What is the Indigenous voice to parliament, how would it work, and what happens next?

Here’s what we know so far about how the Albanese government hopes to enshrine an Indigenous voice in the constitution via a referendum

The Albanese government has proposed to enshrine in the constitution an Indigenous voice to parliament, which would be voted on in a referendum.

Here’s what we know so far.

What has happened already?

The government has put forward a simple referendum question for us all to vote on and unveiled the final wording of the constitutional amendment.

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 proposed alteration to the constitution:

Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples 129 Aboriginal and Torres Strait Islander Voice

In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

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 the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;

3: 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.

The vote is likely to occur between October and December 2023.

The government has promised a public education campaign before the referendum, to answer common questions about how the process will unfold, but it will not fund either the yes or no campaigns.

The referendum requires a majority of votes in a majority of states to succeed. If the vote is successful, parliament will then design the Voice via legislation.

The government has also reformed the Referendum Machinery Act, bringing the process into line with the electoral laws governing federal elections. The reforms will include donation disclosure rules, and public funding for campaigns to mitigate misinformation around the referendum process.

Official pamphlets will be provided to voters outlining both the yes and no campaign positions. In most referendums, these pamphlets have been written by MPs.

The Australian electoral commission has set up a website to help voters understand the constitution and the referendum. The AEC will track campaign funding and is running a disinformation register.

What is the voice to parliament and how would it work?

The voice would advise the Australian parliament and government on matters relating to the social, spiritual and economic wellbeing of Aboriginal and Torres Strait Islander people.

Parliament and government would be obliged to consult it on matters that overwhelmingly relate to Aboriginal and Torres Strait Islander people, such as native title, employment, housing, the community development program, the NDIS or heritage protection.

The voice would be able to table formal advice in parliament, and a parliamentary committee would consider that advice. But the co-design report said all elements would be non-justiciable, meaning that there could not be a court challenge and no law could be invalidated based on this consultation.

Conservative critics have raised fears the voice could spur court challenges, but a majority of leading constitutional lawyers have all either spoken strongly in favour of the voice or rebuffed concerns about the legal effect of its representations.

The co-design report said the voice needed “adequate, secure and long-term resourcing to be provided by the Australian government on a per-region basis” in order to operate successfully.

The minister for Indigenous Australians, Linda Burney, has often said the voice is a way for Aboriginal and Islander people to directly advise all levels of government about laws and policies that affect their lives. “It’s about drawing a line on the poor outcomes from the long legacy of failed programs and broken policies, and listening to Aboriginal and Torres Strait Islander people,” she said.

“Things like incarceration and child removal. Housing, health and educational outcomes. This voice is about making sure that what happens in the federal parliament is going to be a positive step forward both in terms of us as a nation, but also the life outcomes for First Nations people in Australia.”

How would it be structured?

The referendum working group advising the government says the design of the voice will be guided by the following principles:

  • It will provide independent advice to parliament and government.

  • It will be chosen by First Nations people based on the wishes of local communities.

  • It will be representative of Aboriginal and Torres Strait Islander communities.

  • It will be empowering, community-led, inclusive, respectful, culturally informed and gender balanced. It will also include youth.

  • It will be accountable and transparent.

The voice will work alongside existing organisations and traditional structures.

The co-design report recommended the national voice have 24 members, with gender balance structurally guaranteed.

The base model proposes two members from each state, the Northern Territory, ACT and Torres Strait. A further five members would represent remote areas due to their unique needs – one member each from the Northern Territory, Western Australia, Queensland, South Australia and New South Wales. An additional member would represent the significant population of Torres Strait Islanders living on the mainland.

Members would serve four-year terms, with half the membership determined every two years. There would be a limit of two consecutive terms for each member.

Two co-chairs of a different gender to one another would be selected by the members of the voice every two years.

The national voice would have two permanent advisory groups – one on youth and one on disability – and a small ethics council to advise on probity and governance.

How would local and regional voices feed in?

The co-design report proposed 35 regions, broken down by state and territory. Communities and governments in each state and territory would jointly determine these.

Local and regional voices would provide advice to all levels of government to influence policy and programs, and advise the non-government sector and business.

The report outlines their roles, how they would be constituted and the principles they would embody, like cultural leadership, community-led design and empowerment.

There would be “a clear, two-way flow of advice and communication” between them and the national voice, the report said.

What would an Indigenous voice to parliament not do?

The national voice would be an advisory body to the Australian parliament and government. It would not deliver services, manage government funding, be a clearing house for research, or mediate between Aboriginal and Torres Strait Islander organisations.

How would disputes be resolved?

The report recommended mediation in the first instance. If that failed, matters would go to an independent review. The report suggested there be an agreed list of people with appropriate experience to conduct such reviews, and at least one of the reviewers should be an Aboriginal or Torres Strait Islander person.

It suggested the final decision-maker could be the relevant minister, alongside two respected, independent Aboriginal or Torres Strait Islander people.

For more information people can read the Uluru statement from the heart, the final report of the Indigenous voice co-design process and the joint select committee on constitutional recognition’s final report.


Lorena Allam Indigenous affairs editor

The GuardianTramp

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