Right: The claim that Australia was empty of humans and therefore not "owned" has always been disputed.
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Arguments in favour of a Yes vote
1. Establishing an Indigenous Voice in the Australian Constitution would advance reconciliation, respecting the wishes of a majority of Australia's First PeoplesThose who support the inclusion of an Indigenous advisory body within the Australian Constitution argue that it is both symbolically and practically necessary in achieving reconciliation between the descendants of Australia's First Peoples and all other Australians. They argue that symbolically it would serve to address an historical wrong, the Australian Constitution's failure to acknowledge the nation's First Peoples. However, they also stress that it would be practically valuable as acknowledgement would take the form of a permanent Indigenous consultative body. This is the form of recognition most Indigenous Australians want because of its utility.
The Australian Constitution makes no reference to the status of Australia's First Peoples. It has been argued that this is partially because the occupation of the country was achieved through the fiction of terra nullius - the claim that the land was not legally owned by its Indigenous inhabitants.
June Oscar, an Aboriginal and Torres Strait Islander Social Justice Commissioner, has stated, 'The Constitution has maintained Australia's greatest foundation myth, that our First Nations occupation of these lands pre-colonisation meant nothing, and our existence had no bearing or consequence on the formulation of the Commonwealth'.
Geoffrey Robertson, a recipient of the Order of Australia and a King's Counsel, has referred to 'the inequality embedded in our Constitution' and has argued that 'Racism has tainted the Australian Constitution from the outset. The founding fathers...[in their debates] spoke of Aboriginals as if they were kangaroos threatening the crops and were not entitled to any protection; not even a single reference in the Constitution.'
Supporters of enshrining an Indigenous Voice to Parliament in the Australian Constitution argue this would be symbolically important in addressing this historical injustice. However, most Indigenous people want more than symbolic recognition in the Constitution. They want a form of recognition that can also offer practical benefits. This is referred to as substantive recognition. The Australian Human Rights Commission has stated, 'The proposed Indigenous Voice to Parliament is an example of substantive legal reform. This is because it would provide for a new constitutionally entrenched legal entity with the function of making representations to the Parliament and the Australian Government on matters relating to Aboriginal and Torres Strait Islander peoples.'
Professor Megan Davis, who co-authored the Uluru Statement from the Heart where the Voice is proposed, has stated, 'I think the Voice is both symbolic and concrete ... It's a recognition of First Nations voices as being important to the nation. It's recognition that the descendants of the ancient peoples who arrived here 60,000 to 70,000 years ago are still here, have survived and [are] speaking with their voice.' However, Davis has consistently stressed that Constitutional recognition must be practical. In 2017, as co-author of the Uluru Statement from the Heart, she stated, '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.' The call for an Indigenous Voice to Parliament comes from and is supported by Indigenous people. The 2017 Uluru Statement from the Heart, which requests an Indigenous Voice to Parliament in the Constitution, was drafted after an extensive consultative process, drawing on the views of Indigenous communities. On April 27, 2023, Rebecca Huntley, writing in The Guardian, explained, 'The Voice emerged out of a process driven by First Nations people leading to the Uluru Statement from the Heart rather than Canberra-based discussions between political leaders and a chosen few First Nations representatives.'
The Statement from the Heart was immediately the work of over 250 Aboriginal and Torres Strait Islander leaders. They were acting on behalf of Indigenous populations whose views had been gauged through 13 regional dialogues across Australia. Further, Indigenous organisations across the country have indicated their support for the Voice. This includes land-based representative bodies such as the Northern Territory Land Councils and the Kimberley Land Council, and peak service organisations such as the Australian Indigenous Doctors Association. Though polling can be problematic, results have consistently shown high levels of Indigenous support for the referendum proposal. Pollster, Rebecca Huntley, has noted, 'All the available research shows that a strong majority of First Nations people support the change. The actual number bounces around depending on sample size and timing, but tends to land somewhere between the 80 percent in an Ipsos poll of 300 First Nations people in January of this year...and the 83 percent in a YouGov poll of 738 First Nations people conducted this month [April, 2023] - the largest and most representative sample I know of to date.' 2. Indigenous Australians lag the rest of the Australian population on important social, educational, health and wellbeing indicators and a Voice would help address these problems.
