Sophia Richards and Chloe Menzies, fourth-year law students at the University of Newcastle, Australia, and Meg Abbot, fourth-year law student at the University of Notre Dame, outline the opposing sides of Australia's upcoming referendum on an enshrined Voice in the Australian Constitution for Aboriginal and Torres Strait Islander peoples...
Australian Prime Minister Anthony Albanese has announced that the nation’s upcoming referendum on the Voice to Parliament will take place on October 14, 2023. Australia’s constitution can be amended only by way of referendum, invoked by section 128 of the Australian Constitution.
Significantly, a referendum requires that the proposed constitutional change is approved by a “double majority” of voters, meaning a majority of voters from all states and territories and a majority of voters across a majority of states. This ensures that the proposed change is not only approved by a majority of Australian voters, but also that those voters are equally distributed across each state. Since 1900, only 8 of 44 proposals for constitutional change have been passed by referendum.
The Voice to Parliament was proposed by the Uluru Statement from the Heart, which was presented on May 26, 2017, by the Referendum Council, an official advisory body to the prime minister for the recognition of Aboriginal and Torres Strait Islander people in the constitution. The Uluru Statement proposed several key reforms to promote advocacy for First Nations people in all levels of government. The proposed reforms include an enshrined Voice in the Australian Constitution and a Makarrata Commission to facilitate treaty-making and truth-telling between First Nations people and the government.
The proposed change to the constitution will include the following provision:
Section 129 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.
In practice, the proposed change will create an independent advisory body for Indigenous Australians to help inform policy decisions that impact their communities. The Voice will be composed of members across a variety of ages, genders, and Australian states and will be representative of the wider Aboriginal and Torres Strait Islander community. Parliament will retain power over the composition, functions, powers, and procedures of the Voice, and its scope will be determined upon its approval. Many of Australia’s political parties, legal commentators, institutions, and First Nations communities have announced their support or opposition to the proposed change.
The No Vote
Indigenous opposition to the Voice includes diverse reasoning. Activist and Dunghutti, Gumbaynggirr, Bundjalung woman Auntie Lizzie Jarrett told attendees to vote no during a protest on January 26 (Australia Day) this year. “Liberal, Labor, the system is not for Black People,” she said as the crowd cheered in response.
“We don’t want a voice, we have a voice. We don’t want a whitewash. When it comes to the time. Vote ‘no’ to the referendum. Don’t come here and tick a box.”
Victorian Senator, Lidia Thorpe, a Gunnai, Gunditjmara, and Djab Wurrung woman, an Independent, has also been a vocal opponent of the Voice and stated in an article for the Sydney Morning Herald, “Your Constitution was designed to erase our existence and for us to be recognised in it with a token Voice does not empower us.”
Black Peoples Union, a “revolutionary organisation that aims to empower Indigenous people in Australia through the pursuit of full self-determination and sovereignty,” states on its website, “We deserve better than just a voice.”
Northern Territory Senator Jacinta Nampijinpa Price, a Warlpiri woman who is the current Shadow Minister for Indigenous Australians, has also opposed the Voice, stating in a 7:30 interview, “We don’t need a Voice, we need ears, we need…our leadership to…use their ears and listen to community…I don’t see how this is any different than this new bureaucracy inserted in our Constitution.” Nampijinpa Price is a member of the Country Liberal Party of the Northern Territory.
Indigenous groups and leaders are calling for a range of alternative actions from the government, including a treaty between Indigenous people and the Crown, listening to the current Indigenous members in politics, and/or an alternative acknowledgment in the Constitution of Indigenous people as the first people of Australia.
The No campaign released its official pamphlet in which it outlined 10 reasons for saying no, accompanied by the tagline “If you don’t know, vote no.” Former High Court Justice Ian Callinan was quoted in the No Referendum Pamphlet, saying, “I would foresee a decade or more of constitutional and administrative law litigation arising out of a voice.” However, the original quote ends with “whether constitutionally entrenched or not.”
Former Federal Court Justice David Jackson is also quoted in his Submission to the Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum, stating, “The inclusion of the proposed [section] 129 would mean that we become a nation where, whenever we or our ancestors first came to this country, we are not all equal.” Jackson suggests that alternative action should be taken in the form of recognizing Aboriginal and Torres Strait Islander people as the first people in the preamble of the Constitution. He says the government is already able to make specific laws for all races under section 51 subsection xxvi, which states, “The people of any race for whom it is deemed necessary to make special laws.”
