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.[1]
This article is about the body as proposed and its conceptual development. For the referendum and its broader outcome, see 2023 Australian Indigenous Voice referendum.
A referendum to establish the Voice was held on 14 October 2023.[2] It was unsuccessful, with a majority of voters both nationwide and in all states voting against the proposal.[2] 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.[3] The government would then have designed the specific form of the Voice, which would then have been implemented via legislation passed by Parliament.[4]
Under the government-endorsed design principles of the First Nations Referendum Working Group (aka Referendum Working Group, or RWG),[5] 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.[6][7][8] It remains legally possible however for the Voice (or alternative proposals) to be introduced by legislation rather than by amendment to the Constitution.[9] 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.[10][11]
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[12] 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.[13]
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.[14] 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.[15]
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.[16] In March 2023, the prime minister released the design principles of the Voice and confirmed that a referendum would occur in 2023.[17][18] The process was overseen by Linda Burney, who succeeded Wyatt as Minister for Indigenous Australians.[16] Both parties in the Peter Dutton-led Liberal-National federal Opposition announced their opposition to a national Voice, whether legislatively or constitutionally implemented.[19][20][21]
Development of a constitutional voice to Parliament[edit]
Origin of proposal[edit]
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.[58]
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,[59][60] and this proposal was further expanded on by Greg Craven.[61] 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.[62][63][64]
The proposal was made in part to bridge the gap between Indigenous advocates and constitutional conservatives in the debate around recognition.[65] 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.[66] 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),[67] despite the evolution of international jurisprudence suggesting otherwise.[68] 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".[64] 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[69] and that the body may not be able to provide advice early enough to be effective.[70][71]
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:[5]
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.[5]
On 28 December 2022 at the Woodford Folk Festival, the prime minister said that the referendum would be held within a year,[94][95] with the date eventually set for 14 October 2023.[96] 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.[97]