Many of those who support an Indigenous Voice to Parliament argue this would help to reduce continuing disadvantage among Indigenous Australians. They claim that in many areas Indigenous Australians suffer worse outcomes than their non-Indigenous contemporaries. Reducing relative disadvantage is often referred to as 'Closing the Gap'. The most recently released Closing the Gap data is more detailed than previous, shows that that poorer outcomes regarding Closing the Gap targets are still occurring in poorer communities and in those more distant from urban and regional locations.
It has been regularly argued that if Indigenous communities were able to directly advise government on their needs, outcomes would improve.One significant area of relative Indigenous disadvantage is in overall life expectancy. In 2015-2017, average life expectancy at birth was estimated to be 71.6 years for Indigenous males and 75.6 years for Indigenous females. Indigenous Australians generally live shorter lives and have higher incidence of some diseases. The gap between Indigenous and non-Indigenous Australians was estimated to be 8.6 years for males and 7.8 years for females
Though in subsequent years, the gap in life expectancy between Indigenous and non-Indigenous Australians has narrowed somewhat, there is concern that the discrepancy is worsening in some areas. In 2021, suicide accounted for 5.3 percent of all deaths of Aboriginal and Torres Strait Islander people while the comparable proportion for non-Indigenous Australians was 1.8 percent. Increasing suicide rates among young Indigenous Australians has been noted as particularly concerning. Data from the National Mortality Database and the Australian Bureau of Statistics from 2017 to 2021 showed the rates of suicide deaths per 100,000 people among Indigenous Australians were 16.6 and 47.6 in those aged 0-24 and 25-44 years respectively. These rates were 3.1 and 2.9 times as high as among non-Indigenous Australians in the same age groups. Another significant area of disadvantage is in higher rates of disease. A report released in October 2021, found that although the gap is narrowing, Indigenous Australians continue to experience higher rates of 'disease burden' than the Australian population as a whole. Indigenous Australians experience disease burden at 2.3 times the rate of non-Indigenous Australians (after adjusting for age). The five disease groups that caused the most burden among Indigenous Australians were mental and substance use disorders (23 percent), injuries (including suicide) (12 percent), cardiovascular diseases (10 percent), cancer (9.9 percent), and musculoskeletal conditions (8 percent).
Education is also an area of relative disadvantage. Although there have been improvements, a significantly higher percentage of non-Indigenous Australians will complete their secondary education. In 2021, the Year 12 or equivalent attainment rate was 1.3 times as high for non-Indigenous Australians aged 20-24 as for Indigenous Australians (91 percent compared with 68 percent). Education has been highlighted as a significant means of improving the quality of life of Indigenous Australians. The Aboriginal and Torres Strait Islander Health Performance Framework states, 'Education is well recognised as a key social determinant of health. Higher levels of education are associated with improved health outcomes through greater health literacy and better prospects for socioeconomic status (including income and employment).'
Another area of major concern is the elevated incarceration rate among Indigenous Australians. In September 2022, Amnesty International noted 'despite making up only 2 percent of the general population, [Indigenous Australians] make up 26 percent of the prison population and are 10 times more likely to be locked up than other Australians.'
This problem becomes even more severe when the position of Indigenous Australians under 18 is considered. Looking at the period between 2017 and 2021, an Australian Institute of Health and Welfare (AIHW) report found that half of all young people in detention on an average night...were Aboriginal or Torres Strait Islander people, despite Indigenous Australians making up just 6 percent of the Australian population aged 10-17. It has been claimed that two factors largely determine the over-representation of Indigenous people in Australia's prisons and detention centres. One is social and economic influences such as poor health and housing and low employment and education levels. The second factor is structural biases in the criminal justice system which make it more likely that an Indigenous person will be detained.
