Indigenous Voice to Parliament



The Aboriginal and Torres Strait Islander Voice, also known as the Indigenous Voice to Parliament, the First Nations Voice or simply the Voice, was a proposed Australian federal advisory body to comprise Aboriginal and Torres Strait Islander people, to represent the views of Indigenous communities.

A referendum to establish the Voice was held on 14 October 2023. It was unsuccessful, with a majority of voters both nationwide and in all states voting against the proposal. Had it succeeded, the Australian Constitution would have recognised Indigenous Australians in the document by prescribing the Voice, which would have made representations to the Parliament of Australia and executive government on matters relating to Indigenous Australians. The government would then have designed the specific form of the Voice, which would then have been implemented via legislation passed by Parliament.

Under the government-endorsed design principles of the First Nations Referendum Working Group (aka Referendum Working Group, or RWG), the membership of the Voice would have been selected by Aboriginal and Torres Strait Islander communities across the country, with an enforced gender balance at the national level. It remains legally possible however for the Voice (or alternative proposals) to be introduced by legislation rather than by amendment to the Constitution. However, the current government stated before the referendum they would not legislate a Voice in the event of a No vote and have subsequently stuck to this position.

The proposal for the Voice was formally endorsed by Indigenous leaders with the Uluru Statement from the Heart, delivered at the First Nations National Constitutional Convention in 2017. The statement formally petitioned the people of Australia to support a voice to parliament in order to address First Nations disadvantage through giving those communities a greater influence on laws and policies that affect them. The concept was rejected at the time by the Liberal-National Turnbull government.

In October 2019, the Liberal-National Morrison government discussed an "Indigenous voice to government" which would be legislated but not enshrined in the Constitution. A co-design process organised by Ken Wyatt was completed in July 2021 proposing for local and regional voices and a National Voice. While the Morrison government committed to implementing the recommendations of the report, no legislation was passed between the release of the report in July 2021 and the election in May 2022.

Following the 2022 election which saw the Albanese Labor government elected, Prime Minister Anthony Albanese pledged that a referendum on a constitutionally enshrined Voice would be held within his term of office. In March 2023, the prime minister released the design principles of the Voice and confirmed that a referendum would occur in 2023. The process was overseen by Linda Burney, who succeeded Wyatt as Minister for Indigenous Australians. Both parties in the Peter Dutton-led Liberal-National federal Opposition announced their opposition to a national Voice, whether legislatively or constitutionally implemented.

Background
Indigenous Australians have long called for better representation, with William Cooper seeking in 1933 to petition King George V for the inclusion of a member of Parliament to represent Indigenous people. However, modern discussion of recognition of Indigenous Australians in the constitution did not begin until 1992, with the Keating Government's response to the Mabo decision. Along with the passage of the Native Title Act, the government proposed that, as a part of a broader social and justice reform package, negotiations should be entered into with Indigenous leaders to develop a mutually acceptable form of constitutional recognition. This did not eventuate however, and formal consultation with Indigenous leaders on a new proposal did not begin again until 2012 under the Gillard government. This resulted in the creation of an expert panel, which recommended, amongst other things, the insertion of a prohibition on racial discrimination. The report was not acted on by the government and was criticised by the opposition.

This led to a stalemate, which was not broken until the bipartisan creation of the Referendum Council in 2015.

Indigenous Australians in the Constitution
Two changes to the Constitution to add or remove references to Indigenous Australians have previously been voted on in referendums. These are the 1967 Indigenous referendum and the 1999 preamble referendum.

Prior to 1967, the federal government did not have the power to create laws specifically for Indigenous Australians, with section 51(xxvi) giving the Parliament the power to make laws with respect to "the people of any race, other than the aboriginal race in any State". This exclusion, along with another provision that prevented the counting of Indigenous Australians in the population for constitutional purposes, was deleted following the 1967 referendum in which over 90% of Australians voted yes to the changes.

