tag:theconversation.com,2011:/ca/topics/australian-constitution-2018/articlesAustralian Constitution – The Conversation2023-11-28T09:23:23Ztag:theconversation.com,2011:article/2186992023-11-28T09:23:23Z2023-11-28T09:23:23ZHigh Court reasons on immigration ruling pave way for further legislation<p>After ruling on November 8 that indefinite immigration detention is unlawful, the High Court today delivered its <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/37">reasons</a> for the decision that upturned 20 years of precedent. Its ruling has required the release of some 140 people from immigration detention so far, and set off a political scramble to legislate in response to the outcome.</p>
<p>The judgment, the first made by the court under new Chief Justice Stephen Gageler, was unanimous. It largely turned on questions of constitutional law and the limits of executive power. </p>
<p>The court made it clear that a person must be released from detention when there was no real prospect of them being deported in the foreseeable future. Previously, there was no limit to the length of time people could be detained in immigration detention in Australian law. In fact, people could legally be detained for the rest of their lives without ever being found guilty of a crime. </p>
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<a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">The High Court has decided indefinite detention is unlawful. What happens now?</a>
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<p>The decision overturns the much-criticised 2004 Al-Kateb v Godwin case, where a 4-3 majority ruled that, provided the government maintained an intention to eventually remove a person from Australia, the Constitution allowed them to be detained indefinitely until that removal took place. </p>
<p>The court’s reasons in this case indicated that other laws allowing detention, such as continuing detention orders, could apply to people released because of the decision. Continuing detention orders are a mechanism that enable people to be detained once they have served their sentence for a crime. </p>
<p>However, those orders are only available if the person is considered to pose an “<a href="https://www.legislation.gov.au/Details/C2023C00283">unacceptable</a>” risk of reoffending and only in relation to specific, serious crimes. Such orders can only be made with the support of expert evidence and with judicial oversight, as detailed below. </p>
<h2>Implications of the decision</h2>
<p>The decision has significant ramifications for the rapidly drafted legislation that was passed by parliament in response to the case, before the High Court had released its reasons. </p>
<p>In response to the release of the reasons for the decision, the federal government <a href="https://www.theage.com.au/politics/federal/high-court-publishes-reasons-for-indefinite-detention-decision-20231128-p5ena0.html">indicated</a> it would legislate again before parliament rises for the year.</p>
<p>Laws rushed through parliament earlier this month included curfews, high levels of monitoring of people released from detention and severe mandatory prison sentences for infringements of release conditions. The first package of laws has <a href="https://www.theguardian.com/law/2023/nov/22/labor-immigration-detention-laws-high-court-challenge">already been challenged</a> in the courts by a Chinese refugee known as S151, on the basis they are “punitive”. More challenges are anticipated. </p>
<p>With this decision, the court has revealed an intention to exercise much greater scrutiny of the parliament and executive in ensuring constitutional limits on power are respected. </p>
<p>In this way, this judgment can be seen as representing a turn from more permissive approaches to limits on parliamentary legislative power.</p>
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<h2>The challenge and decision</h2>
<p>The challenge was brought by a <a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">stateless Rohingya man</a>, given the pseudonym NZYQ, who had fled his home country of Myanmar and arrived in Australia by boat in 2012. He spent just over a year in immigration detention on arrival. </p>
<p>Soon after he was released into the community, he was convicted of sexual intercourse with a minor and was sentenced to a maximum of five years imprisonment. While in prison, he applied for refugee status. He was found to be owed protection but, due to his criminal history, was not granted a protection visa. On release from prison, he was immediately re-detained in immigration detention.</p>
<p>Both international and Australian law prohibit sending people back to places where they are at risk of persecution, as NZYQ had been found to be. </p>
<p>The <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s196.html">Migration Act</a> requires “unlawful non-citizens” to be held in detention until they are removed from Australia, deported or granted a visa. </p>
<p>NZYQ’s appeal focused on two questions. Did the detention provisions authorise the potential indefinite detention of non-citizens in circumstances where there were no real prospects of removal? If so, was this constitutionally valid?</p>
<p>The High Court answered the first question in the affirmative, in essence agreeing with the majority in Al-Kateb that relevant legislative provisions authorised detention until a detainee was removed, deported or given a visa, no matter how long that might take.</p>
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<p>But on the second question, treading a course it said “should not lightly be taken”, the court reopened and overruled the constitutional holding in Al-Kateb, finding that detention provisions contravened the separation of powers in the Constitution. That is, detention is generally punishment, which can only be ordered by courts, not the government. </p>
<p>There are limited exceptions to this rule for immigration detention. Detention will not be punishment as long as it for the purpose of deportation or enabling an application for a visa to be made.</p>
<p>In NZYQ, the High Court stated that ongoing detention – where there is no reasonable prospect of the removal of the plaintiff from Australia in the reasonably foreseeable future – would not meet this test. </p>
<h2>What does it mean?</h2>
<p>With this judgment, the court unanimously rejected the ability of the parliament to define its own limits for detention. In doing so, it brings Australia into line with international law and practice. No other country allows for, let alone requires, indefinite mandatory immigration detention. </p>
<p>While the court did not engage directly with international law arguments, the outcome and reasoning reaffirm international principles of reasonableness and proportionality, set out in a <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Memo_Explusion_Non-Citizens.pdf">memo</a> by international refugee law expert Professor Guy S Goodwin-Gill. This formed the basis of Kaldor Centre’s <a href="https://www.hcourt.gov.au/assets/cases/08-Sydney/s28-2023/NZYQ-MICMA-IntHRLCKaldor.pdf">intervention</a> with the Human Rights Law Centre in the case. </p>
<p>In terms of when an individual will be required to be released from detention, the court makes clear that the onus is on the government to show there is real prospect of removal in the reasonable future. This means deportation has to be a real possibility – it is not enough for the government to say it is trying without showing there is a real prospect it can be achieved.</p>
<p>This decision also will have broader ramifications for <em>habeas corpus</em> in Australian courts. This is the requirement that any person detained by the government has the right to challenge that detention. When challenged, the government must demonstrate the basis for the detention. With this judgment, the court has made it clear that inquiries will be rigorous, not merely considering the surface arguments made by detaining authorities. </p>
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Read more:
<a href="https://theconversation.com/grattan-on-friday-a-government-in-a-big-hurry-gives-opposition-some-wins-on-ex-detainees-217912">Grattan on Friday: A government in a big hurry gives opposition some wins on ex-detainees</a>
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<h2>Preventive detention</h2>
<p>The court acknowledged that people released from immigration detention because of its decision could be re-detained under other laws, such as continuing detention provisions. These allow for the ongoing detention of people who are considered to pose an unacceptable risk of reoffending. This would need to be for reasons exclusively connected to the risk that is posed, not to their immigration status.</p>
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<p>Such provisions already exist for some sex or terrorism crimes. However, for such orders to be made, there must be clear evidence the individual poses an unacceptable risk; merely having committed a crime before is not adequate. Most importantly, these decisions are generally made by the courts, and not the government.</p>
<p>The High Court’s decision was clear – only the courts have the power to deal out punishment. The risk is that any further blanket restrictions on individual liberty that are not subject to judicial oversight will be similarly overturned by the courts.</p><img src="https://counter.theconversation.com/content/218699/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Ghezelbash receives funding from the Australian Research Council and the NSW Government. He is a member of the management committee of Refugee Advice and Casework Services and a Special Counsel at the National Justice Project. He is the Deputy Director of the Kaldor Centre for International Refugee Law, which was given leave to intervene in the NZYQ case as amicus curiae.</span></em></p><p class="fine-print"><em><span>Anna Talbot receives funding from the Australian government as a PhD scholar at the Kaldor Centre for International Refugee Law, University of NSW, Sydney, which was given leave to intervene in the NZYQ case as amicus curiae.</span></em></p>The High Court judges unanimously held that a person must be released from immigration detention where there is no real prospect of them being deported in the foreseeable future.Daniel Ghezelbash, Associate Professor and Deputy Director, Kaldor Centre for International Refugee Law, UNSW Law & Justice, UNSW SydneyAnna Talbot, PhD Candidate, Kaldor Centre for International Refugee Law, UNSW Sydney, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2158102023-10-24T00:45:04Z2023-10-24T00:45:04ZIndigenous voices can be heard without being constitutionally enshrined, just look at the US<figure><img src="https://images.theconversation.com/files/555178/original/file-20231023-17-6rrpai.jpg?ixlib=rb-1.1.0&rect=0%2C10%2C983%2C758&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/group-native-americans-traditional-garb-91654694">Shutterstock</a></span></figcaption></figure><p>It was always going to be a big ask for Australians to vote in favour of an Indigenous Voice to Parliament.</p>
<p>There’s been much said about the challenges posed by the <a href="https://theconversation.com/voice-to-parliament-referendum-defeated-results-at-a-glance-215366">double majority requirement</a>.</p>
<p>In the wash-up, many are asking what the path to reconciliation is now. </p>
<p>Some answers may lay in other settler societies. </p>
<p>North American Indians provide an example of how representation can occur, without having to amend the constitution. </p>
<h2>Change in the face of harsh laws</h2>
<p>After 350 years of losing wars, land, and sovereignty, American Indians altered their approach to engaging with the federal government in the mid-20th century.</p>
<p>The National Congress of the American Indians (NCAI), a consulting organisation to the government, was central to this change. </p>
<p>Although American Indians could not alter their history, they did reverse its trajectory. </p>
<p>By the 1940s, they were about to face an era of government policies so harsh it is referred to as the <a href="https://library.law.howard.edu/civilrightshistory/indigenous/termination">Termination Period</a>.</p>
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Read more:
<a href="https://theconversation.com/native-americans-have-experienced-a-dramatic-decline-in-life-expectancy-during-the-covid-19-pandemic-but-the-drop-has-been-in-the-making-for-generations-186729">Native Americans have experienced a dramatic decline in life expectancy during the COVID-19 pandemic – but the drop has been in the making for generations</a>
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<p><a href="https://www.archives.gov/research/native-americans/bia/termination">Federal laws</a> took away tribal rights once promised by treaties. Government programs tried to end American Indian communities through <a href="https://www.archives.gov/education/lessons/indian-relocation.html">assimilation.</a></p>
<p>In 1944, American Indians created the National Congress of the American Indians. Many of those involved had worked as government officials and had a good understanding of the system.</p>
<p>Despite its name, it can’t make laws, like the US Congress.</p>
<p>Rather, it is an organisation that lobbies and educates the government, like other industry and special interest groups. </p>
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<span class="caption">Because of the work of the National Congress of American Indians, Indigenous Americans are served better by hundreds of programs and millions of dollars in funding.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/thaths/5736833559/in/gallery-ncai-72157627938609430/">thaths/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
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<h2>Changing the trajectory</h2>
<p>Remarkably, by the late 1960s, through the National Congress of American Indians’ <a href="https://nit.com.au/11-08-2023/7180/exclusive-economic-resilience-and-tribal-sovereignty-in-the-united-states#:%7E:text=Over%20its%20history%2C%20the%20NCAI,Determination%20and%20Education%20Assistance%20Act.">efforts</a>, American Indians had not only survived, but the Termination Period had given way to tribal self-determination.</p>
<p>The National Congress of American Indians advocated for legislation such as: </p>
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<li><p>President Lyndon B. Johnson’s <a href="https://obamawhitehouse.archives.gov/1600/presidents/lyndonbjohnson#:%7E:text=The%20Great%20Society%20program%20became,removal%20of%20obstacles%20to%20the">“Great Society” programs</a> that sought to ease poverty</p></li>
<li><p>the <a href="https://www.bia.gov/sites/default/files/dup/assets/bia/ots/ots/pdf/Public_Law93-638.pdf">Indian Self-Determination and Education Assistance Act</a> which allowed tribes to manage their own services and contracts with the federal government</p></li>
<li><p>the <a href="https://uscode.house.gov/browse/prelim@title25/chapter21&edition=prelim">Indian Child Welfare Act</a> which aimed to protect children while also keeping them within their tribal communities.</p></li>
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<p>School enrolments expanded, services increased, and education and <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4035886/">health programs</a> brought the highest quality of life many communities had known. </p>
<p>In <a href="https://www.jstor.org/stable/24398399">improved tribal schools</a>, children can now learn both English and their <a href="http://www.ncnalsp.org">Indigenous language</a>. </p>
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Read more:
<a href="https://theconversation.com/if-there-is-to-be-any-healing-after-the-voice-referendum-it-will-be-a-long-journey-214370">If there is to be any healing after the Voice referendum, it will be a long journey</a>
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<p>Healthy foods, <a href="https://www.csmonitor.com/USA/Society/2021/0222/Seeds-and-beyond-Native-Americans-embrace-food-sovereignty">grown by tribes</a>, are making a comeback on reservations that were once rural food deserts.</p>
<p>Of course, there’s a lot more progress still to be made. American Indian men have the lowest average <a href="https://theconversation.com/native-americans-have-experienced-a-dramatic-decline-in-life-expectancy-during-the-covid-19-pandemic-but-the-drop-has-been-in-the-making-for-generations-186729">life expectancy</a> of any ethnic group in the US. Issues with addiction, unemployment and trauma still loom large.</p>
<p>And American Indians remain displaced, having lost <a href="https://environment.yale.edu/news/article/near-total-loss-historical-lands-leaves-indigenous-nations-us-more-vulnerable-climate">99% of their ancestral lands</a> over time.</p>
<p>But compared to the situation 80 years ago, we’ve come a long way. </p>
<h2>Progress in real time</h2>
<p>My tribe describes the transformation of this period in a short story.</p>
<p>In the 1970s, our tribe had the following items in our posession: a trailer, a desk, <em>and</em> the phonebook sitting on top of it. </p>
<p>Our numerous ventures now <a href="https://www.potawatomi.org/blog/2022/09/09/citizen-potawatomi-nations-economic-impact-exceeds-700-million-in-2021/#:%7E:text=Citizen%20Potawatomi%20Nation%27s%20economic%20impact%20exceeds%20%24700%20million%20in%202021,-September%209%2C%202022&text=As%20an%20economic%20force%20in,and%20its%20communities%20in%202021.">contribute</a> one billion Australian dollars to the regional economy. </p>
<p>We run clinics, house elders, provide daycare, and our youth thrive in schools and careers. </p>
<p>We were able to build on the momentum created by the National Congress of American Indians and take control of our future. </p>
<p>The Congress focuses on policy. It mainly employs experts who research proposals, suggest changes to legislation, meet with government representatives, and provide reports to the public.</p>
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<p>Because of their work, American Indians are served better by hundreds of programs and millions of dollars in funding.</p>
<p>The National Congress of American Indians does this without being enshrined in the constitution.</p>
<p>In their nearly 80 years, the organisation has built social capital and credibility. </p>
<p>Because it’s so trusted, it secures funding from tribes, corporations, and government agencies. With yearly <a href="https://www.ncai.org/resources/ncai-publications/indian-country-budget-request/fy2022">financial surpluses</a>, it has set aside millions of dollars in assets to safeguard its future. </p>
<h2>A voice in a different form</h2>
<p>There has been a long history of trying to establish Indigenous representation at the federal level in Australia. </p>
<p>Most recently in 2009, Aboriginal communities established the National Congress of Australia’s First Peoples. </p>
<p>It was <a href="https://www.canberratimes.com.au/story/6443649/closure-of-aboriginal-organisation-means-loss-of-first-peoples-voice-former-co-chairman/">disbanded in 2019</a> after years of under-funding. </p>
<p>It’s hardly surprising a key lesson its leaders learnt was the need for stable funding. Being written into the constitution was seen as the way to get this.</p>
<p>The rationale is understandable, but amending a country’s constitution is a strong measure.</p>
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Read more:
<a href="https://theconversation.com/lies-fuel-racism-how-the-global-media-covered-australias-voice-to-parliament-referendum-215665">'Lies fuel racism': how the global media covered Australia's Voice to Parliament referendum</a>
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<p>Perhaps constitutional change was too big a logistical and psychological issue for the public to accept. A body like the National Congress of American Indians could be the alternative.</p>
<p>It would require long-term, bipartisan funding. The political appetite for such a plan is unclear. </p>
<p>But financial certainty could enable Aboriginal people to provide essential consultation and help train future leaders. </p>
<p>It may also prove more palatable for voters across the political spectrum. </p>
<p>In North America, such a lobbying and policy organisation has helped ensure much better outcomes for its Indigenous people.</p>
<p>With the right support, the same could be achieved in Australia.</p><img src="https://counter.theconversation.com/content/215810/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Yancey Orr does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The failed Voice to Parliament referendum dashed the hopes of many mapping out a path to reconciliation. If we look to the example set by North American Indians, there might be another way forward.Yancey Orr, Associate Professor of Environmental Science and Policy, Smith CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2127032023-09-18T20:04:26Z2023-09-18T20:04:26ZState and territory ballots will be counted differently at the Voice referendum – is that fair?<p>When Australians vote on the Voice to Parliament referendum on October 14, ballots from the Northern Territory and the ACT will be treated differently from those of the states. The same goes for votes cast by residents of Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.</p>
<p>In fact, for most of Australia’s history, territory voters haven’t had a say in referendums at all.</p>
<p>To many, this seems unfair and hard to justify. So, how did we arrive at this point? And should we change the rules so territory voters are treated like everybody else?</p>
<h2>Not all referendum votes are equal</h2>
<p>The Australian Constitution can only be changed if the people agree to it at a referendum. <a href="https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/chapter8">Section 128</a> says a proposal for constitutional amendment must obtain “a majority of all the electors voting” and a majority of electors “in a majority of the States”. This is sometimes called a “double majority”.</p>
<p>But state and territory ballots are not treated equally. Votes cast by territory residents count only towards the first half – the national majority. Territory ballots are set aside when it comes to working out whether a proposal has won enough support “in a majority of the States”.</p>
<p>As a result, territory voters don’t have a huge influence over referendum outcomes. Territory populations are small, so any ballots cast are subsumed into the national count. A referendum would have to be very close for territory votes to make a difference.</p>
<p>History helps to explain how we settled on this approach to the referendum franchise. When the Constitution came into being at federation in 1901, the regions we know as the Northern Territory and the ACT did not exist. They were part of South Australia and New South Wales, respectively, and the people living there were able to vote at referendums. The Constitution guaranteed this – it required that proposals for constitutional change be submitted to electors “in each State”.</p>
<p>But in 1911, when both of those regions became federal territories, the people living there lost their referendum voting rights.</p>
<p>Over the next few decades, territory residents had no say on a whole raft of constitutional reforms. The inequity of this arrangement was highlighted at <a href="https://handbook.aph.gov.au/Referendums/469">the 1967 referendum</a>, which asked Australians to give the Commonwealth power to make laws about Aboriginal and Torres Strait Islander peoples and include them in the population count.</p>
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Read more:
<a href="https://theconversation.com/right-wrongs-write-yes-what-was-the-1967-referendum-all-about-76512">‘Right wrongs, write Yes’: what was the 1967 referendum all about?</a>
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<p>More than 90% of electors voted “yes” in a moment of national consensus that is rightly celebrated. But that milestone is blemished by the fact that the many Indigenous people living in the NT (and the ACT) at the time were unable to cast a ballot on this measure.</p>
<p>It took a <a href="https://handbook.aph.gov.au/Referendums/478">referendum in 1977</a> for residents of the territories to finally be given the right to vote at referendums. Prime Minister Malcolm Fraser asked Australians to vote “yes” to a proposal to require referendum questions to be put to electors “in each State and Territory”.</p>
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<span class="caption">In 1977, Malcolm Fraser asked Australians to vote on whether referendum questions should be put to voters ‘in each State and Territory’.</span>
<span class="attribution"><a class="source" href="https://www.naa.gov.au/explore-collection/australias-prime-ministers/malcolm-fraser/during-office">National Archives of Australia</a></span>
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<p>This reform was met with almost unanimous approval in the parliament. The only opposition came from Liberal Party senators Ian Wood and Reg Wright. They argued the Constitution was a compact between the Commonwealth and the states, and that it was inappropriate for territories to have a say on whether changes should be made to it.</p>
<p>On the other side, the “yes” case argued it was unfair for residents of the Northern Territory and the ACT to have no say in referendums that could affect their lives. It said a “yes” vote would ensure territory residents were “given the same basic democratic right as other Australians”.</p>
<p>In the end, Fraser’s proposal passed easily. It received 77.7% of the national vote and won majorities in all six states.</p>
<p>This amendment cleared the way for voters in the NT and the ACT to cast their first referendum ballots <a href="https://handbook.aph.gov.au/Referendums/481">seven</a> <a href="https://handbook.aph.gov.au/Referendums/480">years</a> later. But, as has been the case for every ballot since, their votes only counted for the purposes of calculating the national majority.</p>
<h2>But is it fair?</h2>
<p>As we prepare to vote in our first referendum in more than two decades, some are asking if it is time to change the rules so territory ballots are finally counted the same as state ballots.</p>
<p>There are at least two arguments for keeping the status quo.</p>
<p>One is that the states and territories have different constitutional status.</p>
<p>Under the Constitution, the states are recognised as independent entities with guaranteed powers. They are sovereign bodies with full powers of self-government.</p>
<p>The territories, on the other hand, have a far more limited constitutional status. They are ultimately under the control of the Commonwealth.</p>
<p>The NT and the ACT owe their powers of self-government to a Commonwealth law. And the federal parliament can legislate for the territories, and even override territory laws. In 1997, for example, the federal government <a href="https://www.abc.net.au/news/2022-12-01/parliament-lifts-ban-on-territory-euthanasia-laws/101692028">nullified voluntary euthanasia laws</a> that had been passed by the NT legislature.</p>
<p>This can be easy to forget on a day-to-day basis because the territories have their own parliaments and courts, and tend to operate a lot like states. But from a legal standpoint, there is a difference between a state and a territory, and for some that justifies giving territory voters less say over changes to the national constitution.</p>
<p>A second argument for keeping the status quo is that a change to the amendment procedure would give territory voters too much influence over constitutional reform.</p>
<p>The populations of the NT and the ACT are about <a href="https://nteconomy.nt.gov.au/population">250,000</a> and <a href="https://www.treasury.act.gov.au/__data/assets/pdf_file/0008/644813/ERP.pdf/_recache">461,000</a>, respectively. All up, the combined territory populations come to approximately 710,000 people – noting that, for the purposes of elections and referendums, Norfolk Islanders count towards the ACT’s total, while residents of the other external territories are tallied for the NT.</p>
<p>If the votes of the territories were included when calculating both parts of the double majority, this would see a relatively small fraction of the population have a very big say on whether the Constitution should be changed.</p>
<p>These arguments have a sound logic to them. But in 2023, when Australians are voting on recognising First Nations people through establishing an Aboriginal and Torres Strait Islander Voice, not everyone will find them convincing.</p>
<p>The NT is home to the highest proportion of First Nations people of any jurisdiction – <a href="https://nteconomy.nt.gov.au/population#:%7E:text=Aboriginal%20population,-The%20ABS%20estimates&text=Based%20on%202021%20Census%3A,of%20the%20national%20Aboriginal%20population">about 30.8%</a>. Given the question on the ballot paper, some will ask whether it is fair they have a lesser vote than most other Australians.</p>
<p>And if we are worried about giving small jurisdictions an outsized say over constitutional change, the Constitution already sets a precedent for that. Ballots cast by residents of Tasmania, currently home to <a href="https://www.treasury.tas.gov.au/Documents/Population.pdf">572,000 people</a>, count towards both parts of the double majority.</p>
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Read more:
<a href="https://theconversation.com/changing-the-australian-constitution-was-always-meant-to-be-difficult-heres-why-119162">Changing the Australian Constitution was always meant to be difficult – here's why</a>
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<h2>The path to change</h2>
<p>If Australians decide it is time to put state and territory voters on an equal footing at referendums, there are two possible pathways to take.</p>
<p>One is to change the amendment procedure in <a href="https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/chapter8">section 128</a> of the Constitution. It could be altered to require that proposals for constitutional change must win a national majority of votes, plus a majority of votes in at least five of the six states and two mainland territories. Doing this would involve holding and winning a national referendum.</p>
