By Lisa Visentin, James Massola and Paul Sakkal
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Readers, politicians and commentators have raised a multitude of questions about the proposed Indigenous Voice to parliament. What powers would it have? What issues would it advise on? Who would be a member?
Labor and Indigenous leaders decided at the outset that these precise details would be determined after the referendum, should it succeed. Led by the government, parliament would pass a law setting up the Voice and outline how it would work, following a period of consultation with Indigenous communities.
For both leaders, this campaign is about defining their legacies as well as shaping the nation’s furure.Credit: Fairfax Media
The uncertainty about its shape and form has underpinned the No campaign, whose motto is: “If you don’t know, vote No.”
Included below are the most pertinent questions about the Voice, answered as far as possible without knowing the details of legislation yet to be drafted.
How is the Voice chosen?
Exactly how, and how many, Voice members would be picked are among the details that would be determined through legislation in the event of a successful referendum.
However, according to a set of eight design principles released by the government, members of the Voice would be “chosen by Aboriginal and Torres Strait Islander people based on the wishes of local communities” to serve fixed terms and would not be appointed by the government.
The design principles were agreed upon by a working group of 21 Indigenous leaders appointed by the government to advise it on the referendum.
The principles state that to “ensure cultural legitimacy, the way that members of the Voice are chosen would suit the wishes of local communities and would be determined through the post-referendum process”.
This leaves open the door for members to be voted onto the Voice through elections in Indigenous communities, or to be selected by those communities through another mechanism.
Professor Megan Davis, one of the leading architects of the Voice, says Indigenous communities expressed a strong desire for elections during the regional consultation process that resulted in the Uluru Statement from the Heart in 2017, which called for a constitutionally enshrined Voice.
“In the dialogues, there was a huge appetite for direct elections by mob. When I say ‘direct election’, there will be some sort of ballot box process that allows people to exercise a vote,” Davis says.
How many members will be on the Voice?
There is no certainty around how many representatives could be on the Voice, but the design principles state that members would be chosen from each state and territory, as well as the Torres Strait Islands, and there would be a gender balance.
They also state that the Voice would have “specific remote representatives as well as representation for the mainland Torres Strait Islander population”.
These features echo the design model set out in a 2021 report by Aboriginal academics Tom Calma and Marcia Langton, who were commissioned by the Morrison government to consult on how a Voice could be implemented.
The report ultimately proposed a 24-member model, comprising two members from each state, territory and the Torres Strait, and a further five members from remote areas, as well as a Torres Strait Islander living on the mainland.
Prime Minister Anthony Albanese has repeatedly pointed to the Langton-Calma report as an example of how the body could operate. But he has stopped short of committing to adopting this model as the one the government would seek to legislate if the referendum succeeds.
What is the cost, and will Voice members be paid?
The Australian Electoral Commission estimates the referendum will cost about $450 million – a similar price to running a federal election. The May federal budget also allocated $10 million to boost mental health support for First Nations people during the Voice campaign.
It’s unclear how much the Voice body would cost to operate once established.
The body will not deliver programs or policies. But its design principles state it “would have its own resources to allow it to research, develop and make representations” to parliament and executive government.
The Calma-Langton report foreshadows that the Voice would have two full-time paid co-chairs.
“This would enable the co-chairs to work closely with the CEO and Office of the National Voice to ensure the efficient management of national Voice business,” the report states.
What powers would the Voice have?
The Voice would provide advice to parliament, executive government – that is, the federal ministry – and the public service on issues that affect Indigenous Australians.
Its critics say in theory, this could mean offering advice on anything from the location of Australia’s nuclear submarine base to monetary policy, and warn it that could leave government decisions open to High Court challenges.
But Indigenous Australians Minister Linda Burney has made clear she wants the body to provide advice on four key areas: health, housing, education and jobs.
Yes advocates say the body would render itself irrelevant by wading into too many areas.
While it is correct that the creation of the Voice could lead to legal challenges, constitutional law academic George Williams told a public hearing on the referendum in April there was “no realistic possibility whatsoever that this will give rise to a deluge of litigation”.
