Later in 2023 Australians will be asked to make a permanent change to the nation’s Constitution. The change will insert into the Constitution an Aboriginal and Torres Strait Islander Voice to represent and be comprised solely of Indigenous Australians. The social, political and legal consequences of this permanent change are explored in this submission.
On 23 March 2023 Prime Minister Anthony Albanese announced the question that would be presented to voters at the proposed referendum to enshrine in the Australian Constitution an Aboriginal and Torres Strait Islander Voice to Parliament. Australians will be asked:
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?
The question is a summary of the proposed change, which is defined fully in the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (the Constitution Alteration Bill). If successful, the Constitution will be altered by the insertion of a new chapter which will contain the following:
129 Aboriginal and Torres Strait Islander Voice
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
- there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
- 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;
- 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.
At the press conference to announce the proposed change, the Prime Minister described the proposal as a ‘modest request’. This assertion should be treated with scepticism: there are few constitutional amendments which could be described as ‘modest’. What is being asked of Australians is to make a change that will insert an additional representative body into the Constitution. By being in the Constitution, the consequences of the Voice will be a permanent feature of the way laws are passed and enforced in Australia.
It will forever describe the relationship of Australians as a part of the political community, and reshape the relationship between citizens and the state. It is because of these profound consequences that the Voice must be the subject of a free and fair debate in which all perspectives are given an opportunity to speak and be heard. It is in this context that the Institute of Public Affairs has prepared this report to share with the community research and analysis that can enable Australians to make a fully informed decision about the proposed constitutional change.
Australia will be a more divided society if the Voice is inserted into the Constitution. Australia’s success as a cohesive multi-racial and multi-ethnic society is based on its inheritance of a shared set of values, including freedom, tolerance, egalitarianism, fairness, and democracy. The proposal to assign separate legal and political rights to Australians based on their racial identity is an affront to the basic principle that every Australian has the same say over the future of their country, and that each Australian’s voice has equal value.
The underlying argument for the Voice is either that Australian governments do not do enough for Indigenous Australians, or that governments are not properly informed about Indigenous affairs, thus requiring an entity to be created and given a central role in the nation’s lawmaking and administrative framework.
The argument is an epistemic claim (a claim relating to knowledge or understanding) that indigenous policy has not been effective because parliaments lack appropriate information or awareness about indigenous culture or conditions. The claim has been made for instance that without the Voice the “Closing the Gap” objectives cannot be met. Therefore, governments require a body to provide advice in order to solve this knowledge problem.
The claim may be true inasmuch as it argues that governments have a knowledge problem, but an advisory body is not necessarily a better solution than other alternatives, such as localism and subsidiarity. As a central authority, institutions in Canberra may suffer from a knowledge problem, but as a new central authority, the Voice to Parliament would be prone to suffer from the same ‘preoccupations with statistical aggregates’ that economist and philosopher Friedrich Hayek identified in his postulation of the ‘local knowledge problem’.
Indeed, the argument that governments and parliament lack knowledge is difficult to substantiate. According to Institute of Public Affairs analysis, there are no fewer than 123 state and federal government departments, agencies or units focussed solely on Indigenous affairs. The Indigenous Expenditure Report published by the Productivity Commission in 2017 revealed that state and federal governments directly spent $33.4 billion on Indigenous Australians in 2015-16. Adjusted for inflation, that amounts to direct spending of $53,055 per Indigenous Australian, and is twice the amount spent on non-Indigenous Australians.
The existing method of separate treatment and separate institutions does not appear to be generating success. And yet the proposed Voice will entrench this model of separateness.
Entrenching the Voice compounds the risks. A race-based body cannot merely be appended to Australia’s existing institutions—it would radically reconfigure how politics and democracy is practiced. It would in effect operate as a third chamber of parliament, as the Institute of Public Affairs argued in a research essay in February 2023, or a fourth branch of government.
Initially, the power and influence of the Voice would likely take the form of a political or moral veto, where it could wield accusations of racism to stunt debate or otherwise grind the gears of government to a halt. Eventually however the proposed amendment would invite courts to expand the scope and powers of a voice even further. Australia’s history of judicial activism makes almost certain that the High Court will give an expansive interpretation to the new constitutional text. That the proposed text is ambiguous in several respects, and is intended to empower the Voice to make representations on any matter to the entire machinery of the Commonwealth government ensures decades of litigation relating to the role and powers of the Voice, causing delay and disruption to government to an extent not yet measurable.
The IPA’s analysis of New Zealand’s Māori voice to parliament—the Waitangi Tribunal—confirms how an advisory body can with the assistance of adventurous decisions by the courts evolve over time to have outsized influence in every policy area.
The Australian Constitution is a rulebook for our governing institutions. Parliament, being open for participation to all Australians, remains the best body to represent all Australians.