On 30 March, a Joint Select Committee was set up to inquire into the Aboriginal and Torres Strait Islander Voice Referendum legislation and report on the provisions of the bill introduced by the government. The inquiry received more than 190 submissions, including an opinion from the Commonwealth Solicitor-General. After hearings in April, the 13-member committee reported on 12 May. Here, we feature edited extracts from several submissions.
The proposed amendment is placed in a new chapter in the constitution. If the referendum is carried, it will be the first time since Federation that a whole new chapter has been added to the constitution.
Sydney University professor of constitutional law Anne Twomey AO writes in her submission to the Joint Parliamentary Committee that the reason for doing this was threefold.
“First, it is to make it very clear that the Voice does not form part of, or have the powers of the institutions established by, the first three chapters of the constitution. As the amendment is not placed in chapters I, II or III, the Voice is not part of the parliament and the constitution does not confer legislative power upon it; it is not part of the executive government and the constitution does not confer executive power upon it; and it is not part of the judiciary and the constitution does not confer judicial power upon it.
The Voice will be a separate body and the only power conferred upon it by the constitution is the power to make representations to the parliament and the executive government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples. Other functions and powers may be conferred upon it by the parliament.
The second reason for placing the Voice in a separate chapter in the constitution is to ensure that it does not interfere in any way with the existing jurisprudence on the separation of powers, which is derived from the text and structure of the first three chapters of the constitution.
The third reason is that the Voice would not fit well within the other chapters.”
What they said
Prof George Williams AO GAICD
Scientia professor and member of the government’s Constitutional Expert Group
“The proposed wording of the change to the constitution is a safe and sound means of achieving the Voice. I make the following further points:
- The amendment comprising three simple and direct sentences is written in a style and at a level appropriate for the Australian constitution. The wording strikes an appropriate balance between establishing the constitutional parameters of the body, while leaving key design features to parliament. It is not appropriate to insert greater detail about the Voice into the constitution as such matters should be left to parliament to determine from time to time based upon experience and the expectations of future generations.
- The Voice will be prefaced by words stating that the change is: ‘In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia’. This is an important addition that makes clear why the constitution is being changed. The Voice is an act of recognition to ensure that Indigenous peoples are included in the nation’s founding document while affirming their status as the first peoples of Australia. These words tie the referendum proposal to the concept of recognition, which has been an animating idea in the reconciliation and constitutional change movement for more than two decades.
- The change is well-drafted to create an advisory body of Indigenous peoples able to make representations to parliament and government, without introducing problematic and unintended consequences. The limited scope of the body is made clear by the use of the word ‘representations’. It conveys the fact that the body will provide advice, and does not have a veto, nor can it mandate outcomes. No obligations, reciprocal or otherwise, are placed on other bodies to, for example, wait for the Voice to make a representation
- The wording is respectful of Australia’s federal arrangements. The Voice is only guaranteed the capacity to make representations to parliament and the executive government ‘of the Commonwealth’. This limits the work of the Voice to these national institutions, while leaving parliament able in the future to increase the remit of the Voice to other bodies and tiers of government. Any extension would be a matter for the people’s elected representatives and is not something the Voice itself could initiate.
- Parliament has the key role of determining how the Voice will operate, including as to its composition, functions, powers and procedures. It has been given a general power to legislate about the Voice, including to determine the legal effect of its representations. This power is subject to the other provisions of the constitution and clauses 1 and 2. For example, parliament could not abolish the Voice nor deny it the power to make representations to the institutions and to the subject matter set out in clause 2.
- The Voice is established as a political institution, and its success will depend on the quality of its representations and ability to influence parliament and government. As with any other provision establishing such an institution, the High Court will interpret and apply the words inserted into the constitution. This means:
The High Court may be asked to ensure the Voice operates within its remit, for example, to call it to account if it makes representations about matters not related to Indigenous peoples or if it makes representations to other bodies such as the United Nations (unless this has been authorised by parliament).
