On 14 October, Australians will be asked to vote on whether to add an Indigenous Voice to Parliament to the Constitution.
An Indigenous Voice to Parliament would be an official representative body that gives First Nations people a say in laws and policies that affect them.
The Government wants to include this Voice in Australia’s Constitution, which does not currently recognise First Nations people.
The request for an Indigenous Voice to Parliament comes from the Uluru Statement from the Heart.
The Uluru Statement from the Heart was delivered and endorsed by 250 First Nations leaders in May 2017. It outlined the path forward for recognising First Nations people in the nation’s Constitution. It had three requests for reform.
The first request was to implement a Voice to Parliament in Australia’s Constitution.
It then asked to establish a Makarrata Commission, which would involve a treaty and truth-telling process.
These requests were designed to be implemented in order, which is why the Government is trying to implement a Voice to Parliament first.
The Daily Aus is answering questions on the Voice that have been sent in by the audience. You can submit a question at the bottom of this page.
No. Under the proposed change to the Constitution, the power to make laws will still be held by Parliament.
Members of the Voice would not sit in Parliament and could not overrule it.
The Constitution would only specify that the Voice be able to give advice on matters relating to First Nations people.
Any other powers would be up to Parliament to decide, but no other powers are proposed.
Prime Minister Anthony Albanese, told TDA: “Politicians, of course, make the laws in this country. We’re not changing the way that laws are written by elected representatives.”
The Constitution already mentions the word “race”.
Specifically, it gives Parliament the power to make laws about “the people of any race for whom it is deemed necessary”.
The upcoming referendum on an Indigenous Voice to Parliament proposes to add a new chapter to the Constitution.
This chapter would include a “recognition” of Aboriginal and Torres Strait Islander peoples “as the First Peoples of Australia”.
It would also establish an Aboriginal and Torres Strait Islander Voice to “make representations… on matters relating to Aboriginal and Torres Strait Islander peoples”.
This would be up to Parliament to decide. The proposed change to the Constitution does not specify who should be on the Voice or how they should be chosen.
The Government’s plan is for the Voice’s members to be chosen by First Nations people, with a gender balance and representation for young people and remote communities.
For determining eligibility to be a member of the Voice, the Government plans to use an identification process called the ‘three-part test’, which is already used to determine eligibility for many First Nations-specific programs.
This test requires that a person is of Aboriginal or Torres Strait Islander descent, that they identify as an Aboriginal or Torres Strait Islander person, and that they are accepted as such by their community.
The Government has not committed to further specifics such as the number of members or their term length.
Parliament will decide what powers the Voice has.
The Constitution would require that a Voice exist, and that it be able to give advice on First Nations issues.
If the referendum is successful, the Parliament would then need to pass a law to enact a Voice.
That law would set out details like the number of people on the Voice, how they would be chosen, and how the advice-giving process would work.
Parliament could change these details at any time by changing the law.
The Government has not released full details about the law it would propose after a successful referendum.
However, it has released principles. These include that the Voice’s members would be chosen by First Nations people, that they would be gender-balanced and include young people, and that the Voice would not deliver programs or control funding.
The Coalition has criticised the Government for not revealing full details of its proposal before the referendum.
Because the Voice gets its powers from Parliament, it can’t force the Parliament to do anything.
When it passes the law to set up the Voice, Parliament could decide to give it certain powers, for example requiring that decision-makers consult the Voice.
But Parliament could always take these powers away again.
There are hundreds of bodies established by Parliament that are given specific powers.
For example, the new anti-corruption body has the power to investigate politicians, but Parliament can take away this power at any time by changing the law.
The Voice would be different to these bodies – its inclusion in the Constitution would mean it could not be abolished entirely. However, its powers would work in a similar way.
The idea of the Voice came from the Uluru Statement from the Heart, a statement delivered by nearly 250 First Nations leaders.
As well as the Voice, the statement had two other elements: the signing of ‘treaties’, and a process of ‘truth-telling’ about historic wrongdoing.
The statement called for these to be done in order (Voice first, then treaties, then truth-telling), but some state and territory governments have already started work on their own treaties.
A treaty is an agreement between sovereign groups, often signed after a conflict, which sets out terms and conditions for peaceful co-existence.
Some colonial powers signed treaties with those they colonised, but British colonisers in Australia did not sign treaties with First Nations groups. First Nations people have long sought treaties, seeing them as a way to recognise First Nations sovereignty.
There is no set formula for what a treaty should involve.
There are a whole range of things it could include, such as symbolic recognition of wrongdoing and/or financial compensation.
Anything agreed in a treaty would need to be approved by Australian parliaments under Australian law.
The Voice will not have the power to make decisions about tax or any other area of policy.
The proposed change to the Constitution would state that the Voice is an advisory body for matters relating to Aboriginal and Torres Strait Islander peoples.
Parliament would remain the only body with the power to make laws on tax policy, and would not be required to act on the Voice’s advice.
The Voice would also not be responsible for distributing any funding itself (e.g. grants).
Like other advisory bodies that already exist, the Voice would receive operational funding from the Federal Government.
This funding would typically cover costs for staff and premises, and could include remuneration for the Voice’s members.
This funding would be controlled by Parliament.
