Ask Maddy: FAQs about the Aboriginal and Torres Strait Islander Voice to Parliament

Courtesy of the Australian National University’s First Nations Portfolio, here are answers to some frequently asked questions about the Voice to Parliament.

Do we need an Aboriginal and Torres Strait Islander Voice when there are already elected Indigenous parliamentarians?

A record 11 Indigenous Australians are serving in the current 47th Parliament: Pat Dodson, Linda Burney, Malarndirri McCarthy, Lidia Thorpe, Dorinda Cox, Jana Stewart, Jacinta Price, Gordon Reid, Marion Scrymgour, Kerrynne Liddle and Jacqui Lambie.

These are positive developments, but it does not mean that there is no need for an Aboriginal and Torres Strait Islander Voice. For one thing, Indigenous Members of Parliament cannot solely represent Indigenous interests: they need to prioritise the interests of their party and by their electorate if they are to remain in Parliament.

Regional Delegates at the Uluru Dialogues lamented this challenge, noting that ‘there are Aboriginal people who have been elected to Parliament, but they do not represent us. They represent the Liberal or the Labor Party, not Aboriginal People’.[1]

An Aboriginal and Torres Strait Islander Voice, therefore, serves a distinct and complementary function.

Would a separate body for Indigenous Australians divide Australia based on race or give Aboriginal and Torres Strait Islander peoples special rights?

No. A group of leading constitutional lawyers, including a former High Court Judge, has considered this question. They found that the Voice does not confer special rights on anyone.

The Australian Parliament has already passed special laws that only affect Aboriginal and Torres Strait Islander people. This is the only group of people in Australia about which special laws are made. If Aboriginal and Torres Strait Islander people are the only group that has special laws made about them, it is reasonable that they should be able to speak to the Parliament and government about those laws.

Is the Voice a Third Chamber? Will the Voice delay Parliament or make governing more difficult?

The Voice is not a Third Chamber of Parliament. The Voice will not be able to introduce bills into Parliament or vote on legislation. The Voice will have no ability to delay or frustrate Parliament. The Voice will simply be able to make representations to Parliament and the government. Parliament retains full control over its own procedures.

Should the Voice be allowed to speak on things that affect all Australians?

The proposed constitutional amendment allows the Voice to be able to speak on matters specific to Aboriginal and Torres Strait Islander peoples as well as on matters relevant to all Australians, but which affect Aboriginal and Torres Strait Islander peoples differently.

There are several reasons why the Voice should be able to speak on matters that directly or indirectly affect Aboriginal and Torres Strait Islander peoples.

1. Some laws that apply to all Australians affect Indigenous Australians differently. For example, because Aboriginal and Torres Strait Islander people have a lower average life expectancy compared to non-Indigenous Australians, laws dealing with the Age Pension affect Indigenous Australians disproportionately. A law restricting eligibility to 67-year-olds may not ‘directly affect’ Indigenous Australians, but the Voice should be able to make representations on such laws before they are passed.
2. The Voice should be able to choose what it focuses on. The Voice is intended to give Aboriginal and Torres Strait Islander peoples a say over matters that affect them. It would be wrong in principle for the government or Parliament to decide what it thinks Aboriginal and Torres Strait Islander peoples should focus on. Consistent with Indigenous peoples’ right to self-determination, the Voice should decide itself.
3. The Voice is advisory only. The Voice cannot make government or Parliament change its mind or delay a bill from being voted on. It can only make representations. There is no great need to limit what the Voice can speak on when it has no ability to force government to amend its proposals or the Parliament to amend its bills.

Will the Voice improve the lives of Aboriginal and Torres Strait Islander people?

There is compelling evidence that the direct involvement of Aboriginal and Torres Strait Islander peoples in the design and implementation of laws and policies produces better outcomes. This is agreed across political parties in the Parliament and it is the core premise of the National Agreement on Closing the Gap, developed by the Coalition Government in 2020 and now being implemented by the current Labor Government.

All major proposals for the design of the Voice recognise that the relationship between the Aboriginal and Torres Strait Islander Voice and local and regional communities is critical to its success. Proponents have envisioned the Voice acting as an interface for local and regional communities, as well as simultaneously reporting back to the community.

This way, the aspirations, concerns and priorities of local communities will be heard – and acted upon – by all levels of government. The Voice will not only be a forum for national leaders; it will be a mechanism through which Indigenous communities across Australia, who have lived experiences and practical knowledge, can influence decision-making that affects them.

In this way, the Voice will lead to more informed and responsive public policy which can improve the lives of Aboriginal and Torres Strait Islander peoples. As Marcia Langton has recently said in relation to the Voice, ‘we know from the evidence that what improves people’s lives is when they get a say. And that’s what this is about’.[2]

Why do we need to put the Voice in the Constitution?