<p>A second pathway involves the Commonwealth parliament <a href="https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/chapter6">conferring statehood</a> on the NT and the ACT. That would automatically include them in both parts of the double majority. This would be a potentially easier path because it could be achieved without a constitutional referendum.</p>
<p>But statehood is a complex issue in itself, not embraced by everybody. In 1998, the NT government put the question to a <a href="https://ntec.nt.gov.au/elections/about-elections/referendums">referendum</a>. In a tight result, 51.9% of territorians voted against statehood.</p>
<p>Whatever happens with the statehood question, the Voice referendum has cast a spotlight on a peculiar and enduring inequality between the voting rights of state and territory residents. Whether it is something that needs addressing is a question not only for people who live in the territories, but all Australians. </p>
<p>And who knows, one day we may find ourselves voting on it at a future referendum.</p><img src="https://counter.theconversation.com/content/212703/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Kildea has previously received funding from the Australian Research Council.</span></em></p>From a legal standpoint, there is a difference between a state and a territory, and for some that justifies giving territory voters less say over changes to the national constitution.Paul Kildea, Associate Professor, Faculty of Law & Justice, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2127852023-09-13T20:06:27Z2023-09-13T20:06:27ZExplainer: what is executive government and what does it have to do with the Voice to Parliament?<p>In the upcoming Voice referendum, all Australian voters must decide whether to approve the proposed law to recognise Aboriginal and Torres Strait Islander peoples through the mechanism of a Voice to Parliament and the executive government of the Commonwealth.</p>
<p>So what actually is the “executive government”? Here, I will answer that question, specifically in the context of the proposal that the Aboriginal and Torres Strait Islander Voice will “make representations” (that is, provide its views and advice) to it on matters relating to Aboriginal and Torres Strait Islander people. </p>
<h2>What does ‘executive government of the Commonwealth’ mean?</h2>
<p>There are three branches of government at the Commonwealth level in Australia: the parliament, the executive government, and the judiciary. Broadly speaking, each branch performs a different function of governance. </p>
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<li> The parliament makes the laws. The federal parliament may only make laws that are connected to its powers, but these laws can override inconsistent state laws.<br></li>
<li> The executive develops laws and policies. Once laws are enacted, it executes or administers those laws (that is, it puts the laws into practice at a day-to- day level).</li>
<li> The judiciary determines disputes that arise under the laws.</li>
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<p>Once these different functions are understood, it becomes clear why it is important the Voice should speak to both the parliament and the executive. </p>
<p>The Voice needs to speak to parliament as our ultimate lawmaker. It can inform parliamentarians when they debate proposed laws and consider amendments to them. </p>
<p>But the Voice will also need to be involved earlier in the development of proposed laws. This means these earlier and more formative steps, which the executive government undertakes, can benefit from the input of Aboriginal and Torres Strait Islander people’s views and experiences. </p>
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<p>It’s also important the Voice be involved when policies (which might never become formal laws) are developed, as these will shape government practice and so can have a big impact on peoples’ lives. And of course, once a law is enacted, how the executive government actually applies those laws and policies will benefit from their input. As Senator Patrick Dodson <a href="https://www.themonthly.com.au/issue/2023/july/patrick-dodson/firelight-stick-hill#mtr">has explained</a>: </p>
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<p>Government policies and bureaucratic actions have so often adversely affected First Peoples who have not had a say in the implementation of those policies and actions.</p>
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<h2>So, who is this ‘executive government’?</h2>
<p>The “executive government of the Commonwealth” is not a new term. It has been used in a number of other constitutional provisions. </p>
<p>It’s often useful to think of the executive like a pyramid. </p>
<p>At the top of the pyramid sits the governor-general, representing the king, who plays a largely symbolic role. The governor-general acts on advice of the federal ministers, who sit in the next layer down. This is where the prime minister also sits. </p>
<p>In the next layer down are the “other officers of the executive government of the Commonwealth”. This is a much larger group including public servants working in federal government departments, advising ministers and making government decisions, as well as the front-line workers – think, for example, of the service staff at Centrelink. It will also include defence force personnel and police officers. It doesn’t include the public servants working for state and local governments.</p>
<p>The executive also includes people who work in a range of federal statutory entities and authorities. The majority of these are officers of the executive – such as those in the Australian Tax Office, Fair Work Australia, or the Parliamentary Budget Office. (If you are curious, you can see a <a href="https://www.finance.gov.au/sites/default/files/2023-09/Flipchart%201%20September%202023%20-%20FINAL_5.pdf">flip chart</a> of them and their nature here.)</p>
<p>However, some of these entities have been given their own legal “personality” by statute and are incorporated separate from the executive government. These are sometimes described as “independent” agencies. This includes bodies such as the Australian Human Rights Commission, the National Library of Australia and the Reserve Bank. This has given rise to confusion as to whether the Voice may make representations to these entities.</p>
<p>In practice, there is likely to be little confusion. All statutory agencies and independent office-holders are accountable to a minister and therefore have close relationships with them. This means, if that agency is making decisions relating to Aboriginal and Torres Strait Islander people, the Voice would be able to make representations to the minister, and the minister would (one would hope) bring that advice to the attention of the agency. </p>
<p>And, as has been stressed many times, no person or body in the executive is under any legal obligation to accept that advice.</p>
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<h2>What does it mean to say the Voice will make 'representations’ to the executive?</h2>
<p>Many parts of the executive already seek the views of all sorts of different people and groups before making decisions and developing policy. This will often include Aboriginal and Torres Strait Islander people and groups. </p>
<p>Sometimes consulting with affected groups is mandated by statute, and sometimes it isn’t. But government officials realise the huge benefit of engaging with people affected by what they do: decisions and policies improve through consultation, and people feel they have been given a fair hearing and process even if the outcome is not exactly what they were seeking. This in turn increases trust in government. </p>
<p>Of course, it’s important to remember that not all parts of the executive are making decisions and developing policies and laws that relate to Aboriginal and Torres Strait Islander people. But in those areas where it is, the Voice proposal builds from and improves the current position in three key respects. </p>
<p>First, it provides a standing national body that is representative of Aboriginal and Torres Strait Islander people. This is of huge benefit not just to these people, who will be given a say in matters that affect them, but to the vast array of executive officers, who now have the convenience of being able to access views of Aboriginal and Torres Strait Islander people through the Voice when making decisions that will affect them. </p>
<p>Second, it provides a guaranteed avenue for the Voice to be able to speak to all layers of the executive. This means Aboriginal and Torres Strait Islander people don’t have to wait to be consulted, but can be proactive, engaging with the executive and making representations on matters that those in the community are telling the Voice are important and pressing. This will enhance those benefits I spoke about above – improving decision-making and policy/law development, as well as improving a sense of fairness in government process and trust in government. </p>
<p>Third, if the Voice is established, laws will be passed to clarify the relationship between it and the executive. These laws are likely to govern matters such as exactly to whom representations will be directed in the first instance within a particular department or agency, how they will be received and considered, and their legal effect. </p>
<p>This will bring a welcome level of clarity – not confusion – to government decision-making, law and policy development.</p><img src="https://counter.theconversation.com/content/212785/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Appleby was a pro bono constitutional consultant to the Regional Dialogues and First Nations Constitutional Convention that delivered the Uluru Statement from the Heart. She is a member of the Indigenous Law Centre (UNSW Law & Justice) and supports the work of the Uluru Dialogues.</span></em></p>A Voice to Parliament would advise the “executive government” – that is, ministers and the public service – on issues that affect Aboriginal and Torres Strait Islander people.Gabrielle Appleby, Professor, UNSW Law School, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2122592023-08-30T01:50:39Z2023-08-30T01:50:39ZA divided Australia will soon vote on the most significant referendum on Indigenous rights in 50 years<p><em>Aboriginal and Torres Strait Islander readers are advised this article contains names and/or images of deceased people.</em></p>
<p>Today, Australian Prime Minister Anthony Albanese has announced an October 14 date for a national referendum on whether to amend the Constitution to establish a new advisory body for Aboriginal and Torres Strait Islander people.</p>
<p>Called the “<a href="https://theconversation.com/albanese-releases-draft-wording-for-indigenous-voice-to-parliament-referendum-187933">Voice to Parliament</a>”, the new body would provide advice and make representations to parliament and the government on any issues relating to First Nations people. </p>
<p>The Voice to Parliament has been toted as a vital step toward redressing Australia’s painful history of discrimination against Aboriginal and Torres Strait Islander people. </p>
<p>The minister for Indigenous Australians, Linda Burney, has said it would also remedy a “<a href="https://www.theguardian.com/australia-news/2023/aug/28/what-is-the-indigenous-voice-to-parliament-australia-what-does-it-mean-explained-referendum-campaign">long legacy</a>” of failed policies on a variety of issues, from the over-representation of First Nations people in the prison system to poorer outcomes for First Nations people in health, employment and education. </p>
<p>The Voice represents a new approach. Initially proposed in a document called the <a href="https://ulurustatement.org/the-statement/view-the-statement/">Uluru Statement from the Heart</a> following a First Nations constitutional convention in 2017, the Voice would be enshrined in the Constitution to ensure it would have a permanent presence and role in Australian government.</p>
<p>This is why a referendum is needed – and why this particular one has been so fiercely debated for years. </p>
<h2>Decades of efforts toward equality</h2>
<p>In order for a constitutional referendum to be successful, it must garner a majority of votes nationally, as well as a majority of votes in a majority of states (this means four of the six states). Votes in Australia’s two territories – the Australian Capital Territory and the Northern Territory – will count toward the national vote count but not toward the majority of states requirement.</p>
<p>Referendums don’t pass frequently. Only eight out of 44 previous referendums <a href="https://www.sbs.com.au/news/article/only-eight-of-australias-44-referendums-were-a-yes/7c7o5nfsg">have passed</a> in the country’s history.</p>
<p>The last time Australia voted on a referendum dealing with Indigenous affairs was in <a href="https://aiatsis.gov.au/explore/1967-referendum">1967</a>.</p>
<p>This <a href="https://theconversation.com/letting-the-people-decide-should-australia-hold-more-referendums-178145">referendum</a> made two things possible: the Commonwealth could count Aboriginal and Torres Strait Islander people in the national census and make laws with respect to Aboriginal and Torres Strait Islander people. </p>
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Read more:
<a href="https://theconversation.com/the-1967-referendum-was-the-most-successful-in-australias-history-but-what-it-can-tell-us-about-2023-is-complicated-198874">The 1967 referendum was the most successful in Australia's history. But what it can tell us about 2023 is complicated</a>
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<p>The referendum passed by a huge margin. With the government able to make laws about First Nations people for the first time, it ensured they would be protected by the <a href="https://www.legislation.gov.au/Details/C2016C00089">Racial Discrimination Act</a> that was passed in 1975. This act prohibits discrimination in employment, housing and access to public facilities, such as swimming pools, cinemas and shops.</p>
<p>But for all the 1967 referendum made possible, progress has been slow.</p>
<p>Aboriginal and Torres Strait Islanders make up a very small minority of the overall Australian population (<a href="https://www.abs.gov.au/statistics/people/aboriginal-and-torres-strait-islander-peoples/estimates-aboriginal-and-torres-strait-islander-australians/latest-release#:%7E:text=Media%20releases-,Key%20statistics,of%20the%20total%20Australian%20population.">less than 4%</a>), so the right to vote has not always ensured political representation. </p>
<p>Although there are currently <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/pubs/rp/rp2223/Quick_Guides/IndigenousMPs2022">11 Aboriginal members</a> of parliament, they cannot represent all Aboriginal people. And there have yet to be any representatives at the Commonwealth level from the Torres Strait Islands (an archipelago between Australia and Papua New Guinea).</p>
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Read more:
<a href="https://theconversation.com/with-11-indigenous-politicians-in-parliament-why-does-australia-need-the-voice-200910">With 11 Indigenous politicians in parliament, why does Australia need the Voice?</a>
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<h2>The “yes” and “no” campaigns</h2>
<p>In the lead-up to this year’s referendum, the nation has been split along a stark “yes” and “no” divide.</p>
<p>The “yes” campaign has declared it’s time for change, emphasising how governments have consistently failed First Nations communities across the country. </p>
<p>They say better policy decisions result from local communities being heard on matters that affect them. To secure support from a mostly non-Indigenous population, the campaign also presents the Voice as an opportunity for all Australians to come together in support of recognition and democratic renewal.</p>
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<p>Arguments against the Voice have been made on two different grounds. </p>
<p>Independent Senator Lidia Thorpe, a DjabWurrung, Gunnai and Gunditjmara woman, has argued the Voice is a powerless advisory body. She has called for the government to pursue a <a href="https://theconversation.com/what-actually-is-a-treaty-what-could-it-mean-for-indigenous-people-200261">treaty</a> with Aboriginal and Torres Strait Islander people instead. </p>
<p>However, treaty processes can take many years to progress. For example, the state of Victoria began <a href="https://www.firstpeoplesrelations.vic.gov.au/treaty-process">a treaty process</a> with First Nations people in 2018 and negotiations are only just about to commence.</p>
<p>The official “no” campaign, led by the conservative opposition parties, has depicted the proposed Voice as a body for elites in Canberra, the nation’s capital, which would be divisive for the country and prone to judicial overreach. “Yes” campaigners contend many of the “no” arguments are <a href="https://theconversation.com/10-questions-about-the-voice-to-parliament-answered-by-the-experts-207014">misinformation</a>.</p>
<h2>The significance of the vote</h2>
<p>Even after 1967, it remains clear that existing voting rights and political institutions alone cannot represent the interests of Aboriginal and Torres Strait Islander people to the federal government.</p>
<p>Internationally, other countries have attempted to create improved political participation and government accountability for Indigenous peoples. </p>
<p>In New Zealand, for example, there is designated <a href="https://theconversation.com/what-australia-could-learn-from-new-zealand-about-indigenous-representation-201761">Māori representation</a> in the parliament. In Scandinavia, the <a href="https://sametinget.no/about-the-sami-parliament/">Sámi parliament</a> represents seven Indigenous nations across Finland, Norway and Sweden. In Canada, First Nations people have both <a href="https://www.rcaanc-cirnac.gc.ca/eng/1307460755710/1536862806124">“first-contact” treaties</a> that were <a href="https://www.atns.net.au/treaty-canada">negotiated</a> upon European arrival, as well as <a href="https://www.atns.net.au/treaty-canada">modern treaties</a>. </p>
<p>The 2023 referendum is the first occasion Australia has considered how Aboriginal and Torres Strait Islander people can be meaningfully represented in the federal government. Whatever the outcome of the referendum, it will send a powerful message to rest of the world about how Australians view their country. </p>
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Read more:
<a href="https://theconversation.com/10-questions-about-the-voice-to-parliament-answered-by-the-experts-207014">10 questions about the Voice to Parliament - answered by the experts</a>
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<img src="https://counter.theconversation.com/content/212259/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sana Nakata receives funding from the Australian Research Council.</span></em></p>The last time the country voted in a referendum on Indigenous affairs was in 1967. Advocates for the ‘Voice to Parliament’ say it is the best way to remedy a long legacy of failed policies.Sana Nakata, Principal Research Fellow, James Cook UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2117282023-08-21T20:18:18Z2023-08-21T20:18:18ZA retiring NZ MP has suggested joining Australia – we should at least think about it (before saying no)<p>Big policy ideas usually don’t come up in parliamentary valedictory speeches – they’re for saying goodbye and thank you. So departing Labour MP Jamie Strange was the exception last week when he <a href="https://www.parliament.nz/en/pb/hansard-debates/rhr/document/HansS_20230815_052860000/strange-jamie">made a case</a> for New Zealand and Australia becoming one country.</p>
<p>The main problem, he joked, would be integrating the Australian cricket team. But he talked up the potential economic benefits, and the option does remain open under sections 6 and 121 of the <a href="https://www.aph.gov.au/constitution">Australian Constitution</a>.</p>
<p>In fact, New Zealand did seriously consider joining the <a href="https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Records_of_the_Australasian_Federal_Conventions_of_the_1890s">Australian federation</a> in the 1890s. After all, it had <a href="https://www.sbs.com.au/language/urdu/en/podcast-episode/was-new-zealand-ever-administered-as-part-of-new-south-wales/2fiosb9f9">been administered</a> as part of the colony of New South Wales for about a year after the signing of the Treaty of Waitangi in 1840.</p>
<p>And the relationship was already close. <a href="https://www.rnz.co.nz/news/te-manu-korihi/271105/222-years-of-maori-in-australia">Māori traders</a> began visiting Sydney from the 1790s. Settlers moved back and forth across the Tasman from the earliest contact.</p>
<p>Quite how such a union might be forged in the 21st century, however, raises some interesting questions about how similar – or dissimilar – the two countries have since become.</p>
<h2>A simplified relationship</h2>
<p>Political union would simplify the relationship: trade would be more efficient, social and cultural ties might be strengthened, passports wouldn’t be needed and banking would be easier.</p>
<p>Indeed, an Australian parliamentary committee <a href="http://www5.austlii.edu.au/au/journals/CanterLawRw/2010/2.pdf">recommended political union</a> in 2006, but the New Zealand prime minister at the time, Helen Clark, rejected the idea. The then opposition leader, Don Brash, said it should at least be considered, but found little support. </p>
<p>The committee’s second preference was for a common currency to make trans-Tasman business easier. </p>
<p>But close relationships don’t require political union. Australia and New Zealand hold regular ministerial meetings, share various regulatory standards, and there is military and intelligence cooperation.</p>
<p>There are also important policy differences – such as over the <a href="https://www.newshub.co.nz/home/politics/2023/07/nanaia-mahuta-shuts-door-on-nz-joining-aukus-after-united-states-antony-blinken-says-it-s-very-much-open.html">AUKUS security pact</a> and New Zealand’s nuclear-free policy. Union wouldn’t mean the two countries coming together as equals. New Zealand members of an Australian government would influence those policies, but they wouldn’t determine them. </p>
<h2>From nation to state</h2>
<p>Current constitutional arrangements would mean New Zealand simply became a state of the existing Commonwealth of Australia. It would elect members to the federal parliament, but it would no longer have an independent voice in international forums.</p>
<p>Under the Australian Constitution, the New Zealand state parliament would be responsible for schooling, hospitals and transport, among the reserve powers of the Australian states. </p>
<p>Foreign policy, defence, monetary policy, higher education, pharmaceutical and GP funding would be among the responsibilities transferred to Canberra. A better cricket team might not be compensation enough. </p>
<p>But thinking seriously about the idea would also require both countries to consider how they might forge a different commonwealth together. And that would require an assessment of underlying national values that rarely troubles political discourse in either country.</p>
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Read more:
<a href="https://theconversation.com/what-australia-could-learn-from-new-zealand-about-indigenous-representation-201761">What Australia could learn from New Zealand about Indigenous representation</a>
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<h2>The Voice and the Treaty</h2>
<p>Nowhere would this be more evident than in the respective debates about whether democracy should be properly inclusive of Indigenous peoples.</p>
<p>In Australia, <a href="https://www.theguardian.com/news/datablog/ng-interactive/2023/aug/14/indigenous-voice-to-parliament-poll-results-polling-latest-opinion-polls-referendum-tracker-newspoll-essential-yougov-news-by-state-australia">opinion polls</a> are showing the proposed Aboriginal and Torres Strait Islander <a href="https://voice.gov.au/">Voice to Parliament</a> doesn’t have the support it needs to pass a referendum later this year. The <a href="https://theconversation.com/the-voice-isnt-apartheid-or-a-veto-over-parliament-this-misinformation-is-undermining-democratic-debate-205474">tone of that debate</a> also shows just how differently Australia and New Zealand think about such issues.</p>
<p>In my book <a href="https://link.springer.com/book/10.1007/978-981-33-4172-2">Sharing the Sovereign</a>, I argued that while the guaranteed <a href="https://www.rnz.co.nz/national/programmes/the-house/audio/2018658559/maori-seats-what-are-they">Māori seats</a> in parliament (introduced in 1867) and the role of the Treaty of Waitangi are sharply contested in New Zealand, their influence is gradually increasing.</p>
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Read more:
<a href="https://theconversation.com/the-voice-isnt-apartheid-or-a-veto-over-parliament-this-misinformation-is-undermining-democratic-debate-205474">The Voice isn't apartheid or a veto over parliament – this misinformation is undermining democratic debate</a>
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<p>Political resistance to the ACT Party’s policy of marginalising the Treaty in public life is likely to be intense if it forms part of the government after the election in October. But even then, the idea that Māori people have a voice in government is largely accepted.</p>
<p>Australia’s <a href="https://www.pm.gov.au/media/address-chifley-research-conference">prime minister argues</a> that the Voice is a matter of justice because “it is common courtesy to consult people when you’re taking a decision that affects them”. The inference being that while First Nations people can have “their” say, “we” are still in charge.</p>
<p>As Wiradjuri scholar <a href="https://findanexpert.unimelb.edu.au/news/2372-new-indigenous-middle-class-finds-place-in-modern-economy">Stan Grant observed</a> about the country he grew up in: “we lived in Australia, and Australia was for other people”.</p>
<h2>Culture and public life</h2>
<p>Based on population, New Zealand would be entitled to about one-sixth of the seats in the Australian House of Representatives. Like the other states it would elect 12 senators. There is no guaranteed Indigenous representation in either house and Australia would no doubt struggle to accept Māori representation. At best, there might be two or three Māori seats in the lower house.</p>
<p>In reality, the Māori presence in public life gives New Zealand a cultural certainty and security that is not so evident in Australia. </p>
<p>And the Treaty of Waitangi extends that place to all migrants. Samoan, Tongan, Chinese and Dutch MPs (among others) occasionally speak their languages in parliament as statements of identity and belonging. </p>
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<strong>
Read more:
<a href="https://theconversation.com/new-zealand-claims-barnaby-joyce-as-one-of-its-own-in-new-dramatic-citizenship-turmoil-82463">New Zealand claims Barnaby Joyce as one of its own, in new dramatic citizenship turmoil</a>
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<p>Meanwhile, section 44(1) of the Australian Constitution says people who hold dual or multiple citizenships are not eligible for election to parliament. Although <a href="https://www.abs.gov.au/media-centre/media-releases/2021-census-nearly-half-australians-have-parent-born-overseas">more than half</a> the Australian population was either born overseas or has a parent born elsewhere, this <a href="https://www.theguardian.com/australia-news/2022/jul/25/the-47th-parliament-is-the-most-diverse-ever-but-still-doesnt-reflect-australia">multicultural demographic</a> is not represented in its parliament.</p>
<p>Indeed, then-deputy prime minister Barnaby Joyce was <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters/Inquiry_into_matters_relating_to_Section_44_of_the_Constitution/Report_1/section?id=committees%2Freportjnt%2F024156%2F25931">forced to leave parliament</a> in 2017 after it was discovered he held New Zealand citizenship. He was one of many forced out in similar circumstances – a citizen of a “foreign power” only by descent but apparently therefore a threat to national security.</p>
<p>Cultural <em>insecurity</em> seems the more likely explanation. In an article on the section 44 scandal, I pointed out the absurdity by describing myself as “a citizen of Australia, Ireland and New Zealand who supports the All Blacks, drinks Guinness and looks forward to fighting for Tamworth when Dunedin invades”.</p>
<p>Australia and New Zealand may well be similar enough for political union to be an idea worth considering, but rejecting – if only to help us each to understand ourselves better.</p><img src="https://counter.theconversation.com/content/211728/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dominic O'Sullivan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Outgoing New Zealand MP Jamie Strange used his valedictory speech to propose a trans-Tasman political union. Wondering how that might work reveals just how different the two countries really are.Dominic O'Sullivan, Adjunct Professor, Faculty of Health and Environmental Sciences, Auckland University of Technology, and Professor of Political Science, Charles Sturt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2070142023-06-18T20:08:26Z2023-06-18T20:08:26Z10 questions about the Voice to Parliament - answered by the experts<p>As we start to see the campaign for the Voice referendum gather momentum, there are a lot of Australian voters with genuine questions, trying to understand the proposal and wade through the information – including <a href="https://theconversation.com/how-we-can-avoid-political-misinformation-in-the-lead-up-to-the-voice-referendum-206500">misinformation and active (that is, intentional) disinformation</a> – that is out there in this public debate. </p>
<p>This type of information <a href="https://theconversation.com/australians-are-tired-of-lies-in-political-advertising-heres-how-it-can-be-fixed-189043">can</a> manipulate people’s understanding of the issues, distort their vote and the result. It can also cause enormous <a href="https://theconversation.com/what-can-we-learn-from-the-marriage-equality-vote-about-supporting-first-nations-people-during-the-voice-debate-205745">harm</a> to Aboriginal and Torres Strait Islander people.</p>
