Indigenous Voice to Parliament
The Aboriginal and Torres Strait Islander Voice, also known as the Indigenous Voice to Parliament, the First Nations Voice or simply the Voice, was a proposed Australian federal advisory body that would comprise Aboriginal and Torres Strait Islander people, intended to represent the views of Indigenous communities. The Voice as proposed by the Albanese government would have had the power to make representations to the Parliament of Australia and executive government on matters relating to Indigenous Australians. The specific form of the Voice was to be determined by legislation passed by Parliament had the referendum succeeded.
A referendum to amend the Australian Constitution to recognise Indigenous Australians in the document by prescribing the Voice was held on 14 October 2023. It was unsuccessful, with a majority of voters both nationwide and in all states voting against the proposal. The idea of such a body came to prominence after being endorsed by Indigenous leaders in the Uluru Statement from the Heart of 2017. While initially rejected by the then Coalition Turnbull government, the subsequent Labor Albanese government endorsed the proposal and promised to hold a referendum on the topic. Both Coalition parties in the federal opposition opposed the Voice however, whether legislatively or constitutionally implemented.
Under the government-endorsed design principles of the First Nations Referendum Working Group, the membership of the Voice would have been selected by Aboriginal and Torres Strait Islander communities across the country, with an enforced gender balance at the national level. It remains legally possible for the Voice to be introduced by legislation rather than by amendment to the Constitution; however, the current government stated before the referendum they would not legislate a Voice in the event of a No vote and have subsequently stuck to this position.
Background
Indigenous Australians have long called for better representation, with William Cooper seeking in 1933 to petition King George V for the inclusion of a member of parliament to represent Indigenous people. In 1967, the first Indigenous referendum was held.Prior to 1967, the federal government did not have the power to create laws specifically for Indigenous Australians, with section 51 giving the Parliament the power to make laws with respect to "the people of any race, other than the aboriginal race in any State". This exclusion, along with another provision that prevented the counting of Indigenous Australians in the population for constitutional purposes, was deleted following the 1967 referendum in which over 90% of Australians voted yes to the changes.
Additionally, since 1973 various Indigenous advisory bodies have been created in response to activist lobbying. Later in 1992, calls for the recognition of Indigenous Australians in the Constitution emerged in the context of the Keating Government's response to the Mabo decision.
Previous national Indigenous advisory bodies
Constitutional recognition
The Keating government in 1993 passed the Native Title Act as a statutory recognition of native title. However, the government originally intended to pass that act as a part of a broader social and justice reform package, which would entail negotiations with Indigenous leaders to develop a mutually acceptable form of constitutional recognition. This did not eventuate however, with the Howard government coming to office in 1996.Howard government (1996-2007)
During this Coalition government, the 1998 Australian Constitutional Convention, called to discuss whether or not Australia should become a republic, almost unanimously supported the proposal that a preamble containing a recognition of Indigenous Australians as the original inhabitants and custodians of Australia be inserted into the constitution. This, along with the convention's endorsement of an Australian Republic, was voted on in the 1999 referendum, with both questions being defeated. The first draft of the preamble voted on was written by Prime Minister John Howard, along with poet Les Murray, and was heavily criticised after being released. Indigenous leaders specifically objected to their failure to be consulted and the reference only to the prior occupancy of Indigenous peoples and not their continuing custodianship. A continuing lack of consultation in the creation of the final draft led to Indigenous leaders calling for the preamble question to be dropped. Debate on the preamble question was limited, with much of the focus on the other republic question and the question was eventually defeated, with only 39.34% of Australians voting yes.The government otherwise opposed what it called "symbolic" recognition, until during the 2007 election campaign, Howard committed to hold a referendum on constitutional recognition. All subsequent prime ministers have endorsed this position; however no proposal prior to the Voice was taken to vote.
Rudd and Gillard governments
While the Rudd government also endorsed constitutional recognition, formal consultation with Indigenous leaders on a new proposal did not begin again until 2012 under the Gillard government. This resulted in the creation of an expert panel, which recommended, amongst other things, the insertion of a prohibition on racial discrimination. The report was not acted on by the government and was criticised by the opposition. Debate continued to stall for the remainder of Labor's time in office until 2014.Kirribilli statement and Referendum Council
Incoming prime minister Tony Abbott was opposed to substantive constitutional change, arguing in his 2014 Neville Bonner oration that the goal is to "acknowledge Aboriginal people in the Constitution without otherwise changing it". However, in 2015 over 40 Indigenous leaders presented the Kirribilli Statement. It rejected non-substantive changes, stating:This statement resulted in the creation of the bi-partisan creation of the Referendum Council by new prime minister Malcolm Turnbull.
