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The Voice to Parliament | A breakdown of the Yes and No cases

19 September 2023

Australian voters will head to the polls on 14 October 2023 to vote on the Voice to referendum. The Australian Electoral Commission has now released the referendum pamphlet, setting out the arguments for and against the 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?’

The Yes case and the No case have been published without amendment by the Australian Electoral Commission. It is therefore important to remember to consider each side’s arguments to ensure that you are well informed going into this referendum. We have performed a short clarification exercise to break down each argument raised, which is set out below.

What does the Yes case say?
Yes campaign caseBreakdown
1. This idea came directly from Aboriginal and Torres Strait Islander people.What it says:
‘The call for a Voice did not come from politicians. In 2017, after many years of work and countless conversations in every part of the country, nearly 250 Aboriginal and Torres Strait Islander leaders and elders endorsed the Uluru Statement from the Heart.’

The proposal is ‘backed by over 80% of Aboriginal and Torres Strait Islander people’.

Analysis:
In addition to the First Nations National Constitutional Convention in 2017 mentioned above, in 2015 after consultation with First Nations community members across Australia, the Referendum Council (an expert body established by then Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten, which comprised First Nations and non-indigenous members) reached a consensus that the Voice was the most meaningful way to recognise First Nations people in the Constitution.

On 27 April 2023, Rebecca Huntley wrote in The Guardian that approval of the Voice in the First Nations community ‘tends to land somewhere between the 80% in an Ipsos poll of 300 First Nations people in January of this year…and the 83% in a YouthGov poll of 738 First Nations people conducted [in April 2023].’
2. Constitutional recognition for concrete results.What it says:
'Voting Yes is an act of reconciliation that will deliver real results.’

The Voice is about establishing a vehicle for practical change that sends a strong message to the world about Australia’s unity, and our recognition of 65,000 years of First Nations peoples’ history as the First Peoples of Australia.

Analysis:
Constitutional recognition is a distinguishing element of the proposed Voice that has significant practical and symbolic impacts.

Practically, constitutional entrenchment brings a level of commitment, authority, visibility, and accountability that typical advisory bodies lack. This gives greater weight to the law-making recommendations that come from First Nations peoples. This also means that the Voice is a body that cannot be abolished by the next government following a change in leadership.

Symbolically, recognising First Nations peoples in the Constitution acknowledges the history of this land, and the intrinsic and unbreakable connection that First Nations peoples have to it. This symbolism is acknowledged in the Uluru Statement from the Heart, which states:

'When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.'
3. Ensure people have a better life.What it says:
Historically, governments have had good intentions and have spent billions of dollars trying to solve life expectancy, infant mortality and health, and education and employment for First Nations peoples. No lasting improvement has been achieved, as those directly impacted by these issues are not being listened to.

‘Listening to Indigenous people has delivered better outcomes.’

Analysis:
The Australian Bureau of Statistics concluded that the life expectancy of First Nations men and women is 8.6 and 7.8 years lower (respectively) than non-Indigenous Australians. This gap widens to 14 years in remote and very remote areas.

The Closing the Gap Report 2020 identified that ‘over the period 2006 to 2018, there was an improvement of almost 10 per cent in Indigenous age‑standardised mortality rates. However, non‑Indigenous mortality rates improved at a similar rate, so the gap has not narrowed.’

This indicates that current efforts are not fixing these issues.

However, listening to First Nations communities works. For example, as mentioned in the Yes case, in South East Queensland, the local Aboriginal Medical Service and the community worked together to hugely increase the number of annual health checks, from 550 to over 20,000 over 10 years.
4. Bring our country together.What it says:
Since our Constitution came into effect in 1901, Australia has come a long way, as Indigenous Australians’ contributions to our country are now recognised. The 1967 referendum saw 90% of Australians vote 'yes’ to alter the Constitution and recognise First Nations people as part of the Australian population.

Australia would not be the first country to establish a Voice to Parliament, with other nations such as Canada and New Zealand recognising their own First Nations people decades ago.

