A general explainer on the history behind the Voice Referendum
By popular request
A few friends and family members have asked me to explain the history behind the proposal to amend the Australian Constitution to allow for an Aboriginal and Torres Strait Islander Voice. While the history surrounding the Voice might be well-known to legal academics and advocates, I don’t think it’s well-known among the general public. To that end, I’ve prepared the following. As with many areas of law, you can only really understand how we got here if you know the history.
I’ve tried to be as objective as possible (if there are any errors, let me know). This post is not intended to convey a particular position: it’s intended for information only.
Among other things, the Voice is intended to allow Aboriginal and Torres Strait Islanders to make representations to both Parliament and the Executive with regard to matters relating to them, and to ensure that any such laws do not negatively discriminate against these communities. It’s also intended to ensure that any Indigenous representative body cannot readily be disbanded, as the Voice will be entrenched in the Constitution. I’ll explain how and why we have to have a Referendum first.
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The Referendum question and proposed amendment
Section 128 of the Australian Constitution provides that the only way in which the Constitution can be amended is by means of a Referendum, after the amendment has put to the Australian voting public. Section 128 requires a “double majority” Yes vote:
a majority of voters in a majority of states (i.e. a majority Yes vote in at least four of the six states); and
a national majority of all voters (i.e. an overall Yes vote of more than 50% of all voters, in favour of the proposed change, including voters in both the states and the territories).
If the double majority is obtained, the proposed alteration is then made to the Constitution. Since 1901 there have been 44 proposed changes to the Constitution, but only eight of those have been agreed to by the Australian people at a referendum.
In relation to the current Voice Referendum, on 19 June 2023, Parliament passed a Bill, providing that question asked in the Constitutional Referendum would be as follows:
“A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.
Do you approve this proposed alteration?”
As with previous Referendums, voters will have the option to vote Yes or No.
The proposed amendment to the Constitution is the addition of the following Chapter and section:
“Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples
129 Aboriginal and Torres Strait Islander Voice
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
(1) there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
(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;
(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.”
Who counts as an Aboriginal and Torres Strait Islander person?
One question I’ve been asked is: who counts? There is a well-established test for establishing that a person has Aboriginal or Torres Strait Islander heritage:
being of Aboriginal or Torres Strait Islander descent;
identifying as an Aboriginal or Torres Strait Islander person; and
being accepted as such by the community in which you live, or formerly lived.
Incidentally, I have an Aboriginal great-great-great grandfather, but as I’ve outlined previously, I do not identify as Aboriginal, nor have I sought to be accepted as such by any community.
We did not realise we had Aboriginal ancestry until relatively recently. For the reasons outlined below, there were very good reasons to conceal our ancestry. I am proud to have Aboriginal ancestry, but I am also proud of my other ancestors.
When the Australian Constitution came into force in 1901, it had several racist clauses. Among other things, s 127 of the Constitution stated that “aboriginal natives” should not be counted in censuses. Section 51(xxvi) (the “race power”) conferred a power on the Federal Parliament to make laws for “the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.”
Aboriginal and Torres Strait Islanders were excluded from voting in Federal elections in Queensland, Western Australia and the Northern Territory, until legislation was passed in 1962, allowing Aboriginal and Torres Strait Islanders to enrol to vote if they wished.1 These states also denied Australian citizenship to Aboriginal and Torres Strait Islanders, or put harsh conditions upon those who sought it. Notoriously, in many places in Australia, passes were required for Aboriginal and Torres Strait Islanders to leave their reservations, or for non-Aboriginal or Torres Strait Islanders to enter the reservations. Aboriginal and Torres Strait Islanders were subject to strict controls on movement and employment. Children with a mixture of white and Indigenous ancestry were often removed from their parents.