In the case of parliament, there is little or no prospect of a successful High Court challenge. The court has said repeatedly that it will not intervene in the internal workings of parliament. This is a key aspect of the separation of powers in Australia, and is not something the Voice would change. Courts are more likely to scrutinise the work of ministers and public officials. We expect people who exercise public power will make fair decisions following a sound process.
This includes taking into account information relevant to making the decision. If a public official fails to consider this information, courts routinely direct that person to go back and make the decision again, taking into account the information that was missed.
The court does not direct what the decision should be, only that it is properly made. Hence, ministers and public officials who receive a representation from the Voice may need to read and consider that representation when they make a decision. For example, if a minister is considering whether to impose an alcohol ban affecting an Indigenous community, and the Voice had made representations about whether this was a sound idea and the impact on the community, the minister should take this into account. If the minister refused to read advice from the Voice, a court might direct the minister to remake the decision with the benefit of all the relevant information.
This is our system of government working as it should. The High Court interpreting the constitution and ensuring it is obeyed is a fundamental aspect of the rule of law and separation of powers in Australia. The High Court should operate as a check and balance when it comes to the Voice, as it does for other constitutional matters. Judicial oversight provides the community with confidence that the Voice will operate as set out in the constitution.
Recognition of Aboriginal and Torres Strait Islander Peoples
Aboriginal and Torres Strait Islander Voice
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
(i) There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
(ii) 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;
(iii) 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.
Father Frank Brennan SJ AO
Rector of Newman College, University of Melbourne, Ambassador of the Australian Centre for Christianity and Culture
“There is no point in seeking constitutional recognition except in a form sought, desired and approved by Aboriginal and Torres Strait Islander peoples themselves. That’s why I am a strong supporter of a constitutionally entrenched Voice, that being the only mode of recognition acceptable to most of those Aboriginal and Torres Strait Islander citizens who participated in the Uluru dialogues.
A successful referendum on this topic would be one that not only wins the necessary super majority of voters, but one that also unites the country with an overwhelming and joyful vote for the recognition of the First Australians.
Process and wording matter if we are to get to ‘Yes’ as resoundingly as possible. Given the lack of bipartisanship in the parliament, it is all the more necessary that the wording of the proposed constitutional change, in the words of the late Robert Ellicott AC KC, ‘contain no element of possible substantial confusion on legal or other grounds’. For that reason, I urge the committee to recommend that the words ‘executive government’ be replaced with ‘ministers of state’ in clause 129(ii).”
First Nations practitioner-in-residence University of Sydney Law School and Referendum Engagement Group member
“For the Australian government to implement the Uluru Statement from the Heart in ‘good faith’, the constitutional amendment must adopt the term ‘First Nations’ as mandated, and put it to the Australian people at a referendum vote.
The omission of the term ‘First Nations’ from the current constitutional amendment is driven by politics, not law. It is a compromise that is both unnecessary and inconsistent with the mandate to enshrine a ‘First Nations Voice’ in the constitution.
Much of the public debate has been dominated by constitutional lawyers and politicians hypothetically mooting the inclusion of the ‘executive government’, which has distracted from the language mandated by the cultural authority underpinning the Uluru Statement from the Heart, to enshrine a ‘First Nations Voice’.
The term ‘First Nations’ is inclusive of how Aboriginal and Torres Strait Islander peoples broadly define ourselves according to our traditional nations — such as Wiradjuri, Noongar, Yolngu, Yamatji, Gomeroi, Bundjalung. It is consistent with the fact that the Australian constitution is a document of principle, not detail.
For the constitutional amendment to be consistent with the endorsement of the cultural authority of the Uluru Statement from the Heart, the mandated term ‘First Nations’ must be inserted into the Voice constitutional alteration bill, in both the constitutional amendment and referendum question.”
Nicholas Hasluck AM KC
Former Judge of the West Australian Supreme Court
“A Voice defined by race with an untested and powerful advisory role is contrary to the democratic spirit of the constitution which is based on all citizens having equal democratic rights. Further, and in any event, although the Voice will not technically be a third chamber of parliament (because it will lack a formal power of veto) it will be seen as such and its presence will probably impede or at least seriously complicate the parliamentary process.
