and political participation rights of Aboriginal people within the state.

The Voice has a number of objectives, one of which is the constitutional recognition of Aboriginal people as the First Peoples of the land. First Nations people, through the Uluru Statement from the Heart, indicated they wished for recognition in the form of the Voice.

The law experts say that if the Voice is in the Constitution, it can only be abolished by another referendum, rather than by a change of government policy. This gives it independence and stability, so it can fulfil its function of speaking about matters that might not be politically popular.

Australians are being asked to vote at the referendum on permanent* constitutional change (*subject to a future referendum), so is there enough detail in relation to the constitutional change for them to decide? In fact there is a large amount to inform your choice, including the wording of the amendment, the referendum question, the explanatory memorandum to the amendment, a parliamentary inquiry’s report, and the government has also released the solicitor-general’s advice on the legal soundness of the amendment. 

The detail establishing the “nuts and bolts” about what the legislation of the Voice will look like, is not part of the constitutional amendment, and it is normal for constitutions to leave this type of detail to be worked out in future by the parliament.

The government has taken the option of indicating what it will do following a successful referendum, and how it will go about setting up the Voice, should it pass. It has worked with the Referendum Working Group to finalise a set of design principles that provide the outline of what the voice will look like – how it will represent Aboriginal people across the country, what functions it will have, and how it will be accountable.

Happy reading for your informed choice!   

Take a look at the sources we used for this article below if you're keen to continue reading more on the topic:

• Wording of the Amendment: www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7019 
• Referendum question: www.niaa.gov.au/indigenous-affairs/referendum-aboriginal-and-torres-strait-islander-voice 
• Parliamentary inquiry’s report; https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/Aboriginal_and_Torres_Strait_Islander_Voice_Referendum/VoiceReferendum/Report 
• Solicitor-general’s advice: https://www.aph.gov.au/DocumentStore.ashx?id=ea88212c-eccc-45d2-822c-8578fa96895c&subId=740367 
• Design principles: https://ulurustatement.org/education/design-principles/ 
• The full conversation “10 questions about the Voice to Parliament – answered by the experts”: https://theconversation.com/10-questions-about-the-voice-to-parliament-answered-by-the-experts-207014