Professor Asmi Wood is a constitutional law expert at the ANU College of Law, and a member of the Federal Government’s Constitutional Expert Group on the Voice. He is a Torres Strait Islander man. In this article, he considers the Indigenous Voice to Parliament Referendum, to be held on 14 October.

The recently-elected Labor party has promised to give Indigenous people constitutional recognition through a constitutionally-entrenched Indigenous Voice to Parliament (‘Voice’). There are many views on the pros and cons to of the Voice, including some very broad claims on what a Voice may achieve. This article does not individually consider these claims, not least because there are too many of them with new objections confected regularly. 

The approach of this article is instead to briefly examine the text of the Constitution Alteration (Aboriginal and Torres Strait Islander Voice 2023 (Cth) (‘the Act’) itself. This is because, if there is any litigation stemming from the Voice, the Courts will only refer to this text, and not the rumours of what the Voice may or may not do. It is therefore the surest and safest yardstick against which claims should be assessed, and this will help you to decide if the claims stack up against the legislation.

The Referendum, if successful, will do two key things, by entrenching these elements in the Constitution and as set out in the Act:

1. It will Recognise Aboriginal and Torres Strait Islander Peoples as the first peoples on the Continent. This is a non-contentious issue, and has multi-party support. Peter Dutton, the Opposition Leader, has committed to re-running a  future ‘recognition referendum’ if the current referendum fails. Former Prime Minister John Howard attempted to recognise Indigenous peoples in the Constitution in a failed referendum of 1999.

2. The Voice will be entrenched in the Constitution. This is the key difference between the political parties. The Opposition under Mr Dutton and others had or have committed to legislating a Voice. It is unclear why entrenchment alone will make the Voice less divisive or racist, as some have claimed.

About 80 per cent of Indigenous people support the Voice. About 20 per cent think it offers far too little, which is not an unreasonable point of view. A few, however, do make outlandish claims that really need examination if you are not to be treated as a mere unthinking follower.

The operative part of the Act is set out below, and it will be further broken down into its elements. Each subsection will be examined separately with some explanation to keep the matter as accurate but as simple as possible. The text of the act is bolded and italicised, with my commentary below:

Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples

The Constitution currently has eight Chapters and 128 sections. This referendum (if successful) will add a new Chapter IX [9] which, in effect, declares the people’s recognition of the Indigenous peoples of this continent.

129 Aboriginal and Torres Strait Islander Voice

Chapter IX has one section, as titled above. The text that follows is part of that section, and will be discussed where necessary. Much of the text is clearly expressed and means exactly what it says.

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;

This subsection establishes the Voice as a body. The determination of the form of the Voice is left to the Government of the day, as is the practice of Parliamentary supremacy, under the Westminster system as it operates in Australia.

(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;

This is the key part that sets out what the Voice can do:

(a) As the Act provides, the Voice ‘may make representations’. That is all. It has no right of veto, it cannot charge people for going to the beach, nor can it exercise most of the fairly imaginary powers attributed to the Voice by some in the ‘no’ campaign.

(b) And to whom may the Voice make representations? The Act provides that it may make representations to the Parliament and the Executive Government of the Commonwealth. Some people have said that it should only be able to make representations to Parliament, but given that neither arm of government mentioned is bound by these representations, opposition to the inclusion of the Executive appears much less insidious than has been suggested by some opponents of the Voice.

(c) And on what issues may this body make representations? The Act provides that the body may make representations on matters relating to Indigenous peoples, nothing more.

(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.

Subsection (iii) completely protects the right of Parliament to determine the composition, functions, powers, and procedures of the Voice. This means that the government of the day can regulate the operations of the Voice, and can do so completely, as is, again, the practice under the Westminster system as it operates in Australia.

‘If you don’t know, vote no’ is a mug’s proposition which arguably treats people as sheep and followers of the elite who will work things out for you! The better approach is if we don’t know about something as important as the Referendum to alter the Constitution, the least we can do is to try to find out.

The proposition here is modest and fairly easy to understand. However, opponents have clearly been successful in confusing and conflating irrelevant issues, and sometimes even creating fear, such as equating a call for a voice as a declaration of war.

Yes, there is a certain amount of leeway that proponents of each side may grant themselves, perhaps with the hope that you will not do the simple checks for yourself. In reality, as you can see above, this referendum takes nothing away from non-Indigenous people. It grants Indigenous people a limited Voice to speak up on legislation that Parliament has proposed and may adversely affect them alone. Not too much to ask for, is it?

The Founders, guided by the notions of racial superiority and eugenics, and who created the Constitution, gave Indigenous people very little, but acknowledged their presence on the Continent. Will this contemporary generation, guided by notions of human rights, give Indigenous people even less?