The Voice FAQ

Q: Will the Voice create division based on race in the Constitution?

Race is an outdated concept. Although notions of race were once considered to be scientifically valid, they have now been repudiated. The Constitution was drafted at a time when ideas about race still were considered valid. It enables the Federal parliament to create laws it deems necessary for the peoples of a particular ‘race’. To date, these powers have only been used with respect to Aboriginal and Torres Strait Islander peoples – in ways which have infringed upon fundamental rights. The High Court has also interpreted these powers to support laws which have had a detrimental impact on First Peoples.

Today, Aboriginal and Torres Strait Islander peoples are acknowledged as having the oldest continuing culture in the world. First Peoples are recognized as having a unique status due to their longstanding occupation and cultural connections to the continent now known as Australia – spanning back over 60,000 years. This recognition is not based on concepts of race, but the fact Indigenous Australians are the traditional custodians of country. The Voice would enable Indigenous Australians to have a say about laws and policies which affect them – and therefore reduces the risk that laws can be passed which would have negative impacts on Indigenous Australians.

Q: Does the Voice present a risk to our democratic system of government?

No. The Voice would be an advisory body to the government – both the parliament and the executive. The Voice would not have a veto power – or the right to block any legislation in parliament. Representations from the Voice would not be legally binding. The Voice is designed to strengthen our democratic system of government by ensuring that the views of Aboriginal and Torres Strait Islander people are taken into consideration when making laws or policies which affect them.

Q: Is the Voice legally risky?

The Voice has been described as a ‘modest’ proposal. It is an advisory body only. Representations from the Voice would not be legally binding on government and are not judiciable. The Voice would not limit the legislative power of the Federal Parliament. It would operate subject to the supremacy of the parliament, which would have the power to legislate on the Voice, and its structure and functions.

There are differing views on whether there are legal risks associated with the Voice. The No Campaign asserts that the Voice could lead to legal challenges, however this is disputed by many constitutional law experts.1

Q: Why should the Voice be enshrined in the Constitution? Why can’t the Voice be established through legislation?

Putting the Voice in the Constitution means that it cannot be abolished by the government. Over the last 50 years there have been three Indigenous advisory bodies established to work with governments, each of which was ultimately disbanded by the government of the day. The Voice would be a permanent body to represent the views of Aboriginal and Torres Strait Islander peoples to government. This means that the Voice could not be disbanded if it makes representations that the government does not agree with. The Parliament however would retain the ultimate power to determine the structure and functions of the Voice – so it would still be subject to political good will to some degree.

Q: There are no details about the structure of the Voice?

The Constitution already has provisions which create institutions such as the High Court of Australia. However the constitution does not set out specific details about the High Court’s structure and functions – this is done in complementary legislation. The Voice constitutional amendment follows this pattern. If successful, the Referendum would authorize the constitutional amendment to establish the Voice. Then the Federal Parliament would legislate on its structure and functions.

The former Coalition government conducted extensive consultations on a Voice to Government. The outcome of these consultations were the subject of a report by Tom Calma and Marcia Langton.2 This report gives some ideas about the possible structure and functions of the Voice. But its findings have not been formally adopted by either the former or current Federal Government.

In March 2023 the government released details on the key design principles of the Voice. These include:

• The Voice will give independent advice to Parliament and Government.
• The Voice will be chosen by Aboriginal and Torres Strait Islander peoples based on the wishes of local communities – including representatives from each state/territory and also remote and regional communities.
• The Voice will be representative of Aboriginal and Torrs Strait Islander communities, gender balanced and include young people.
• The Voice will be empowering, community-led, inclusive, respectful and culturally informed.
• The Voice will be accountable and transparent.
• The Voice will work alongside existing organisations and traditional structures.
• The Voice will not have a program delivery function.
• The Voice will not have a veto power. 

For further information visit Voice Principles | The Voice.

If the referendum is successful, the federal government would undertake consultation to inform legislation on the structure and functions of the Voice. Any legislation would also be subject to the ordinary parliamentary processes which include scrutiny by parliamentary committees. There would be opportunities for elected representatives to have a say about how the Voice is structured and what its functions would be. And ultimately the parliament would retain the power to vary the structure and function of the Voice if changes were deemed to be necessary.

Q: Would the proposed Voice effectively be a third chamber of parliament?

No. This characterization of the Voice is misleading. The Voice cannot introduce legislation or vote on legislation in parliament. The Voice would operate subject to the supremacy of the Federal parliament.

Q: Would the proposed Voice simply create more bureaucracy?

There is no evidence to support criticism that the voice would simply create more bureaucracy. While the specific details of the Voice are yet to be determined, there is also a commitment from Government that the Voice will work along existing organisations. So for example, the Voice may be administered by the National Indigenous Australians Agency, which is already established in the Federal governance structure.

Q: Would the proposed Voice open the door to treaties, and reparations for Indigenous Australians?

The Federal Labor Government is committed to implementing the Uluru Statement from the Heart ‘in full’. There are three aspects to the Uluru Statement – Voice, Truth and Treaty. The statement calls for the Voice to Parliament, and the establishment of a Makaratta Commission to oversee truth-telling and treaty-making between First Peoples and Australian Governments.

The Voice to Parliament has been identified as a first step in this process. The Minister for Indigenous Affairs Lindy Burney MP has stated that the Voice should come first because the negotiation of treaties would take some time, and also because the Voice can help to shape what a treaty process might look like. There are also currently treaties being negotiated between First Nations and state governments in most states/territories – eg. Victoria, Queensland, South Australia, the Northern Territory and Tasmania. The incoming NSW Labor Government is also committed to treaty making. So there are a few issues to sort out – the relationship between state/territory and any federal treaties. Whether treaties between First Nations and governments – are tri-partite agreements – including First Nations, state/territory and Federal Governments.

Reparations may also form part of treaty processes. There have already been different forms of compensation to First Nations – eg. Compensation for extinguishment of native title after 1975, and also redress schemes for members of the Stolen Generations. Reparations may also be dealt with as part of the specific content of treaties between First Nations and governments.

Q: Does the proposed Voice to Parliament negate Indigenous sovereignty?

There are different views on this question. The Uluru Statement from the Heart calls for the Voice as one way to recognize that Indigenous sovereignty was never ceded and continues to co-exist with state sovereignty.

Constitutional law experts argue that the Voice is consistent with Indigenous sovereignty because it provides a platform for Indigenous peoples to have a say in matters which affect them. This is an important aspect of the right of self-determination – a right of all peoples. They also argue that Indigenous sovereignty can only be ceded with the consent of Indigenous people.3 Therefore the referendum will not affect Indigenous sovereignty because the majority of people voting will be non-Indigenous.

The alternate view, as represented by the Black Sovereignty movement, is that the Voice would effectively assimilate Indigenous peoples into the constitution of the colonial nation state. For some Indigenous peoples, this is not acceptable and diminishes Indigenous peoples aspirations for recognition of their sovereignty and full international legal personality.4 Because the Voice would operate subject to the supremacy of parliament, then arguably First Nations sovereignty would be.