The scope of the Voice is a concern with 129(2) and the ability of the Voice to make representations to “the Executive Government,” which the no campaign suggests will range from the Reserve Bank to public servants.
The Yes Vote
Many First Nations communities and a large proportion of the legal community, including the NSW Bar Association and the Law Council of Australia, support the proposed amendment. Reconciliation Australia noted that since the formation of the Australian Aboriginal Progressive Association in 1924, it has advocated for some form of political voice. This marks nearly 100 years of a call for formal recognition, and the yes campaign says “Voice to Parliament will give Indigenous communities a route to help inform policy and legal decisions that impact their lives. Giving people a say will lead to more effective results.”
Shelley Reys, a Djiribul woman and partner at international consultancy firm KMPG notes that Indigenous communities want policies that affect them to be made with them, rather than just for them, and the Voice is Indigenous people wanting “to take responsibility for their own futures.” Reys also addressed the perceived lack of information available on the Voice, pointing out that three comprehensive reports were passed through Parliament, and these reports outline the procedures and models that have been considered. Reys states there is no power to initiate, reject, or pass bills based on the constitutional wording, and there is definitely no veto power.
Reys’ statements are supported by various highly regarded members of the legal profession. The advice of Solicitor-General Stephen Donaghue, KC, included two key questions:
1. Is the proposed § 129 of the constitution compatible with Australia’s system of representative and responsible government?
2. Would the power to legislate “with respect to matters relating to the Aboriginal and Torres Strait Islander Voice” in the proposed § 129(ii) of the constitution empower the Parliament to specify whether, and if so, how Executive Government decision-makers are legally required to consider relevant representations of the Voice?
Donaghue answered yes to both of these questions, effectively ruling out many of the major constitutional concerns. Donaghue stated in his advice that the proposed amendment “seeks to rectify a distortion in the existing system” and is not only compatible with representative democracy and responsible government in Australia but is actually “an enhancement of that system.”
Leading constitutional expert Bret Walker, SC, reinforced this position, pointing out that the proposed amendment is a “very safe formula” and that there is no possibility that Parliament will be unable to control, check, or adjust the working of the Voice. Walker also rejected the idea that legislation will be held up in long-winded legal proceedings, stating that not only does the High Court move very quickly on such issues but that the Voice holds no power that could inconvenience the use of executive power. Former Chief Justice of the High Court of Australia Robert French, AC, KC, stated that recognition includes “treating as worthy of consideration” and that the proposed constitutional recognition for First Nations people does not “compromise…the sovereignty of the Crown…nor does it involve any ceding of sovereignty.”
It is clear that recognition has been a long-term, important, and meaningful goal for Indigenous peoples, and that constitutional experts reject many of the concerns held by those supporting the no vote.
With the referendum date closing in, some voters have raised concerns about the impact of both the yes and no campaigns on First Nations communities and social cohesion. Prime Minister Anthony Albanese called for “respectful debate” following numerous protests across the country. Uluru Youth Dialogue Co-Chair Allira Davis encouraged young Australians to start conversations in their community about the Voice to Parliament to help break down generational barriers and have a respectful discussion about the referendum. Various Indigenous mental health organizations created a Respectful Referendum pledge, following an increase in traffic across Indigenous online support services.
The referendum will occur on October 14, 2023, and the result will be announced to the public within 13 days after the hand counting of votes.
Sophia Richards is a fourth-year law student at the University of Newcastle, Australia, and is the JURIST Bureau Chief for Australia and New Zealand. Meg Abbot is a fourth-year law student at the University of Notre Dame. Chloe Menzies is a fourth-year law student at the University of Newcastle and is the JURIST Chief of Staff for Australia and New Zealand.
Suggested citation: Sophia Richards, Meg Abbot, and Chloe Menzies, Australia’s Voice to Parliament Referendum: Understanding No and Yes, JURIST – Student Commentary, September 30, 2023, https://www.jurist.org/commentary/2023/09/richards-abbot-menzies-australia-voice-referendum/.
This article was prepared for publication by Hayley Behal, JURIST Commentary Managing Editor. Please direct any questions or comments to her at email@example.com
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.