<p>Those looking for answers that avoid misinformation and disinformation often – with good reason – turn to experts. And there are lots stepping up and trying to help, including those writing for <a href="https://theconversation.com/au/topics/first-nations-voice-to-parliament-130871">The Conversation</a>, and most recently <a href="https://twitter.com/referendumQandA">@ReferendumQandA</a>, a group of public, human rights and international lawyers answering common questions as the referendum approaches. When you read this information, you should always be wary of people speaking outside of their expertise and experience, and anonymous accounts where these points can’t be checked.</p>
<p>With that in mind, we are a group of three non-Indigenous and Indigenous academics, providing our answers to ten key questions arising in the Voice debate, where the answers are often confused and distorted by misinformation. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-now-know-exactly-what-question-the-voice-referendum-will-ask-australians-a-constitutional-law-expert-explains-202143">We now know exactly what question the Voice referendum will ask Australians. A constitutional law expert explains</a>
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<h2>1. Do Aboriginal and Torres Strait Islander people support the Voice?</h2>
<p>While there is not a <a href="https://www.refinery29.com/en-au/voice-to-parliament-perspectives">single view</a> among Aboriginal and Torres Strait Islander people, there is significant – indeed extraordinary – levels of support among them for the Voice.</p>
<p>First, Indigenous support is demonstrated by the deliberative processes that sits behind the <a href="https://www.referendumcouncil.org.au/sites/default/files/2017-05/Uluru_Statement_From_The_Heart_0.PDF">Uluru Statement from the Heart</a>. This involved more than 1,200 Aboriginal and Torres Strait Islander people from across the country (the claim that non-Indigenous people attended the dialogues is false). </p>
<p>From this process, delegates were able to arrive at a national consensus position, prioritising the reforms of Voice, towards Makarrata (<a href="https://theconversation.com/what-actually-is-a-treaty-what-could-it-mean-for-indigenous-people-200261">Treaty</a> and <a href="https://theconversation.com/first-nations-people-have-made-a-plea-for-truth-telling-by-reckoning-with-its-past-australia-can-finally-help-improve-our-future-202137">Truth</a>).</p>
<p>Second, polling confirms the Voice continues to receive <a href="https://www.theguardian.com/commentisfree/2023/apr/27/a-majority-of-first-nations-people-support-the-voice-why-dont-non-indigenous-australians-believe-this">overwhelming</a> Indigenous support. Two polls from 2023 confirm that 80% and 83% of Indigenous people support the Voice. </p>
<p>Further, Indigenous organisations across the country have indicated their support for the Voice. This includes land-based representative bodies such as the <a href="https://nit.com.au/09-06-2023/6301/all-northern-territory-land-councils-unite-to-issue-historic-declaration-supporting-the-voice-and-constitutional-recognition">Northern Territory Land Councils</a> and the <a href="https://www.klc.org.au/newsroomblog/indigenousaspirationcallsforavoice">Kimberley Land Council</a>, and peak service organisations such as the Australian <a href="https://www.sbs.com.au/nitv/article/medical-groups-are-backing-the-voice-indigenous-mental-health/9x9o5alrj">Indigenous Doctors Association</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/532093/original/file-20230615-19-uyw8kz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/532093/original/file-20230615-19-uyw8kz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=425&fit=crop&dpr=1 600w, https://images.theconversation.com/files/532093/original/file-20230615-19-uyw8kz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=425&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/532093/original/file-20230615-19-uyw8kz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=425&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/532093/original/file-20230615-19-uyw8kz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=534&fit=crop&dpr=1 754w, https://images.theconversation.com/files/532093/original/file-20230615-19-uyw8kz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=534&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/532093/original/file-20230615-19-uyw8kz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=534&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Voice is based on the national consensus agreement outlined in the Uluru Statement from the Heart.</span>
<span class="attribution"><span class="source">National Museum of Australia</span></span>
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<h2>2. Will the Voice insert race into the Constitution?</h2>
<p>The concept of race is already in <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html">section 51(xxvi) of the Constitution</a>, which gives the Commonwealth parliament the power to legislate for “people of any race for whom it is deemed to be necessary to make special laws”.</p>
<p>That section was originally included so as to give effect to the <a href="https://theconversation.com/australian-politics-explainer-the-white-australia-policy-74084">White Australia Policy</a>, and Aboriginal people were excluded from it. But since the section was amended in 1967, following a nationwide campaign for change, it has included the power to make such laws “for people […] of the aboriginal race in any State”. </p>
<p>As was intended in 1967, the power has been exercised for the benefit of Aboriginal and Torres Strait Islander people (such as in relation to native title and cultural heritage protection laws). On the other hand, the same power could also arguably be used to pass laws that operate to their detriment. Its existence and breadth underscores the need for a mechanism – the Voice – to listen to the very people to whom those laws would apply.</p>
<h2>3. How will the Voice make a practical difference?</h2>
<p>The Voice will give Aboriginal and Torres Strait Islander people a constitutionally guaranteed right to speak to government and the parliament about what’s needed for practical improvements to people’s lives. This in turn would help address disadvantage and systemic discrimination. </p>
<p>Aboriginal and Torres Strait Islander people have answers to many pressing issues confronting their communities, but all too often are not heard. The positive impact of listening to Indigenous voices is supported by research such as that conducted in Australia led by <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/jpc.15701">Fiona Stanley and Marcia Langton</a>, and internationally at the <a href="https://indigenousgov.hks.harvard.edu/">Harvard Project on American Indian Development</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1667697093916655616"}"></div></p>
<h2>4. How can the Voice represent the diversity of Aboriginal and Torres Strait Islander views?</h2>
<p>Claims that the Voice will be a “<a href="https://www.afr.com/politics/federal/dutton-to-oppose-canberra-voice-in-war-with-albanese-20230405-p5cy8g">Canberra Voice</a>”, unrepresentative of the diversity of Aboriginal and Torres Strait Islander people, and their views, misrepresents the proposal.</p>
<p>The constitutional provision requires only that the Voice is an “Aboriginal and Torres Strait Islander Voice”, and leaves the rules governing its composition to be determined by parliament. It is appropriate that parliament is responsible for determining the composition of the Voice, because the identity, experience, culture and views of First Nations across Australia are complex and diverse. This means it will need to be done in close consultation with local Indigenous communities, and will require ongoing monitoring, input and evaluation in cooperation with those communities. The parliament is <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4344248">best placed</a> to undertake that sort of ongoing negotiation.</p>
<p>The government has committed to exactly that form of consultation in the <a href="https://voice.gov.au/about-voice/voice-principles">design principles</a> that have been set in collaboration with the Referendum Working Group, a group of Indigenous leaders. These principles indicate how the government intends the Voice to represent the diversity of Aboriginal and Torres Strait Islander people, and their views. These principles commit the government to a Voice that is chosen based on the wishes of local communities, is not appointed by government, reflects gender balance and youth perspectives, and all members must be Indigenous. </p>
<p>These principles are informed by the recommendations of the <a href="https://voice.gov.au/resources/indigenous-voice-co-design-process-final-report">2021 Indigenous Voice Co-Design</a> process as well as the design and proposed reforms of ATSIC. </p>
<p>Importantly, however, the government recognises <a href="https://theconversation.com/what-do-we-know-about-the-voice-to-parliament-design-and-what-do-we-still-need-to-know-195720">the need for further consultation</a> with Indigenous people on the specific design of the Voice.</p>
<p>These commitments will ensure the Voice is representative of the diversity of Aboriginal and Torres Strait Islander views. </p>
<h2>5. Is the Voice in breach of international human rights standards?</h2>
<p>No. In fact, the Voice is <a href="https://www.smh.com.au/politics/federal/the-voice-is-not-revolutionary-or-threatening-only-its-opponents-say-it-is-20230407-p5cywr.html">supported</a> under international human rights law as it recognises Indigenous peoples’ rights to political representation and is consistent with the <a href="https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf">UN Declaration on the Rights of Indigenous Peoples</a>. </p>
<p>In human rights and international law, equality and anti-discrimination means more than just treating people exactly the same. Indeed, this type of formal equality will often result in ongoing discrimination against people who have been historically marginalised because it doesn’t redress institutional and structural discrimination, or recognise difference. </p>
<p>The Voice has been <a href="https://www.refworld.org/docid/59cb9bd34.html">endorsed</a> by several UN treaty bodies, which have also expressed serious concern about the human rights violations Indigenous people in Australia continue to experience. </p>
<h2>6. Don’t Aboriginal and Torres Strait Islander people already have lots of ‘voices’ to government and parliament?</h2>
<p>No. There is currently no representative body to provide, in a nationally coordinated way, the government and parliament with the views and experience of the Aboriginal and Torres Strait Islander people who will be affected by their decisions.</p>
<p>To the extent there are other Indigenous organisations working with government and parliament, the Voice will complement, not detract, from their work. For instance, peak service organisations working in areas such as health, education and law, offer important Indigenous specific services and advice to government in service delivery, they are not representative. </p>
<p>And while there may be more Aboriginal parliamentarians than ever – and this should be celebrated – these individuals do not primarily represent Aboriginal and Torres Strait Islander people. They are party members bound by party policy, or individual MPs, who represent the whole of their constituencies. Further, Indigenous representation in the parliament is not guaranteed – it will rise and fall depending on party selection, and election results.</p>
<p>Finally, while individual traditional owners might be able to negotiate land claims and native title rights with government, they do not have a nationally representative voice to speak to parliament and government in a coordinated way about the laws and policies that will apply to these negotiations. There is no one to make sure the rules of the game are fair.</p>
<h2>7. Will the Voice give rise to High Court litigation and clog up parliamentary work?</h2>
<p>No. According to the prevailing weight of informed legal opinion, the establishment of the Voice does not pose any abnormal risk of excessive litigation. </p>
<p>Any suggestion the Voice would clog up the parliament or the government ignores the parliament’s ability to determine its own business, and the parliament’s legislative power to determine how the Voice will engage with the government. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-happens-if-the-government-goes-against-the-advice-of-the-voice-to-parliament-200517">What happens if the government goes against the advice of the Voice to Parliament?</a>
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<h2>8. How does the Voice affect sovereignty?</h2>
<p>Sovereignty is a <a href="https://theconversation.com/what-we-mean-when-we-say-sovereignty-was-never-ceded-195205">complex idea</a>, referring at a general level to ultimate political authority within a community. However, people talk about it in different ways. The Voice proposal interacts with sovereignty at three different levels.</p>
<p>First, the call for the Voice reform is based on the strong assertion in the <a href="https://www.referendumcouncil.org.au/sites/default/files/2017-05/Uluru_Statement_From_The_Heart_0.PDF">Uluru Statement from the Heart</a> of the continuing and unceded sovereignty of Aboriginal and Torres Strait Islander peoples. </p>
<p>Second, there is nothing in the Voice proposal which <a href="https://www.theguardian.com/australia-news/2023/jan/26/will-indigenous-voice-to-parliament-impact-first-nations-sovereignty-explainer">alters</a> the British Crown’s assertion of sovereignty at settlement, nor the fact that First Nations people have never consented to the forceful transfer of sovereignty to the Australian nation as we now know it.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-we-mean-when-we-say-sovereignty-was-never-ceded-195205">What we mean when we say 'sovereignty was never ceded'</a>
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<p>The third is under international law, which requires the agreement or consent of Aboriginal and Torres Strait Islander people to cede sovereignty. This is <a href="https://nit.com.au/16-01-2023/4736/voice-will-empower-us-not-undermine-sovereignty">not what is happening</a> under the Voice proposal. Indeed, international treaty bodies have repeatedly confirmed that the Voice would be a positive step for the recognition and political participation rights of Aboriginal and Torres Strait Islander people within the state.</p>
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<h2>9. Why do we need to put the Voice in the Constitution?</h2>
<p>There are two key parts to this <a href="https://theconversation.com/why-cant-we-just-establish-the-voice-to-parliament-through-legislation-a-constitutional-law-expert-explains-203652">answer</a>. The first is that the Voice has a number of objectives, one of which is the constitutional recognition of Aboriginal and Torres Strait Islander people as the First Peoples of the land. First Nations people, through the Uluru Statement from the Heart, indicated they wished for recognition in the form of the Voice. If we are serious about recognition, we should do it in a way that accords with the wishes of those to be recognised.</p>
<p>The second part of the answer relates to the operation of the Voice. If the Voice is in the Constitution, it can only be abolished by another referendum, rather than by a change of government policy. This gives it independence and stability, so it can fulfil its function of speaking about matters that might not be politically popular. </p>
<h2>10. Do Australians have enough detail to vote at the referendum?</h2>
<p>Yes. There’s often a lot of confusion about this question, which is because there are two types of detail that people talk about.</p>
<p>The first is the detail about the constitutional change. This is the bit Australians are being asked to vote on, and the bit that is “permanent” (subject to a future referendum). There is heaps of detail in relation to the constitutional change, including the <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7019">wording of the amendment</a>, the <a href="https://www.niaa.gov.au/indigenous-affairs/referendum-aboriginal-and-torres-strait-islander-voice">referendum question</a>, the explanatory memorandum to the amendment, a <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/Aboriginal_and_Torres_Strait_Islander_Voice_Referendum/VoiceReferendum/Report">parliamentary inquiry’s report</a>, and the government has even taken the extraordinary route of releasing the <a href="https://www.aph.gov.au/DocumentStore.ashx?id=ea88212c-eccc-45d2-822c-8578fa96895c&subId=740367">solicitor-general’s advice</a> on the legal soundness of the amendment.</p>
<p>The second is the detail about what the legislation establishing the “nuts and bolts” of the Voice will look like. To be clear, this detail is not part of the constitutional amendment – and it is entirely normal for constitutions to leave this type of detail to be worked out in future by the parliament. It would be misleading to release the full detail of the Voice, because this detail would need to be passed through parliament, and would be subject to future change.</p>
<p>However, there is some detail about what the Voice will look like. The government has taken the sensible option of indicating what it will do following a successful referendum, and how it will go about setting up the Voice. It has worked with the Referendum Working Group to finalise a set of <a href="https://ulurustatement.org/education/design-principles/">design principles</a> that provide the outline of what the voice will look like – how it will represent Aboriginal and Torres Strait Islander people across the country, what functions it will have, and how it will be accountable.</p><img src="https://counter.theconversation.com/content/207014/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Appleby was a pro bono constitutional consultant to the Regional Dialogues and First Nations Constitutional Convention that delivered the Uluru Statement from the Heart. She is a member of the Indigenous Law Centre (UNSW Law & Justice) and supports the work of the Uluru Dialogues. </span></em></p><p class="fine-print"><em><span>Geoffrey Lindell has provided pro bono assistance to the UNSW Indigenous Law Centre on the Voice. </span></em></p><p class="fine-print"><em><span>Hannah McGlade is a member of the Referendum Engagement Group, the UN Permanent Forum for Indigenous Issue and supports the work of the Uluru Dialogues.</span></em></p>Mis- and disinformation about the Voice to Parliament proposal are rife. Here, experts address 10 of the most common myths.Gabrielle Appleby, Professor, UNSW Law School, UNSW SydneyGeoffrey Lindell, Adjunct Professor in Law, University of AdelaideHannah McGlade, Associate professor, Curtin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2042662023-04-21T07:02:38Z2023-04-21T07:02:38ZSolicitor-general confirms Voice model is legally sound, will not ‘fetter or impede’ parliament<p>The federal government today released the long-awaited legal advice on the Voice to parliament from Australia’s solicitor-general, Stephen Donaghue.</p>
<p>In it, Donaghue states that the proposed model for the Voice “will not fetter or impede the exercise of existing powers of Parliament”, adding that the proposal</p>
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<p>is not just compatible with the system of representative and responsible government prescribed by the Constitution, but an enhancement of that system.</p>
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<p>The advice makes clear the Voice is legally sound.</p>
<h2>The Voice to parliament</h2>
<p>In the <a href="https://www.referendumcouncil.org.au/sites/default/files/2017-05/Uluru_Statement_From_The_Heart_0.PDF">Uluru Statement from the Heart</a>, Aboriginal and Torres Strait Islander people expressed the “torment of our powerlessness”. They explained that they do not feel they are heard in the design of law and policy that affects them. They called for a Voice to be put in the Constitution to allow them to have a say. </p>
<p>In our system of government, proposed laws are developed within the executive, which includes the cabinet and government departments. Then they’re presented to parliament. This means that if an Aboriginal and Torres Strait Islander Voice is to be able to inform law and policy, it needs to speak to both the parliament and the executive.</p>
<p>The Albanese government’s proposed constitutional amendment recognises this. Section 129(2) provides that the Aboriginal and Torres Strait Islander Voice “may make representations” to the parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander people. </p>
<p>This language was developed with the advice of some of the nation’s leading <a href="https://voice.niaa.gov.au/who-involved">constitutional law experts</a>. However, some concerns have been raised about the proposal.</p>
<p>For example, Opposition Leader Peter Dutton has <a href="https://www.theaustralian.com.au/inquirer/anthony-albaneses-indigenous-voice-to-parliament-an-offensive-vanity-project/news-story/968436244e8d68ed29f9193a025d3277">argued</a> that allowing the Voice to present its views to the executive will mark a radical change in Australia’s system of government. Conservative commentators have <a href="https://www.theaustralian.com.au/inquirer/indigenous-voice-to-parliament-will-create-cogovernment-and-cause-policy-chaos/news-story/c9bba90e726a77514fd463a561fc69ea">suggested</a> the Voice will delay or derail proper administration. They argue ministers and public servants will need to give the Voice time and information to enable the Voice to make representations. Ministers may even be obliged to consult and adopt those representations.</p>
<p>The solicitor-general has dismissed these concerns. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-cant-we-just-establish-the-voice-to-parliament-through-legislation-a-constitutional-law-expert-explains-203652">Why can't we just establish the Voice to Parliament through legislation? A constitutional law expert explains</a>
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<h2>Who is the solicitor-general?</h2>
<p>The solicitor-general is Australia’s second highest-ranking law officer, after the attorney-general. However, while the attorney-general is a political position filled by a member of parliament, the solicitor-general is independent. Their job is to provide independent legal advice to the government and represent the Commonwealth in legal proceedings.</p>
<p>The solicitor-general was asked to advise the government on two questions. </p>
<ol>
<li><p>whether the proposed amendment is compatible with Australia’s system of government</p></li>
<li><p>and whether the proposed amendment gives parliament the power to decide the legal effect of any representation, or whether parliament and the executive are required to consider or follow those representations. </p></li>
</ol>
<h2>What does the advice say?</h2>
<p><strong>Question 1</strong></p>
<p>The solicitor-general was very clear. The Voice “would not pose any threat” to our system of government. In fact, it would “enhance” our system.</p>
<p>Donaghue reached this conclusion for two reasons. First, the Voice does not alter the powers of parliament or government in any way. Section 129(2) makes clear the Voice has no veto. Section 129(2) also does not impose any obligation on parliament or the executive to consult with the Voice or follow its advice. </p>
<p>Second, more fundamentally, the Voice would remedy a “distortion” in our system of government. The solicitor-general explained that the Voice would help overcome “barriers that have historically impeded effective participation by Aboriginal and Torres Strait Islander people in political discussions and decisions that affect them”. In short, it would improve our democracy by ensuring Indigenous people can have their voices heard.</p>
<p><strong>Question 2</strong></p>
<p>The second question was directed at the scope of the Voice’s power. It asked whether the parliament or executive would be required to consider or follow representations made by the Voice. </p>
<p>Once again, the solicitor-general was very clear: the answer is no. Donaghue explained that although it would “plainly be desirable for the Executive Government to consider any representations that the Voice makes to it”, parliament has the ultimate say.</p>
<p>This means parliament could enact a law to require ministers or public servants take the advice of the Voice into account when making decisions. However, parliament could always amend or remove such a requirement. The Voice is subject to parliament.</p>
<h2>What happens next?</h2>
<p>The Voice is a proposal which seeks to ensure Aboriginal and Torres Strait Islander people can participate “<a href="https://www.quarterlyessay.com.au/content/correspondence-megan-davis">in the democratic life of the state</a>”. It seeks to provide an opportunity for them to have their voices heard in the design and delivery of law and policy that affects them.</p>
<p>Prime Minister Anthony Albanese has argued the solicitor-general’s advice “<a href="https://www.abc.net.au/news/2023-04-21/voice-to-parliament-legally-sound-says-solicitor-general/102250768">puts to bed</a>” concerns raised by Dutton and others. While the Opposition may disagree, the advice strengthens the view that the Voice is legally sound.</p><img src="https://counter.theconversation.com/content/204266/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Harry Hobbs is a member of the ALP.</span></em></p>The solicitor-general said the model is compatible with responsible government, and an ‘enhancement’ of the system.Harry Hobbs, Associate professor, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2036522023-04-17T20:03:41Z2023-04-17T20:03:41ZWhy can’t we just establish the Voice to Parliament through legislation? A constitutional law expert explains<p><em>We asked our readers what they would like to know about the proposed Indigenous Voice to Parliament. In the lead-up to the referendum, our expert authors will answer those questions. You can read the other questions and answers <a href="https://theconversation.com/your-questions-answered-on-the-voice-to-parliament-200818">here</a>.</em></p>
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<p>It would be possible for the federal parliament to establish an Indigenous Voice by passing ordinary legislation. But such a body would be <a href="https://www.indigconlaw.org/home/naidoc-week-2021-why-a-legislated-voice-is-not-a-constitutionally-enshrined-voice-to-parliament">fundamentally different</a> from the constitutionally enshrined Voice we are being asked to approve at a referendum later this year.</p>
<p>First, only a constitutional Voice responds to the call for reform set out in the <a href="https://www.referendumcouncil.org.au/final-report.html#toc-anchor-ulurustatement-from-the-heart">Uluru Statement from the Heart</a>. That document was endorsed at the 2017 National Constitutional Convention at Uluru, which was the culmination of a grassroots process comprising 13 regional dialogues and involving more than 1,200 First Nations people. </p>
<p>The Uluru Statement calls for “the establishment of a First Nations Voice enshrined in the Constitution” as the first step of a reform process that also encompasses treaty-making and truth-telling.</p>
<p>Second, the act of establishing a Voice in the Constitution provides Aboriginal and Torres Strait Islander peoples with a form of constitutional recognition. This is explicit in the <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr7019_first-reps%2F0001;query=Id%3A%22legislation%2Fbills%2Fr7019_first-reps%2F0000%22;rec=0">proposed amendment</a> released by the government. Currently, the Australian Constitution makes no mention of the continent’s first peoples.</p>
<p>Third, constitutional change gives the Voice security and certainty. Once established, the Voice could only be abolished if Australians agreed to that at another referendum. By contrast, a legislative Voice would be far more vulnerable. A future government could get rid of it by passing an ordinary law. To do that, it would only need to win the support of a majority of members in the House of Representatives and the Senate.</p>
<p>Fourth, constitutional change will confer on the Voice a strong popular legitimacy that is not achievable through ordinary legislative change. The direct approval of the people at a referendum would bestow on the Voice a special credibility and authority. That would give additional political force to the representations of the Voice, even as the parliament and government would be free to ignore them. And the presence of the Voice in the nation’s highest law would speak to its standing.</p>
<p>Finally, constitutional change gives the Voice the best chance of being effective. A body that has been endorsed by First Nations people and the wider public, and enjoys the security and legitimacy that constitutional amendment provides, promises to have the most lasting and meaningful impact.</p>
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<img alt="" src="https://images.theconversation.com/files/520977/original/file-20230414-114-t3qmkw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520977/original/file-20230414-114-t3qmkw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520977/original/file-20230414-114-t3qmkw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520977/original/file-20230414-114-t3qmkw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520977/original/file-20230414-114-t3qmkw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520977/original/file-20230414-114-t3qmkw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520977/original/file-20230414-114-t3qmkw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The enshrinement of an Indigenous Voice to Parliament in the Australian Constitution was a specific call of the Uluru Statement from the Heart.</span>
<span class="attribution"><span class="source">Lukas Coch/AAP</span></span>
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<h2>Why can’t the Voice be legislated and piloted for a few years, then put to a referendum?</h2>