A 2004 Senate Committee report found that 'Although poverty in Australia is evident among all ethnic groups, it is Indigenous Australians who appear most profoundly affected by poverty. Research has shown, over the past thirty years since the Henderson Inquiry into poverty, that Indigenous Australians are significantly worse off than non-Indigenous Australians, according to all social indicators...Not only is poverty deeply entrenched, the causes are complex...despite government policies directed towards achieving economic equality for Indigenous Australians, there has been little improvement to their relative socioeconomic status, according to standard social indicators.' Federal minister for Indigenous Australians, Linda Burney, has argued that an Indigenous Voice to Parliament can help close the gap between Indigenous and non-Indigenous Australia. Burney stated, 'An Aboriginal and Torres Strait Islander Voice to Parliament can help us close the gap, because it's only by listening to communities that we can make better policies that lead to better outcomes.'
3. Establishing an Indigenous Voice to Parliament in the Australian Constitution would give Indigenous communities direct input into decisions affecting them
Supporters of an Indigenous Voice to Parliament argue that the unique requirements of Indigenous populations are often misunderstood by governments and policy makers. They claim that giving Indigenous groups and communities an opportunity to explain their needs would help to ensure better policies and improve the life opportunities of Indigenous people.
On August 10, 2023, Pat Turner gave an address at the University of Canberra, explaining the need for an Indigenous voice to Parliament. Turner is a long-time Indigenous activist who has worked as a civil administrator for policies aimed at self-determination for Indigenous people. As of 2020, Turner is a member of the Senior Advisory Group set up to advise on the design of the Indigenous voice to government. In her speech Turner stated, 'The best way of building social cohesion is to listen to us and then co-design a solution with us, provide meaningful funding and then, as partners, share the decision making. It is a simple solution, and it starts with a Voice...
Put simply... we should have a say in the laws, policies and programs that have a significant effect on our lives and communities. It is a straightforward idea.
If Aboriginal and Torres Strait Islander peoples have direct input into the decisions on policies and programs that impact on us, the outcomes will be vastly better than when those decision are made without us.'
The same point has been made by Tony Nutt, a former federal director of the Liberals and chief-of-staff to John Howard, who is now a prominent pro-Voice advocate. Nutt has argued that a Voice to parliament and the public service would help drag the bureaucracy away from its fondness for one-size-fits-all approaches to problems, which did not necessarily work in every Aboriginal community.
Numerous examples have been offered of the way in which direct consultation with Indigenous communities has already improved the formulation and operation of government policies. Dr Ron Glanville, a former chief veterinary officer of Queensland, has explained how consulting with local Indigenous experts has helped in developing more effective responses to introduced pests in the Torres Strait and the Northern Peninsula Area of Cape York. Dr Glanville has stated, 'It's amazing how the direction of our work can change when you listen to what people have to say.' He concluded, 'Indigenous people not only need to be listened to, but also have a fair say in how future policies affect them. Not only is this respectful but it will probably lead to a better result.'
Another example of the improved results achieved through consultation with Indigenous communities is the Maranguka Justice Reinvestment Project in Bourke, New South Wales. The project began in 2013 with the aim of reducing the number of young Indigenous people in the criminal justice system. The project has relied on strong community consultation and involvement to shift the focus from imprisonment to prevention. Alistair Ferguson, the founder, and director of the Maranguka Project has stated, 'There is an undeniable elevated sense of positivity in Bourke. People in Bourke feel empowered. There is a real sense of pride, and agency. Maranguka has brought [Indigenous] community members including young people to the table and put them in the driver's seat. Maranguka is supporting open and inclusive dialogue, which is the basis of community-led change.' The project has involved a shift in emphasis and a redirection of funds, not an increase in government expenditure. A 2018 Impact Assessment of the Maranguka Justice Reinvestment Project in Bourke estimated that improvements in family strength and positive youth development had had an economic impact of $3.1 million on New South Wales government spending in 2017.
