The Albanese government has put forward a preferred form of words to insert into the constitution to enshrine an Indigenous voice to parliament, starting with a simple question for us all to vote on.
“We should consider asking our fellow Australians something as simple as: ‘Do you support an alteration to the constitution that establishes an Aboriginal and Torres Strait Islander Voice?’” Anthony Albanese said in July during a landmark speech at the Garma festival in Arnhem Land.
He also suggested three sentences be added to the constitution:
There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
It may make representations to parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples.
The parliament shall, subject to this constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.
The government is now in “the consultation phase of this important nation-building project”, according to the minister for Indigenous Australians, Linda Burney.
She has promised a public education campaign ahead of the referendum, to answer the most commonly asked questions. But the prime minister has said there is “already an extraordinary level of detail out there from the work that Marcia Langton and Tom Calma did”.
What do we already know?
The PM is referring to the Indigenous voice co-design report by Professors Langton and Calma. They led a group appointed by the former Indigenous minister Ken Wyatt as part of a 2019 election promise to develop options for an Indigenous voice.
The group was not allowed to consider constitutional enshrinement of a voice, but was still able to produce a comprehensive plan for how one would operate – legislated or otherwise.
Their report was the result of 18 months’ worth of consultation with 9,478 people and organisations, including 115 community consultations in 67 locations, 2,978 submissions, 1,127 surveys, 124 stakeholder meetings and 13 webinars.
How would the national voice 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 peoples.
Parliament and government would be obliged to consult it on matters that overwhelmingly relate to Aboriginal and Torres Strait Islander peoples, 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 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.
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.
Burney said the voice was 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.
“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 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 per 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.
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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 a voice 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.
What action is being taken?
In a press conference with the NBA superstar Shaquille O’Neal on Saturday, the PM said he had been talking with sporting figures, including discussions with the AFL and the NRL, about supporting the campaign.
“I’ve had discussions with churches, I’ve had discussions with the AFL, with the National Rugby League, with basketball organisations, with netball, with other sporting organisations,” Albanese said.
“We want to engage with people who can connect with young people in particular, but with all sections of our society.”
On 17 August, Burney met her state and territory counterparts, who agreed to continue to support a voice enshrined in the constitution.
A statement following that meeting said there was a “shared desire from all jurisdictions to put progress on recognition and better outcomes for First Nations peoples above politics”.
The ministers discussed some of the practical steps for implementing voice arrangements at a regional level.
“There are a number of things Australians can do right now to make sure they’re ready for a referendum, which we are absolutely determined to see happen in this term of parliament,” Burney said.
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.
What are people saying about the plan?
The government said it would seek bipartisan support for the voice. The opposition leader, Peter Dutton, said he was prepared to “listen respectfully to the arguments”, but there were legitimate questions to answer about the details.
“For example, the prime minister says the voice will only involve itself in issues of public policy that affect Indigenous Australians. I don’t understand what that means because defence policy affects Indigenous Australians, as does health and education, law and order. Every element of public policy affects Indigenous Australians as it does every Australian,” Dutton said.
Given the co-design report has been publicly available since late 2021, Langton was clearly frustrated by ongoing calls for “detail” when she told the ABC in July that “when people say they want more detail, all that tells me is that they refuse to read our report”.
Two former Liberal prime ministers have publicly opposed the voice, seemingly regardless of its form or function. Writing in the Australian, Tony Abbott said he did not support a “race based body” and believed a voice which “entrenches race in the constitution drives us further apart”. John Howard warned the voice “has the potential for establishing a body seen as exercising coercive influence on the government”.
In response, Burney said discussion and debate “has to be based on facts”. “The voice to parliament has an advisory role only. It will provide advice on matters relating to Aboriginal and Torres Strait Islander peoples. It won’t be able to block or veto legislation,” she said.
“John Howard, the prime minister who refused to apologise to the stolen generations for so many years, certainly does not have a strong record when it comes to advancing reconciliation in this country.”