<p>It would be possible to establish an Indigenous consultative body by legislation and then subsequently hold a referendum to enshrine it in the Constitution. We could imagine this might help to familiarise some Australians with the idea of an Indigenous Voice before voting on it.</p>
<p>However, there are shortcomings to this approach that arguably outweigh any benefits it might bring. As the Uluru Statement makes clear, First Nations people have called for a Voice that is enshrined in the Constitution. That demand is not met by a legislated body.</p>
<p>Even if a sincere government pledged to put a legislated Voice to a vote after a trial period, there would be no guarantee the referendum would go ahead. After all, the priorities and composition of our governments and parliament change rapidly. There would be a risk that Indigenous people would be stuck with another representative body that, like ATSIC before it, could be dissolved with the stroke of a pen.</p>
<p>The lessons of any pilot period would also be limited. A statutory Voice would have a relatively weak standing and legitimacy. It could not be expected to speak as loudly as a constitutional body. As such, Australians could come to the end of the pilot period without a clear idea of the impact that a constitutional Voice might have on laws and policies.</p>
<p>Moreover, a pilot period would not necessarily provide Australians with greater certainty about the details of the Voice’s operation. The fact remains that parliament would retain the power to alter the Voice’s composition, functions, powers and procedures. The people might vote at the referendum with the “pilot” Voice in their mind, only to find the subsequent constitutional version takes a different shape.</p>
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Read more:
<a href="https://theconversation.com/what-happens-if-the-government-goes-against-the-advice-of-the-voice-to-parliament-200517">What happens if the government goes against the advice of the Voice to Parliament?</a>
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<h2>What legislation is ever debated in parliament that does NOT affect indigenous people?</h2>
<p>The proposed Voice covers a broad range of policy areas. It would be able to make representations to the parliament and the executive government “on matters relating to Aboriginal and Torres Strait Islander peoples”.</p>
<p>As the <a href="https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r7019_ems_30a282a6-7b5a-4659-b9cb-13da5698bca1/upload_pdf/JC009279.pdf;fileType=application%2Fpdf">Explanatory Memorandum</a> to the <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7019">Constitution Alteration Bill</a> explains, this wording captures both matters specific to Indigenous peoples (such as native title) as well as more general matters “which affect Aboriginal and Torres Strait Islander peoples differently to other members of the Australian community”. For instance, general election laws would fall within the scope of the Voice because of the disproportionately low enrolment and participation rates of First Nations people.</p>
<p>Some have argued this remit is too broad, potentially allowing the Voice to give advice on almost any issue. The opposition has <a href="https://www.theguardian.com/australia-news/2023/mar/27/anthony-albanese-criticises-very-strange-question-on-whether-voice-will-have-input-on-energy-policy">said</a> the Voice could present its views, for example, on the setting of interest rates or the formulation of climate policy.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1640207385510948865"}"></div></p>
<p>Supporters of the government’s proposal <a href="https://www.theaustralian.com.au/inquirer/indigenous-voice-to-parliament-only-works-if-its-free-to-choose-what-to-talk-about/news-story/8361479386a83d8f569640a25622e4fd">argue</a> it is both necessary and appropriate for the Voice to be able to speak on a wide range of matters. It is said that a broad remit will ensure that the Voice facilitates the <a href="https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r7019_ems_30a282a6-7b5a-4659-b9cb-13da5698bca1/upload_pdf/JC009279.pdf;fileType=application%2Fpdf">participation</a> of Indigenous peoples in the making of laws and policies that affect them. </p>
<p>Proponents say it is impossible to know in advance the sorts of issues that First Nations people will see as being of interest or concern, and that those issues are likely to evolve over time. They also argue that a narrow remit could prompt legal challenges as disputes arise over what matters fall within scope.</p>
<p>In practical terms, the proposed Voice will not be able to make representations on all matters that fall within its remit. It will need to decide which matters deserve priority and focus its attention and resources on them. </p>
<p>And if the Voice wishes to be heard, and not just to speak, it may find that it can have most impact by focusing on matters that have specific significance for Indigenous peoples. Under the government’s proposal, it will be up to the Voice to make that calculation. As Robert French, former Chief Justice of the High Court of Australia, has <a href="https://www.auspublaw.org/first-nations-voice/the-voice-a-step-forward-for-australian-nationhood">observed</a>: “[The Voice’s] limits are likely to be defined by common sense and political realities”.</p><img src="https://counter.theconversation.com/content/203652/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Kildea has previously received funding from the Australian Research Council.</span></em></p>Legislation is an unsatisfactory way to institute a Voice to Parliament because, among other reasons, it would make the body insecure and vulnerable to the whims of different governments.Paul Kildea, Associate Professor, Faculty of Law & Justice, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2033522023-04-06T05:22:22Z2023-04-06T05:22:22ZHow does the Liberal Party’s Voice policy stack up against the proposed referendum?<p>Despite the political acrimony over the Voice referendum, what’s most striking is the similarities between the positions of the Coalition and the Labor government. </p>
<p>Both agree Aboriginal and Torres Strait Islander peoples should be recognised in the Constitution. Both agree practical outcomes are needed to improve the lives of Indigenous Australians. Both agree parliament and the executive government need to be better informed about the laws and policies they make, and that they need to hear the voices of those on the ground who are affected by those laws and policies.</p>
<p>Given this agreement about what needs to be done, why is there disagreement about the referendum?</p>
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<h2>Recognition and practical outcomes</h2>
<p>The key sticking point seems to be the relationship between constitutional recognition and achieving practical outcomes. The Albanese government proposes to achieve practical outcomes by establishing a constitutional means by which Aboriginal and Torres Strait Islander peoples can influence the laws and policies that affect them. </p>
<p>This is the form of constitutional recognition supported by Aboriginal and Torres Strait Islander peoples in consultations held across Australia by the Referendum Council, culminating in the Uluru Statement from the Heart. It wasn’t invented and imposed top-down by the Albanese government.</p>
<p>In contrast, the Coalition proposes that constitutional recognition be split from practical outcomes. It would instead legislate to establish local and regional Voices, but not a national Voice. </p>
<p>It’s unclear what kind of constitutional recognition the Coalition proposes. But it would appear to be symbolic recognition, such as a reference in a preamble. This could be in either the existing preamble in the British Act that contains the Australian Constitution, or in a new preamble inserted in the Constitution itself.</p>
<p>Such an approach, however, was rejected by the Aboriginal and Torres Strait Islander representatives at the consultations held by the Referendum Council, and at Uluru. </p>
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<em>
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Read more:
<a href="https://theconversation.com/the-voice-what-is-it-where-did-it-come-from-and-what-can-it-achieve-202138">The Voice: what is it, where did it come from, and what can it achieve?</a>
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<h2>Constitutional recognition needs the support of those recognised</h2>
<p>History and common sense tell us there’s no point in seeking to recognise a group in the Constitution in a manner they reject. Voters will justifiably ask why they should vote for a form of recognition opposed by the people who are to be recognised.</p>
<p>The 1999 preamble referendum shows us the futility of engaging in a top-down process. Then-Prime Minister John Howard decided to run a second question at the republic referendum that would insert a new preamble in the Constitution. He ignored the elements of a preamble that had been agreed upon by the 1998 Constitutional Convention. Instead, he prepared his own draft, in consultation with the poet Les Murray. </p>
<p>The <a href="https://parlinfo.aph.gov.au/parlInfo/download/legislation/billsdgs/QHD06/upload_binary/QHD06.pdf;fileType=application%2Fpdf#search=%22WZ1%22">exposure draft</a> of that preamble included the words: </p>
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<p>Since time immemorial our land has been inhabited by Aborigines [sic] and Torres Strait Islanders, who are honoured for their ancient and continuing cultures.</p>
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<p>Aboriginal and Torres Strait Islander groups <a href="https://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2017/09/24-2-17.pdf">criticised</a> this wording. In particular, the word “inhabited” wasn’t seen as properly respecting the relationship between Aboriginal and Torres Strait Islander peoples and their lands and waters.</p>
<p>A new draft was then developed by Howard in conjunction with the Australian Democrats Senator, Aden Ridgeway, who was the only Aboriginal member of the parliament at the time. </p>
<p>It <a href="https://www.legislation.gov.au/Details/C2004B00537">included the phrase</a>: </p>
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<p>honouring Aborigines [sic] and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country.</p>
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<p>But the failure to consult more widely with Indigenous leaders, and the inappropriate application of the word “kinship”, resulted in some Indigenous groups campaigning against it. </p>
<p>The preamble referendum failed. It achieved support from only 39% of the people and fared poorly in seats with a high Indigenous population. </p>
<p>The chairman of the Aboriginal and Torres Strait Islander Commission, Gatjil Djerrkura, welcomed the defeat of the referendum. He said that while the preamble was meant to unite the nation, it had been drafted without any meaningful discussion with the Australian people – both Indigenous and non-Indigenous. He said this lack of consultation was a clear lesson for future referendums.</p>
<p>A Coalition commitment to Indigenous constitutional recognition will be a hollow one if it doesn’t involve engagement with Aboriginal and Torres Strait Islander peoples and provide a form of recognition that’s acceptable to them.</p>
<h2>A headless Voice?</h2>
<p>The other plank of the Coalition’s policy is legislating to establish local and regional Voices.</p>
<p>Opposition Leader Peter Dutton observed, quite rightly, that most laws affecting Aboriginal and Torres Strait Islander peoples are state or local laws. But the Commonwealth creating local and regional Voices won’t have any effect on those state and local laws.</p>
<p>Commonwealth law can only deal with how the representations made by these Voices affect Commonwealth policies and laws. It’s a matter for the states whether they create their own Voices, as South Australia has done, or seek representations from Commonwealth bodies. </p>
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<p>Second, creating local and regional Voices is a recipe for chaos if there’s no way of channelling their representations through to the parliament and executive government in an orderly way.</p>
<p>Is it really sensible for a national decision-maker to receive 72 different representations direct from local Voices, which say different things? How effective would that be, and what would be the administrative burden of such an unwieldy system? Wouldn’t it be more rational to have a national body which receives input from all the local and regional Voices, and can provide comprehensive and well-considered advice? </p>
<p>The current proposal of the Albanese government is to have a national Voice which receives input from local communities so it can make practical and well-informed representations to the Commonwealth.</p>
<p>Whether separate local and regional Voices are established, or existing Aboriginal and Torres Strait Islander bodies are used to provide that local input, will be a matter for parliament.</p>
<p>Such an approach has been anticipated. The Referendum Working Group asked the Constitutional Expert Group for advice on this, with that <a href="https://ministers.pmc.gov.au/burney/2023/communique-referendum-working-group#attach">advice</a> confirming parliament would have the power “to establish sub-national Voices”.</p>
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Read more:
<a href="https://theconversation.com/the-liberal-partys-no-position-on-voice-signals-its-primarily-interested-in-speaking-to-a-nation-that-no-longer-exists-203397">The Liberal Party's 'no' position on Voice signals it's primarily interested in speaking to a nation that no longer exists</a>
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<h2>The campaign</h2>
<p>The campaign is likely to be rancorous, but the similarities between the major parties’ policies should negate some of the arguments.</p>
<p>For example, it would be difficult for the Coalition to run arguments that Aboriginal and Torres Strait Islander peoples should not be treated differently in the Constitution, or given any special capacity to influence parliament and the executive. This is because the federal Liberal Party has said it supports constitutional recognition, and supports local and regional Voices to influence Commonwealth laws and policies. </p>
<p>While the referendum vote itself will be between the status quo and the proposed amendment, the people now have a clearer view of the political alternatives and can judge for themselves which would lead to better outcomes.</p><img src="https://counter.theconversation.com/content/203352/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council and sometimes does consultancy work for governments and Parliaments. She was a member of the Constitution Expert Group which advised the Referendum Working Group on the proposed referendum. </span></em></p>Voters will justifiably ask why they should vote for a form of recognition opposed by the people who are to be recognised.Anne Twomey, Professor emerita, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1992852023-03-28T01:49:21Z2023-03-28T01:49:21ZThe First Nations Voice to parliament could get us to revisit conversations about Australia becoming a republic<p>Australia is preparing for a referendum to decide on the proposed <a href="https://humanrights.gov.au/sites/default/files/a_voice_to_parliament_and_constitutional_reform_-_australias_third_upr_2021.pdf">Voice to parliament</a> for First Nations people. Prime Minister Anthony Albanese has stated the referendum is likely to happen sometime between <a href="https://www.npr.org/2023/03/23/1165526944/australia-decides-on-the-referendum-question-to-create-greater-say-for-indigenou">October and December</a> this year.</p>
<p>If the Voice passes the referendum, Aboriginal and Torres Strait Islanders will be represented by a dedicated body to advise parliamentarians on the <a href="https://www.aihw.gov.au/reports/indigenous-australians/atsi-adolescent-youth-health-wellbeing-2018/contents/summary">challenges</a> faced by First Nations Australians.</p>
<p>At the same time, we are also seeing <a href="https://www.6pr.com.au/poll-reveals-royal-family-drama-is-spiking-support-for-australian-republic/">growing public support</a> for the idea of Australia becoming a republic. This, like instituting a First Nations Voice to parliament, would involve significantly amending our Constitution.</p>
<p>If the referendum for a First Nations Voice is successful, what lessons might it hold for future possible constitutional amendments, such as Australia turning away from the monarchy and embracing <a href="https://www.smh.com.au/national/why-voting-on-an-indigenous-voice-will-shape-prospects-of-republic-referendum-20220916-p5bijg.html">republic status</a>? </p>
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Read more:
<a href="https://theconversation.com/the-1881-maloga-petition-a-call-for-self-determination-and-a-key-moment-on-the-path-to-the-voice-197796">The 1881 Maloga petition: a call for self-determination and a key moment on the path to the Voice</a>
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<h2>Why we need the Voice</h2>
<p>By committing to a referendum and steering Australia on the path towards a First Nations Voice, the Albanese government has provided an opportunity to focus firmly on the needs of First Nations communities. </p>
<p>Significant issues need to be addressed, such as ongoing health and social inequities. First Nations Australians are <a href="https://www.aihw.gov.au/reports/indigenous-australians/life-expectancy-and-mortality-of-aboriginal-and-to/summary">more likely</a> to die early than non-Indigenous Australians.</p>
<p>In addition, ongoing <a href="https://www.aihw.gov.au/reports/indigenous-australians/life-expectancy-and-mortality-of-aboriginal-and-to/summary">systemic</a> harm <a href="https://healingfoundation.org.au/intergenerational-trauma/">across generations</a> continues to impact First Nations peoples and their families.</p>
<p>Even with the little detail we know so far of the Voice’s proposed design, the <a href="https://www.unsw.edu.au/news/2021/01/an-indigenous--voice--must-be-enshrined-in-our-constitution--her">ethical reasons</a> behind its implementation are enough for many people to have already given the proposal their backing. In my view, instituting the Voice would be a vital step towards reconciliation between First Nations peoples and Australians of settler backgrounds.</p>
<p>To achieve reconciliation, another pivotal step on this long journey would be to consider what began the centuries of <a href="https://www.awm.gov.au/articles/atwar/colonial">injustice and domination</a> of First Nations peoples: British invasion. </p>
<p>The British invasion of Australia disrupted at least <a href="https://digital.library.adelaide.edu.au/dspace/bitstream/2440/107043/2/hdl_107043.pdf">40,000 years</a> of cultures and traditions, and remaining part of that monarchy makes reconciliation between Australia’s First Peoples and its settler population much more difficult and unlikely.</p>
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Read more:
<a href="https://theconversation.com/our-research-has-shown-indigenous-peoples-needs-cannot-be-understood-and-met-without-indigenous-voices-199286">Our research has shown Indigenous peoples' needs cannot be understood and met, without Indigenous voices</a>
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<h2>Australia’s allegiance to the Crown</h2>
<p>Last year’s accession of <a href="https://www.bbc.com/news/uk-63543019.amp">King Charles III</a> prompted <a href="https://www.2gb.com/debating-australias-future-should-australia-ditch-the-monarchy/">renewed debate</a> about whether and when Australia should end its allegiance to the British Crown.</p>
<p>Under Australia’s current constitutional arrangements, the Crown-appointed governor-general can decide whether a democratically elected prime minister remains in office. This is what led to the <a href="http://www.australianconstitutioncentre.org.au/separation-of-powers-ndash-well-may-we-say-ldquogod-save-the-queenrdquo.html">1975 crisis</a> in which Prime Minister Gough Whitlam <a href="https://www.nma.gov.au/defining-moments/resources/whitlam-dismissal">was sacked</a> by Governor-General Sir John Kerr.</p>
<p>In Australia, successive governments have done everything from <a href="https://www.foundingdocs.gov.au/item-sdid-99.html">removing the religious element</a> from Queen Elizabeth II’s regal title in 1973, to establishing principles that prevent undue interference in Australia’s <a href="https://www.legislation.gov.au/Details/C2004A03181">legislative</a> or <a href="http://cefa.org.au/ccf/what-was-role-privy-council#:%7E:text=Historically%20the%20Privy%20Council%20was,appealed%20to%20the%20Privy%20Council.">judicial</a> processes. Despite this, the Crown’s presence and institutions remain ingrained in our governance and constitution.</p>
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<p>Consider also that First Nations MPs, upon entering parliament, have to swear their allegiance to the reigning British monarch. This is something many would find difficult and contrary to why they are entering political life.</p>
<h2>Would we ever have to choose between a Voice and a Republic?</h2>
<p>There has been a lot of disagreement about constitutional transformation, yet there is clear support for a Voice from <a href="https://www.theguardian.com/media/2022/aug/12/the-peter-fitzsimons-interview-with-jacinta-price-that-sparked-a-week-long-culture-war">Australian republic advocates</a>. Naturally, thousands of Australians feel they are not being heard, and want a more direct voice to their government as well.</p>
<p>Australians demonstrated they’re unhappy with their politicians and their government in a <a href="https://www.roymorgan.com/products-and-tools/state-of-the-nation">State of the Nation survey in 2022</a>. Australians may be increasingly unhappy with their governments, yet <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/pubs/rp/rp2223/Quick_Guides/ConstitutionalReferendumsAustralia">Australians do not often vote yes in a referendum</a>, which naturally raises concern for those who want the voice and a republic.</p>
<p>Although the State of the Nation survey demonstrated a lack of trust in politicians and our system of government, that alone is not enough to prompt people to vote for constitutional transformation. People need to see how a change will make life in Australia better for them. For a republic, the power is shifted from an elite family to the majority through an elected representative.</p>
<p>Republic supporters may be particularly apprehensive, having already <a href="https://theconversation.com/the-history-of-referendums-in-australia-is-riddled-with-failure-albanese-has-much-at-risk-and-much-to-gain-198799">fallen short of a victory</a> in the previous referendum in 1999. Could the voice referendum throw out the republic debate for another decade?</p>
<p>The Albanese government has made it clear the <a href="https://www.smh.com.au/politics/federal/republic-isn-t-on-the-radar-as-pm-names-voice-the-top-priority-20221214-p5c698.html">First Nations Voice must take priority</a>, but has fully committed to a republic referendum, and has <a href="https://www.theguardian.com/australia-news/2022/jun/01/minister-republic-twilight-queen-reign-good-opportunity-next-for-australia">appointed an assistant minister</a> to the project of shaping Australia’s sovereignty.</p>
<p>The Uluru Statement from the Heart states First Nations <a href="https://theconversation.com/what-we-mean-when-we-say-sovereignty-was-never-ceded-195205">sovereignty was never ceded</a> and that it coexists with the sovereignty of the Crown. </p>
<p>Aboriginal and Torres Strait Islander people are not challenging the Crown in the call for self-determination, but for coexistence alongside the Crown. Should that Crown cease to hold sovereignty over Australia, naturally, First Nations people will continue to coexist with whatever sovereignty takes its place.</p>
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<strong>
Read more:
<a href="https://theconversation.com/were-all-in-declares-an-emotional-albanese-as-he-launches-the-wording-for-the-voice-referendum-202435">'We're all in', declares an emotional Albanese as he launches the wording for the Voice referendum</a>
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<h2>How can we best move forward?</h2>
<p>Apart from caring for people, lands and waters, both the Voice to Parliament and the Australian Republic referenda have the potential to bring a more independent identity for our country. </p>
<p>This is especially important as we live in a time where <a href="https://theconversation.com/to-shut-down-far-right-extremism-in-australia-we-must-confront-the-ecosystem-of-hate-154269">far-right groups</a> and false information place Australia’s freedom and democracy at risk. </p>
<p>These steps are also important in addressing the burden of crisis and torment experienced by First Nations people since Britain’s invasion.</p>
<p>The question is no longer whether we should have a voice for First Nations Australia, but why we don’t have one already. Surely the same can be said of our nation’s independence.</p><img src="https://counter.theconversation.com/content/199285/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jesse J. Fleay is affiliated with Australian Labor Party. </span></em></p>In the lead-up to the Voice to parliament referendum, we’re seeing constitutional change is possible. If the Voice is successful, Australia could next consider separating us from the monarchy.Jesse J. Fleay, Republic Constitutional Scholar, Federalist, Co-Author of the Uluru Statement, University of Notre Dame AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2021432023-03-23T01:35:07Z2023-03-23T01:35:07ZWe now know exactly what question the Voice referendum will ask Australians. A constitutional law expert explains<p>The Albanese government has now released the formal wording of the proposed referendum it will introduce into parliament next week. </p>
<p>It had earlier released a draft proposed amendment at the Garma Festival last year, which was intended to start a debate on the wording. Since then, this wording has been the subject of intense discussion and debate in the Referendum Working Group, comprised of Indigenous representatives, which has been advising the government.</p>
<p>It has also been scrutinised by the Constitutional Expert Group, which has provided legal advice in response to questions raised by the Referendum Working Group. </p>
<p>Many other Australians have raised ideas and concerns in the media and in communications with the government, which have been the subject of analysis and deliberation.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-referendum-rules-have-been-decided-what-does-this-mean-for-the-voice-201372">The referendum rules have been decided. What does this mean for the Voice?</a>
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<h2>What do the words say?</h2>
<p>The wording of the proposed amendment will be as follows:</p>
<blockquote>
<p><strong>Chapter IX – Recognition of Aboriginal and Torres Strait Islander Peoples</strong></p>
<p><strong>129 Aboriginal and Torres Strait Islander Voice</strong></p>
<p>In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:</p>
<p>(1) There shall be a body to be called the Aboriginal and Torres Strait Islander Voice;</p>
<p>(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;</p>
<p>(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.</p>
</blockquote>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1638699476826353664"}"></div></p>
<h2>What is new?</h2>
<p>First, it is now clear this amendment will be placed in its own separate chapter at the end of the Constitution in a new section 129. </p>
<p>The title of the chapter makes clear it is directed at the “recognition” of Aboriginal and Torres Strait Islander peoples in the Constitution. </p>
<p>This recognition then flows through to some introductory words which form a preamble at the beginning of the section. These words provide “recognition” of Aboriginal and Torres Strait Islander peoples as the “First Peoples of Australia”.</p>
<p>The terminology used is careful. It avoids the use of “First Nations”, which is politically more contentious and might have given rise to implications drawn from the term “Nation”. </p>
<p>The description “Aboriginal and Torres Strait Islander peoples” is long-standing and well-accepted, and the statement that they were the First Peoples of Australia is one of fact and recognition.</p>
<p>The rest of the proposed amendment remains the same except for a minor alteration of words at the end of sub-section (3). </p>
<p>Importantly, the guaranteed ability of the Voice to make representations to the executive government remains. </p>
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<p>However, concerns about this have been addressed by the alteration to sub-section (3). </p>
<p>The concern that had been raised was the High Court might draw an implication from sub-section (2) the representations by the Voice must be considered by government decision-makers before they can validly make a decision, potentially resulting in litigation and the delay of decision-making. </p>
<p>While this concern had little to no substance, there was a suggestion some words should be added to the end of sub-section (3) to make it abundantly clear it was a matter for parliament to decide what the legal effects of the Voice’s representations would be. </p>
<p>Parliament could make the decision that in some cases decision-makers would be obliged to consider representations first, but there would be no such obligation in relation to other types of decisions.</p>
<p>This has now been accommodated by a compromise set of words added to the end of sub-section (3). </p>
<p>These words say parliament can make laws with respect to “to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.”</p>
<p>The words “relating to” and “including” broaden the scope of this power. </p>
