In late 2023, Australians will vote in a referendum about whether to change the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.

The Law Society is aware that members of the Australian community may look to legal professionals to explain both the way in which a referendum at the federal level is conducted, as well as to discuss general legal questions around the proposal for an Aboriginal and Torres Strait Islander Voice.

The purpose of the FAQs below is to bring together high-level commentary on some of the topical legal issues pertaining to the Voice. We have also brought together a series of resources which may assist our members to inform themselves and the broader community in the lead-up to the referendum.

A referendum in the federal context is a vote used to approve a change to the Australian Constitution. This vote follows approval by Parliament of the proposed law. Both steps must be performed in accordance with a process provided by section 128 of the Constitution.

A referendum is successful if a ‘double majority’ votes ‘yes’ to the proposed changes. A double majority is:
•    a national majority of voters in the states and territories; and
•    a majority of voters in at least 4 out of the 6 states.

For further information on the referendum process, see the Australian Electoral Commission (AEC) website here, the Parliamentary Education Office’s website here and the Australian Parliament website here.

Voters will be asked to vote ‘yes’ or ‘no’ to the following question:

“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?”

If the referendum succeeds, the following section will be inserted into the Constitution:

“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:

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.”
 

The proposal is for a constitutionally enshrined body that would make representations and recommendations to Parliament and the Executive on matters relating to Aboriginal and Torres Strait Islander people.

All people and organisations in Australia are able to make representations to Parliament or government on political matters. This is a core part of civic life in Australia, and individuals and organisations (business peak bodies, unions, religious groups, industry groups) frequently make such representations, including to parliamentary committees that make inquiries into legislation, policy issues or matters of government administration. 

As noted by the Referendum Working Group in its communiqué of 12 December 2022, the Voice would not alter these processes or diminish any ‘right, power or privilege’ of any non-Indigenous person.*  It would simply mean that Aboriginal and Torres Strait Islander people would have a constitutionally enshrined mechanism to make recommendations to the Parliament and Executive on relevant legislation and policy.

* The Hon Linda Burney MP, Communiqué for the Referendum Working Group, 12 December 2022. See also Anne Twomey, ‘An Indigenous Voice to Parliament will not give ‘special rights’ or create a veto’, The Conversation, 14 December 2022.

The Voice will make representations to Parliament and the Executive ‘on matters relating to Aboriginal and Torres Strait Islander Peoples’. 

One concern that has been raised is the possible scope of the Voice to comment on all issues, including those that impact Indigenous people in the same way as non-Indigenous people (e.g., certain matters of national security). While the scope of the Voice is broad, it is highly likely that it will focus its efforts on those matters that have the greatest impact on Aboriginal and Torres Strait Islander communities.  

There will inevitably be ‘political and practical constraints’ on the types of representations that the Voice would make. It has been argued that if representations were made on issues without a ‘direct and serious impact’ on Aboriginal and Torres Strait Islander people, these would be unlikely to be given significant weight.*

Some commentators have also noted that the Voice’s proposed functions (that is, to make representations on matters relating to Aboriginal and Torres Strait Islander people) is consistent with Indigenous peoples’ right to self-determination.**  If the Voice was limited in scope to laws specifically directed to Aboriginal and Torres Strait Islander matters, this may limit the power of the Voice to make representations about general laws and policies on myriad other significant areas (e.g., health, education, employment and criminal justice) that may affect Aboriginal and Torres Strait Islander people in significant ways, which may undermine the effectiveness of the institution. ***

* See, for example, Anne Twomey, Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum, Submission 17, 13 April 2023.
** Harry Hobbs, Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum, Submission 43, 14 April 2023.
*** Rebecca Ananian-Walsh, Peter Billings, Anthony Cassimatis AM, Dani Larkin, Dylan Lino and Graeme Orr, Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum, Submission 77, 20 April 2023.

Australia’s Federal Parliament has two ‘chambers’ or ‘houses’ of Parliament, namely the House of Representatives and the Senate. The Houses of Parliament are comprised of elected representatives. They are empowered to introduce, pass and veto legislation, and are able to hold the Executive to account.

The Voice would not have the powers and privileges of a House of Parliament. It would not, for example, introduce, debate, pass or veto legislation. Rather, the Voice would sit outside Parliament as a separate constitutional body.

While the Voice could make representations to Parliament and the Executive, such representations would be of an advisory nature only. The supremacy of Parliament would not be affected.

