The Voice to Parliament | A quick update: frequently asked questions

Earlier in the year, we published a bulletin about the upcoming Voice to Parliament (the Voice) referendum, which can be accessed here. Since then, the Federal Parliament has passed the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) Bill 2023, setting in stone the referendum question.

At Gadens, we believe that there is an important role for lawyers and law firms to educate people about the significance of a ‘yes’ vote and to guide the discourse around the referendum. Accordingly, we have been presenting short informative sessions on the Voice to various clients and stakeholders. The discourse that has arisen from those sessions has been engaging and productive, with lots of very good questions being asked.

Below are some frequently asked questions posed to our team.

1. What are some of the key arguments against the Voice?

The Opposition (the Liberal Party of Australia) has formally opposed the Voice. One of the main reasons behind this decision is the belief that it will not actually lead to meaningful change for First Nations peoples; there is also the view that the model is too broad and undefined.

In response to this argument, we think that it is important to understand that the Voice is the product of a myriad of petitions and calls for recognition by First Nations peoples for several decades. The Voice was decided as the most meaningful way to recognise First Nations people within the Constitution at the First Nations National Constitution Convention. This Convention involved 250 First Nations representatives from across the country, and was the culmination of years of consultation involving thousands of people, including First Nations peoples, non-indigenous members and various experts. The consultation process was the most proportionately significant process that has ever been undertaken with the First Nations community.

Further, with regards to the argument that the current model is too broad and undefined, it should be noted that the referendum is intended to be broad at this stage. The purpose of the referendum is to establish the Voice in a way that cannot easily be removed by the government of the day. If the referendum is successful and an enshrined Voice is established, only another referendum, a vote of the Australian population, can remove it. Moreover, there are ‘Design Principles’ which have been agreed by the First Nations Referendum Working Group, regarding the role and function of the Voice. For example, the Voice will be accountable and transparent, being subject to standard government and reporting requirements and members also being able to be sanctioned or removed for serious misconduct. Another key principle is that the Voice will not have a veto power, with its key role being to give independent advice to the parliament and government. The exact workings of the Voice will be determined based on these Design Principles, by members of parliament through various debates at a later stage.

There are also some members of the First Nations community who argue that the Voice is not enough, and that the treaty making powers of the Makarrata Commission should be prioritised. As non-Indigenous Australians, it is not our place to question the views of those in the First Nations community who oppose the Voice. The entire purpose of the discussion and the events that are transpiring in Australian politics at the moment is to ensure we are listening to what First Nations peoples have to say. This is a matter that affects the First Nations community intrinsically. We must respect these views, and do our best to understand what they mean and where they come from. While there are those in the First Nations community that believe the Voice is a hollow means of acknowledging First Nations Australians in parliament, and that real change can only be effected by reaching Treaty, there are also many in the First Nations community that believe that the Voice is a necessary first step in the journey towards significant reconciliation and the representation of First Nations peoples.

2. What will stop the government from giving the Voice an excessive amount of power, or rendering it completely powerless?

The proposed wording to be included in the Constitution acts as the Voice’s guiding principle when parliament and the government establish its role through legislation. In this way, the Constitution itself keeps the role given to the Voice in line with what was initially intended.

For example, the proposed role of the Voice is very clear in that it ’may make representations‘ to parliament and the government. The Voice may make representations, but parliament is not legally required to consider them. To change this would require the express wording to be ambiguous enough to require an implied reading of the power, and that implied reading would have to favour the idea of the Voice imposing a legally enforceable constitutional obligation on parliament and the government to consider its representations. Given the clarity of the proposed wording, this is extremely unlikely. This should allay concerns that the Voice could bring parliament to a halt through High Court challenges that law-makers have not considered its representations.

In any case, the key thing stopping the government from giving the Voice an excessive amount of power, or rendering it completely powerless, is accountability. When we don’t agree with the actions that members of parliament have taken, or the laws they have made, we take part in the most civil protest we can: an election. If a member of parliament, or a party, were to give or take away more power than Australians believe is right, they would be voted out at the next election, and a parliament that is representative of the views of the majority of Australians would likely remedy any changes seen to be out of line with what most Australians think to be right.

The key point in all of this is that if the referendum passes, we will know that the majority of Australians support it. And then the amount of power that the Voice is given will be indirectly decided by Australians through whether or not the people that make those decision in parliament are voted back in at the next election. There are democratic protections in place to ensure that the Voice is used as a tool for good, and in a capacity that nobody should be afraid of.

If you would like to speak to someone at Gadens further about the Voice, please contact Cassandra Krylov.

See our previous articles on the Voice to Parliament here:

The Voice to Parliament | The upcoming referendum – Australia’s vote | Gadens

Authored by:

Carlyna Yap, Lawyer
Leo Rodrigo, Lawyer
Pearl Chen, Lawyer

Photo credit:
Carlyna Yap