This is because, as a matter of political reality, its approval will probably have to be constantly negotiated. If its advice is consistently accepted in the course of negotiations, this will suggest that it has a special power or influence of some sort and that benefits can be obtained on the ground of race which may not be available to the wider community. If its advice is consistently ignored this will, understandably, not be acceptable to the Indigenous community and may lead to unwanted friction also.
The Voice proposal is a flawed and divisive concept. Moreover, as matters stand at present, it is certainly far too vague to be put to a referendum as a proposed Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum Submission 56 8 amendment to the constitution. This is partly due to the legal complexities, and partly to broader concerns. The case for constitutional recognition is rooted in the unique history of Indigenous peoples and the privations they have endured in the wake of European settlement, but weight must also be given to the ideals reflected in the Australian constitution in its present form and to the achievements facilitated by its institutions, bearing in mind that the realities of modern life and the identity of the parties to any new arrangement are not as they once were at the time of European settlement. These concerns have not yet been fully debated or the appropriate balance worked out.
A careful appreciation of the realities suggests that at a constitutional level the challenges of the future cannot be solved by a return to grievances of the past or by the creation of a body that may have the long-term adverse effect of characterising Indigenous peoples as confined to a permanent state of victimhood, as if always in need of special attention, when they are now, increasingly, in all areas of Australian communal life, playing a significant and respected role in matters requiring leadership. This is shown by the increasing presence of Indigenous members in the federal parliament and in the ministry, and in other governmental roles including service on land councils throughout the country. It is shown also by a wide variety of Indigenous achievements in the commercial world, the professions and the arts. If Australia is to solve its differences peacefully it should stay true to what its constitution represents: a stable framework of government within which reforms for all can be advanced by advocacy and legislation, including reforms for the benefit of Indigenous peoples.”
CEO Kimberley Land Council (KLC)
“For a system of governance to be effective it must reflect the people it is governing. With no mention of Australia’s Aboriginal and Torres Strait Islander people in the constitution, it is evident that this is currently not the case for the Australian nation. The KLC and its members know first-hand how important and transformational it can be to have matters of defining principle given expression in systems of governance. The wording of s129 appropriately reflects the entire Australian community and embeds the fundamental principles of identity and truth that will suitably, and finally, recognise Aboriginal and Torres Strait Islander people in the constitution of our nation.”
Nyunggai Warren Mundine AO
President of the Voice No Case Committee
“I am opposed to the Aboriginal and Torres Strait Islander Voice proposed to be enshrined in a new Chapter IV of the constitution as outlined in A Bill for an Act to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.
I submit that it should be withdrawn or, if not withdrawn, that the members of the Australian Parliament should vote against it because:
- The proposed new Chapter IV of the constitution does not recognise Australia’s First Nations.
- The Voice will not, and cannot, represent Australia’s First Nations.
- The Voice will undermine Australia’s First Nations and threaten the autonomy of traditional owners over their own lands and waters.
The parliament should reject any constitutional amendments that will entrench Aboriginal and Torres Strait Islander people as one race of people who can be spoken for by one uniform Voice to the exclusion of the First Nations of this continent.
The proposed amendments to the constitution and the Voice do not recognise First Nations people. This bill recognises and entrenches Aboriginal and Torres Strait Islander people as a race of people. It does not recognise our First Nations.
The Voice will empower people to speak for Country who don’t have authority to do so. It will effectively erase First Nations off the map.
No other group of Australians will have a constitutionally enshrined, unelected body that can purport to speak on their behalf to the entirety of the Commonwealth with a presumed uniform opinion. This bill singles out only one race of people — Aboriginal and Torres Strait Islander people — to be treated in this way.
This bill seeks to reinstate racial segregation into the constitution and race-based treatment of Aboriginal and Torres Strait Islander people. It will, in effect, reverse the 1967 referendum. Traditional owners should be their own voice for their own nation and country. A national Voice cannot speak for Country."
This article first appeared under the headline ‘Giving Voice’ in the June 2023 issue of Company Director magazine.
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