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An expert in constitutional law elucidates why legislation alone cannot establish the Voice to Parliament.


We asked our readers what they would like to know about the proposed Indigenous vote in parliament. In the run-up to the referendum, our expert authors will answer those questions. You can read the other questions and answers here.

The federal parliament could establish an indigenous vote by passing ordinary legislation. But such a body would be fundamentally different of the constitutionally enshrined vote that we must approve in a referendum later this year.

First, only a constitutional voice responds to the call for reform in the Uluru Statement from the Heart. That document was ratified at the 2017 National Constitutional Convention in Uluru, which was the culmination of a grassroots process that included 13 regional dialogues and involved more than 1,200 First Nations people.

The Uluru Declaration calls for “the establishment of a Constitution-enshrined First Nations Voice” as the first step of a reform process that includes making treaties and telling the truth.

Second, the act of establishing a voice in the constitution provides Aboriginal and Torres Strait Islander peoples with a form of constitutional recognition. This is explicitly stated in the proposed change released by the government. Currently, the Australian Constitution makes no mention of the continent’s first peoples.

Third, constitutional amendment gives the Voice safety and security. Once established, the Voice could only be abolished if Australians agreed to it in another referendum. A legislative vote, on the other hand, would be much more vulnerable. A future government could get rid of it by passing an ordinary law. To do so, it only needs the support of a majority of members in the House of Representatives and Senate.

Fourth, a constitutional amendment will grant the Voice a strong popular legitimacy that cannot be achieved by ordinary legislative changes. The direct approval of the people in a referendum would give the Voice special credibility and authority. That would give additional political force to the Voice’s statements, even if parliament and the government were free to ignore them. And the presence of the Voice in the highest law of the land would say something about its status.

Finally, a constitutional amendment gives the Voice the best chance of success. A body endorsed by First Nations people and the wider public, enjoying the security and legitimacy that constitutional amendment provides, promises to have the most lasting and meaningful impact.

The enshrinement of an Indigenous vote in parliament in the Australian Constitution was a specific call from the Uluru Declaration of the Heart.
Luke Coch/AAP

Why can’t the Voice be legislated and tested for a few years, then put to a referendum?

It would be possible to establish an Indigenous Consultative Body by law and then hold a referendum to enshrine it in the Constitution. We imagine this could help familiarize some Australians with the idea of ​​an Indigenous vote before voting on it.

However, there are shortcomings to this approach that arguably outweigh any benefits. As the Uluru Declaration makes clear, First Nations people have called for a voice enshrined in the Constitution. That requirement is not met by any legislative body.

Even if a sincere government promised to put a legislated vote to the vote after a trial period, there would be no guarantee that the referendum would go ahead. After all, the priorities and composition of our governments and parliament are changing rapidly. There is a risk that indigenous peoples will be saddled with another representative body that, like ATSIC before it, could be dissolved at the stroke of a pen.

The lessons of a possible pilot period would also be limited. A legal vote would have relatively weak status and legitimacy. It could not be expected to speak so loudly as a constitutional body. As such, Australians could come to the end of the trial period without a clear idea of ​​the impact a constitutional vote could have on laws and policies.

In addition, a trial period would not necessarily give Australians more certainty about the details of the Voice’s operation. The fact remains that parliament retains the power to change the composition, functions, powers and procedures of the Voice. People could vote in the referendum with the “pilot vote” in their heads, only to find that the subsequent draft of the constitution takes on a different form.

Read more: What happens if the government goes against the advice of the Vote to the House of Representatives?

What legislation is ever discussed in parliament that does NOT affect Indigenous peoples?

The proposed vote covers a wide range of policy areas. It could protest to parliament and the executive government “on matters related to Aboriginal and Torres Strait Islander peoples”.

As the Explanation to the Constitution amendment bill explains, this formulation includes both matters specific to Indigenous peoples (such as Indigenous title) and more general matters “that affect Aboriginal and Torres Strait Islander peoples differently than other members of the Australian community”. For example, general election laws would fall within the purview of the Voice because of the disproportionately low enrollment and participation rates of First Nations people.

Some have argued that this remit is too broad, potentially allowing the Voice to provide advice on almost any issue. The opposition has said the Voice could, for example, give its views on setting interest rates or formulating climate policy.

Supporters of the government’s proposal to argue it is both necessary and appropriate that the Voice be able to speak on a wide range of matters. It is said that a broad assignment will make the Voice the participation of indigenous peoples in making laws and policies that affect them.

Proponents say it’s impossible to know in advance what kinds of issues First Nations people will find interesting or concerning, and those issues are likely to evolve over time. They also argue that limited jurisdiction could lead to legal challenges if disputes arise over what matters fall within its scope.

In practice, the proposed Voice will not be able to make statements on all matters that fall within its competence. It will have to decide which issues deserve priority and focus its attention and resources on them.

And when the Voice wants to be heard, not just speak, it can discover that it can make the most impact by focusing on issues that have specific meaning for Indigenous peoples. At the government’s suggestion, it is up to The Voice to make that calculation. As did Robert French, former Chief Justice of the Supreme Court of Australia noticed: “(The Voice’s) limits are probably dictated by common sense and political realities”.

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