<p>They are intended to permit parliament to legislate about the effect of the Voice’s representations, so it is a matter for parliament to decide whether the representations of the Voice must be considered by decision-makers when making administrative decisions. </p>
<p>They are also intended to permit parliament to extend the powers and functions of the Voice as and when needed in the future.</p>
<h2>The question on the ballot</h2>
<p>The ballot paper never sets out the whole constitutional amendment, as in many cases, it would go for pages. </p>
<p>Instead, voters are asked to approve the proposed law, as it is described in its long title. </p>
<p>So the question put on the ballot will be set out as follows:</p>
<blockquote>
<p>A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.</p>
<p>Do you approve of this alteration?</p>
</blockquote>
<p>Voters then write Yes or No.</p>
<h2>What now?</h2>
<p>The amendment bill is intended to be introduced next week. When it is introduced, a parliamentary committee will be set up to allow the public to make their own submissions about the amendment. </p>
<p>Anyone who has concerns can have their voice heard by the committee and it remains possible that the committee might recommend alterations to the wording. </p>
<p>After the committee reports, the amendment bill will be debated in June and if passed, it will go to a referendum between two and six months after its passage. It will then be a matter for the people to decide.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-happens-if-the-government-goes-against-the-advice-of-the-voice-to-parliament-200517">What happens if the government goes against the advice of the Voice to Parliament?</a>
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<img src="https://counter.theconversation.com/content/202143/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the ARC and occasionally does consultancy work for governments and parliaments. She is a member of the Constitution Expert Group that advised the Referendum Working Group upon the proposed amendment.</span></em></p>Here’s what the question says, what’s new and what happens next.Anne Twomey, Professor emerita, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2006502023-03-01T00:54:36Z2023-03-01T00:54:36ZA Voice to Parliament will not give ‘special treatment’ to Aboriginal and Torres Strait Islander Australians. Here’s why<figure><img src="https://images.theconversation.com/files/512533/original/file-20230227-481-dirk0f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Dan Peled/AAP</span></span></figcaption></figure><p><em>We asked our readers what they would like to know about the proposed Indigenous Voice to Parliament. In the lead-up to the referendum, our expert authors will answer those questions. You can read the other questions and answers <a href="https://theconversation.com/your-questions-answered-on-the-voice-to-parliament-200818">here</a>.</em></p>
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<p>Since Prime Minister Anthony Albanese <a href="https://theconversation.com/albanese-releases-draft-wording-for-indigenous-voice-to-parliament-referendum-187933">released the draft wording</a> for a referendum on an Aboriginal and Torres Strait Islander Voice to Parliament, there has been some misinformation and disingenuous arguments put forward by those in the “no” camp. Let us examine some of their claims.</p>
<p>The first is that there is not enough detail. The <a href="https://voice.niaa.gov.au/sites/default/files/2021-01/indigenous-voice-discussion-paper_1.pdf">necessary information</a> is in fact out there – certainly in sufficient detail for the Coalition junior partner to decide to oppose the Voice. </p>
<p>Still, the Voice has been variously and erroneously <a href="https://www.abc.net.au/news/2022-09-23/fact-check-indigenous-voice-to-parliament-not-a-third-chamber/101460726">mischaracterised</a> as a “third chamber” of parliament, or as a body that would giving Aboriginal peoples “<a href="https://www.rmit.edu.au/news/factlab-meta/the-proposed-indigenous-voice-to-parliament-will-not-confer--spe">special treatment</a>”. Others claim the Voice will have the power of veto. These ideas, perhaps while emotionally appealing, do not accord with current constitutional arrangements, nor with the idea of a Voice to Parliament as proposed by the government.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/an-indigenous-voice-to-parliament-will-not-give-special-rights-or-create-a-veto-196574">An Indigenous Voice to Parliament will not give 'special rights' or create a veto</a>
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<p>Most people seem to understand this, and so the idea that an advisory body with no coercive powers could be imagined as a “third chamber” has recently received little traction. </p>
<p>Despite all of this, the Voice is obviously not going to address every problem facing Aboriginal and Torres Strait Islander people. Instead, it is one positive step towards improving the level of debate and discussion in the area, and moving the nation to truth telling and beyond.</p>
<h2>Why there is no ‘special treatment’ for Aboriginal and Torres Strait Islander peoples</h2>
<p>The term “special treatment” implies Aboriginal and Torres Strait Islander Australians would be given “things” not ordinarily available to others. This is quite disingenuous. To the contrary, of all peoples now sharing this continent, Aboriginal and Torres Strait Islander peoples have been singled out for detrimental treatment under the Constitution. This has resulted in many additional hardships and disadvantages. </p>
<p>The Voice referendum, if successful, will be a modest positive measure. It is an advisory body, that will recommend or suggest changes to improve Australian laws. The Voice will potentially recommend measures to soften laws that parliament can now create under the Constitution, via the broad and coercive “races power”. This allows the parliament to make special laws for Aboriginal and Torres Strait Islander peoples.</p>
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<p>Many judges have taken issue with the “races power”. For example, Justice Robert French <a href="https://www.vgls.vic.gov.au/client/en_AU/vgls/search/detailnonmodal?qu=Constitutional+law+--+Australia.&d=ent%3A%2F%2FSD_ILS%2F0%2FSD_ILS%3A544976%7E%7E0&ps=300&h=8">has argued</a> the “races power” has recently been used against Aboriginal and Torres Strait Islander peoples. </p>
<p>In other words, the “special treatment” that has been meted out to Aboriginal and Torres Strait Islander peoples has often been painful: the removal of their children, for example, to prevent them speaking their language or practising their spiritual and cultural beliefs. </p>
<p>Ideally, the “races power” should be expunged from the Constitution. In the meantime, a Voice to Parliament would help ameliorate its worst excesses. It is time parliament heard Aboriginal and Torres Strait Islander voices, as peoples whose lives we have been altered so completely and without consultation. As the Uluru Statement from the Heart asks: is it not time that this voiceless people is heard? </p>
<p>The Constitution once also mentioned “Aboriginal natives” for the purposes of exclusion. Section 127 excluded “Aboriginal natives” from the count of the human population. </p>
<p>Section 51(xxvi), the “race power”, as enacted, proclaimed the “Aboriginal race” (that is a race other than the Anglo-Celtic majority) were to be regulated by the colonies (and then the states after Federation). While the 1967 referendum was envisaged as creating equality, legal and social equality is yet to be achieved.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-1967-referendum-was-the-most-successful-in-australias-history-but-what-it-can-tell-us-about-2023-is-complicated-198874">The 1967 referendum was the most successful in Australia's history. But what it can tell us about 2023 is complicated</a>
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<h2>An important step on the road to reconciliation</h2>
<p>Australia is the only industrialised nation that allows its parliament to make special detrimental laws for the Indigenous peoples of the land. </p>
<p>Some may argue that parliament can also make beneficial laws for this race of people. However, too often, laws that have been characterised as “beneficial”, such as the laws legitimising the Northern Territory intervention, have in practice proven to be detrimental.</p>
<p>Yes, there are now several Aboriginal and Torres Strait Islander members of parliament across parties, so why isn’t this representation enough? This identification by race is not entirely accurate because under the Westminster democratic process these members or senators do not represent their own race or gender, but are representatives of all voters in their respective electorates. They are also members of political parties, which can inhibit their ability to speak freely in some circumstances. </p>
<p>A Voice will make non-binding representations to parliament, but those who are part of the body are not members of parliament. </p>
<p>A “yes” vote will begin to address some of these and long festering problems in Australia, and help us to heal and move forward as a nation.</p>
<p><em>Correction: this article originally stated Aboriginal and Torres Strait Islanders were regulated as fauna before the 1967 referendum. This reference has been removed.</em></p><img src="https://counter.theconversation.com/content/200650/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Asmi Wood is a member of the Referendum Engagement Group and the Constitutional Expert Group.</span></em></p>A Voice to Parliament will not fix every problem facing Aboriginal and Torres Strait Islander peoples. But it is an important step towards moving the nation to truth telling and beyond.AJ Wood, Professor of law, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2005172023-02-28T05:08:20Z2023-02-28T05:08:20ZWhat happens if the government goes against the advice of the Voice to Parliament?<figure><img src="https://images.theconversation.com/files/512546/original/file-20230227-16-ef8c1p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Mick Tsikas/AAP</span></span></figcaption></figure><p><em>We asked our readers what they would like to know about the proposed Indigenous Voice to Parliament. In the lead-up to the referendum, our expert authors will answer those questions. You can read the other questions and answers <a href="https://theconversation.com/your-questions-answered-on-the-voice-to-parliament-200818">here</a>.</em></p>
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<p>If the government disagrees with representations made by the Voice, the short answer is that the government prevails. Governments and parliaments are elected to represent all the people, not just one group of the people. This means they have to take into account a broad range of considerations, including how to manage the budget and the economy, ensure national security and maintain the social wellbeing of the whole country.</p>
<h2>Ensuring the government and parliament are better informed</h2>
<p>The role of the Voice, if the <a href="https://www.niaa.gov.au/indigenous-affairs/referendum-aboriginal-and-torres-strait-islander-voice#:%7E:text=On%2030%20July%202022%2C%20Prime,Australian%20people%20at%20a%20referendum.">proposed constitutional amendment</a> is passed, would be to ensure the government and parliament are better informed when making laws or decisions on matters relating to Aboriginal and Torres Strait Islander peoples. </p>
<p>The Voice could make representations about how laws and policies have unintended or perverse consequences, or how they could be made more effective and efficient if they operated in a different way. Any sensible government would take such representations seriously when considering how to make or change laws and policies, because everyone wants better results for Indigenous Australians. </p>
<p>Decisions made with the best will in the world from Canberra can always be improved by listening to the people on the ground who are affected by them. The role of the Voice would therefore be important in improving the quality and effectiveness of laws and government policies. But it could not determine what those laws and policies will be. </p>
<p>We have a democratic system for determining who makes the laws and who forms the government, and that is not going to be changed by the proposed constitutional amendment. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/an-indigenous-voice-to-parliament-will-not-give-special-rights-or-create-a-veto-196574">An Indigenous Voice to Parliament will not give 'special rights' or create a veto</a>
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<h2>The influence of the Voice</h2>
<p>The power and influence of the Voice will not be static. It will depend on two factors – relevance and quality. </p>
<p>The proposed amendment, as currently drafted, gives the Voice a potentially wide remit. It says it may make representations to both parliament and the executive government “on matters relating to Aboriginal and Torres Strait Islander peoples”. </p>
<p>This could include laws and policies that specifically relate to Aboriginal and Torres Strait Islander peoples, such as those concerning native title or the protection of cultural heritage. It could also include laws of general application which have a particular impact upon Indigenous Australians. </p>
<p>An example might be a future law that required photo identification for people to be able to vote in federal elections. While such a law would be one of general application, it would most likely have a greater impact upon Aboriginal and Torres Strait Islander people in remote areas who are less likely to have photo IDs. It would be important for the Voice to be able to make representations to parliament about the potential impact of such a law in suppressing the votes of Indigenous Australians and to the government about ways of ensuring all Indigenous Australians are able to vote. </p>
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<img alt="" src="https://images.theconversation.com/files/512565/original/file-20230228-2150-bq6dq3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512565/original/file-20230228-2150-bq6dq3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512565/original/file-20230228-2150-bq6dq3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512565/original/file-20230228-2150-bq6dq3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512565/original/file-20230228-2150-bq6dq3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512565/original/file-20230228-2150-bq6dq3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512565/original/file-20230228-2150-bq6dq3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Voice to Parliament might, for example, give advice on how best to ensure Indigenous Australians are able to vote in elections.</span>
<span class="attribution"><span class="source">Karen Michelmore/AAP</span></span>
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<p>When the Voice makes representations on matters that fall within its expertise and provides insights from those affected on the ground, it will be at its most influential. If, however, the Voice were to make representations on matters that are peripheral to Aboriginal and Torres Strait Islander peoples, or that are not informed by expertise or local experience, then it is much less likely to have influence. </p>
<p>If the Voice, for example, were to make representations on matters concerning Australia’s defence policy or its relations with China, on the basis that there was an incidental effect on exports by Indigenous groups, the government would be unlikely to give its representations much, if any, attention. Instead, it would be far more likely to be influenced by the representations of other bodies that have greater expertise on the subject.</p>
<p>The second factor is the quality of the Voice’s representations. If it makes measured, well-researched, evidence-based representations that make practical suggestions, it is likely to be influential. </p>
<p>However, if it were to spread itself too thin by making poorly considered representations about a wide variety of matters outside its expertise, or make impractical or partisan representations, then it would be less likely to be influential. So it will be a matter for the Voice itself to secure influence by ensuring the high quality of its representations.</p>
<h2>Could the courts force the government or parliament to implement the Voice’s representations?</h2>
<p>The High Court has consistently stayed out of the internal proceedings of parliament. It does not determine what parliament should or should not consider when passing laws. Due to the separation of powers, the courts cannot instruct parliament to give effect to representations by the Voice.</p>
<p>However, the courts can review a government decision that affects the interests of people if it was made in an unfair manner. If, for example, a law said the decision-maker must take into account representations of the Voice before making a certain type of decision, failure to do so would mean the decision was invalid. The court would then send the decision back to the decision-maker to be remade once the relevant representations had been taken into account. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/512566/original/file-20230228-691-e8fg5v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512566/original/file-20230228-691-e8fg5v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512566/original/file-20230228-691-e8fg5v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512566/original/file-20230228-691-e8fg5v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512566/original/file-20230228-691-e8fg5v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512566/original/file-20230228-691-e8fg5v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512566/original/file-20230228-691-e8fg5v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Due to the separation of powers, the High Court cannot force parliament to adopt advice from the Voice.</span>
<span class="attribution"><span class="source">Lukas Coch/AAP</span></span>
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<p>In these cases, the courts are only concerned with the fairness of the process – that the decision is made properly, taking into account all relevant considerations – not the content of the decision. </p>
<p>The decision-maker could remake the decision, taking into account the representation, and still not give effect to the representation. This would be perfectly valid. There is no obligation to give effect to the representation – only to take it into account, if the law requires the decision-maker to do so. </p>
<p><a href="https://theconversation.com/politics-with-michelle-grattan-frank-brennan-on-rewording-voice-question-200442">Some</a> have <a href="https://www.andrewbragg.com/five-reasons">raised concerns</a> that instead of parliament deciding whether a decision-maker has to take into account representations of the Voice in relation to certain decisions, the High Court might interpret the Constitution as requiring this in all cases. This seems most unlikely, given neither the words nor the intent of the provision support such an interpretation. </p>
<p>A former chief justice of Australia, Robert French, has <a href="https://www.auspublaw.org/first-nations-voice/the-voice-a-step-forward-for-australian-nationhood">said</a> there is “little or no scope for any court to find constitutional legal obligations in the facilitative and empowering provisions of the amendment”. In other words, all the amendment does is allow the Voice to make representations - it does not impose legal or constitutional obligations on how the government and parliament respond to them.</p>
<p>So, if the government and parliament disagree with the Voice, they are not required to give effect to its representations. </p>
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Read more:
<a href="https://theconversation.com/no-the-voice-isnt-a-radical-change-to-our-constitution-200056">No, the Voice isn't a 'radical' change to our Constitution</a>
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<h2>Will this leave the Voice ineffective?</h2>
<p>If neither the government nor parliament is required to do what the Voice says, does this leave the Voice ineffective? No. The point of the Voice is to use political pressure to influence parliament and the government <em>before</em> laws and decisions are made, rather than to take legal action to attack laws and decisions <em>after</em> they are made. </p>
<p>That influence will be effective if the Voice makes high-quality representations within its expertise that, if adopted, would result in better outcomes for Indigenous Australians. Achieving better outcomes is the one thing everyone wants, so if the Voice fulfils its role in contributing to that, it will be an effective and valued national institution.</p><img src="https://counter.theconversation.com/content/200517/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the ARC and sometimes does consultancy work for governments, Parliaments and inter-governmental bodies. She is currently a member of the Constitutional Expert Group advising the Referendum Working Group on the proposed referendum, but this article represents her own views and does not purport to represent those of the Expert Group or the Commonwealth Government. She has also written extensively in the past on Indigenous constitutional recognition, including drafting a number of different versions of a proposed constitutional amendment and worked with the Cape York Institute and others on an early versions of the Voice proposal. </span></em></p>The Voice to Parliament is an advisory body, which means neither parliament nor the government is legally required to give effect to its representations.Anne Twomey, Professor emerita, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2000562023-02-22T19:05:18Z2023-02-22T19:05:18ZNo, the Voice isn’t a ‘radical’ change to our Constitution<p>Some people have criticised the draft proposal for a First Nations Voice as a <a href="https://www.skynews.com.au/opinion/peta-credlin/voice-to-parliament-a-trojan-horse-in-the-heart-of-australias-constitution/video/a2c545aa48d85dfdf4d6cd458c2542ef">radical</a> change to Australia’s Constitution.</p>
<p>This view is reflected in <a href="https://www.smh.com.au/national/voice-s-ability-to-lobby-bureaucrats-crucial-advocate-says-amid-high-court-challenge-fears-20230205-p5ci0g.html">recent calls</a> by some Liberal members of parliament for a different model that will be palatable to constitutional conservatives, and in <a href="https://www.afr.com/politics/federal/we-need-a-minimalist-voice-the-whole-country-can-support-20230207-p5cijp">concerns expressed</a> by some commentators.</p>
<p>But this is incorrect – the current model for the Voice is constitutionally conservative. </p>
<p>Here’s why.</p>
<h2>Conservative or radical?</h2>
<p>A quick reminder. The government is made up of three branches:</p>
<ul>
<li><p>the legislature (the parliament, which makes laws)</p></li>
<li><p>the executive (the cabinet — the prime minister and senior ministers — and government departments, which create policy and put laws into action)</p></li>
<li><p>and the judiciary (the High Court and other courts, which interpret laws).</p></li>
</ul>
<p>The current draft of the constitutional amendment would allow the Voice to advise both the legislature and the executive. Proponents of this <a href="https://www.smh.com.au/national/voice-s-ability-to-lobby-bureaucrats-crucial-advocate-says-amid-high-court-challenge-fears-20230205-p5ci0g.html">say</a> it’s important the Voice is able to lobby both the parliament as well as cabinet ministers and government departments.</p>
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Read more:
<a href="https://theconversation.com/the-voice-referendum-how-did-we-get-here-and-where-are-we-going-heres-what-we-know-198299">The Voice referendum: how did we get here and where are we going? Here's what we know</a>
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<p>But some critics <a href="https://www.smh.com.au/national/voice-s-ability-to-lobby-bureaucrats-crucial-advocate-says-amid-high-court-challenge-fears-20230205-p5ci0g.html">have suggested</a> the Voice should advise parliament <em>alone</em>, and not the executive. That would help ensure the Voice doesn’t lead to High Court challenges, especially challenges to cabinet decisions that don’t properly consider the Voice’s advice.</p>
<p>The concern here is that the Voice could significantly change the country’s constitutional structure by shifting power over Aboriginal and Torres Strait Islander affairs from the executive and parliament to the judiciary. </p>
<p>Liberal Senator Andrew Bragg <a href="https://www.smh.com.au/national/voice-s-ability-to-lobby-bureaucrats-crucial-advocate-says-amid-high-court-challenge-fears-20230205-p5ci0g.html">said</a>: “No one wants a transfer of power from parliament to the High Court; we want to avoid becoming like the US.”</p>
<p>However, allowing the Voice to advise both the executive and parliament <em>is</em> the constitutionally conservative option. To put it another way, it’s the model most consistent with Australia’s current and historical constitutional practice. </p>
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<h2>A consistent change</h2>
<p>A key feature of Australia’s constitutional system is that lawmaking is an integrated process shared by the executive and parliament. Parliament publicly debates and formally enacts legislation. The executive does most of the policy formation before laws are enacted, and most of the implementation after they’re enacted. </p>
<p>The executive is also responsible for making large swathes of legislation through its delegated lawmaking powers. </p>
<p>A model where the Voice can only advise parliament, and not also the executive, presumes a clear distinction between the two arms of government that doesn’t exist in Australia.</p>
<p>To minimise disruption to the existing constitutional system, the Voice needs to be structured in a way that allows it to work with the lawmaking process as it currently operates.</p>
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<p>The <a href="https://www.pm.gov.au/media/address-garma-festival">current draft</a> of the proposed text on the Voice affirms, and in fact expands, parliament’s power. It reads:</p>
<ol>
<li><p>There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.</p></li>
<li><p>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.</p></li>
<li><p>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.</p></li>
</ol>
<p>Parliament is the institution given the power to make laws about the Voice’s constitution. This provides parliament with the ability to adapt and develop the Voice in the future, as circumstances require. This is consistent with the role parliament performs in relation to other institutions mentioned in the Constitution.</p>
<p>The draft text confers no new role or powers on the High Court, which is another way in which the Voice is constitutionally conservative. It reinforces the existing centres of decision-making on Aboriginal and Torres Strait Islander affairs – the executive and parliament – by establishing a body that gives advice to these arms of government.</p>
<p>What’s more, attempting to immunise the Voice completely from legal challenge would be far from constitutionally conservative. No part of the Australian Constitution has ever been entirely immune from litigation.</p>
<p>It’s a fundamental aspect of the rule of law in Australia that the judiciary ensures the Constitution is respected. That has been the case since federation. The current draft of the constitutional amendment reflects that fact. It leaves the judiciary to interpret the Voice’s provisions in the same way it has interpreted the Constitution’s other provisions for the past 120 years.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/young-people-may-decide-the-outcome-of-the-voice-referendum-heres-why-199599">Young people may decide the outcome of the Voice referendum – here's why</a>
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<p>Possible modifications to the text designed to reduce the chance of High Court litigation could, in fact, increase the chance of litigation and possibly take power away from parliament.</p>
<p>Say, for example, the text is changed to state that the Voice may give advice only to parliament. What if parliament later decides it wants the Voice to give advice directly to the minister for Indigenous Australians? That choice would now give rise to the prospect of litigation and invalidation. The High Court could be asked: has parliament exceeded its constitutional powers because the text of the Constitution refers only to advice to parliament?</p>
<p>Even if the text is modified in other ways, separating advice given to the executive from that given to parliament would introduce a narrow distinction into the Constitution. Those types of distinctions are a common cause of High Court litigation.</p>
<p>For those seeking a constitutionally conservative option for the Voice, the model that aligns most closely with the existing system of government is one that allows the Voice to advise both arms of government, grants parliament broad powers to regulate the Voice, and leaves the High Court’s longstanding supervisory jurisdiction intact.</p><img src="https://counter.theconversation.com/content/200056/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Scott Stephenson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The current draft wording is the model most consistent with Australia’s current and historical constitutional practice.Scott Stephenson, Associate Professor of Law, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1982992023-02-03T03:27:04Z2023-02-03T03:27:04ZThe Voice referendum: how did we get here and where are we going? Here’s what we know<p>Prime Minister Anthony Albanese <a href="https://indaily.com.au/news/2023/02/02/dutton-to-meet-indigenous-voice-supporters/">has confirmed</a> that sometime between August and November this year, the Australian people will go to a referendum for the first time since 1999.</p>
<p>We’ll be asked whether we support changing the Constitution to recognise Aboriginal and Torres Strait Islander people through the establishment of a representative Voice to inform government and parliamentary decisions.</p>
