Explainer: Australia’s referendum on an Aboriginal and Torres Strait Islander Voice

Human Rights Watch & the Australian Human Rights Institute, UNSW Sydney.

What is the Voice?

The Aboriginal and Torres Strait Islander people Voice will be a body representing Aboriginal and Torres Strait Islander people that will give advice to the Australian Parliament and government on issues that affect them. It will be an advisory body with no legislative or executive power. The proposal to establish the Voice will be voted on in a referendum on October 14, 2023.

For a long time, Aboriginal and Torres Strait Islander people have asked the government to address the marginalisation and discrimination they face, including disproportionately high rates of incarceration and other systemic socio-economic disadvantages. The Aboriginal and Torres Strait Islander Voice is a chance for Australians to listen to the request of First Nations people, and show commitment to implementing human rights principles.

Why is the Voice being decided in a referendum?

The Uluru Statement from the Heart, the result of extensive consultation, specifically calls for a “First Nations Voice enshrined in the Constitution.” While some people have suggested that the Voice should be established through legislation, which is an act of Parliament, this is not what First Nations people have sought.

The Australian Constitution can only be amended through a vote of the Australian people, known as a referendum. To become law, the proposed change to the Constitution must be approved by what is referred to as a “double majority.” This means to win a referendum, there needs to be:

  • a national majority from all states and territories, in other words, more than 50 percent of people voting in Australia vote yes; and,
  • a majority of people voting yes in a majority of the states, that is, at least four out of the six states in favor of the proposal.

The votes of residents in the Northern Territory, the Australian Capital Territory, and any of Australia’s external territories count towards the national majority but not the required state majority.

Putting the Voice in the Constitution accords with the wishes of First Nations people, and achieves two important things. It recognizes, for the first time, the Aboriginal and Torres Strait Islander people as the First Peoples of the land. Second, constitutional change creates a level of security, independence, and certainty for the operation of the Voice. If the Voice is in the Constitution, it can only be altered or abolished through another referendum, not by a change of government policy. A legislative Voice would be susceptible to future governments removing it simply by passing a law, which can be done through a majority of members of the House of Representatives and Senate.

Have there been any other referendums in Australia that have directly affected First Nations people?

Since the Australian Constitution came into force in 1901, there have been 44 referendums, with 8 of these successful. The upcoming referendum will be the 45th one. Only one other referendum, the 1967 referendum, related directly to First Nations people.

The 1967 referendum question asked whether the Constitution should be amended to allow the Commonwealth to make laws for Aboriginal people and whether Aboriginal people should be included in the national census. When the Australian Constitution was first written, First Nations people were intentionally excluded from a number of key provisions. This meant they could not be counted in the reckoning of the Australian people for purposes of determining representation in the Parliament and distribution of revenue, and that the Commonwealth Parliament had no legislative power to make laws relating to them. This left the power to make laws with respect to First Nations with the states, which continued colonial-era policies of assimilation, dispossession and oppression.

The 1967 referendum was the most supported referendum to date. It passed overwhelmingly, winning 90.77 percent of the vote and a majority of support in all states.

Who originally called for the Voice?

For decades, Aboriginal and Torres Strait Islander people have been calling for change including calls for representation, a treaty and constitutional recognition. Successive governments have tried to find ways forward. In 2015, in response to calls from First Nations leaders, there was bipartisan agreement to set up a Referendum Council to advise the prime minister and the leader of the opposition on next steps toward recognising Aboriginal and Torres Strait Islander peoples in the Constitution.

Between 2016-2017, the Referendum Council ran 13 regional dialogues in which more than 1,200 Aboriginal and Torres Strait Islanders participated to discuss options for constitutional reform and what mattered most to them and their communities. The final stage was a constitutional convention at Uluru that aimed to bring together all the ideas and reach a national consensus.

The result of this process was the Uluru Statement from the Heart – an invitation delivered to the Australian people to walk together in a movement for a better future. The Uluru Statement from the Heart calls for “Voice, Treaty and Truth.”

Why is the Voice a human rights issue?