Analysis:
Many nations have established bodies similar to the Voice, including the Sami Parliaments first established in Scandinavia in 1973.
5. Save money.What it says:
Funding is used more effectively when the target audience’s needs are being heard and appropriately addressed. This ensures that the funding achieves its intended outcome. Having a constitutionally enshrined Voice will create a two-way dialogue and provide Australia with the opportunity to actively listen to First Nations peoples and truly understand their needs. This will allow us to ensure that any funding is being utilised in the best possible way.

Analysis:
This is dependent on other factors. While a constitutionally enshrined Voice will be able to engage in a two-way dialogue with government, this does not guarantee that parliament will adopt the recommendations made by the Voice. It is therefore not certain that funding will be used more effectively. However, this is highly likely with a collaborative parliament.
6. The time is now.What it says:
'Voting No means nothing will change. It means accepting we can’t do better.’

No change risks worse life expectancy, worse results in education and employment, and worse outcomes in health.

Analysis:
According to the 2023 draft Closing the Gap Report, rates of adult imprisonment, children in out-of-home care, suicide rates and children’s early development outcomes for First Nations peoples have worsened. Of the 15 socio-economic targets set as part of the Closing the Gap Framework, only four are currently on track to be met.

These basic socio-economic issues need to be addressed to give future generations of First Nations peoples – and Australia – a chance to break the cycle and ensure all Australians are enjoying the same quality of life. Voting Yes gives us this chance to break the current cycle.
7. Practical advice that works.What it says:
The Voice is an advisory body – it will not have the power to prevent, delay or veto laws or decisions. Enshrining the Voice into the Constitution simply provides stability and certainty that another referendum would be required if a future government wished to abolish it. This stability aims to promote honesty and openness.

Analysis:
The powers that the Voice will have will be determined by parliament. The wording of the Constitution will act as the guiding principle for what those powers are and ensure that the body remains advisory in nature.
8. Making government work better.What it says:
Advice has been sought from senior lawyers and former High Court Judges, including Robert French AC, Chief Justice of the High Court of Australia 2008 – 2017, who have all confirmed that the Voice is constitutionally and legally sound, and that it will enhance our system of government.

The Voice does not have a veto power over laws or decisions. This power remains with the Australian Parliament and Government.

Analysis:
As mentioned previously, given the Voice will not hold veto power, its effectiveness will depend on the government’s willingness to engage with the Voice and implement its recommendations.

If the referendum is successful, this would prove that the Voice is endorsed by the Australian people. It would therefore be highly likely that the government would listen to the Voice, as to ignore it would go against the view of the majority of Australians, and risk being voted out at the next election.
What does the No case say?
No campaign caseBreakdown
1. The Voice is legally risky.What it says:
‘Enshrining a Voice in the Constitution means it is open to legal challenge and interpretation by the High Court.’

‘Legal experts don’t agree, and can’t know for sure, how the High Court will interpret such a constitutional change.’

Analysis:
It is true that an enshrined Voice in the Constitution would be open to interpretation by the High Court, much like any other section of the Constitution. However, this would require significant hurdles to be met beforehand, as with any other High Court challenge.

It does not mean that the Voice can overturn decisions of government by appealing to the High Court. It does not open the floodgates to continuous High Court litigation, which will inhibit the functioning of government.

Rather, it means if the Voice is established, there may come a time in the future where a specific decision relating to a specific set of facts will require the High Court to consider whether the intention and wording of the Constitution has been applied correctly.

The current proposed wording to alter the Constitution establishes that the Voice is limited to making ‘representations’ to parliament and the executive government. This degree of broadness, without a specific requirement for the bodies to actually consider those representations when making a decision, makes the risk of High Court challenge relatively small.
2. There are no details.What it says:
Details of how the Voice will operate will only be provided after Australians have voted. Australians are therefore being asked to change the Constitution without these details.

Analysis:
This is the process historically used when establishing entities under the Constitution. For example, the High Court was established similarly, with an enabling provision in the Constitution followed by the setting up of the institution afterwards.

Regardless, a significant level of detail does exist.

The Indigenous Voice Co-design process: Final Report to the Australian Government was published in July 2021 and outlined an Indigenous Voice and how this would enable Indigenous Australians to be more involved in policies and programs that are being designed, developed and implemented to ensure they are what is needed for Indigenous communities. All Australians were given the chance to provide their thoughts on this proposal, either in-person or online, across 67 Australian locations.