The 1998 Australian Constitutional Convention, called to discuss whether or not Australia should become a republic, almost unanimously supported the proposal that a preamble containing a recognition of Indigenous Australians as the original inhabitants and custodians of Australia be inserted into the constitution. This, along with the convention's endorsement of an Australian Republic, was voted on in the 1999 referendum, with both questions being defeated. The first draft of the preamble voted on was written by Prime Minister John Howard, along with poet Les Murray, and was heavily criticised after being released. Indigenous leaders specifically objected to their failure to be consulted and the reference only to the prior occupancy of Indigenous peoples and not their continuing custodianship. A continuing lack of consultation in the creation of the final draft led to Indigenous leaders calling for the preamble question to be dropped. Debate on the preamble question was limited, with much of the focus on the other republic question and the question was eventually defeated, with only 39.34% of Australians voting yes.

Beginning with John Howard in 2007, governments have continually stated their commitment to hold a referendum on constitutional recognition; however, no previous proposal was taken to a vote. In 2017 following the Uluru Statement, debate consolidated around a voice to parliament, as the best form of recognition likely to be both acceptable to Indigenous Australians and passed in a referendum.

Origin of proposal
The proposal for a Voice to Parliament was initially conceived by Aboriginal advocate Noel Pearson of the Cape York Institute in discussion with Australian Catholic University academics Greg Craven, Damien Freeman, and Julian Leeser. Their discussion arose in response to the 2012 recommendations of the Gillard Government's Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, which had been rejected by constitutional conservatives. "[The Voice] name came later, but the function of an advisory committee was developed with Professor Craven and other constitutional conservatives, including Professor Anne Twomey from the University of Sydney and that was done in 2014", Pearson recalled in 2023.

Noel Pearson's 2014 Quarterly Essay, "A Rightful Place: Race, Recognition and a More Complete Commonwealth", raised the idea of an Indigenous advisory body enshrined in the Constitution, and this proposal was further expanded on by Greg Craven. This proposal was submitted by the Cape York Institute to the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in January 2015.

The proposal was made in part to bridge the gap between Indigenous advocates and constitutional conservatives in the debate around recognition. Indigenous advocates demanded more than just symbolic recognition in any change and had coalesced around a constitutional prohibition against racial discrimination. This reflected the view that, according to Megan Davis, Indigenous people do not seek inclusion in the Constitution to be recognised, that campaign being "a state-conceived project salvaged from the ashes of the failed 1999 referendum and arguably already achieved in 1967" but instead in order to "ameliorate the unintended (or intended) consequences of the drafting of the 1967 amendment" such as the continuing ability for the government to racially discriminate as seen in the Northern Territory Intervention and the Hindmarsh Island bridge controversy. A racial discrimination clause was unacceptable to constitutional conservatives however, who feared that such a clause would be widely interpreted by so called "activist judges" and unacceptably limit parliamentary sovereignty.

Arguing that conservative support was required for any referendum to succeed, the proposal envisioned a duty for the Parliament to consult with Indigenous communities, but with no duty to follow this advice, thereby retaining parliamentary sovereignty. This duty would be beneficial as the High Court had in Maloney v The Queen found that no duty to consult currently existed in the exercise of "special measures" under the meaning of the ICERD and the Racial Discrimination Act 1975 (Cth), despite the evolution of international jurisprudence suggesting otherwise. Additionally, it was argued that through the proposal being proactive, Indigenous people would be involved as "participants in Australia's democratic and parliamentary processes, rather than as litigants". While receiving broad academic support, some noted that if the design of the body is wholly left to Parliament, it may not have sufficient political power to negotiate with government and that the body may not be able to provide advice early enough to be effective.

Bipartisan Referendum Council and committees
On 7 December 2015 a 16-member Referendum Council was appointed by Liberal prime minister Malcolm Turnbull and the ALP's Bill Shorten. In October 2016, the Council released the Discussion Paper on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, which outlined the various proposals to date, including that of an Indigenous voice. The council then engaged in a consultation process with Indigenous Australians, eventually meeting with over 1,200 people. This led to the First Nations National Constitutional Convention on 26 May 2017, whose delegates collectively composed the Uluru Statement from the Heart. This statement included the request, "We call for the establishment of a First Nations Voice enshrined in the Constitution."

On 13 June 2017, the Referendum Council released their final report. This included the following recommendation:

"That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament. One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51(xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia."

In response to this, the federal government established the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples in March 2018. It was tasked with reviewing the findings of the Uluru Statement delegates, Referendum Council, and the two earlier constitutional recommendation bodies. Its final report, published in November 2018, included four recommendations, the first of which was to "initiate a process of co-design with Aboriginal and Torres Strait Islander peoples". It stated that the delegates at the 2017 Convention "understood that the primary purpose of The Voice was to ensure that Aboriginal and Torres Strait Islander voices were heard whenever the Commonwealth Parliament exercised its powers to make laws under section 51(xxvi) and section 122 of the Constitution".