<p>For many people, following the process leading up to the referendum so far has been confusing.</p>
<p>So where are we, and what’s ahead?</p>
<h2>Unorthodox and historic</h2>
<p>This week, following a meeting of the government’s Referendum Working Group, the Shadow Minister for Indigenous Australians Julian Leeser <a href="https://www.smh.com.au/politics/federal/indigenous-australians-to-be-formally-recognised-in-voice-proposal-20230202-p5chgs.html">claimed</a> the process leading up to this referendum had been “unorthodox”, in that it hadn’t included a <a href="https://www.theguardian.com/australia-news/2023/feb/02/indigenous-voice-to-parliament-peter-dutton-liberal-julian-leeser-referendum-working-group">constitutional convention</a>, a parliamentary inquiry or further public consultation.</p>
<p>This statement is both right and wrong.</p>
<p>It’s right in that the process leading up to this referendum has been unorthodox. But that’s because this referendum is historic. It’s about recognising the place of First Nations in the Australian Constitution.</p>
<p>This isn’t the first time we’ve attempted this: some may remember the failed attempt made by Prime Minister John Howard in 1999, when Aboriginal and Torres Strait Islander people were referred to passingly in a preamble. That was a proposal that involved no consultation with the Australian public or First Nations people.</p>
<p>Leeser is wrong in that, while there is a custom to have a constitutional reform mechanism of some kind prior to a referendum, that hasn’t always been the case. A constitutional convention has only been held three times since 1901. So the type of mechanism isn’t set. And in contrast to the 1999 attempt, behind the current attempt at recognition sits a world-leading deliberative process that was conducted by Aboriginal and Torres Strait Islander people.</p>
<p>An <a href="https://ulurustatement.org/the-statement/the-dialogues/">extraordinary, unorthodox and historic process</a> unfolded across 2016 and 2017. Funded by the government with bipartisan support, 12 regional dialogues with Aboriginal and Torres Strait Islander people were held, which culminated in the First Nations Constitutional Convention and the delivery of the Uluru Statement from the Heart in May 2017.</p>
<p>That statement was issued directly to the Australian people, asking for constitutional recognition in the form of a First Nations Voice to speak to Parliament on decisions, policies and laws that affect Aboriginal and Torres Strait Islander people.</p>
<p>This constitutional reform process may be unorthodox, but it’s entirely appropriate. This referendum isn’t about what form of recognition Australian people want to give Aboriginal and Torres Strait Islander people, but whether they will accept the form of recognition being sought by First Nations. Australia is engaging in an exercise of mutual recognition that offers a respectful relationship forward for all Australians.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/non-indigenous-australians-shouldnt-fear-a-first-nations-voice-to-parliament-176675">Non-Indigenous Australians shouldn't fear a First Nations Voice to Parliament</a>
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<p>But that’s not to say there hasn’t been formal public consultation, or a parliamentary inquiry. That’s where Leeser is also wrong. This is one of the most scrutinised and critiqued proposals ever developed. Since 2010, there have been ten reports on constitutional recognition, many of which engaged in extensive public consultation.</p>
<p>Let’s take a look at just a few.</p>
<p>The <a href="https://www.referendumcouncil.org.au/sites/default/files/report_attachments/Referendum_Council_Final_Report.pdf">Referendum Council</a>, which oversaw the regional dialogues, also conducted an extensive public inquiry, including digital and public submissions. This revealed the strongest support (more than 90%) for Aboriginal and Torres Strait Islander people having a say when parliament makes laws and policies relating to Indigenous affairs.</p>
<p>In 2018, a <a href="https://www.aph.gov.au/constitutionalrecognition">joint parliamentary inquiry</a>, chaired by Leeser and Labor Senator Patrick Dodson, looked at the question of constitutional recognition. It received almost 500 public submissions, and undertook hearings. While its terms of reference were wide, the committee concluded, based on its public consultations and inquiries, that the Uluru Statement from the Heart “was a major turning point in the debate”, and focused all of its attention on the Voice proposal.</p>
<p>In 2021, the Morrison government’s co-design process in relation to the design of a Voice delivered a report on the design of a non-constitutional Voice. Despite the question of constitutional enshrinement being outside the terms of reference of that body, the <a href="https://voice.niaa.gov.au/sites/default/files/2021-12/indigenous-voice-co-design-process-final-report_1.pdf">final report</a> noted high levels of support for it. Indeed, the Indigenous Law Centre <a href="https://www.indigconlaw.org/home/expert-analysis-of-the-niaa-public-consultations">reported</a> that more than 90% of the thousands of public submissions made to that process expressed support for a constitutional First Nations Voice.</p>
<h2>What we know already</h2>
<p>There has been a lot of <a href="https://www.abc.net.au/news/2023-01-25/voice-to-parliament-albanese-dutton-strategies-referendum/101886144">political debate</a> about whether we know enough “detail” about the Voice. There is, unfortunately, a fair amount of confusion about what detail we need to make an informed vote on the constitutional amendment, and what detail should – appropriately – be left for future legislation to determine.</p>
<p>But we do know a lot about what we’re going to be voting on. Here’s a brief run-down:</p>
<ul>
<li><p>the referendum is about recognising Aboriginal and Torres Strait Islander people as the First Nations of Australia, and providing a structural change to our Constitution that gives them a body to speak to Parliament and government in order to improve decisions, policies and laws that affect them. It’s about making a practical difference in the lives of Aboriginal and Torres Strait Islander people</p></li>
<li><p>we have seen a draft version of the words that the Australian people are going to be asked to vote on, which was <a href="https://www.pm.gov.au/media/address-garma-festival#:%7E:text=I%20am%20determined%2C%20as%20a,government%20and%20First%20Nations%20people">released</a> by the prime minister at Garma in July 2022. The Referendum Working Group and the Constitutional Expert Group has been working on this drafting for a number of months, with publicly available summaries of their advice</p></li>
<li><p>it’s not about giving Aboriginal and Torres Strait Islander people <a href="https://www.rmit.edu.au/news/factlab-meta/the-proposed-indigenous-voice-to-parliament-will-not-confer--spe">special rights</a>, but providing them input in the decision-making processes of government and Parliament. This is the type of participation right that articles 18 and 19 the <a href="https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf">UN Declaration of Rights of Indigenous Peoples</a> (to which Australia is a signatory) guarantees </p></li>
<li><p>it <a href="https://www.rmit.edu.au/news/factlab-meta/will-the-proposed-indigenous-voice-to-parliament-become-a-third-">won’t have a veto power</a></p></li>
<li><p>as it doesn’t have a veto power, constitutional enshrinement of the Voice is <a href="https://www.indigconlaw.org/home/submission-the-imperative-of-constitutional-enshrinement">vital to its success</a>. The extensive submissions to the 2020-2021 co-design process explained constitutional enshrinement was the only way the Voice would be set up for success with the stability, independence and authority it needed to shift the political dynamic in Indigenous law and policy. We know legislated and non-legislated bodies have been tried in the past – and failed. So it’s not a case where we could legislate the Voice first, because that would be a different beast</p></li>
<li><p>it <a href="https://www.theguardian.com/australia-news/2023/jan/26/will-indigenous-voice-to-parliament-impact-first-nations-sovereignty-explainer">won’t cede the sovereignty</a> of Aboriginal and Torres Strait Islander people.</p></li>
</ul>
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<p>There are a lot of other questions out there about the eligibility of individuals to serve on the Voice, the selection of members, the number of members, the cost of the body, and more detail about its operations and accountability. We don’t yet have specific answers to these questions – although there are <a href="https://voice.niaa.gov.au/news/communique-referendum-working-group-september-2022">agreed principles</a> that provide a general guide to some of them.</p>
<p>But these aren’t details that will be included in the constitutional amendment. They won’t be set into the Constitution, unable to be changed. These are details that will need closer consultation with Aboriginal and Torres Strait Islander people, and within government and parliament, to determine. They’re likely to be subject to change as circumstances change. We are not being asked to vote on these details.</p>
<p>There’s nothing sinister about this, and nothing is being “hidden” from us. The detail will be included in legislation to follow the referendum. Just like legislation establishing the High Court, the number and qualifications of judges, and the scope of its jurisdictions was introduced after the Constitution was passed, and has been amended occasionally subsequently.</p>
<p>The legislation that establishes the detail of the Voice will be subject to the ordinary, public and transparent parliamentary processes, to which the government and Parliament are ultimately accountable to the Australian people.</p>
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<strong>
Read more:
<a href="https://theconversation.com/could-the-nationals-refusal-to-support-a-voice-to-parliament-derail-the-referendum-195552">Could the Nationals' refusal to support a Voice to Parliament derail the referendum?</a>
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<h2>The next steps</h2>
<p>While we know a lot, there’s more to come. Here are three key moments in the referendum timeline which will unfold in the next couple of months:</p>
<p><strong>1. This month</strong>, the Yes and No <a href="https://www.smh.com.au/politics/federal/what-to-expect-from-the-yes-and-no-campaigns-for-the-voice-20230127-p5cfxo.html">campaigns</a> will launch (these aren’t government-funded or affiliated). On February 18, the Yes campaign will launch a national week of action on the referendum proposal. There will be lots of information and opportunities to learn more about the proposal, and the key arguments for and against it.</p>
<p><strong>2. On February 10</strong>, the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters/ReferendumMachineryBill">Joint Standing Committee on Electoral Matters</a> will report on the government’s <a href="https://theconversation.com/the-government-wants-to-change-australias-referendum-laws-how-will-this-affect-the-voice-to-parliament-195632">proposed changes</a> to how the referendum will be conducted, including removing the partisan Yes/No pamphlet and replacing it with a government-funded information campaign. More information will follow about the government’s planned information campaign, and of course, the campaign itself will roll out soon.</p>
<p><strong>3. In March</strong>, the referendum working group will finalise its recommendations to the government, with the constitutional amendment bill introduced into parliament. The bill needs to pass with an absolute majority in both houses, before being put to a referendum within two to six months. The government is saying the referendum will likely be held between August and November, depending on the passage of the bill. The bill will contain the government’s final proposed wording for the constitutional amendment, and it will be subject to robust parliamentary inquiry, including in the Senate’s scrutiny committees, and a public submission and hearing process.</p><img src="https://counter.theconversation.com/content/198299/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Appleby is a member of the Indigenous Law Centre at UNSW Law & Justice. In 2016-2017 she provided pro bono expert assistance to the Regional Dialogues and the First Nations Constitutional Convention that delivered the Uluru Statement from the Heart. She is a Director of the Centre for Public Integrity.</span></em></p>This constitutional reform process may be ‘unorthodox’, but it’s entirely appropriate.Gabrielle Appleby, Professor, UNSW Law School, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1965742022-12-14T06:50:20Z2022-12-14T06:50:20ZAn Indigenous Voice to Parliament will not give ‘special rights’ or create a veto<figure><img src="https://images.theconversation.com/files/500962/original/file-20221214-24-cj9xs2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Mick Tsikas/AAP</span></span></figcaption></figure><p>The Constitutional Expert Group, appointed to advise on the proposed Voice to Parliament referendum, has <a href="https://voice.niaa.gov.au/news/communique-referendum-working-group-december-2022">concluded</a> that the “draft amendment is constitutionally sound” and does not amount to a “veto” power or provide anyone with “special rights”. </p>
<p>How does this fit into the current debate?</p>
<h2>What is the composition and role of this expert group?</h2>
<p>In the lead-up to its proposed referendum on an Indigenous Voice, the Commonwealth government appointed three bodies to advise it. The first is the Referendum Working Group. It is <a href="https://voice.niaa.gov.au/who-involved">comprised of</a> Indigenous leaders from across the country, including Marcia Langton, Tom Calma, Pat Anderson, Jackie Huggins, Ken Wyatt and Galarrwuy Yunupingu. It is co-chaired by Minister for Indigenous Australians Linda Burney and Special Envoy Patrick Dodson.</p>
<p>There is also a second broader group, the Referendum Engagement Group, which includes representatives from land councils, local government and community organisations to advise on how to build community understanding and awareness of the referendum.</p>
<p>Finally, the third smaller group is the Constitutional Expert Group. It is comprised of Greg Craven, Megan Davis, Kenneth Hayne, Noel Pearson, Cheryl Saunders, George Williams, Asmi Wood and me. Its role is to answer legal and constitutional questions raised by the Referendum Working Group. It is chaired by Attorney-General Mark Dreyfus.</p>
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<h2>What advice has the Constitutional Expert Group given?</h2>
<p>The Constitutional Expert Group has had three meetings, and has provided advice to the working group on a number of specific questions. </p>
<p>At its meeting on December 13, the working group released a <a href="https://voice.niaa.gov.au/news/communique-referendum-working-group-december-2022">communique</a>, to which it attached a brief summary from the Constitutional Expert Group of the conclusions it reached about the first round of questions sent to it from the Working Group. </p>
<p>Additional questions have been asked and further advice will be given by the Constitutional Expert Group in the future.</p>
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Read more:
<a href="https://theconversation.com/the-government-will-not-send-out-yes-and-no-case-pamphlets-ahead-of-the-voice-to-parliament-referendum-does-this-matter-195806">The government will not send out Yes and No case pamphlets ahead of the Voice to Parliament referendum. Does this matter?</a>
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<h2>What did the advice say?</h2>
<p>The first point made by the expert group was that while there were different policy and process approaches that could be followed, the draft amendment proposed by the prime minister was constitutionally sound and provided a strong basis on which to conduct further consultation. That proposed amendment is as <a href="https://www.pm.gov.au/media/address-garma-festival">follows</a>:</p>
<ol>
<li> There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.</li>
<li> 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.</li>
<li> 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.</li>
</ol>
<h2>No veto power</h2>
<p>The expert group unanimously agreed this form of an amendment would not result in the Voice having a veto power over the actions of parliament or the executive government. The power and function of the Voice is to make representations. It cannot dictate, demand or veto. </p>
<p>What use the parliament or the executive government makes of those representations is a matter for it, as is appropriate in a system of representative and responsible government. </p>
<p>The aim is to ensure those institutions are better informed when they make decisions and exercise their powers on matters relating to Aboriginal and Torres Strait Islander peoples. There is no intention to create a body that would have any overriding power.</p>
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<strong>
Read more:
<a href="https://theconversation.com/changing-the-australian-constitution-is-not-easy-but-we-need-to-stop-thinking-its-impossible-183626">Changing the Australian Constitution is not easy. But we need to stop thinking it's impossible</a>
</strong>
</em>
</p>
<hr>
<h2>No special rights</h2>
<p>The expert group was also unanimously of the view that the proposed amendment would not confer “special rights” on anyone. It would instead establish a body that could make representations to parliament and the executive. </p>
<p>Anyone and any organisation can also make representations to parliament and the executive. This often happens when parliamentary committees examine bills, or governments consult stakeholders on proposed policy changes, or when bodies (such as business organisations, unions, industry groups, community groups and charities) lobby the government. </p>
<p>The constitutionally implied freedom of political communication ensures individuals and groups within Australia remain free to make representations to parliament and the government on political matters. The expert panel noted the establishment of the Voice would not “change or take away any right, power or privilege of anyone who is not Indigenous”.</p>
<p>The proposed constitutional amendment does not confer special rights upon people to participate in, or choose the membership of, the Voice. It leaves for parliament the power to decide the composition of the Voice.</p>
<h2>A new chapter in the Constitution</h2>
<p>The Constitutional Expert Group agreed the placement of this proposed amendment should be in its own separate chapter of the Constitution. There were different views about where it should be placed, but it was agreed it should be somewhere after the first three chapters, which deal with the parliament, the executive government and the courts.</p>
<h2>Functions of the Voice</h2>
<p>The proposed amendment states the Voice “may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples”. This is its primary function. But it also permits parliament to “make laws with respect to the composition, functions, powers and procedures” of the Voice. </p>
<h2>Further advice</h2>
<p>The Constitutional Expert Group will continue to provide advice to the working group, at its request, as issues arise. This advice will feed into the public debate as we proceed towards the proposed referendum.</p><img src="https://counter.theconversation.com/content/196574/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the ARC and occasionally does consultancy work for governments, Parliaments and intergovernmental bodies. She is a member of the Constitutional Expert Group advising the Referendum Working Group.</span></em></p>An expert group formed to advise on the Voice to Parliament finds it will not give any group of Australians special rights over any other.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1956322022-12-06T19:03:15Z2022-12-06T19:03:15ZThe government wants to change Australia’s referendum laws. How will this affect the Voice to Parliament?<figure><img src="https://images.theconversation.com/files/499127/original/file-20221205-20-cjl5s5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Lukas Coch/AAP</span></span></figcaption></figure><p>Last week, the Albanese government took another important step towards the referendum on a Voice to Parliament. It introduced a <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6965">bill</a> to make changes to our referendum process, including new arrangements for public education and campaign finance.</p>
<p>Getting the referendum process right is essential if the Voice vote is to be fair and informed. So, what changes has the government proposed, and will they help to achieve that?</p>
<h2>Modernising our outdated referendum rules</h2>
<p>It is more than 20 years since Australia held its last referendum in 1999. That is the longest period in our history without a vote on constitutional change. So much time has passed that only Australians over 40 have any experience voting in a referendum.</p>
<p>One of the effects of this long gap is that the laws governing the referendum process have become stale. Unlike election laws, they have not always been updated to reflect changes in voting and campaigning. And some aspects – like the design of the referendum pamphlet – have barely changed in over a century.</p>
<p>With a Voice referendum on the horizon, it was clear a big update was needed. A major <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Constitutionalreform/Report">parliamentary inquiry</a> said as much in December 2021 when it called Australia’s <a href="https://www.legislation.gov.au/Details/C2022C00073">Referendum Act</a> “outdated and not suitable for a referendum in contemporary Australia”.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/499164/original/file-20221206-17-lsu8aw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/499164/original/file-20221206-17-lsu8aw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=655&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499164/original/file-20221206-17-lsu8aw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=655&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499164/original/file-20221206-17-lsu8aw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=655&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499164/original/file-20221206-17-lsu8aw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=823&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499164/original/file-20221206-17-lsu8aw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=823&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499164/original/file-20221206-17-lsu8aw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=823&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The last time Australians were asked to consider a constitutional change was in 1999, when the republic referendum was held and failed.</span>
<span class="attribution"><span class="source">Parliament of Australia</span></span>
</figcaption>
</figure>
<p>The federal government proposes to modernise the law in several areas. The arrangements for postal voting, authorisation of advertisements and ballot scrutiny would all be brought into line with election laws.</p>
<p>But the more noteworthy changes concern public education and campaign finance. These are the most sensitive areas covered by the bill and will attract the most debate in the months ahead.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-government-will-not-send-out-yes-and-no-case-pamphlets-ahead-of-the-voice-to-parliament-referendum-does-this-matter-195806">The government will not send out Yes and No case pamphlets ahead of the Voice to Parliament referendum. Does this matter?</a>
</strong>
</em>
</p>
<hr>
<h2>Scrapping the pamphlet</h2>
<p>In a surprise move, the government wants to drop the official Yes/No pamphlet for the Voice referendum.</p>
<p>For over a century, the usual practice has been for governments to mail voters a pamphlet that contains official Yes and No arguments authorised by members of parliament.</p>
<p>The Bill suspends this practice for any referendum held during this parliamentary term. The government <a href="https://ministers.ag.gov.au/media-centre/next-steps-towards-voice-referendum-01-12-2022">says</a> the circulation of a hard-copy pamphlet is outdated in the digital age and that MPs can make their case in other ways, including via television and social media.</p>
<p>The pamphlet has never lived up to its promise as an educative tool. It is designed to persuade, not inform. Past pamphlets have often contained exaggerated or misleading claims that seem designed to confuse or frighten voters. In 1974, for example, the No campaign said “democracy could not survive” a change to how electorates were drawn. At its worst, the pamphlet can serve to spread misinformation rather than counter it.</p>
<p>All the same, many voters will want an accessible source of official information, both on the proposal and the arguments for and against change, to help them make up their own mind. A hard-copy pamphlet can serve that purpose, even in a digital age.</p>
<p>Rather than ditching the pamphlet, the parliament should reform it. It should be revised to include a clear, factual explanation of the proposal, just like similar pamphlets in <a href="https://www.refcom.ie/previous-referendums/referendum-on-termination-of-pregnancy/36th-Refcom-Guide-2018-English.pdf">Ireland</a>, California and New South Wales. The arguments for and against should be shorter, calmer and more considered. And if we can’t trust politicians to formulate quality Yes and No cases, we should give that task to public servants or an independent body.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1599184297503903744"}"></div></p>
<h2>Civics education</h2>
<p>The government says it wants to <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F26234%2F0045%22">focus</a> its public education efforts on a civics campaign that will provide voters with information about “Australia’s constitution, the referendum process, and factual information about the referendum proposal”. The bill temporarily lifts a block on government spending to allow that to happen.</p>
<p>This move is promising, and there is a precedent for it – the Howard government funded a neutral education program for the republic referendum.</p>
<p>But the government has not provided any detail on how the campaign would run. Careful design is crucial if it is to be trusted and effective.</p>
<p>Here the government should heed the recommendation of the 2021 parliamentary inquiry and establish an independent referendum panel to advise on, or even run, the civics campaign. A <a href="https://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=/laca/referendums/report.htm">2009 inquiry</a> suggested the same.</p>
<p>To ensure public confidence in the body, its membership could be appointed by the prime minister in consultation with other parliamentary leaders. Ideally, the members would come from diverse backgrounds. The inquiry recommended a panel comprising “constitutional law and public communication experts, representatives from the AEC and/or other government agencies, and community representatives”.</p>
<p>It was disappointing that last week’s announcement made no mention of this idea. The creation of a well-designed, independent body to oversee public education could make a huge difference to voters looking for accessible, balanced and reliable information on the Voice.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/499167/original/file-20221206-16-jxhb3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/499167/original/file-20221206-16-jxhb3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499167/original/file-20221206-16-jxhb3b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499167/original/file-20221206-16-jxhb3b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499167/original/file-20221206-16-jxhb3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499167/original/file-20221206-16-jxhb3b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499167/original/file-20221206-16-jxhb3b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">It’s a shame parliament has waited so long to make changes to referendum law. But now it has a brief window to explain the changes to Australians.</span>
<span class="attribution"><span class="source">Mick Tsikas/AAP</span></span>
</figcaption>
</figure>
<h2>No public funding for the Yes and No campaigns</h2>
<p>The government has <a href="https://www.theguardian.com/australia-news/2022/dec/01/indigenous-voice-to-parliament-referendum-vote-foreign-donations-banned-and-campaigns-forced-to-raise-their-own-cash">said</a> it won’t provide public funding to the Yes and No campaigns. Both sides will instead have to rely on private fundraising to pay for advertising and other campaign activities.</p>
<p>This approach has been the norm over Australia’s referendum history. Howard allocated public money to the Yes and No sides in 1999, but that remains a one-off.</p>
<h2>Transparency and accountability in campaign finance</h2>
<p>The bill makes long-overdue changes to the rules on referendum campaign finance.</p>
<p>Labor wants campaigners to publicly report donations and expenditure that exceed the disclosure threshold (which is currently set at $15,200). It would also restrict foreign influence by banning foreign donations over $100.</p>
<p>These changes bring referendum laws into line with ordinary election laws – for better and worse.</p>
<p>They will help to improve accountability and transparency. But they replicate the failings of election laws and fall well short of best practice.</p>
<p>The disclosure threshold is too high, ensuring some large donations will remain anonymous. And Australians will have to wait until after the referendum to find out who gave money to the Yes and No campaigns.</p>
<p>A better approach would be to set a lower threshold and require real-time disclosure, as occurs in some states.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-do-we-know-about-the-voice-to-parliament-design-and-what-do-we-still-need-to-know-195720">What do we know about the Voice to Parliament design, and what do we still need to know?</a>
