‘It’s The Law’ – Establishing a First Nations Voice

In late July Prime Minister Anthony Albanese provided more details about a proposed referendum to change the Australian Constitution to include an Indigenous Voice to Parliament. This news will likely have been welcomed by many Wimmera residents although there is likely some confusion over what this means. In this article, I will explain the changes to the Constitution as currently proposed, what the Constitution is, what a referendum is, and why this change is being proposed.

Prime Minister Albanese has proposed a draft referendum question as follows: “Do you support an alteration to the constitution that establishes an Aboriginal and Torres Strait Islander voice?”.

Prime Minister Albanese also has released draft sentences to be proposed to be added to the Constitution:

1.      There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.

2.      The Aboriginal and Torres Strait Islander Voice may make representations to parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples.

3.      The Parliament, shall, subject to the Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

These sentences may be revised but provide an indication of the general changes to the Constitution sought.

The Australian Constitution is the set of rules by which Australia is governed including the making of laws and the powers of the three branches of government being the legislature (parliament), the executive (those that put the law into action) and the Judiciary (courts). The Australian Constitution came into force on 1 January 1901 giving the then six colonies the status of states within the new federation of Australia.

The Constitution can only be amended by a referendum which is a vote of the Australian population. To be successful a referendum must have a double majority of yes votes, being a majority of Australian voters and a majority of voters in at least four states. Because of this high threshold only eight referendums have been successful in Australia’s history despite forty-four being voted on. Referendums are likely to fail unless they have the support of the two major parties.

The idea of Indigenous constitutional recognition has been supported by both Labor and Coalition Prime Ministers. John Howard first proposed a referendum on Indigenous constitutional recognition in 2007. In February 2020 then Prime Minister Scott Morrison stated his support for a voice co-designed by Aboriginal and Torres Strait Islander people in his Closing the Gap speech.

Malcolm Turnbull when he was Prime Minister in 2017 voiced his concern that the voice would act as a “third chamber of parliament” requiring approval of legislation by the voice of any legislation concerning Indigenous Australians. However, he has recently stated that he no longer has this concern as the model proposed “only empowers the voice to give advice and make representations”.

The most successful referendum in our history was another referendum concerning Indigenous Australians. The 1967 referendum extended the powers of the Commonwealth to Indigenous Australians in states and repealed section 127 which prevented the inclusion of all Indigenous Australians in population counts for constitutional purposes. 90.77% of Australians voted in favour of the amendments.

The push for Constitutional change to include an indigenous voice to Parliament has been sought by Indigenous Australians for some time but was formally requested in the Uluru Statement issued to the Australian people following the First Nations National Constitutional Convention in 2017. The 2017 Uluru Statement from the heart was endorsed at a meeting of more than 250 delegates following numerous regional dialogues across Australia.

The Constitution was drafted in the late 1880s at a time when the views of Australians towards Indigenous Australians were very different. Fortunately, Australia has progressed, If the Constitution was drafted afresh today it would of course include reference to  Indigenous Australians, who have had such a long and important part of Australia’s history. A successful referendum will ensure that Indigenous Australians are included in Australia’s most important legal document and that they are consulted with in relation to Indigenous matters.

Patrick Smith is the principal of O’Brien & Smith Lawyers.

This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien & Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.