Some constitutional experts have drawn a comparison between the Voice and other well-recognised bodies in the Australian political landscape, such as the Productivity Commission and the Auditor-General.*

These bodies all provide recommendations and advice to the legislature, including through reports tabled in Parliament. The Houses of Parliament are under no obligation to implement the advice from these bodies, just as they would be under no obligation to act on the advice of the Voice. However, such advice may allow for more informed decision-making on particular issues.

* Anne Twomey, ‘Why an Indigenous voice would not be a 'third chamber' of parliament’, SMH, 29 May 2019. 

The Uluru Statement from the Heart was the result of 13 regional dialogues of more than 1,200 Aboriginal and Torres Strait Islander people (more information on the Uluru Statement and the Regional Dialogues is available below). Constitutional enshrinement of a First Nations Voice was a central pillar of that document, underpinned by the express desire for an enduring mechanism.

It would be possible to establish a legislated body with similar functions to the Voice that is not enshrined in the Constitution. Some commentators have argued that this option would be preferable, as it could allow for a “trial” or “pilot” Voice and therefore greater familiarity within the Australian community with the concept before a referendum for constitutional enshrinement. 

However, a legislated body, would not fully respond to the form of recognition called for in the Uluru Statement.   

Public endorsement through the referendum process would also give the Voice greater legitimacy as a core institution of Australia’s governance landscape.

The referendum will ask the Australian people to vote on a simple, in-principle question on whether the Voice should be enshrined in the Constitution. If successful, Parliament will then be left to enact and amend legislation with respect to the composition, functions, powers and procedures of the Voice. 

The Government has released some key design principles that arose from the Langton and Calma Indigenous Voice Co-design Process and the Uluru Dialogues and which were refined by the Referendum Working Group. These Design Principles deal with matters including functions, representation and accountability and are likely to play a role in the legislative process that will follow if the referendum is successful. The Design Principles can be accessed here. 

If the referendum is successful, the Voice will be able to make representations to the Parliament and the Executive on matters affecting Aboriginal and Torres Strait Islander people. Some commentators have raised concerns that allowing the Voice to speak to the Executive on issues of administrative decision-making, the development and implementation of policy would impede the processes of government and represent unnecessary interference.

Supporters of the Voice, by contrast, have highlighted the fact that, in order to improve outcomes for Aboriginal and Torres Strait Islander people, the ability to make recommendations to both Parliament and Executive government is essential. This is because Executive government is where laws are initially developed before a bill is introduced to Parliament.*

* Paula Gerber and Katie O’Bryan, Castan Centre for Human Rights Law, Legal experts weigh in on Indigenous Voice to Parliament referendum question. 

The Uluru Statement from the Heart was an invitation issued to the Australian public in 2017 following 13 Regional Dialogues held across Australia. It is a call from Aboriginal and Torres Strait Islander people to walk with them in ‘a movement for a better future’. Specifically, the Uluru Statement called for substantive reform to the Constitution through a permanent Aboriginal and Torres Strait Islander Voice to Parliament, and a Makarrata Commission to engage in treaty-making and truth-telling about the past. For further information, including to read the statement in full, see here. 

The consultation process leading up to the creation of the Uluru Statement from the Heart included regional dialogues which culminated in the Uluru National Constitutional Convention in May 2017. The Dialogues and the Convention have been described by Thomas Mayo as ‘the most extensive, well-informed and well-formulated constitutional dialogues Indigenous people have ever had’. *
 
The 13 Regional Dialogues were led by local leaders and participants comprised of a broad cross-section of Aboriginal and Torres Strait Islander people, including 60% from First Nations/traditional owner groups, 20% from community organisations and 20% key individuals. **

* Thomas Mayo, & Kerry O'Brien, The Voice to Parliament Handbook (Hardie Grant Explore, 2023).
** Daniel McKay (Law and Bills Digest Section), Uluru Statement: a quick guide, 19 June 2017.

The Government was advised on the draft amendment to the Constitution and the referendum question by the Referendum Working Group. This Group, co-chaired by Indigenous Affairs Minister Linda Burney and Senator Patrick Dodson, comprised around 20 Aboriginal and Torres Strait Islander people with a breadth of expertise and experience. See here. 

The Voice – This is the official referendum website of the Australian Government. Of particular interest to our members working with linguistically diverse clients may be the range of translated resources in prominent community languages. This website includes links to the following:

Fact sheets
•    Fact sheet: Aboriginal and Torres Strait Islander Voice
•    Fact sheet: Referendum question and constitutional amendment
•    Fact sheet: How will an Aboriginal and Torres Strait Islander Voice work?