A further example of the vital role to be played by direct consultation with Indigenous communities has been given by Ray Griggs, chief executive officer of the National Indigenous Australians Agency (NIAA). Griggs has stated, 'The key difference in approach is the commitment to working with Indigenous Australia through formal and informal partnerships.' He has highlighted the importance of this attitude in successfully reducing the spread of COVID among regional Indigenous populations. Griggs has stated, 'We listened to the voices of local community leaders and their concerns for their communities and in a coordinated approach with State and Territory Governments, implemented a series of remote travel restrictions under the Bio-Security Act. Essentially remote communities were proactively locked down and isolated to protect the population. This included arranging the movement of people who were in regional and metropolitan centres who wanted to go back to their country where they would face much lower risks. This was backed up by mobilising the Indigenous broadcast sector to keep communities informed through appropriately targeted public health messaging and also by focussing closely on food security in remote communities to ensure people could safely stay in their community...' Commenting on the success of the measures put in place, Griggs noted, 'The biggest thing we can do systemically is to stop thinking that any one group has the answers and to start doing things with rather than to Indigenous Australians, to work in partnership together on how we overcome the challenges. For those used to making the decisions, it means giving up a little control and power and allow for Indigenous perspectives to get a serious look in.'
4. Establishing an Indigenous Voice to Parliament in the Australian Constitution would create a permanent mechanism for addressing Indigenous issues
It has been claimed that establishing an Indigenous Voice to Parliament in the Australian Constitution would provide surety and continuance. It is claimed that previous Indigenous advisory groups have been disbanded and government responses to Indigenous issues have been condemned as sporadic and lacking cohesion and specificity.
Supporters of the Voice have noted that previous Indigenous advisory bodies have continued to exist solely at the discretion of governments. Proponents of the Voice note that if its existence is guaranteed within the Australian Constitution, it would take another referendum to remove it. Inclusion within the Constitution therefore confers far greater stability and security upon this Indigenous advisory body. In the past, if an advisory body were considered to have functional problems, it has been disbanded rather than reformed. The Australian National University (ANU) has prepared a background paper addressing some of the concerns that have been raised about the Voice. Regarding the need for a permanent advisory body, the ANU paper states, 'The Parliament has established three national Indigenous representative bodies in the past. These bodies empowered Indigenous Australians to speak to government about laws and policies that affected them. In each case, however, the body was abolished after several years. Putting an Aboriginal and Torres Strait Islander Voice in the Constitution will make it harder for government and Parliament to do away with the Voice.'
Hugh Taylor, Laureate Professor Emeritus, Melbourne School of Population and Global Health, University of Melbourne, has taken a broader perspective and notes, 'There have been at least six Aboriginal and Torres Strait Islander consultative groups set up by the Federal Government since 1973. Each time they were disbanded and not replaced when the current Prime Minister did not like what they were saying or doing.' The dismantling of the Aboriginal and Torres Strait Islander Commission (ATSIC) has been held up as an example of the summary treatment given to Indigenous advisory bodies. Pat Turner, an Indigenous civil administrator and former member of ATSIC, has stated, 'Because we were an Aboriginal organisation we were decommissioned overnight. The proverbial baby was thrown out with the bathwater. There was no discussion. No compromise. We were decommissioned with the stroke of pen. And look how things have nose-dived since that kneejerk decision.
It was a very political time for us. There was not much goodwill. Back in 2005, when we lost ATSIC, we saw the NT Intervention follow quickly afterwards... It is from this extreme of paternalistic policymaking and a culture of "we know what's best for you" that we have seen the gaps widen.'
