Gwendolyn Devoy, a law student at Newcastle Law School in Newcastle, Australia, says that there are significant challenges facing the Voice to Parliament proposal being put before Australians in a national referendum later this year...
In 2017, 250 First Nations people gathered together from across Australia to draft and sign the Uluru Statement from the Heart. The Uluru Statement proposed a First Nations Voice to Parliament, a body to be enshrined in the Australian Constitution that would enable Aboriginal and Torres Strait Islander people to provide advice to the Parliament on policies and projects that impact their lives. It also proposed the establishment of a Makarrata (“Treaty”) Commission to undertake processes of treaty-making and truth-telling.
Although the ideas and structures put forward by the Uluru Statement were initially rejected by the Government of then-Prime Minister Malcolm Turnbull, Australia is now set to decide on whether the Constitution should be amended to include a First Nations Voice to Parliament in a national referendum set to occur towards the end of 2023.
The Uluru Statement from the Heart details the aim of the Voice, stating:
We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.
Throughout history, the Australian Parliament has failed to represent First Nations Australians. It was only in 1971 that the Australian Parliament first welcomed an Indigenous politician, seventy years after the first sitting of the Australian Parliament. While the Parliament is now as diverse as it has ever been, there are no guarantees that First Nations representation in Parliament will continue. This political backdrop highlights the imperative of creating some form of change to ensure that First Nations voices are no longer ignored.
But amending Australia’s Constitution to include a Voice to Parliament will be no easy feat. Under the Constitution, a Referendum Bill must first pass both Houses of Parliament by an absolute majority before it can be voted on by the public. Once the bill has been voted on by the public, there must be a ‘double majority’ for the bill to successfully pass. This means that a majority of voters in a majority of states must vote in favour of the proposed law. Historically, this double majority requirement has been difficult to surpass. Since the passing of the Constitution, Australians have voted in referendums on 44 proposed changes, however, only eight of these have been successful.
The draft question asks voters “Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?” The draft question comes after the 2018 report of the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples. The report recommended that the Voice be co-designed by the Australian Government and Aboriginal and Torres Strait Islander Peoples. The report outlined that a Voice was important for ensuring First Nations Australians are consulted on issues that affect them. The Joint Select Committee heard that the Voice ought to be enshrined in the Constitution, as opposed to created through statute, to enable it to be independent from the Government and to minimise the effects of political whim on its power.
While the Voice was initially supported by a majority of Australians, support for the referendum has recently slipped. Recent Invasion Day rallies on 26 January highlighted the divided opinions on the matter. In particular, First Nations people expressed concerns that the Voice will cede Indigenous sovereignty, that a treaty should occur before the Voice referendum and that a Voice has the potential to be tokenistic. Notably, Indigenous Greens Senator Lidia Thorpe recently detailed her hesitations on supporting the Voice in an opinion, stating:
…Parliament will get to decide whose Voice gets heard while retaining the right to ignore whatever they say. The Voice does not have any legally binding authority to make decisions.
Truth and Treaty are tools to deliver real power to First Nations people in this country. Decision-making power around our own affairs.
Power that has been denied to us since colonisation.
Although the Joint Select Committee’s report outlined the potential structures of the Voice, the Voice has been critiqued by the opposition for its lack of detail. Notable proponents of the Voice, including lawyer and architect of the Uluru Statement, Noel Pearson, have highlighted the danger of rhetoric focusing on detail. In response to opposition threats of removing support for the Voice due to a lack of detail, Pearson stated:
…this demand for detail is a diversion. Detail concerns legislation not Constitution, and the referendum is about the Constitution. Legislation is for the Parliament and I find it very concerning that they have been banging the drum on the need for detail…It’s the Parliamentarians who have the responsibility to come up with the detail. The Australian people are being asked to vote on a Constitutional amendment.
While some politicians remain concerned that the Voice will become a third chamber of Parliament, constitutional law lecturer and Indigenous woman Prof Megan Davies disagreed, stating:
…the idea this uproots Western system of governance is completely and utterly untrue… it was designed to be consistent with Australia’s legal and political system… it is about creating a culture change in Australian Westminster governance…
Perspectives on the timing of the Voice referendum vary greatly across Australia and amongst First Nations people. Indigenous Labour MP Marion Scrymgour recently questioned whether now is an appropriate time for the referendum as social issues impacting First Nations communities remain unsolved. In particular, Scrymgour highlighted that crime continues to impact First Nations communities in the Northern Territory town of Alice Springs. Nonetheless, Scrymgour has emphasised her support for the Voice, stating “[i]t’s time that Aboriginal and Torres Strait Islander Australians had their voices heard on issues that affect us.”
Despite differing perspectives on the Voice, recent research has shown that 80 percent of First Nations people support the Voice to Parliament. Nonetheless, the government will need to address the concerns of First Nations people and the broader Australian community if the referendum is to be successful.
Gwendolyn Devoy is a fifth-year law student at Newcastle Law School in Newcastle, Australia.
Suggested citation: Gwendolyn Devoy, Amending Australia’s Constitution to Create an Indigenous Voice to Parliament: Challenges Ahead, JURIST – Student Commentary, February 1, 2023, https://www.jurist.org/commentary/2023/02/amending-australias-constitution-to-create-an-indigenous-voice-to-parliament-challenges-ahead/.
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.