18 May 2023
The Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum (the Committee) was tasked by both the House of Representatives and the Senate to review and report on the legislative provisions that, if passed, will be considered at referendum for incorporation into the Constitution.
The below provides a summary of key commentary within the report. You can read the full report here.
The Constitution currently does not contain any reference to Aboriginal and Torres Strait Islander peoples. The report suggests most stakeholders agreed Aboriginal and Torres Strait Islander peoples should be recognised in some form. The main point of contention was the inclusion of an Aboriginal and Torres Strait Islander Voice in the Constitution. However, the Uluru Statement called for the establishment of an Aboriginal and Torres Strait Islander Voice to Parliament enshrined in the Constitution. It was believed that constitutional recognition alone would not be able to meaningfully address the structural and systemic reform required, and without being enshrined in the constitution, the Voice would be vulnerable to changes in the political landscape.
The Committee recommends that the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 be passed unamended.
Executive Government: One of the key points of contention regarding the legislation was the wording in proposed section 129(ii) which empowers the Voice to ‘make representations to the Parliament and to the Executive Government of the Commonwealth’. Submitters argued that the Voice’s capacity to engage with Executive Government was essential in order to better address policy relevant to Aboriginal and Torres Strait Islander peoples and that ‘Executive Government’ was preferred over omitting or the alternative suggestion of ‘Ministers of State’ as the Voice needs to also be able to advise policy departments and bureaucrats.
Effect of representations by the Voice: The Explanatory Memorandum, and the advice of the Solicitor-General, outlines that the amendment was designed deliberately to ensure that Parliament has the power to determine the legal effect of representations made by the Voice. This was also the view of the overwhelming majority of constitutional experts who addressed this issue in their submissions or evidence. The solicitor general noted the proposed section 129 does not contain an enforceable obligation on the Parliament or the Executive Government to consider or follow representations from the Voice.
Matters relating to Aboriginal and Torres Strait Islander peoples: A small number of stakeholders argued that the reference to ‘matters relating to Aboriginal and Torres Strait Islander peoples’ could involve a range of diverse and potentially unconnected issues. However, it was countered that it would be unlikely that representations would be made by the Voice on a myriad of remote subjects due to the Voice needing to restrain its power for matters which most require its attention.
Race and Constitution: The Constitution already includes a ‘race power’ which has, for decades, been used to make laws about Aboriginal and Torres Strait Islander peoples (and only Aboriginal and Torres Strait Islander peoples). The majority of evidence indicated that the proposed Constitution Alteration would not create inequality nor encourage discrimination; Rather, it could be a means of facilitating the right to equality for Indigenous Australians.
Consistency with International Human Rights Law: Multiple legal experts concluded that the alteration is consistent with international human rights law. It is also consistent with Article 18 and 19 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
Method of recognition: The Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 Bill appropriately recognises Aboriginal and Torres Strait Islanders in the constitution and reflects their wishes to have power over matters that directly impact them. It is the product of countless review, inquiries, reports, consultations and development processes spanning several decades. Recognition through a Voice is supported by a significant majority of First Nations People.
- Concerns regarding legal impact: Based on a careful examination of the evidence, the Committee is of the view that the Bill is constitutionally sound. With regards to how the Voice will operate in practice, this will be legislated through parliament which will ensure that the Australian people (by virtue of their representatives) can shape the Voice and update its operation should circumstances require it.
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