The Voice proposal is about human rights. It provides Australia with a rare opportunity to ensure that the rights of all Australians, including Aboriginal and Torres Strait Islander peoples, are not only recognised but heard equally. Two fundamental treaties in international human rights law are the International Covenant on Civil and Political Rights  and the International Covenant on Economic, Social and Cultural Rights. Australia is a party to both of these international treaties. Both have the same first article which states that, “[a]ll peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

The right is also set out in article 3 of the United Nations Declaration on the Rights of Indigenous Peoples, which Australia endorsed in 2009. Although not a legally binding treaty, the Declaration is the most comprehensive international instrument on Indigenous peoples’ rights.

Articles 18 and 19 of the Declaration recognize that Indigenous people have the right to participate in decision-making in matters that would affect their rights, and that governments should consult with Indigenous people before making laws that affect them.

The right to self-determination is a universal human right. There are, however, impediments to certain groups actualizing this right. First Nations people in Australia face unique challenges to their self-determination because of their specific historical, cultural, and social circumstances. This requires additional measures to ensure First Nations peoples’ rights can be realised. The Aboriginal and Torres Strait Islander Voice is an institutional response to the invitation in the Uluru Statement from the Heart, and supports Indigenous self-determination, as well as helping giving effect to their rights to political participation.

What are Indigenous peoples' rights and are they different from non-Indigenous peoples’ rights?

Human rights are universal. Everyone is entitled to the full realisation and protection of human rights that are set out in international human rights instruments. In some instances, however, it is important to set out how universal human rights standards apply to specific groups. This is why we need specialised human rights treaties. Specialised human rights treaties ensure that everyone can fully enjoy their human rights, whether as children, lesbian, gay, bisexual, and transgender (LGBT) people, persons with disabilities, Indigenous peoples, and so on.

Indigenous people have a unique history, culture and connection to land, but are often marginalized and discriminated against despite being the original inhabitants of the land on which they live. As a result, their ability to fully realize their human rights is impacted. The Declaration on the Rights of Indigenous Peoples sets out how universal human rights and fundamental freedoms apply to the distinct experiences of Indigenous peoples across the world. It establishes a universal framework of minimum standards for the survival, dignity and well-being of Indigenous people.

Does the Voice pose problems for other human rights like non-discrimination?

Human rights are indivisible and interdependent. This means that one set of rights cannot be fully enjoyed without the others. In practical terms, the right to be free from discrimination, the right to a fair trial, the rights to health, education and so forth, cannot be enjoyed without also ensuring that human rights principles of effective participation and self-determination of Indigenous people implicit in the Covenants and explicitly set out in the Declaration on the Rights of Indigenous People are respected too.

The existence of an advisory body, like the Voice, that would amplify the unique needs of the First Nations peoples would not detract from the rights of other people or give them preferential treatment. The Voice is a mechanism through which Australia can ensure that the voices of all its citizens, including Indigenous people, are heard equally given the context of the unique discrimination they have faced throughout Australia’s history. The Voice progresses, and does not detract from, Australia’s attempts to ensure substantive equality for all Australians.

Is the Voice different from a treaty?

Yes. A treaty would be a political agreement reached by negotiation between both sides – in this case the Australian government and First Nations people – and binds the parties to the agreed terms. By contrast, the Voice is a representative body that would provide advice and input to decision-makers on issues affecting First Nations people in Australia, but it would not have any binding authority. The Voice provides a forum through with Aboriginal and Torres Strait Islander people might speak to the government about how a future treaty might be negotiated, for instance, but it is distinct from a treaty, and would not be the vehicle itself for treaty negotiations.

Do other countries have a Voice or something similar with respect to their Indigenous people?

Other countries that have been colonized have implemented representative institutions to support Indigenous rights, as defined by the Declaration on the Rights of Indigenous Peoples. For example, Canada’s Congress of Aboriginal Peoples, established in 1971, serves as a forum that represents the First Nations, Inuit and Métis peoples of Canada that live off reserves and allows them to promote the unique needs of their communities. Canada also recognizes the rights of First Nations, Inuit and Métis peoples in its constitution. In New Zealand, there is the New Zealand Māori Council, which is a statutory representative body. Its role is to be a national policy-making body for Māori in relation to cultural, economic, social, and political wellbeing of Māori. In addition to this, the Treaty of Waitangi, one of its founding documents, acknowledges the culture of the Māori people and their rights.