There are three good reasons why the Voice needs to be put in the Constitution.

1. The Constitution will provide the Voice with security and stability. The Parliament has established three national Indigenous representative bodies in the past. These bodies empowered Indigenous Australians to speak to government about laws and policies that affected them. In each case, however, the body was abolished after several years. Putting an Aboriginal and Torres Strait Islander Voice in the Constitution will make it harder for government and Parliament to do away with the Voice.
2. Putting the Voice in the Constitution will make it more likely to succeed. The Voice will not be able to force the Parliament or government to change laws or policies. Its success will rely on political and moral pressure. However, Parliament and the government are more likely to listen to the Voice if it has been endorsed by the Australian people at a referendum. Australians will have made clear that they want their political leaders to take the Voice seriously. Without a referendum, Parliament and government will find it easier to ignore the Voice.
3. Putting the Voice in the Constitution is an act of Recognition and Respect. Aboriginal and Torres Strait Islander peoples have more than 60,000 years of kinship and connection to this continent. Putting the Voice in the Constitution would mean that the Australian people formally recognise that history and status. It is also the form of recognition asked for by Aboriginal and Torres Strait Islander peoples.

Is the Voice a radical change that goes against the nature of our Constitution?

The Voice is not a radical change. It is a modest addition to our Constitution and to our nation. The proposal has been thoroughly tested with senior constitutional lawyers across the spectrum over the last five years, including via the government’s Constitutional Expert Group.

Two former Chief Justices of the High Court of Australia, Murray Gleeson and Robert French, have both expressed public support for the Voice, as has former High Court judge Kenneth Hayne. Leading constitutional lawyers such as Anne Twomey, George Williams, Asmi Wood, Bret Walker and Megan Davis have also expressed support for the Voice.

As Robert French has noted, the Voice is ‘high return against low risk’, because it will ‘provide a practical opportunity for First Peoples to give informed and coherent and reliable advice to the Parliament and the Executive to assist them in law and policy making in one of the most difficult areas of contemporary government’.[3]

Will an Aboriginal and Torres Strait Islander Voice cede Aboriginal and Torres Strait Islander peoples’ sovereignty?

An Aboriginal and Torres Strait Islander Voice cannot and will not cede Indigenous peoples’ sovereignty. Leading Indigenous and non-Indigenous constitutional and international lawyers, such as Megan Davis, Asmi Wood, Hannah McGlade, George Williams and Anne Twomey have examined this issue and agree. There are several reasons why:

• Indigenous sovereignty cannot be ceded except by agreement and the proposal says nothing about Indigenous sovereignty. The proposal does not mention Indigenous sovereignty. Rather, it empowers Indigenous peoples with the opportunity to make representations to Parliament and the government. In any event, the referendum requires the support of non-Indigenous Australians. It makes little sense that non-Indigenous Australians could cede Aboriginal and Torres Strait Islander peoples’ sovereignty. Only Aboriginal and Torres Strait Islander peoples can cede their sovereignty.
• Indigenous sovereignty cannot be extinguished by the Australian Constitution. Sovereignty is inherent to Indigenous peoples and communities. It is connected to and drawn from Country. It does not come from the Australian Constitution or any other settler document. It cannot be extinguished by any settler document. As the Uluru Statement from the Heart records, Indigenous sovereignty is ‘a spiritual notion’. It can be expressed but it cannot be suppressed. It is demonstrated by Indigenous peoples controlling their lives and destinies.
• The Participation of Aboriginal and Torres Strait Islander peoples in Australian governance does not cede sovereignty. No one suggests that Indigenous parliamentarians have ceded their sovereignty when they sit in Parliament and debate and vote on proposed laws. The Voice is simply an opportunity for Aboriginal and Torres Strait Islander peoples to participate in the development of law and policy that affects them.

Putting an Aboriginal and Torres Strait Islander Voice in the Australian Constitution will have no effect on Indigenous sovereignty. It will simply provide Aboriginal and Torres Strait Islander peoples with an opportunity to inform the development of laws and policies that affect Indigenous Australians.

[1]Technical Advisers: Regional Dialogues and Uluru First Nations Constitutional Convention, Submission No 206 to Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples (11 June 2018) 7.

[2] Josh Butler, ‘Emotional PM reveals question Australians will be asked for constitutional change on Indigenous recognition’, Guardian Australia (online, 23 March 2023)

[3] Robert French and Geoffrey Lindell, ‘The Voice—High Return, Low Risk’ (Presented at the Judicial Commission of New South Wales Exchanging Ideas Symposium, 4 February 2013)