Further, the specific composition and procedures of the Voice will be determined at a later stage by the usual legislative process, which enables important flexibility – for example, if the Voice were to hypothetically act in a destructive manner, the parliament would be able to strip it of certain resources or personnel.

The question for Australians to consider at this stage is a simple one – should the Constitution be amended to establish a First Nations Voice that will make representations on First Nations matters?
3. It divides us.What it says:
Singling out one group of Australians in the Constitution would only act to ‘divide us’ and would mean that all Australians are no longer equal before the law, which is a key principle of Australian society.

There is now ‘a record’ 11 Indigenous members and senators.

Analysis:
The argument assumes that Indigenous Australians experience equality with non-Indigenous Australians. This is incorrect.

Statistics show (see above) that Indigenous Australians are among the most underrepresented and vulnerable members of Australian society. The Voice is a way to balance this inequality, instead of allowing it to remain.

Recognition of Aboriginal and Torres Strait Islander peoples as the First Nations peoples of Australia in the Constitution is also an act of reconciliation. Reconciliation is intended to lead to unity, not division.

Regarding the composition of parliament, it is correct that there are 11 Indigenous members and senators (three members of the House of Representatives and eight senators). However, the role of members and senators is to represent the views and needs of their electorate and the political party under which they are elected. It is inaccurate to assume that a larger number of Indigenous members and senators means more representation for First Nations peoples.

The Voice is proposed to have a very distinct role to that of a chamber of Parliament – it is not affiliated with a specific political party and is specifically tasked with making representations about matters relating to Aboriginal and Torres Strait Islander peoples.
4. It won’t help Indigenous Australians.What it says:
A number of Indigenous representative bodies already exist across all levels of government.

‘A centralised Voice risks overlooking the needs of regional and remote communities.’

Analysis:
This is misleading. It is true that a number of Indigenous bodies lobby and advise government. However, each body has a different function. For example, the National Indigenous Australians Agency (NIAA) is an internal agency within the portfolio of the Prime Minister and Cabinet that focuses on matters such as policy development and the implementation of the Closing the Gap targets. The NIAA answers to the executive government, and therefore lacks the independence that the Voice would have. Furthermore, in its most recent Annual Report, the NIAA noted that only 22% of its workforce identified as Aboriginal and/or Torres Strait Islander employees. This indicates a lack of true representation and grassroots involvement of First Nations peoples in existing bodies.

The intention behind the Voice is to establish a federal body that represents the interests of all First Nations peoples, including regional and remote communities. This will be done by the Voice being composed wholly of members of the Indigenous community.

The establishment of the Voice will not negate any existing bodies. Rather, it will provide a more independent and representative voice to First Nations peoples.
5. No issue is beyond its scope.What it says:
The Voice will have the ability to engage in discussions in relation to the economy, national security, health, education and infrastructure. This is because the Voice model extends to areas of the ‘executive government’.

Analysis:
The proposed wording of the Constitution enables the Voice to make representations to the executive government in addition to parliament. In simple terms, this means that the Voice can make representations to government ministers and the departments they oversee. Given the breadth of areas that are governed by the executive government, the above statement is technically true.

However, it is important to note that the proposed wording to be included in the Constitution limits the representations that the Voice can make to ‘matters relating to Aboriginal and Torres Strait Islander peoples’.

Further, as stated above, the Voice will not have the power to prevent, delay or veto laws or decisions in relation to issues; parliament and the executive government will not be legally required to consider or implement the Voice’s recommendations.

This means that, while the Voice’s advisory scope is wide, the wording of the Constitution would ensure that it remains solely an advisory body.

Further information on use of terms 'representations' and 'matters relating to Aboriginal and Torres Strait Islander peoples':

Representations
A 'representation' in the context of the Voice is described as 'a statement from the Voice… [which] would communicate the Voice’s view…'.

The word 'representation' was chosen specifically to ensure that no obligation would be imposed on parliament or the government. It suggests that the Voice can offer its view to parliament, instead of parliament having a duty to consult the Voice.

Matters relating to Aboriginal and Torres Strait Islander peoples
This includes matters specific to Indigenous Australians and matters relevant to the broader Australian community that affect Indigenous Australians differently.