Co-design of the Voice


On 30 October 2019, Ken Wyatt, Minister for Indigenous Australians in the Morrison government, announced the commencement of a "co-design process" aimed at providing an Indigenous voice to government. A Senior Advisory Group (SAG) was co-chaired by Professor Tom Calma, chancellor of the University of Canberra, and Marcia Langton, associate provost at the University of Melbourne, and comprising 20 leaders and experts from across the country. The body was described as a "voice to government", rather than a "voice to parliament".

Prime Minister Scott Morrison rejected the proposal in the Uluru Statement for a voice to parliament to be put into the Australian Constitution; instead, in his government's model, the voice would be enshrined in legislation. The government also said it would run a referendum during its present term about recognising Indigenous people in the Constitution "should a consensus be reached and should it be likely to succeed".

2021 Senior Advisory Group reports
An interim report by the Senior Advisory Group led by Langton and Calma was delivered to the government in November 2020, and officially published on 9 January 2021. It included proposals that the government would be obliged to consult the Voice prior to passing new legislation relating to race, native title or racial discrimination, where it would affect Indigenous Australians. However, the Voice would not be able to veto the enactment of such laws, or force changes to government policies. The Voice would comprise either 16 or 18 members, who would either be elected directly or come from the regional and local voice bodies. On the same day, Wyatt announced a second stage of co-design meetings lasting four months, involving more consultation with Indigenous people. Calma reported in March 2021 that about 25 to 35 regional groups would be created, with a mechanism for individuals to pass ideas up the chain from local to regional.

In July 2021 the Indigenous Voice Co-design Process panel released its final report. It proposed a series of Local and Regional voices, able to provide advice to all levels of government, and a National Voice, made up of a smaller number of members, able to provide advice to both Parliament and Government. The members of the National Voice would be chosen by the Local and Regional Voice for each area. The parliament would be "obliged" to consult the national voice on a limited number of matters that overwhelmingly affect Indigenous Australians and "expec[ted]" to consult the National Voice on other matters that "significantly affect" Indigenous Australians. The report did not cover changing the Constitution (as this was outside its terms of reference) and these bodies would be created via legislation rather than through a constitutional amendment. While the government announced that the report would be considered in Parliament as soon as possible, no legislation was passed by the election of May 2022.

Development under Labor government


In the May 2022 Australian federal election a Labor government was elected with Anthony Albanese as Prime Minister of Australia. In his victory speech, Albanese said that a referendum to decide the Indigenous Voice to Parliament would be held within his term of office, with Minister for Indigenous Australians Linda Burney overseeing the process.

At the Garma Festival of Traditional Cultures in July, Albanese spoke in more detail of the government's plans for a Voice to Parliament. He proposed the following three lines to the Constitution as a "starting point" in disscussions about the amendment:

"# There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
 * 1) 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.
 * 2) 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."

He also proposed that the actioning referendum ask the question:"Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?"

On 23 March 2023, the Australian Government released a proposed question and amendment for consideration by the Australian Parliament, following advice from the Referendum Working Group.

The proposed question was: 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?

The proposed amendment was:

Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples 129 Aboriginal and Torres Strait Islander Voice

In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
 * 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 the Parliament and the Executive Government of the Commonwealth 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 matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.

Structure and powers of the Voice
On 23 March 2023 the Australian Cabinet endorsed a set of design principles that would be used in the design of the Voice in the event the referendum is successful, with Prime Minister Anthony Albanese stating that these principles would "underpin the shape and function of the Voice". Additionally he stated that if the referendum is successful, another process would be established to work on the final design, with a subsequent government produced information pamphlet stating that this process would involve Indigenous Australian communities, the Parliament and the broader community, with any legislation going through normal parliamentary scrutiny procedures.

The design principles were that:

The Voice will give independent advice to the Parliament and Government


 * The Voice would make representations to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.
 * The Voice would be able to make representations proactively.
 * The Voice would be able to respond to requests for representations from the Parliament and the Executive Government.
 * The Voice would have its own resources to allow it to research, develop and make representations.
 * The Parliament and Executive Government should seek representations in writing from the Voice early in the development of proposed laws and policies.