</strong>
</em>
</p>
<hr>
<h2>The dangers of last-minute rule changes</h2>
<p>Australia’s referendum laws need an overhaul. The government’s bill is a step in the right direction, although it falls short in important areas. It has been referred to the electoral matters committee and will be debated in the new year.</p>
<p>It is unclear if the major parties will reach consensus on all aspects of the bill. The decision to axe the pamphlet has already proved contentious. The Liberal opposition has <a href="https://www.senatorhume.com/media/labors-lack-of-detail-of-risks-the-voice">said</a> that suspending the pamphlet is “worrying” and “puts a successful referendum at risk”.</p>
<p>Unfortunately, conversations about the referendum process are much harder on the eve of a vote. Rule changes, even when well-intentioned, are more likely to be viewed as strategic or self-interested.</p>
<p>Given our long referendum hiatus, it is a shame parliament has waited until now to seriously consider these process reforms. </p>
<p>However, there is now a short window for parliamentarians to work seriously and cooperatively towards a framework that will ensure a fair and informed vote on the Voice to Parliament.</p><img src="https://counter.theconversation.com/content/195632/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Kildea has previously received funding from the Australian Research Council.</span></em></p>The Albanese government wants to change the way referendums work ahead of the Voice to Parliament vote. There are still flaws, but it is a step in the right direction.Paul Kildea, Senior Lecturer, Faculty of Law & Justice, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1958062022-12-02T05:12:55Z2022-12-02T05:12:55ZThe government will not send out Yes and No case pamphlets ahead of the Voice to Parliament referendum. Does this matter?<p>The Albanese government <a href="https://ministers.ag.gov.au/media-centre/next-steps-towards-voice-referendum-01-12-2022">proposes</a> to ditch the “Yes/No” case pamphlets that are ordinarily posted to voters before a referendum. Is this a good idea, and what, if anything, should replace it?</p>
<h2>What changes are proposed?</h2>
<p>Under the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/rpa1984353/s11.html">existing law</a>, after a proposed constitutional amendment is passed by parliament, a majority of MPs who voted for it may prepare a written Yes case of up to 2,000 words. If any members voted against it in parliament, they can prepare the official No case. </p>
<p>Before the referendum, the electoral commissioner sends a pamphlet in the mail to every voter. This includes the Yes case and the No case (if one has been provided) as well as a copy of the proposed changes to be made to the Constitution. This is the only official information given to voters to help them decide how to vote in the referendum.</p>
<p>The Commonwealth government is currently prohibited from otherwise spending money on the presentation of arguments for or against a referendum proposal. </p>
<p>In its <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6965">Referendum (Machinery Provisions) Amendment Bill 2022</a>, the Albanese government intends to “disapply” the relevant section so it ceases to operate until the next general election. The effect would be that there would be no official Yes/No case distributed to voters for any referendum held in this term of parliament, and no legal restriction on government spending on the referendum campaign.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/creating-a-constitutional-voice-the-words-that-could-change-australia-187972">Creating a constitutional Voice – the words that could change Australia</a>
</strong>
</em>
</p>
<hr>
<h2>What is the point of the Yes/No case?</h2>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/498645/original/file-20221202-19-xmkv40.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/498645/original/file-20221202-19-xmkv40.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=809&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498645/original/file-20221202-19-xmkv40.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=809&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498645/original/file-20221202-19-xmkv40.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=809&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498645/original/file-20221202-19-xmkv40.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1017&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498645/original/file-20221202-19-xmkv40.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1017&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498645/original/file-20221202-19-xmkv40.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1017&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Attorney-General Billy Hughes had a rather naive idea of how the Yes/No case pamphlets might be used.</span>
<span class="attribution"><span class="source">Australian War Memorial</span></span>
</figcaption>
</figure>
<p>The Yes/No case pamphlet was first required by a law enacted <a href="https://www.legislation.gov.au/Details/C1912A00035">in 1912</a>. It was introduced due to a concern that the previous referendum had failed because the voters were inadequately informed. </p>
<p>Opposition Leader Alfred Deakin, who had opposed the previous referendum, was nonetheless supportive of introducing better public education on referendums. He <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;db=HANSARD80;id=hansard80%2Fhansardr80%2F1912-12-16%2F0057;orderBy=_fragment_number,doc_date-rev;query=Dataset%3Ahansardr,hansardr80%20Decade%3A%221910s%22%20Year%3A%221912%22%20Month%3A%2212%22%20Day%3A%2216%22;rec=0;resCount=Default">argued</a>:</p>
<blockquote>
<p>It is our duty, when we ask the electors to vote for or against momentous proposals of this kind, to give them the best material we have in order that they may form an independent judgment.</p>
</blockquote>
<p>The attorney-general of the day, Billy Hughes, had a rather naïve expectation of how the Yes/No case would be used. He <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;db=HANSARD80;id=hansard80%2Fhansardr80%2F1912-12-16%2F0055;orderBy=_fragment_number,doc_date-rev;query=Dataset%3Ahansardr,hansardr80%20Decade%3A%221910s%22%20Year%3A%221912%22%20Month%3A%2212%22%20Day%3A%2216%22;rec=0;resCount=Default">said</a>: </p>
<blockquote>
<p>Honourable Members may put their case before the public, provided that it is put in an impersonal, reasonable, and judicial way. There is to be no imputation of motives. In short, the argument is to be one which appeals to the reason rather than to the emotions and party sentiments.</p>
</blockquote>
<p>This is not how things have turned out. In fact, the Yes/No case, because it is prepared by political partisans, is often misleading and emotive, particularly on the No side. </p>
<h2>The No case and the aviation referendum</h2>
<p>A good example is the 1937 referendum on giving the Commonwealth parliament power to legislate on aviation. When the Constitution was first being written, the Wright brothers had not yet flown a plane. So there was nothing in it about making laws to govern aviation in Australia. </p>
<p>The consequence was that federal laws applied to flights in and out of Australia and some interstate flights, but not to planes flying within a state. This was inefficient and potentially dangerous, so a referendum was held to give the Commonwealth full power over aviation in 1937. Despite it logically being the type of thing that should be dealt with on a national basis, the referendum was lost. </p>
<p>The No case had <a href="https://trove.nla.gov.au/newspaper/article/230795282">argued</a> the expansion of aviation would compete with and ruin the state railway systems. It would make railway workers unemployed and bankrupt country towns. The price of food would sky-rocket, because the cost of freight would be higher and the finances of every state government would be endangered. </p>
<p>These claims were highly exaggerated and had nothing to do with whether the Commonwealth or the states should regulate aviation. But it was enough to make some people worried and so vote No. </p>
<p>It is, of course, difficult to attribute referendum outcomes to the inflammatory and misleading content of the Yes/No cases, as most people don’t read them. But some will, and the official nature of the document will give its contents greater credence than they deserve. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/changing-the-australian-constitution-is-not-easy-but-we-need-to-stop-thinking-its-impossible-183626">Changing the Australian Constitution is not easy. But we need to stop thinking it's impossible</a>
</strong>
</em>
</p>
<hr>
<h2>Referendum pamphlets in New South Wales</h2>
<p>In contrast, in New South Wales the practice has been to have public servants, not politicians, write the pamphlet that is sent to voters prior to a referendum. The public servants are required to do so in a factually accurate and impartial manner. Before publishing the pamphlet, they send it to acknowledged experts for vetting to ensure it is accurate and a fair explanation of the issues. </p>
<p>The success rate of New South Wales referendums is much higher than that at the Commonwealth level. If you count state-wide referendums to amend the New South Wales Constitution where voters were given a binary Yes/No choice, then the <a href="https://www.google.com.au/books/edition/The_Constitution_of_New_South_Wales/KayCZfZwafwC?hl=en&gbpv=1&dq=Twomey+Constitution+New+South+Wales+success+rate+constitutional+referenda&pg=PA320&printsec=frontcover">success rate is 85%</a>. This can be compared with the Commonwealth success rate of 18%. While other factors will also have been in play, providing voters with informative and accurate material rather than inflammatory and misleading material is likely to have helped at the state level.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/h_ZWBCDiS78?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<h2>What replaces the Yes/No case?</h2>
<p>While the Yes/No case in its current form has not proved the reasonable and informative tool that was intended by Hughes, a question remains as to what should replace it. If there is no officially sanctioned information, then this just leaves open a free-for-all on social media with even more misleading material circulating. There surely needs to be at least one source of authoritative information to which people can turn.</p>
<p>The government has said it proposes to fund educational campaigns to promote voters’ understanding of referendums and the referendum proposal. Attorney-General Mark Dreyfus <a href="https://ministers.ag.gov.au/media-centre/next-steps-towards-voice-referendum-01-12-2022">has stated</a> the bill will “enable funding of educational initiatives to counter misinformation”. </p>
<p>The difficulty facing the government will be working out how this can be done in a way that maintains public confidence and is not seen to be partisan in nature. </p>
<p>The intention behind this change is a worthy one. The Yes/No case has long been recognised as a failed experiment. But the successful execution of the government’s educative proposals will be difficult and need great care.</p><img src="https://counter.theconversation.com/content/195806/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council and been a consultant to Parliaments, Governments and inter-governmental bodies. She is a director of Constitution Education Fund Australia (CEFA) which engages in constitutional education initiatives. It is possible that CEFA or its materials might be used in any education campaign. Anne Twomey also has her own constitutional education YouTube channel, Constitutional Clarion.</span></em></p>The Yes/No case has long been flawed and the government is right to dispense with it. But it will need to replace it with something else to counter misinformation – and do so with great care.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1923882022-10-20T19:05:06Z2022-10-20T19:05:06ZWhy a First Nations Voice should come before Treaty<figure><img src="https://images.theconversation.com/files/490585/original/file-20221019-23-m2unwb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://fromtheheart.com.au/explore-the-uluru-statement/">fromtheheart.com.au</a></span></figcaption></figure><p>Since the advent of colonisation, the absence of an effective process for conducting dialogues between the broader community and First Nations people has been a festering sore at the heart of Australian society. </p>
<p>The <a href="https://australian.museum/learn/first-nations/unsettled/recognising-invasions/terra-nullius/">notorious doctrine</a> of <em>terra nullius</em> not only led to the denial of the legitimate rights of First Nations people, but also ensured they could never be heard. This malign strategy has produced centuries of unspeakable suffering, sickness and death. Many Australians feel the time has come to start to heal the wound. </p>
<p>The <a href="https://fromtheheart.com.au/">Uluru Statement from the Heart</a> advocates for a process of dialogue to set us on a path towards a new way of living together. The statement was agreed to in 2017 by a convention of more than 250 First Nations people after an inclusive and rigorous process of regional dialogues. It proposes a First Nations Voice to Parliament to guide a passage both to a new “coming together” and to the clear articulation of the long-suppressed truth. </p>
<p>As Prime Minister Anthony Albanese said when announcing the forthcoming referendum that seeks to incorporate these key proposals into the Australian Constitution, the statement is a generous offer to the entire Australian community. It does not harbour grudges and does not seek vengeance. It asks for a secure mechanism whereby the voices of First Nations people can at last be heard – by each other, by the parliament and by the wider Australian public. </p>
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<p>While support for the statement is widespread, some sections of the population – both Aboriginal and non-Aboriginal – have dismissed the Voice as inconsequential, arguing the focus should instead be on establishing a “treaty”. They have argued a Voice will lead only to talk, whereas the real goal should be a law that guarantees the civil rights of First Nations peoples. </p>
<p>This argument fails to understand the potential power of the Voice. It can not only lay a foundation for a movement towards reconciliation and truth, but also act as a tool to craft novel solutions to the problems created by the unique circumstances of Australia’s history and culture. </p>
<p>In this connection, it is notable the statement does not actually use the term “treaty”. Instead, it proposes the distinctly Aboriginal concept of “Makarrata”, which refers to a process of learning from the past to create new ways of interacting with each other based on dialogue. Voice, Makarrata and Truth are inseparable, but Voice is the motor that drives all of them forward. </p>
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Read more:
<a href="https://theconversation.com/the-power-of-yindyamarra-how-we-can-bring-respect-to-australian-democracy-192164">The power of yindyamarra: how we can bring respect to Australian democracy</a>
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<p>Establishing the Voice will lead to immediate, important outcomes. It will set the scene for addressing the centuries of injustice. It will create an effective process to address the intergenerational disadvantage many communities suffer. It will help overcome the historical exclusion of First Nations people from public forums. And crucially, it will offer an important symbolic gesture of acknowledgement and recognition that the days of <em>vox nullius</em> (“voicelessness”), the primary intention and consequence of <em>terra nullius</em>, are at last over. </p>
<p>It is, of course, unlikely that all First Nations people will speak with one voice – indeed, that would be undesirable. However, creation of a secure channel of communication will open up new ways for all members of the Australian community to negotiate their differences and discover novel solutions to our common challenges.</p>
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<span class="caption">Voice to Parliament offers Australian politics a powerful tool of negotiation and solution-finding.</span>
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<p>First Nations people will therefore not be the only ones to gain from the Voice. A vibrant, living platform for vigorous dialogue that addresses fundamental political issues will also benefit the wider society. It will help revive the ailing public sphere in Australia, restoring trust in institutions that have been degraded and depleted as a result of a deeply-established focus on personal ambition, vested interests and loss of shared ethical vision. </p>
<p>While some form of treaty will undoubtedly remain an important goal, the joint concepts of Voice, Makarrata and Truth are deeper, and more complex and enduring. </p>
<p>On its own, a treaty would operate only as an element within the system of colonially-derived law. This means it would utilise concepts within a system of thought that few would argue has served our country well in relation to the treatment of First Nations people, let alone of refugees and other vulnerable minorities. </p>
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Read more:
<a href="https://theconversation.com/grattan-on-friday-defeat-of-the-voice-would-be-a-body-blow-for-achieving-a-republic-190747">Grattan on Friday: Defeat of the Voice would be a body blow for achieving a republic</a>
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<p>The statement provides an approach to a consensus process that goes much further than this. Drawing on the creative resources of dialogue so fundamental to Aboriginal and Torres Strait Islander cultures, it will establish a framework that allows us to move forward to create new ethical bonds and fresh communal relationships that reactivate trust, reinvigorate public, cooperative action and support the resolution of conflicts through peaceful dialogue. </p>
<p>As we move towards the referendum, it is important for us to think carefully about the vision we wish to hold for Australia. About whether we are, collectively, ready to accept the invitation offered in the Uluru statement.</p>
<p>We have to decide whether we are ready to break the silence of our shared histories and take up the challenge to talk with each other, openly, frankly and with respect.</p><img src="https://counter.theconversation.com/content/192388/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Pat Anderson is co-convener of the Uluru Statement and is a member of the Referendum Working Group.</span></em></p><p class="fine-print"><em><span>Paul Komesaroff does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Some Australians have dismissed a Voice to Parliament as inconsequential. That argument is mistaken.Pat Anderson, Chairperson, Batchelor Institute of Indigenous Tertiary EducationPaul Komesaroff, Professor of Medicine, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1903352022-09-09T00:59:44Z2022-09-09T00:59:44ZWhat are the legal and constitutional consequences for Australia of Queen Elizabeth II’s death?<p>The death of Queen Elizabeth II has prompted many people, perhaps for the first time, to wonder: what happens now, legally?</p>
<p>In fact, there are clear rules around succession and how it plays out in Australia. Because Queen Elizabeth has lived a long time, there has been a lot of planning for the transition to the new king. </p>
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<figcaption><span class="caption">Death of the Queen - the legal and constitutional consequences for Australia. By Anne Twomey.</span></figcaption>
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<h2>The change is automatic</h2>
<p>Legally, there does not need to be anything done in Australia to result in the change from queen to king. That happens automatically as soon as a monarch dies. When Queen Elizabeth II died, Charles immediately became king of Australia.</p>
<p>This is because the rules of succession in relation to the crown of Australia, while controlled by Australia and part of Australian law, are kept consistent with the British rules.</p>
<h2>Most activity will be ceremonial and symbolic</h2>
<p>There will be proclamations made in both the United Kingdom and Australia. The governor-general will read a proclamation at parliament house in Canberra. But that’s a ceremonial matter. It does not have any legal effect in changing the monarch.</p>
<p>There will be a national memorial service for the queen, flags will fly at half-mast, there will be gun salutes and other public ceremonies to mark this momentous change. Churches will hold ceremonies and the public will be invited to sign books of condolence. There is a whole history of tradition around royal mourning.</p>
<p>But because we haven’t had a change of monarch for so long, the traditions from the past will probably look different to those we use today. In the past, people might have worn black, donned black armbands, or put up portraits of the queen draped in black and purple crepe.</p>
<p>It is more likely today we would see people laying flowers and signing remembrance books. The laying of flowers, however, is not a particularly environmentally sound practice. It just leaves a pile of soggy, rotting foliage. A better way of remembering Queen Elizabeth would be to plant a tree. The queen planted many trees in ceremonies during visits to all her realms, including Australia. The new king, we know, is a keen environmentalist and a tree-lover. So planting a tree, #royaltree, would be a more appropriate sign of remembrance and respect. </p>
<h2>What about the Australian parliament?</h2>
<p>Australia’s parliament, which was due to sit next week, will instead break for 15 days.</p>
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<p>This is not a legal requirement; it is a matter of choice and a sign of respect. The prime minister will be heading to the UK for the queen’s funeral, so it is also a matter of practicality as he will be out of the country. </p>
<p>There is no legal requirement for federal members of parliament to re-swear their oaths. They have already sworn an oath to Queen Elizabeth II and “her heirs and successors according to law”, so that will continue to apply to the queen’s heir and successor, King Charles. But the Houses could choose to have their members take new oaths, as a matter of symbolism.</p>
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Read more:
<a href="https://theconversation.com/16-visits-over-57-years-reflecting-on-queen-elizabeth-iis-long-relationship-with-australia-170945">16 visits over 57 years: reflecting on Queen Elizabeth II's long relationship with Australia</a>
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<h2>Continuity is key</h2>
<p>Some people may try to use the queen’s death to argue that there are legal consequences to the change which affect legal proceedings, the validity of laws or the powers of office holders. They relish arguing about seals and oaths in an attempt to use these technicalities to escape from the application of the law or avoid having to pay tax. </p>
<p>However, there are numerous laws that make it very clear that the death of the monarch (which in legal terms is known as the “demise of the crown”) does not disrupt legal proceedings, invalidate laws or require officials to re-take an oath in order to exercise legal powers. </p>
<p>For example, in NSW <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1902-032#sec.12">section 12(4B)</a> of the Constitution Act says that members of parliament do not have to re-swear their oath. <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1902-032#sec.49A">Section 49A</a> says that the holding of any office under the Crown is not affected by the death of the monarch and it is not necessary for the office holder to take a new oath. <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1988-070#sec.8">Section 8</a> of the Crown Proceedings Act 1988 of NSW says that legal proceedings are not affected by the demise of the Crown.</p>
<p>Passports, official seals and currency which mention the queen will all remain valid. The system of change from one monarch to the next is legally seamless, leaving it a matter for the people how they decide to mark the change in a ceremonial and symbolic manner.</p><img src="https://counter.theconversation.com/content/190335/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council and occasionally does consultancy work for governments and inter-governmental bodies. She has written books on the reserve powers and the role of vice-regal officers in Australia.</span></em></p>Legally, there does not need to be anything done in Australia to result in the change from queen to king. That happens automatically.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1771462022-08-25T04:29:37Z2022-08-25T04:29:37ZWhat the High Court decision on filming animals in farms and abattoirs really means<figure><img src="https://images.theconversation.com/files/480970/original/file-20220825-13-25o66l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Judith Prins/Unsplash</span></span></figcaption></figure><p>What do farm animals have to do with the Australian Constitution? </p>
<p>Should the public know what happens in abattoirs and farms? Do we have the right to publish footage of what happens to animals in slaughterhouses? Should governments be able to make laws criminalising it? How do we best protect the privacy of farmers and prevent trespass?</p>
<p>The High Court considered these issues in <a href="https://www.hcourt.gov.au/cases/case_s83-2021">Farm Transparency v New South Wales</a>, handing down its judgment this month. This case concerned sections 11 and 12 of the Surveillance Devices Act 2007 (NSW): section 11 prohibits the publication or communication of footage or photographs of “private activities”, including intensive farming and slaughtering operations, with penalties of up to five years in prison. Section 12 criminalises the possession of such recordings. </p>
<p>In 2015, Farm Transparency Project’s director, Chris Delforce, <a href="https://www.sydneycriminallawyers.com.au/blog/high-court-challenge-to-nsw-ag-gag-laws-an-interview-with-farm-transparency-projects-chris-delforce/">was charged</a> with publishing footage and photos depicting lawful practices at piggeries. The footage related to the use of carbon dioxide gas as a means of slaughtering animals. </p>
<p>While the charges were eventually dismissed, animal welfare organisations are concerned the legislation will obstruct legitimate whistleblowing (and public access to information) about the agricultural industry. There are also concerns the legislation may dampen the willingness of media to grapple with these issues. In turn, this may limit the ability of the Australian consumer to make informed choices about what they eat, and hinder public discussions about animal welfare due to a lack of information. </p>
<p>In that context, Farm Transparency took legal action arguing that the Surveillance Devices Act was in breach of the “freedom of political communication” implicitly protected by the Australian Constitution. In doing so, they turned an animal welfare and consumer rights issue into a constitutional issue. </p>
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Read more:
<a href="https://theconversation.com/not-just-activists-9-out-of-10-people-are-concerned-about-animal-welfare-in-australian-farming-117077">Not just activists, 9 out of 10 people are concerned about animal welfare in Australian farming</a>
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<h2>What is the implied freedom of political communication?</h2>
<p>Australia, unlike all other western democracies, does not have a federal bill of rights. This means there is no stand-alone right to free expression or speech. </p>
<p>However, freedom of political communication is implied from sections 7 and 24 of the Australian Constitution, which require that elected representatives be “chosen by the people”. </p>
<p>The courts have held previously that this implies laws should not limit our communication on political matters because that influences our choice of representative. This means state or federal laws that disproportionately “burden” communication about political matters can be struck down as unconstitutional. </p>
<p>The High Court has repeatedly emphasised that the freedom of political communication is not absolute, nor is it a personal right. Rather, laws directed at a legitimate objective that are reasonable and adapted to that objective will still be valid. </p>
<p>In this case, the question before the court was whether the Surveillance Devices Act 2007 is <a href="https://journals.sagepub.com/doi/pdf/10.1177/0067205X1804600301">“suitable”, “necessary” and “balanced”</a> in pursuing a legitimate objective. These questions have also been considered before by the court in relation to, for example, protesting, tweeting, political donations, bail conditions, and media reporting. </p>
<h2>What did the High Court decide?</h2>
<p>Four members of the court (Kiefel CJ, and Keane, Edelman, and Steward JJ) held that while the legislation did burden political communication, it also has a legitimate purpose of privacy. They also held that the offence provisions were proportionate to that purpose. Another judge (Gordon J) “read down” the reach of the provisions, which meant she thought they had limited scope and couldn’t be enforced to restrict publication of political communication. </p>
<p>Notably, two judges disagreed with the majority view (Gageler and Gleeson JJ), and found that the legislation was invalid. In their view, sections 11 and 12 impose blanket prohibitions and do so indiscriminately. In particular, Gageler J thought “The prohibitions are too blunt; their price is too high”.</p>
<p>However, ultimately the majority view was that sections 11 and 12 are constitutionally valid. </p>
<p>Of significance to those interested in animal welfare is that Kiefel CJ and Keane J accepted it was “a legitimate matter of governmental and political concern”. However, in their views, the relevant provisions in this case were not directed at restricting the content of the communications, but to the manner (such as trespass) in which they were obtained. </p>