Advisory Groups
•    First Nations Referendum Working Group Communiqués
•    First Nations Referendum Engagement Group Communiqués

Constitutional Amendment – Resources 
•    Parliament of Australia: Australian Constitution
•    Constitutional amendment and referendum question

Voice Design Principles
•    Aboriginal and Torres Strait Islander Voice Principles

Community Toolkit, including translated resources 
•    Community Toolkit 

Disinformation register - Referendum process – The Australian Electoral Commission has created a register that lists prominent pieces of disinformation the AEC has discovered regarding the announced referendum on the Voice to Parliament. It also provides details of actions the AEC has taken in response.
 

The Uluru Statement from the Heart: This website allows visitors to read the Statement from the Heart in full as well as learn about its history, including the series of regional dialogues held across the country, culminating in a National Constitutional Convention at Uluru in 2017.

The Conversation: The Conversation has gathered articles on the Voice from leading academics and researchers. These include discussions on technical, legal questions associated with the Voice through to comparative perspectives from other jurisdictions. 

AUSPUBLAW blog: The Gilbert + Tobin Centre of Public Law (UNSW) and the Australian Association of Constitutional Law are hosting posts on their blog from experts to assist and inform the debate.

University of Melbourne Indigenous Voice to Parliament FAQs: The University of Melbourne has a dedicated page where members of the public can post questions on the referendum that will be answered by experts. 

Castan Centre for Human Rights Law: Researchers from the Castan Centre for Human Rights Law have compiled fact sheets and analysis on the Uluru Statement from the Heart and Voice to Parliament.
 
The Law Council of Australia: The Law Council has released guidance material that explains the basis for its support for the Voice and explains the proposed amendment to the Constitution and its implications. It has also prepared a comprehensive Guide for the Legal Profession which is aimed at informing the profession on relevant issues.

Responding to common concerns about an Aboriginal and Torres Strait Islander Voice: This document has been prepared by the First Nations Portfolio at The Australian National University. It provides responses to common concerns currently being raised about the Voice.

Debunks: RMIT FactLab works in partnership with Meta to fact check social media content on Facebook and Instagram. They have noted that ‘viral disinformation about the Voice referendum is on the rise’ and have sought to counter this through their fact-focused analysis.  
 

VoiceFACTS: The University of Melbourne is producing a series of short videos offering clear and concise information presented by Professor Cheryl Saunders, an Australian and comparative constitutional law expert.

Conversations about the Voice: The University of Melbourne is hosting events (with online recordings) that aim to explore and explain the Voice proposal. Each event focuses on a part of the proposal and features prominent experts and various points of view.
 

Thomas Mayo, & Kerry O'Brien, The Voice to Parliament Handbook: This handbook includes information on the political process of a referendum in Australia as well as a series of FAQs that have emerged recently in response to the upcoming referendum. Professor Fiona Standley AC and Professor Marcia Langton AO also consider how the Voice can help to Close The Gap. 

Megan Davis and George Williams, Everything You Need to Know about the Uluru Statement from the Heart: This book written by two constitutional experts explains how the Constitution was drafted, what the 1967 referendum achieved, and the processes and consultations around the Uluru Statement.

The Voice — A Step Forward for Australian Nationhood, The Hon Robert French AC and Professor Geoffrey Lindell AM: This paper was first delivered on 4 February 2023 to the Exchanging Ideas Symposium conducted by the Judicial Commission of New South Wales, the New South Wales Bar Association and the New South Wales Law Society. An updated version was sent to the Joint Select Committee on Aboriginal and Torres Strait Islander Voice Referendum on 19 April 2023.

Griffith Review, First Things First (Edition 60): This edition aims to ‘share transformative information, structural challenges and personal stories’. Contributors include Stan Grant, Marcia Langton, Tony Birch, Melissa Lucashenko, Alexis Wright, Bruce Pascoe, Kathy Marks and Megan Davis.

• AEC Disinformation register - Referendum process
• Debunks: RMIT FactLab works in partnership with Meta to fact check social media content on Facebook and Instagram. They have noted that ‘viral disinformation about the Voice referendum is on the rise’ and have sought to counter this through their fact-focused analysis.  
• AAP FactCheck

Register here: https://us06web.zoom.us/webinar/register/WN_BGX1_febSIWqkBmULVZ7KQ#/registration