The Voice will be chosen by Aboriginal and Torres Strait Islander people based on the wishes of local communities


 * Members of the Voice would be selected by Aboriginal and Torres Strait Islander communities, not appointed by the Executive Government.
 * Members would serve on the Voice for a fixed period of time, to ensure regular accountability to their communities.
 * To ensure cultural legitimacy, the way that members of the Voice are chosen would suit the wishes of local communities and would be determined through the post-referendum process.

The Voice will be representative of Aboriginal and Torres Strait Islander communities, gender balanced and include youth


 * Members of the Voice would be Aboriginal and/or Torres Strait Islander, according to the standard three-part test.
 * Members would be chosen from each of the states, territories and the Torres Strait Islands.
 * The Voice would have specific remote representatives as well as representation for the mainland Torres Strait Islander population.
 * The Voice will have balanced gender representation at the national level.

The Voice will be empowering, community-led, inclusive, respectful and culturally informed


 * Members of the Voice would be expected to connect with – and reflect the wishes of – their communities.
 * The Voice would consult with grassroots communities and regional entities to ensure its representations are informed by their experience, including the experience of those who have been historically excluded from participation.

The Voice will be accountable and transparent


 * The Voice would be subject to standard governance and reporting requirements to ensure transparency and accountability.
 * Voice members would fall within the scope of the National Anti-Corruption Commission.
 * Voice members would be able to be sanctioned or removed for serious misconduct.

The Voice will work alongside existing organisations and traditional structures


 * The Voice would respect the work of existing organisations.

The Voice will not have a program delivery function


 * The Voice would be able to make representations about improving programs and services, but it would not manage money or deliver services.

The Voice will not have a veto power

Legislation and referendum
In the referendum, voters were presented with the following question for them to approve or disapprove. If the referendum was successful, the following proposed amendment would have been inserted into the constitution.

Question
The question that was put to the Australian people at the 2023 referendum was: "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?"

Proposed amendment
The proposed amendment to be inserted into the Constitution was: Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples 129 Aboriginal and Torres Strait Islander Voice

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


 * 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 the Parliament and the Executive Government of the Commonwealth 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 matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.

Referendum preparation
The first meetings of the Referendum Working Group (RWG) and the Referendum Engagement Group (REG) were held in Canberra on 29 September 2022. The RWG, co-chaired by minister Linda Burney and special envoy Patrick Dodson, included a broad cross-section of representatives from First Nations communities across Australia. Their remit was to provide advice to the government on how best to ensure a successful referendum, focused on the key questions that need to be considered, including:


 * The timing to conduct a successful referendum
 * Refining the proposed constitutional amendment and question
 * The information on the Voice necessary for a successful referendum

The RWG included Ken Wyatt, Tom Calma, Marcia Langton, Megan Davis, Jackie Huggins, Noel Pearson, Pat Turner, Galarrwuy Yunupingu, Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar, and a number of other respected leaders and community members. The REG included those on the RWG as well as other Aboriginal and Torres Strait Islander representatives from across the country, including land councils, local governments and community-controlled organisations. Mick Gooda, Kado Muir, and Hannah McGlade were included in this larger group. They provided advice on building community understanding, awareness and support for the referendum.

On 28 December 2022 at the Woodford Folk Festival, the prime minister said that the referendum would be held within a year,  with the date eventually set for 14 October 2023. An official pamphlet, containing details of the proposed change to the constitution and two essays written by the yes and no campaigns, was posted to every household before the vote and was also available on the Australian Electoral Commission website.

Legal commentary


Legal opinion in Australia was divided over the suitability of the wording of the proposed constitutional amendment.

Concerns
One sticking point among experts was the inclusion of the phrase "executive government". In Australia, "executive government" comprises ministers as well as the departments they oversee. It is a broad term, which covers a wide range of people from the governor-general to the cabinet and public servants. Opponents argued that it makes it possible that the whole of the federal government, including its agencies, would be under an obligation to consult the Voice, and that the wording could allow judges to make rulings about its nature. However Anne Twomey, argued that there is no such obligation in the proposal, and that past High Court rulings have found that the term extends to ministers and government departments, but not statutory bodies, which are distinct legal entities. Noel Pearson also stressed the importance of talking to the public service as well as politicians in effecting change.