For example, differences in life expectancies between Indigenous and non-Indigenous Australians means that laws regarding the age at which an individual can access their superannuation affect Indigenous Australians differently.
6. It risks delays and dysfunction.What it says:
As the Voice’s reach extends to the executive government, it will be asked to engage with hundreds of pieces of legislation a year, as currently required by the Australian Parliament. A question has been raised that if the Voice is not satisfied with the consultation that has occurred, or a decision that has been made, it has the right to appeal to the courts, which could result in delays.

Analysis:
Given its clear agenda (being to promote First Nations interests), the Voice may not wish to engage in discussion in relation to each piece of legislation that is put before the Australian Parliament, and therefore any anticipated delay is merely speculative at this stage.
7. It opens the door for activists.What it says:
The Uluru Statement from the Heart sets out the Voice being the first step in this journey, followed by treaty (agreement between governments) and truth telling.

‘Many activists are campaigning to abolish Australia Day, change our flag and other institutions and symbols important to Australians. If there is a constitutionally enshrined Voice, these calls would grow louder.’

Analysis:
The Voice is separated from social activism by virtue of being a constitutionally enshrined body. It seeks to achieve long term, measurable outcomes for First Nations peoples. Its role does not relate to symbolic recognition.

Regarding treaties, a treaty would not result in the breakdown of Australian governance. For example, in Canada, approximately 70 recognised treaties with First Nations people have been made since 1701. This has not resulted in any adverse consequences for the functioning of the Canadian Government.
8. It will be costly and bureaucratic.What it says:
A number of First Nations bodies already exist, with the Australian Government allocating $4.3 billion in funding this year to the National Indigenous Australians Agency, which employs 1,400 people. It is not yet clear how much additional funding will be needed for the Voice.

Analysis:
The Voice would be a substantive move forward for Australia in representing First Nations peoples. There is no other body in Australia that has the level of visibility and accountability that is being proposed for the Voice to have. The intention is for this to result in visible and accountable changes. The goal is to implement a structure that will allow funding to achieve the intended outcomes, which can prove more cost-effective in the long run.
9. This Voice will be permanent.What it says:
If a Yes vote is achieved, the Voice will be permanently enshrined in the Constitution. If the High Court makes an interpretation on the Voice, it cannot be overruled by parliament.

Analysis:
The assertion that High Court interpretations cannot be overruled by parliament is incorrect. The concept of parliamentary sovereignty means that parliament can override the decisions of the courts by passing legislation. This includes decisions made by the High Court. Hypothetically, if the High Court were to make an interpretation on the Voice, parliament could pass a law to overrule that interpretation.

The Voice will only be given the level of involvement that parliament agrees on. Therefore, its power will still be decided by all members of parliament.

Additionally, though highly unlikely, just as the Voice can be constitutionally enshrined by referendum, it can also be removed by referendum.
10. There are better ways forward.What it says:
Recognising Indigenous Australians in the Constitution ‘can be achieved without tying it to a risky, unknown and permanent Voice’.

The referendum process has been ‘rushed and heavy-handed'.

Analysis:
This referendum is the most researched, most consulted and most developed in Australian history.

The Referendum Council has conducted numerous meetings, consultations in the lengthy lead up to the proposed referendum: Referendum Council Dialogues.

The No case puts forward that ‘there are better ways forward…that can be achieved without tying it to a risky, unknown and permanent Voice’. However, it does not go further to actually state what those alternatives may be.

For example, recognising the voice of First Nations peoples can be done without enshrining it in the Constitution, such as the enactment of legislation. However, the issue with a purely legislative approach is that the creation of laws by one government, despite the best of intentions and research, can always easily be repealed or changed by the next government. This means that it would not afford First Nations peoples the reassurance that the Voice will continue to exist, until another referendum, a true vote of the Australian people, says otherwise.

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

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

Post updated at 9 October 2023 to include information on the use of terms: ‘representations’ and ‘matters relating to Aboriginal and Torres Strait Islander peoples’.

Authored by:

Carlyna Yap, Lawyer
Cassandra Krylov, Senior Associate – Sustainability and Social Impact
Leo Rodrigo, Lawyer
Pearl Chen, Lawyer

Photo credit:
Carlyna Yap

 

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