Development of a constitutional voice to Parliament
The proposal for a Voice to Parliament was initially conceived in 2014 by Aboriginal advocate Noel Pearson of the Cape York Institute in discussion with academic Anne Twomey and constitutional conservatives Greg Craven, Damien Freeman and Julian Leeser. Their discussion arose in response to the 2012 recommendations of the Gillard Government's Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, which had been rejected by constitutional conservatives. The proposal was first publicly raised by Pearson in his 2014 Quarterly Essay, "A Rightful Place: Race, Recognition and a More Complete Commonwealth" and was submitted by the Cape York Institute to the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in January 2015.The proposal was made in part to bridge the gap between Indigenous advocates and constitutional conservatives in the debate around recognition. Indigenous advocates demanded more than just symbolic recognition in any change and had coalesced around a constitutional prohibition against racial discrimination. This reflected the view that, according to Megan Davis, Indigenous people do not seek inclusion in the Constitution to be recognised, that campaign being "a state-conceived project salvaged from the ashes of the failed 1999 referendum and arguably already achieved in 1967" but instead in order to "ameliorate the unintended consequences of the drafting of the 1967 amendment" such as the continuing ability for the government to racially discriminate as seen in the Northern Territory Intervention and the Hindmarsh Island bridge controversy. A racial discrimination clause was unacceptable to constitutional conservatives however, who feared that such a clause would be widely interpreted by so called "activist judges" and unacceptably limit parliamentary sovereignty.
Arguing that conservative support was required for any referendum to succeed, the proposal envisioned a duty for Parliament to consult with Indigenous communities, but with no duty to follow this advice, thereby retaining parliamentary sovereignty. Additionally, it was argued that through the proposal being proactive, Indigenous people would be involved as "participants in Australia's democratic and parliamentary processes, rather than as litigants". The proposal was described as Pearson and Morris as a "third way" or "radical centrist" solution that synthesised progressive concerns that any constitutional recognition must involve structural reform and not "mere symbolism" with conservative concerns that any change must not limit parliamentary sovereignty and "minimise legal uncertainty".
While receiving broad academic support, some noted that if the design of the body is wholly left to Parliament, it may not have sufficient political power to negotiate with government and that the body may not be able to provide advice early enough to be effective.
Further developments under the Referendum Council
On 7 December 2015 the 16 members of the Referendum Council were appointed by Liberal prime minister Malcolm Turnbull and the ALP's Bill Shorten. In October 2016, the Council released the Discussion Paper on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, which outlined the various proposals to date, including that of an Indigenous voice. The council then engaged in a consultation process with Indigenous Australians, eventually meeting with over 1,200 people. This led to the First Nations National Constitutional Convention on 26 May 2017, whose delegates collectively composed the Uluru Statement from the Heart. This statement included the request, "We call for the establishment of a First Nations Voice enshrined in the Constitution."On 13 June 2017, the Referendum Council released their final report, which recommended that a referendum for a constitutional voice be held. It stated that the body would recognise Indigenous Australians as "the first peoples of Australia" and that it should be tasked with "monitoring the use of the heads of power in section 51 and section 122".
In October 2017, the Turnbull government rejected the major recommendations of the report, arguing that the constitutional proposal was neither "desirable or capable of winning acceptance at referendum" and that the body "would inevitably become seen as a third chamber of parliament". Instead, the government established the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples in March 2018. It was tasked with reviewing the findings of the Uluru Statement delegates, Referendum Council, and the two earlier constitutional recommendation bodies. Its final report, published in November 2018, included four recommendations, the first of which was to "initiate a process of co-design with Aboriginal and Torres Strait Islander peoples". It stated that the delegates at the 2017 Convention "understood that the primary purpose of The Voice was to ensure that Aboriginal and Torres Strait Islander voices were heard whenever the Commonwealth Parliament exercised its powers to make laws under section 51 and section 122 of the Constitution".