Eminent constitutional silk Bret Walker, SC, told the same hearing: “I don’t think there’s any prospect if this is put into our Constitution that a 10-year review … will reveal that litigators have been run ragged keeping up with a deluge of cases.”
The scope of the body’s powers would be defined by parliament and could be changed at any time, too. The constitutional amendment states that there must be a Voice, but says nothing about its membership or scope.
Does the Voice mean reparations?
Albanese made clear in August that he did not support reparations for Indigenous Australians because of their past treatment by British colonists, and that in his view a Yes vote would not lead to that happening.
Opponents of the apology to the stolen generations predicted billions of dollars in compensation would follow and this did not occur. Supporters of a Yes vote say it will be the same situation if a Voice is created.
Albanese is laser-focused on narrowly defining the terms of debate about the Voice to try to ensure a successful Yes vote, but it isn’t so straightforward.
No campaigners have claimed a Voice would lead to reparations and have highlighted past claims by people such as leading Yes campaigner Thomas Mayo as proof.
A two-year-old video surfaced in June of Mayo calling for reparations and compensation for Indigenous Australians. It was a damaging moment for the Yes campaign and is still reverberating.
The one-page Uluru Statement from the Heart does not mention reparations – but it is an idea that has been debated and discussed for years. It is possible that a Voice to parliament could propose it – but that does not mean the Commonwealth has to agree.
Constitutional law professor Anne Twomey explains that if the federal government wanted to, it could propose or agree to pay reparations to Indigenous Australians now – it is a question of political will.
“There is nothing about the existence of the Voice that would either ensure there was a treaty (see below) and reparations or that would stop it from happening,” Twomey says.
Does the Voice lead to treaty?
The 2017 Uluru Statement from the Heart argues for a Voice to parliament to be created, followed by a Makarrata Commission, which would oversee a process of agreement-making (treaties, potentially) and truth-telling about Australia’s history – in that order.
Most Australian states and territories have committed to pursuing a treaty in some form with their Indigenous peoples, with Victoria and Queensland the furthest advanced – but there is no proposal right now for a Commonwealth treaty. However, much like reparations, treaty is something the Voice to parliament could propose or help facilitate.
Twomey says the federal government could make a treaty now if it wanted to and that at most, “the existence of a Voice might help facilitate treaty because it could speed up the process”.
“Victoria is the example. Victoria is going ahead with a treaty without a Voice, but the process was slowed down because they need to establish a body to negotiate with and also to work out the procedures for negotiations,” she says.
“If a Voice existed at a Commonwealth level, that could speed up that part of the process. That is really the only relevance of the Voice to the process – it might make it easier or quicker, but it is still ultimately a question of political will, whether a Voice exists or not.”
In other words, both reparations and a treaty could happen with or without a Voice to parliament – it’s up to the government of the day to get it done, if they choose to do so. The October budget papers showed the government has allocated $5.8 million over three years from 2022-23 to start work on setting up a “truth-telling” Makarrata commission.
Will the Voice help close the gap?
This is a key point of contest between the Yes and No camps and is ultimately something that cannot be assessed until a Voice exists.
Labor and the Yes campaign have claimed the Voice would deliver practical change to the lives of Indigenous Australians, insisting that better consultation will deliver better outcomes and emphasising that decades of well-intentioned policy has failed to close the gap on Indigenous disadvantage.
Albanese has regularly asserted that the Voice would deliver “better outcomes by listening to Indigenous Australians about matters that affect them”. In an attempt to tighten this link between consultation and practical outcomes, Burney has said she will task the Voice on day one with delivering “fresh ideas” on health, education, jobs and housing.
On the other hand, the No campaign has argued that the uncertainty around the Voice means “we don’t know how it will help disadvantaged communities and close the gap”.
Opposition Leader Peter Dutton and the Coalition have pointed to the fact that the proposed constitutional amendment gives the Voice broad power to advise government on “matters relating to Aboriginal and Torres Strait Islander peoples”, which it claims could be used to pursue a range of issues not connected to closing the gap.
“No matter what the government, the advocates and the activists say about what the Voice will or won’t do, the fact is they don’t know,” Coalition frontbencher Jacinta Nampijinpa Price has said.
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