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Read more:
<a href="https://theconversation.com/can-labors-animal-welfare-plan-improve-australias-lacklustre-record-116261">Can Labor's animal welfare plan improve Australia's lacklustre record?</a>
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<h2>Why does this matter?</h2>
<p>This decision means improved conditions for farm animals needs to be achieved by legislative and policy reform. Concerned consumers must convince parliaments to improve legal protections for non-human animals. </p>
<p>The issue is unlikely to go away. Animal welfare groups are increasingly concerned about standards of care and the manner in which animals are raised and slaughtered. Consumers are savvier in the information age and prefer choice. </p>
<p>The recognition of animal sentience and animal rights may eventually curtail the ability to engage in large-scale factory farming. This in turn will contribute to overall efforts to <a href="https://journal.law.uq.edu.au/index.php/uqlj/article/view/6105/5007">mitigate climate change</a> and other environmental effects. </p>
<p>There is also the overarching issue of the legal protection offered to <a href="https://www.auspublaw.org/2016/04/public-sector-whistleblowing/">whistleblowers</a> generally and the inherent problem in restricting information necessary for meaningful public debate. </p>
<p>Individuals and organisations do have legitimate expectations of privacy. However, disclosing reasonable concerns about conduct is an important tool in maintaining good governance and advancing accountability. Protections for whistleblowers are limited in Australia and there is space for legislative reform on this.</p><img src="https://counter.theconversation.com/content/177146/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Danielle Ireland-Piper does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The High Court found the NSW laws were not unconstitutional – but there is still much room for reform.Danielle Ireland-Piper, Associate Professor of Constitutional and International Law, Bond UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1879722022-07-30T05:12:39Z2022-07-30T05:12:39ZCreating a constitutional Voice – the words that could change Australia<figure><img src="https://images.theconversation.com/files/476767/original/file-20220730-13615-929x0c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">AAP/Aaron Bunch</span></span></figcaption></figure><p>Ideas are powerful, but when it comes to a constitutional amendment, they need to be put into words before they can be debated seriously. </p>
<p>Prime Minister Anthony Albanese has finally given us the first draft words for a constitutional amendment on an Aboriginal and Torres Strait Islander Voice to Parliament. They are as follows:</p>
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<li>There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.</li>
<li>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.</li>
<li>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.</li>
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<p>It is a simple and elegant proposal, which demands little but offers much. </p>
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Read more:
<a href="https://theconversation.com/albanese-releases-draft-wording-for-indigenous-voice-to-parliament-referendum-187933">Albanese releases draft wording for Indigenous 'Voice to parliament' referendum</a>
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<h2>What would the amendment do?</h2>
<p>The only requirement of this amendment is that such a body exist. It leaves to parliament all the decisions about how it is comprised and operates. This balances stability and flexibility. </p>
<p>The constitutional demand that the body exists ensures it cannot be cancelled at the whim of a future government, or left to die of neglect. If the Australian people, in a referendum, have demanded the continuing existence of a Voice, this puts serious pressure on both the government and Indigenous Australians to make it work productively. </p>
<p>But if, over time, it ceases to work well, parliament has been given the flexibility to change the composition of the Voice and how it operates, so that it can properly fulfil the role voters intended for it. This avoids the problem of becoming stuck with a dysfunctional body and ensures the democratically elected body, parliament, has full power to make necessary changes.</p>
<p>The role of the Voice will be to make representations to parliament and the government about matters relating to Aboriginal and Torres Strait Islander peoples. The intention is to ensure parliament and the government are better informed when they make decisions. </p>
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<p>There are two main aims of this proposed amendment.</p>
<p><strong>1. Constitutional recognition</strong></p>
<p>The first is constitutional recognition of Indigenous peoples in Australia. They are not currently mentioned at all in the Commonwealth <a href="https://www.aph.gov.au/constitution">Constitution</a>. Many politicians, including John Howard and Tony Abbott, have proposed that Aboriginal and Torres Strait Islander peoples be recognised in the Constitution. But recognition can take different forms. </p>
<p>The type of recognition proposed in this current amendment goes beyond just words on a page. It is no mere formulaic opening recitation. </p>
<p>True recognition involves giving another person enough respect to stop and hear their voice. This proposed amendment provides real recognition in daily life by ensuring Aboriginal and Torres Strait Islander peoples have a voice, and can be heard about laws and policies that are likely to affect them. </p>
<p><strong>2. Practical change</strong></p>
<p>The second aim is to achieve practical change. It is well known that Aboriginal policies and laws have been far from successful in the past. This is unsurprising, since those who make laws and policies in Canberra are largely removed from the impact they have on the ground. </p>
<p>With the best will in the world, it is impossible truly to understand the issues affecting a person’s life without walking in their shoes. Giving the people who have walked in those shoes a voice to inform governments about the likely effect of proposed laws and policies, and suggest how they might be altered to be more successful, will hopefully lead to better practical outcomes. </p>
<h2>The question</h2>
<p>The prime minister has also identified some proposed wording for the question to be asked in a referendum. Its wording is a little unusual. </p>
<p><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/coacac627/s128.html">Section 128</a> of the Constitution requires a referendum to change the Constitution, and says that it is passed when a majority of electors overall and a majority of electors in a majority of states “approve the proposed law”. </p>
<p>So the question needs to be formed in such a way that voters are approving the “proposed law” to <em>change</em> the Constitution – not approving an idea, a principle or the creation of a new body. </p>
<p>Under the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/rpa1984353/sch1.html">current law</a>, a referendum ballot paper sets out the long title of that proposed law to alter the Constitution, and then asks “Do you approve this proposed alteration?”. A box is then provided for the voter to write either “Yes” or “No”. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/476768/original/file-20220730-19-a3jh9t.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/476768/original/file-20220730-19-a3jh9t.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=655&fit=crop&dpr=1 600w, https://images.theconversation.com/files/476768/original/file-20220730-19-a3jh9t.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=655&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/476768/original/file-20220730-19-a3jh9t.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=655&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/476768/original/file-20220730-19-a3jh9t.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=823&fit=crop&dpr=1 754w, https://images.theconversation.com/files/476768/original/file-20220730-19-a3jh9t.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=823&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/476768/original/file-20220730-19-a3jh9t.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=823&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Example of ballot papers on the 1999 republic referendum.</span>
<span class="attribution"><span class="source">Australian Parliament House</span></span>
</figcaption>
</figure>
<p>For example, the ballot could say: </p>
<blockquote>
<p>A PROPOSED LAW: To alter the Constitution to establish an Aboriginal and Torres Strait Islander Voice. Do you approve of this proposed alteration?</p>
</blockquote>
<p>In his <a href="https://www.pm.gov.au/media/address-garma-festival">Garma speech</a>, the prime minister stated the question would be: </p>
<blockquote>
<p>Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?</p>
</blockquote>
<p>While that question is clearer, it does not comply with the current law, which presumably the government proposes to amend. But the government would need to make it clear on the ballot paper that the voter was approving the proposed law, because this is what is required by the Constitution.</p>
<p>There is also a lack of clarity about whether the constitutional change would actually “establish” the Voice, given that legislation would first need to be enacted to determine how it is comprised and to establish the mechanism for choosing its members. </p>
<p>However, these are small matters that will no doubt be worked through in the ensuing debate.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/non-indigenous-australians-shouldnt-fear-a-first-nations-voice-to-parliament-176675">Non-Indigenous Australians shouldn't fear a First Nations Voice to Parliament</a>
</strong>
</em>
</p>
<hr>
<h2>Consultation and education</h2>
<p>Now that draft wording is available, the proposed amendment can be discussed with greater authority and clarity. Suggestions of a “third house of parliament” and other exaggerations can be readily dismissed. </p>
<p>Wisely, the government has shown itself open to adjusting the wording if necessary. The next stage in the process is one of consultation and education, so the Australian people can feel confident they are well-informed when they come to vote in any future referendum.</p><img src="https://counter.theconversation.com/content/187972/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has previously received funding from the Australian Research Council and occasionally does consultancy work for governments, parliaments and inter-governmental bodies. She has provided various draft amendments on Indigenous constitutional recognition for different bodies that have sought her assistance.</span></em></p>The type of recognition proposed in this current amendment goes beyond just words on a page. It is no mere formulaic opening recitation.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1836262022-05-27T02:11:17Z2022-05-27T02:11:17ZChanging the Australian Constitution is not easy. But we need to stop thinking it’s impossible<p>Supporters of an Indigenous Voice to Parliament have celebrated the commitment of the new Albanese government to put the issue to a referendum. But is government support enough? </p>
<p>It’s a start, but the road to referendum success is a hard one, as it was always meant to be.</p>
<h2>The Constitution was meant to be hard to change</h2>
<p>When the Constitution was being written in the 1890s, the initial expectation was that it would be enacted by the British and they would control the enactment of any changes to it, just as they did for Canada. </p>
<p>But the drafters of the Commonwealth Constitution bucked the system by insisting they wanted the power to change the Constitution themselves. They chose the then quite radical method of a referendum, which they borrowed from the Swiss. </p>
<p>While it was radical, because it let the people decide, it was also seen as a <a href="https://adc.library.usyd.edu.au/view?docId=ozlit/xml-main-texts/fed0043.xml&chunk.id=&toc.id=&database=&collection=&brand=default">conservative mechanism</a>. British constitutional theorist A.V. Dicey described the referendum as “the <a href="https://archive.org/details/nationalreview2318unse/page/64/mode/2up">people’s veto</a>”, because it allowed the “weight of the nation’s common sense” and inertia to block “the fanaticism of reformers”. </p>
<p>The drafters of the Commonwealth Constitution were divided on the issue. Some supported the referendum because it would operate to defeat over-hasty, partisan or ill-considered changes. Others were concerned that change was hard enough already, and voters would have a natural tendency to vote “No” in a referendum because there are always objections and risks that can be raised about any proposal. Fear of the new almost always trumps dissatisfaction with the current system, because people do not want to risk making things worse. </p>
<p>In this sense, the referendum is conservative – not in a party-political sense, but because it favours conserving the status quo.</p>
<p>Another concern, raised by Sir Samuel Griffith, was that constitutions are complex, and a large proportion of voters would not be sufficiently acquainted with the Australian Constitution to vote for its change in an informed way. He favoured using a United States-style of constitutional convention to make changes. </p>
<p>The democrats eventually won and the referendum was chosen. But to satisfy their opponents, they added extra hurdles. To succeed, a referendum has to be <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/coacac627/s128.html">approved</a> not only by a majority of voters overall, but also by majorities in a majority of states (currently four out of six states). </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/an-indigenous-voice-must-be-enshrined-in-our-constitution-heres-why-153635">An Indigenous 'Voice' must be enshrined in our Constitution. Here's why</a>
</strong>
</em>
</p>
<hr>
<h2>A Constitution frozen in time</h2>
<p>The predictions were right. The referendum at the federal level has indeed turned out to be the “people’s veto”. Of 44 referendum questions put to the people, only <a href="https://www.aec.gov.au/elections/referendums/referendum_dates_and_results.htm">eight have passed</a>. No successful Commonwealth referendum has been held since 1977. We have not held a Commonwealth referendum at all since 1999. </p>
<p>There are many <a href="https://www.aph.gov.au/binaries/library/pubs/rp/2002-03/03rp11.pdf">suggested reasons</a> for this. Some argue that the people have correctly exercised their veto against reforms that were proposed for party-political advantage or to unbalance the federal system by expanding Commonwealth power. If reforms are put because they are in the interests of the politicians, rather than the people, they will fail. </p>
<p>Questions asked in referendums have been poorly formulated and often load too many issues into the one proposed reform. If a voter objects to just one aspect of a proposal, they then vote down the entire reform.</p>
<p>Another argument is that, as Griffith anticipated, the people know little about the Constitution and are not willing to approve changes to it if they are unsure. The mantra “<a href="https://www.aec.gov.au/elections/referendums/1999_referendum_reports_statistics/yes_no_pamphlet.pdf">Don’t know – Vote No</a>” was extremely effective during the republic campaign in 1999. </p>
<p>Of course, if you don’t know, you should find out. But the failure to provide proper civics education in schools means most people don’t feel they have an adequate grounding to embark on making that assessment. </p>
<p>Decades of <a href="https://www.aspistrategist.org.au/better-civic-education-will-help-australians-respond-in-challenging-times/">neglect of civics</a> has left us with a population that is insufficiently equipped to fulfil its constitutional role of updating the Constitution.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/465242/original/file-20220525-20-1ebbwk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/465242/original/file-20220525-20-1ebbwk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=451&fit=crop&dpr=1 600w, https://images.theconversation.com/files/465242/original/file-20220525-20-1ebbwk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=451&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/465242/original/file-20220525-20-1ebbwk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=451&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/465242/original/file-20220525-20-1ebbwk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/465242/original/file-20220525-20-1ebbwk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/465242/original/file-20220525-20-1ebbwk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">If people have the slightest uncertainty about what they are saying ‘yes’ to, they will inevitably say ‘no’ – something the republic referendum suffered from in 1999.</span>
<span class="attribution"><span class="source">Rob Griffith/AAP</span></span>
</figcaption>
</figure>
<h2>Vulnerability to scare campaigns</h2>
<p>The biggest threat to a successful referendum is the running of a “No” campaign by a major political party, or one or more states, or even a well-funded business or community group. </p>
<p>Scare campaigns are effective even if there is little or no truth behind them. It is enough to plant doubt in the minds of voters to get them to vote “No”. Voters are reluctant to entrench changes in the Constitution if they might have unintended consequences or be interpreted differently in the future, because they know how hard it will be to fix any mistake.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/465249/original/file-20220525-22-a5fyt8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/465249/original/file-20220525-22-a5fyt8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=844&fit=crop&dpr=1 600w, https://images.theconversation.com/files/465249/original/file-20220525-22-a5fyt8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=844&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/465249/original/file-20220525-22-a5fyt8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=844&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/465249/original/file-20220525-22-a5fyt8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1061&fit=crop&dpr=1 754w, https://images.theconversation.com/files/465249/original/file-20220525-22-a5fyt8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1061&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/465249/original/file-20220525-22-a5fyt8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1061&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The 1967 referendum was one of the few that were successful.</span>
<span class="attribution"><span class="source">National Gallery of Australia</span></span>
</figcaption>
</figure>
<p>If a referendum campaign ends up focused on technical issues about the future operation or interpretation of particular amendments, then it is likely lost. </p>
<p>Campaigns tend to be more successful if they focus on principles or outcomes, such as the 1967 referendum concerning Aboriginal people. That referendum had the advantage of not being opposed in the Commonwealth parliament. The consequence was that there was only a <a href="https://www.naa.gov.au/learn/learning-resources/learning-resource-themes/first-australians/rights-and-freedoms/argument-favour-proposed-constitution-alteration-aboriginals-1967#:%7E:text=In%20the%201967%20referendum%2C%20no,recorded%20in%20a%20federal%20referendum.">“Yes” case</a> distributed to voters, as a “No” case can only be produced by MPs who oppose the referendum bill in parliament. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/right-wrongs-write-yes-what-was-the-1967-referendum-all-about-76512">‘Right wrongs, write Yes’: what was the 1967 referendum all about?</a>
</strong>
</em>
</p>
<hr>
<h2>Overcoming the malaise</h2>
<p>While recognising these difficulties, perhaps the greatest risk is becoming <a href="https://www.auspublaw.org/2018/12/getting-to-yes-why-our-approach-to-winning-referendums-needs-a-rethink/">hostage</a> to the belief the Constitution cannot be changed and referendums will always fail. It will become a self-fulfilling prophecy. </p>
<p>Instead, we need to face constitutional reform as being difficult but achievable and worthwhile. The Constitution should always serve the needs of today’s Australians, rather than the people of the 1890s. </p>
<p>The key elements for success include a widespread will for change, the drive and persistence of proponents, good leadership, sound well-considered proposals and building a broad cross-party consensus. Not every element is necessary, but all are helpful.</p>
<p>As incoming Indigenous Affairs Minister <a href="https://www.abc.net.au/7.30/linda-burney:-%E2%80%9Cwe-need-consensus-on-a-referendum/13895144">Linda Burney</a> recently noted, there is still a lot of work to be done in building that consensus in relation to Indigenous constitutional recognition, but the work has commenced.</p><img src="https://counter.theconversation.com/content/183626/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has previously received funding from the Australian Research Council and sometimes does consultancy work for governments and inter-governmental bodies. She is also a Director of Constitution Education Fund Australia which is concerned with trying to improve civics teaching in schools. </span></em></p>Of 44 referendums put to the Australian people since federation, only eight have passed – but those championing a First Nations Voice to Parliament need not be deterred.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1707772021-11-03T19:08:19Z2021-11-03T19:08:19ZVoter ID is a bad idea. Here’s why<p>The Morrison government is pushing legislation to mandate voter ID at polling places. Contrary to <a href="https://www.afr.com/politics/federal/coalition-voter-id-plan-labelled-racist-and-discriminatory-20211028-p593xg">some critics</a>, what it proposes will not create US-style “voter suppression”. But it is still an unnecessary idea at an inappropriate time.</p>
<p>Countries like Australia, New Zealand and the United Kingdom (<a href="https://www.theguardian.com/politics/2021/may/10/queens-speech-photo-id-future-elections-social-care">until now at least</a>) do not require electors to show ID to vote. Many other systems do.</p>
<p>Insecurity about security is a conservative trope. So it is natural for political conservatives, temperamentally, to favour voter ID, with the argument being it is an “integrity” measure. Social democrats, on the other hand, are more trusting and concerned to ensure everyone can and does vote. </p>
<p>The Australian proposal lists an array of documents as acceptable ID. Photo ID such as a driver’s licence is not mandatory; a credit card or utility bill would suffice. “Documents” in law now include electronic records, which is important given how few people receive paper utility bills. </p>
<p>If an elector does not bring ID, or it is rejected (say for a misspelled name), they are to be offered a “provisional” vote. That is a rigmarole involving extra forms and delays. But it is a buffer - imagine a remote voter driving an hour to a polling station having forgotten their wallet.</p>
<p>Young people, the very elderly and Indigenous people are all less likely to have such ID. To address the latter, a document from an Indigenous land council or similar agency will also count. When the LNP in Queensland briefly introduced voter ID in 2013-15, it was clear <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2779848">remote electors</a> were more likely to have problems with ID. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/whos-liberal-whats-labor-new-bill-to-give-established-parties-control-of-their-names-is-full-of-holes-166088">Who's Liberal? What's Labor? New bill to give established parties control of their names is full of holes</a>
</strong>
</em>
</p>
<hr>
<h2>Cost in the time of COVID</h2>
<p>The UK Cabinet Office estimates voter ID there will cost in the order of <a href="https://www.electoral-reform.org.uk/campaigns/upgrading-our-democracy/voter-id/">£20 million (A$36.7 million) per election</a>. That is for mandatory photo ID. The direct cost in Australia will be less, if not insignificant. The Australian Electoral Commission will need to mail proof of enrolment to each elector as one form of ID.</p>
<p>There are also indirect costs. The most obvious is in training - and trying to ensure consistency among tens of thousands of casual poll workers. Inevitably, some forms of ID will be accepted in some polling places and not others. Think of bills on cracked mobile screens, or cards with minor differences to the name on the electoral roll.</p>
<p>Most of all, with Australia reopening, COVID will be spreading across states that have never had a real wave. Voter ID will add to processing time for millions of electors. Those whose ID is rejected will have to join separate queues to make a fussy “declaration” vote. </p>
<p>Finally, those declaration votes enter a black box. Unlike some US states, electors are not told whether their provisional vote was ever accepted into the count. This in itself will hamper, not enhance, trust.</p>
<p>One group of electors will not need to produce ID: postal voters. Asking (predominantly older) postal voters to scan or copy ID is a step too far, as they already sign and witness forms to vote. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/429856/original/file-20211103-25-1lwxztf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/429856/original/file-20211103-25-1lwxztf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/429856/original/file-20211103-25-1lwxztf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/429856/original/file-20211103-25-1lwxztf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/429856/original/file-20211103-25-1lwxztf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/429856/original/file-20211103-25-1lwxztf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/429856/original/file-20211103-25-1lwxztf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Australians in remote and rural areas are most likely to be disadvantaged by the introduction of voter ID at elections.</span>
<span class="attribution"><span class="source">AAP/Karen Michelmore</span></span>
</figcaption>
</figure>
<h2>What does the Constitution say?</h2>
<p>On voting “rights”, next to nothing. But in 2007, the <a href="https://www.researchgate.net/publication/43518054_Constitutionalising_the_Franchise_and_the_Status_Quo_the_High_Court_on_Prisoner_Voting_Rights">High Court implied</a> a universal franchise for Australian citizens. Then, in 2010, it <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1926493">struck down</a> the early closing of electoral rolls as an undue burden on the ability to vote. </p>
<p>In doing so, it said parliament cannot impose such burdens without evidence. The “evidence” to support voter ID is the intuition that voters should produce ID. The benefit of voter ID is said to be enhancing perceptions of integrity. </p>
<p>This may be a fair call in the abstract. Yet in reality, Australia has high levels of trust in our independent and thorough electoral processes. Any <a href="https://theconversation.com/voters-send-sharp-message-to-politicians-about-trust-anu-australian-election-study-128537">lack of trust</a> buzzes around parties as hierarchical entities, their funding and accountability, not electoral administration. </p>
<p>Perceptions of risk can also be circular, if not manipulated. By playing up integrity risks, regardless of <a href="https://www.amazon.com.au/Limiting-Democracy-Erosion-Electoral-Australia/dp/0868409480">actual evidence</a>, you can generate concerns that you then use to justify new rules. (We also see this in debates about electoral donations.) </p>
<p>As long as the law allows electors without ID to cast a declaration vote without excessive palaver, the High Court will not veto voter ID. In any event, the law cannot be challenged before it is implemented. Any plaintiff claiming to be affected before the election will likely be rebuffed with “go and organise ID”.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/from-robo-calls-to-spam-texts-annoying-campaign-tricks-that-are-legal-109943">From robo calls to spam texts: annoying campaign tricks that are legal</a>
</strong>
</em>
</p>
<hr>
<h2>Voter ID cuts across compulsory voting</h2>
<p>Most of all, voter ID is a dull idea in a country that has required people to enrol to vote <a href="https://www.tandfonline.com/doi/pdf/10.1080/00323267108401254">for 110 years</a>, and to turn out to vote <a href="https://www.foundingdocs.gov.au/item-sdid-89.html">since 1924</a>. </p>
<p>Quite why we need voter ID is not clear. Most European countries do. But they have national ID cards. That is, every citizen, equally, has <a href="https://www.washingtonpost.com/politics/2020/12/04/trumps-assertion-that-only-two-european-nations-allow-mail-in-voting/">official ID</a>. Such ID is something liberals in Australia fought against. </p>
<p>Ultimately, electoral integrity comes from having the most thorough roll and the highest turnout possible. Australia has a good record here, thanks to <a href="https://www.aec.gov.au/Enrolling_to_vote/About_Electoral_Roll/direct.htm">compulsion and direct enrolment laws</a>.</p>
<p>Short of evidence of rogue electors impersonating other voters, voter ID is an unnecessary bureaucratic requirement, at an inappropriate point in a pandemic.</p><img src="https://counter.theconversation.com/content/170777/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Graeme Orr has held various ARC grants in the field of electoral law, and does pro bono work on voting rights and reform in the law of politics (eg currently with Australians Voting Abroad and the Australian Republican Movement).</span></em></p>Voter ID is costly, unnecessary. and cuts across the compulsory voting that has long been the law in Australia.Graeme Orr, Professor of Law, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.