The discriminatory treatment of Aboriginal and Torres Strait Islanders in elections was one of the impetuses for the 1967 Constitutional Referendum, which sought to remove s 127 of the Constitution, and to delete the words “other than the aboriginal race in any State” from s 51(xxvi). The Referendum passed with the majority agreement of all six states, and a majority of 90.77% in all states and territories (the highest majority for any Constitutional Referendum).
In practice, although the “race power” applies to “any race”, since 1967, it has been used almost exclusively to pass laws relating to Aboriginal and Torres Strait Islanders.
Obviously there are both symbolic and practical aspects to the proposed change to the Constitution.
On the symbolic front, previously Aboriginal and Torres Strait Islanders were specifically excluded from the Constitution, and hence s 129 recognises their place in our nation.
The practical aspects are two-fold. First, there’s a concern that Federal laws made pursuant to the amended “race power” can be to the detriment of Aboriginal and Torres Strait Islanders, and that a representative body with the power to lobby Parliament and the Executive will ensure Aboriginal and Torres Strait Islanders will not be negatively discriminated against. Secondly, there’s a concern that a previous Aboriginal and Torres Strait Islander representative body was disbanded and not replaced. I’ll now discuss how each of these practical aspects became a concern.
The “race power”
As noted above, the “race power” was amended in 1967. From 1967 to 1998, it was assumed that the amended “race power” could only be used to help Indigenous people (i.e. positively discriminate against them).2 However, in 1998, the High Court of Australia decided by a majority in Kartinyeri v Commonwealth3 that the “race power” could potentially be used to adversely discriminate against Indigenous people.
Kartinyeri involved the construction of a bridge to Hindmarsh Island in South Australia. The bridge was opposed by some local residents, environmental groups and Indigenous people. Some Indigenous women from the Ngarrindjeri people claimed that the site had cultural significance on the basis of what became known as “secret women’s business”, and tried to stop the bridge being built by seeking a declaration that the area should be protected under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The characterisation of the area as a culturally significant site was contested, and another group of Ngarrindjeri women said that the claims of cultural significance were untrue.
After a declaration as to the protected nature of the areas was issued, the Federal Government passed the Hindmarsh Island Bridge Act 1997 (Cth), which provided that neither the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, nor any declaration under it, prevented the construction of the Hindmarsh Island Bridge. In Kartinyeri, the plaintiffs sought to strike down the Hindmarsh Island Bridge Act 1997 on the basis that it had been enacted under the “race power” and that power could only be used to benefit Indigenous people, not to limit their rights. That challenge was unsuccessful, and a majority of the High Court of Australia found, at the least, that the Hindmarsh Island Bridge Act 1997 was a valid Act which operated to partially or wholly repeal the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.4
In 2012, the Expert Panel on Constitutional Recognition of Indigenous Australians recommended that a referendum be held for the repeal of the race power, and the repeal of s 25 of the Constitution. It was not possible to simply repeal s 51(xxvi) entirely, without replacing it with another head of power, as legislation to benefit Aboriginal and Torres Strait Islanders had been passed pursuant to the race power.
It was suggested instead that s 51(xxvi) be replaced with with several new sections: s 51A (which would empower the Commonwealth to make laws for Indigenous Australians, but also recognise Aboriginal and Torres Strait Islanders as Australia’s first peoples); s 116A (which would prohibit racially discriminatory legislation or the making of laws under s 51A that were not for the benefit of Indigenous peoples); and s 127A (which would recognise Aboriginal and Torres Strait Islander languages). Among other things, these proposals were an effort to return to the pre-Kartinyeri position.
These suggestions were not accepted. Consequently, in 2014, Noel Pearson devised a compromise solution: a Voice to Parliament which would advise the Federal Government on legal measures to be taken with respect to Indigenous communities.
He recommended Constitutional entrenchment of the Voice to Parliament to save it from the fate of the Aboriginal and Torres Strait Island Commission (“ATSIC”).