The Voice would be a committee that gives advice on First Nations policies. Its members would be chosen by First Nations people.
Similar committees have been set up at least four times before in Australia’s history, but none have been enshrined in the Constitution and all have been abolished.
Today, there are a range of First Nations advisory groups, but these are appointed by government ministers, not by First Nations people.
The first elected First Nations body was called the National Aboriginal Consultative Committee (NACC). It was established in 1973 and had 41 members.
There was some confusion about how the NACC should interact with the Government Department of Aboriginal Affairs, and whether it should have decision-making power.
It was replaced in 1977 with the NAC (National Aboriginal Conference).
The NAC was also an elected body and also intended to communicate First Nations peoples’ views to the Government.
The NAC campaigned for a treaty between First Nations people and the Government.
It was abolished by the Hawke Government in 1985 with no immediate replacement.
The next attempt was the Aboriginal and Torres Strait Islander Commission (ATSIC), set up in 1989. It was given two roles: policy advice and the delivery of some services to First Nations people.
ATSIC had success in employment and housing projects and advocated for legal recognition of traditional ownership under Native Title.
It was abolished by the Howard Government in 2004 following allegations of misconduct against senior officials.
The final attempt was the National Congress of Australia’s First Peoples (NCAFP) in 2010.
NCAFP was intended to advise government, but was established as an independent corporation. First Nations people could join NCAFP and vote on its representatives. Its membership reached over 9,000 individuals.
The Abbott Government announced in 2013 that funding to NCAFP would be cut and the corporation went into administration in 2019.
There are a range of government advisory bodies currently in existence for First Nations policy areas, including a Mental Health and Suicide Prevention Advisory Group and a Youth Advisory Group.
The members on these bodies are chosen by government ministers, not by First Nations people.
There is also a Government Department called the National Indigenous Australians Agency (NIAA), which helps the Government implement First Nations policies. However, this is not a representative body and most of its staff are not First Nations people.
The Voice would not have the power to make decisions, including relating to land-rights.
The role of the Voice would be to give advice. It may give advice relating to land matters, but Parliament would not be required to act on this advice.
Australia already has a process for granting legal recognition of First Nations traditional ownership under a system called ‘native title’.
The native title system was developed after a historic 1992 High Court decision called the ‘Mabo Decision’.
The decision formally overturned the declaration made by British colonisers that the land belonged to nobody before colonisation (‘terra nullius’).
In 1993, Parliament passed the Native Title Act to give effect to the decision, setting out a framework for First Nations people to claim native title.
Traditional Owners must prove in court the existence of a continuous line of law and cultural customs extending back before colonisation. The Australian Institute of Aboriginal and Torres Strait Islander Studies describes this process as “burdensome”.
Traditional Owners recognised under the native title system get some rights to negotiate over proposed developments on their land and waters.
However, these rights are legally subordinate to the rights of private landowners and governments, meaning native title-holders can not override those rights. Traditional Owners do not have veto power over what happens on their land.
Several countries have set up advisory bodies for their Indigenous peoples, including Canada, Norway, Sweden, Finland, Taiwan, and New Zealand.
Some have gone further than an advisory board by giving Indigenous people some decision-making powers.
There is also an international agreement on how the rights of Indigenous peoples should be upheld, which Australia is a signatory to.
Canada has an Indigenous Advisory Committee with members from its three Indigenous groups: First Nations, Inuit, and Métis. The body is set up under normal laws.
Canada also signed many treaties with its Indigenous peoples from the 1700s onwards, although the terms of these treaties have been repeatedly broken.
In 2006, the Government agreed to a financial settlement for harm caused by the residential school system, which removed at least 150,000 Indigenous children from their homes from the 1800s to the 1990s. It also set up a Truth and Reconciliation Commission to investigate these harms.
New Zealand has seven seats in its Parliament reserved for Māori members, and has recognised te reo Māori as an official language since 1987.
A treaty was also signed between English colonisers and Māori leaders, but there were misleading differences between the English and Māori translations.
In 1975, the NZ Government set up a permanent tribunal to consider breaches of the treaty, which functions as an Indigenous tribunal. It does not have veto power.
The U.S. Government made hundreds of treaties with Native American nations in the 18th and 19th centuries. During this time, it also passed laws that drastically reduced Native Americans’ lands and quality of life, moving nations onto ‘reservations’ that many still live on today.
In 1993, the U.S. Congress formally apologised to Indigenous Hawaiians for invasion of the island, and in 2009 it apologised to “all Native Peoples” of the U.S. for historic harms.
Today, some Native American nations have some powers of self-government.
Taiwan has a Council of Indigenous Peoples with its own Government Minister.
Norway, Sweden and Finland have separate parliaments for the Sámi Indigenous people, which make their own decisions about some Indigenous matters and also provide advice to the national governments.
In 2007, the United Nations adopted a Declaration on the Rights of Indigenous Peoples (UNDRIP).
It includes a right for Indigenous peoples who have suffered “historic injustices” to determine their own political status, and a responsibility for national governments to “provide redress for” (make amends for) harmful actions towards Indigenous peoples.
Australia, Canada, New Zealand and the U.S. voted against UNDRIP in 2007.
However, Australia has since become a signatory. It is not legally binding and Australia has not passed specific laws to adopt its contents.