On 3 April 2023, shadow attorney-general Julian Leeser outlined his concerns about the words "executive government" in proposed sub-clause 129(ii) during an address at the National Press Club, namely that the meaning of the words is unclear and may be interpreted by the High Court in a way unexpected and unable to be modified later by legislation. He also expressed concerns with the preambular statement "In recognition of Aboriginal and Torres Strait Islander Peoples as the First Peoples of Australia:" as its judicial interpretation is unclear. However, despite these concerns, Leeser stated he would vote yes and continued to campaign for a successful referendum, after resigning from shadow cabinet.

Some constitutional law academics and judges voiced concerns about the introductory words to the proposed new section 129. Retired superior court judges, including David Jackson, Nicholas Hasluck, and Terry Cole, suggested that the changes could have unintended effects and would introduce inequality of citizenship into the Constitution. Former High Court Justice Ian Callinan had said that the changes were legally unsafe.

In May 2023 constitutional law professors Nicholas Aroney and Peter Gerangelos highlighted what they believed were a number of issues with the proposed constitutional amendment in a submission to the Joint Select Committee, suggesting that the Voice may be seen by the High Court as having a similar constitutional status as the Parliament, executive and the High Court. In October 2023 a paper by Aroney and lawyer Peter Congdon highlighted that the proposed alteration to the Constitution had the potential to significantly expand the powers of the Commonwealth over the states, citing the examples of raising the age of criminal responsibility to reduce rates of Indigenous incarceration, or legislating land management issues affecting farmers and Indigenous people. They wrote that neither side had mentioned this issue.

Vice-president of the Rule of Law Institute of Australia Chris Merritt suggested that the proposal would "clearly restrict the sovereign power of the Commonwealth in a way that nobody has even considered".

Support for the proposed wording
The Constitutional Expert Group appointed by the government to provide advice about constitutional law relating to the Voice (comprising Greg Craven, Megan Davis, Kenneth Hayne, Noel Pearson, Cheryl Saunders, Anne Twomey, George Williams, and Asmi Wood ) were unanimous in their opinion that the Voice would not have veto powers over legislation. Other constitutional experts backed the proposal as a "safe and sensible" legal option. Former High Court judge Kenneth Hayne wrote that the Voice would not obstruct the government's function. George Williams, law professor at the University of New South Wales agreed, calling the proposal a modest one. The Law Council of Australia supported the model, calling it a "modest step".

The Solicitor-General of Australia Stephen Donaghue advised that the Voice would "not fetter or impede the exercise of existing powers of Parliament... and is not just compatible with the system of representative and responsible government prescribed by the Constitution, but an enhancement of that system". He also advised that the Voice would help in "overcoming barriers that have historically impeded effective participation by Aboriginal and Torres Strait Islander peoples in political discussions and decisions that affect them" and would also "rectify a distortion in the existing system".

In early October 2023, 71 constitutional and public law teachers and professors published an open letter to the Australian public, stating that:

Former Chief Justice of Australia, Robert French, criticised the No campaign's legal arguments and other campaign tactics in a speech at the National Press Club, refuting the argument that it would have an effect on executive decision-making. He also said that the Voice would be unable to "[engage] effectively in terms of representation with the processes of government unless you have the executive government in there", and that this was not a mistake.

Political parties
The Anthony Albanese led Labor government supported the Voice, arguing in the official Yes referendum pamphlet that the Voice will recognise Indigenous Australians in the constitution in the way they requested, improve government decision making through listening to advice on matters that affect Indigenous Australian lives, and make practical progress in closing the gap.

Both the Liberal and National parties, however, opposed the voice, arguing in the official No referendum pamphlet that the Voice is legally risky, divisive and far too broad in its scope. Peter Dutton instead argued for a more symbolic inclusion change in the Constitution as a form of recognition, with local and regional voices to be legislated (without a national Voice). However, the leader of the Nationals, David Littleproud, indicated that his party did not support this legislated regional and local voices model either, creating doubts as to whether this policy could be enacted if the Coalition gained government. Following the defeat of the proposal, Dutton stated that his party's prior commitment to symbolic constitutional recognition would be reviewed and that "it's clear the Australian public is probably over the referendum process for some time".