An Indigenous representative body
This reflects the second practical justification for the Voice. In 1990, the Federal government created ATSIC, a democratically elected Indigenous body to advise it on laws and policies. In the early 2000s, ATSIC began to founder in claims of corruption, embezzlement, and nepotism. Additionally, ATSIC’s then-Chairperson, Geoff Clark, faced allegations of sexual assault. As a result, over the course of 2004 and 2005, ATSIC was gradually disbanded, and replaced by several other non-democratic advisory bodies. Some Aboriginal and Torres Strait Islander people, including the inaugural head of ATSIC, Lowitja O’Donoghue, thought ATSIC should have been reformed instead.
In 2007, a report to Parliament claimed that sexual abuse of children was rampant in some remote Indigenous communities.5 In response, John Howard’s Federal Government instituted the “Northern Territory National Emergency Response” (also called “the Intervention”).6 The Northern Territory National Emergency Response Act 2007 (Cth) and other associated legislation7 included restrictions or bans on the consumption of alcohol and pornography, changes to welfare payments, changes to the delivery and management of education, employment and health services, compulsory acquisition of some leases on a 5-year basis, removal of permit systems, and additional deployment of police. These measures required a suspension of Part II of the Racial Discrimination Act 1975 (Cth), which prohibits adverse discrimination on the basis of race.
While the Intervention was supported by some Aboriginal leaders, it was roundly criticised by others, and greeted with suspicion by still others (who saw the concern over child abuse as a pretext to exert control over communities and their land). The Labor government which later replaced Howard’s Liberal National Party government did not repeal the legislation.
A 2011 report on the Northern Territory National Emergency Response argued that child neglect was the primary issue in remote communities, not child sexual abuse.8 It was observed that Indigenous communities had been put off side by the rapidity and lack of consultation over the 2007 Intervention, and embarrassed by signage outside communities notifying people that alcohol and pornography was not allowed, even though some of the measures had been beneficial to communities.
Nonetheless, in 2012, Labor enacted the Stronger Futures in the Northern Territory Act 2012 (Cth), which retained many of the measures in the previous legislation. The legislation had a 10-year sunset clause, and ceased operation on 17 July 2022. In Alice Springs, it was alleged, among other things, that the revocation of the alcohol led to issues with youth crime. In February 2023, the alcohol bans in remote communities in the Northern Territory were reinstated, at the request of some Elders.
Conclusion: Uluṟu Statement from the Heart
The twin concerns about lack of consultation and adverse discrimination led a group of Aboriginal and Torres Strait Islanders to come together in 2017 to ask Australians to support a Voice to Parliament, broadly drawing on Noel Pearson’s 2014 suggestion. This request was called the Uluṟu statement from the Heart, and is as follows:
We, gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky, make this statement from the heart:
Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.
This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.
How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?
With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.
Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are alienated from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.
These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.
We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.
We call for the establishment of a First Nations Voice enshrined in the Constitution.
Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.
We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.
In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.
The Albanese Federal government responded to the Uluṟu Statement from the Heart by heeding the call for Constitutional recognition and an enshrined Voice.
This, in a nutshell, explains where the calls came from, what the legal and political history is, and why we are having the 2023 Referendum on the Voice. I hope you found it helpful.
Voting was compulsory for all other Australian citizens, but it was not made compulsory for Aboriginal and Torres Strait Islanders until 1984.
(1988) 195 CLR 337.
Rex Wild and Patricia Anderson, Ampe Akelyernemane Meke Mekarle: "Little Children are Sacred", Northern Territory Government Board Of Inquiry Into The Protection Of Aboriginal Children From Sexual Abuse (2007)
The Commonwealth is empowered to make laws for the Northern Territory pursuant to s 122 of the Constitution.
Other legislation included the Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth); the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth); Appropriation (Northern Territory National Emergency Response) Act (No. 1) 2007–2008 (Cth); and Appropriation (Northern Territory National Emergency Response) Act (No. 2) 2007–2008 (Cth).
Commonwealth of Australia, Northern Territory Emergency Response: Evaluation Report 2011 (2011).