A review of ATSIC was commissioned in 2003 by the Howard government. The report, authored by John Hannaford, Jackie Huggins and Bob Collins, was titled In the Hands of the Regions: A Review of the Aboriginal and Torres Strait Islander Commission. The report's summary statement concluded, 'The review panel's report recommends a package of reforms which gives greater control of ATSIC to Aboriginal and Torres Strait Islander people at a regional level. The reforms should enable Aboriginal and Torres Strait Islander peoples to stimulate change where it is most needed. Along with the recent COAG initiatives to address the appalling degree of Aboriginal and Torres Strait Islander disadvantage, a regional orientation will strengthen the voice and efficacy of regional councils and establish the necessary framework for integrated service and program delivery.' Thus the review recommended the retention of ATSIC and its reform through strengthening its connections with local Indigenous communities. Despite this, the Howard government disbanded ATSIC two years later.The importance of stability when supplying advice on Indigenous issues has been stressed by many bodies. Stability is argued for as a way of establishing effective working relationships between local Indigenous communities, governments, and service providers. The guaranteed survival of an Indigenous advisory group enshrined within the Constitution has been strongly recommended. In February 2023, PIC (PricewaterhouseCooper Indigenous Consulting) released a background paper supporting the Voice which argues, 'Constitutional enshrinement of the Voice is the required cornerstone upon which this new architecture can be enabled to drive practical benefits. The longevity brought about by this action will help provide stability for the Voice (e.g., a life beyond political cycles), thereby ensuring that long-term, trusted relationships can be built and maintained on the ground - a critical ingredient for long term success.'
Supporters of the Voice acknowledge that, after its formation, the Voice may periodically need to be reformed; however, they insist that what is important is that it remains. Professor Hugh Taylor has stated, 'It is simple. When the Referendum is passed, Parliament will need to debate and approve the structure. If in time it needs to be altered, Parliament can do that, but there will always have to be a Voice. That is the whole point of the Referendum, there has to be a permanent body.'
5. Establishing an Indigenous Voice to Parliament in the Australian Constitution would create an advisory body that would not threaten the autonomy of Parliament and government
Defenders of the Voice to Parliament have stressed that it is an advisory and consultative body only. They have also stressed that it will neither replicate nor take over the existing roles of Parliament and executive government. These reassurances are in response to critics' claims that the Voice threatens the powers of the Australian Parliament and of government.
Defenders of the Voice stress that it will not infringe upon or impede the functions of government or Parliament. The Australian National University (ANU) has prepared a background paper addressing some of the concerns that have been raised about the voice. Regarding the position of the Voice in relation to Parliament, the ANU paper states, 'The Voice is not a Third Chamber of Parliament. The Voice will not be able to introduce bills into Parliament or vote on legislation. The Voice will have no ability to delay or frustrate Parliament. As former High Court judge Kenneth Hayne has said, the Voice "will not impede the ordinary working of government". The Voice will simply be able to make representations to Parliament and the government. Parliament retains full control over its own procedures. This also means that Parliament can amend legislation and adjust processes if it believes the relationship between the Voice and other institutions of government is not working appropriately.'
Further to this, Professor Dan Meagher, chair in law at Deakin University, has noted that the proposed constitutional amendment not only makes clear that the body could only make representations, but it also states there would be no obligation on parliament or the executive to take those representations into account. The possibility of Voice representatives somehow infiltrating Parliament and illegitimately extending their powers in this way has been dismissed as impossible. Associate Professor Harry Hobbs, a constitutional law expert at the University of Technology Sydney, has noted the claim was 'entirely wrong.' Dr Hobbs explained, 'The Voice will be an advisory body of Indigenous Australians who may make representations to parliament. Members of the Voice will not be parliamentarians, they will not serve in parliament, they will not be able to introduce or vote on Bills. They will give advice to parliament, not be in parliament. The voice will not add any seats to parliament.' Scientia Professor George Williams, another expert in Australian Constitutional law has similarly stated, 'Indigenous seats will not be added to parliament if the yes vote succeeds in the voice referendum. The change to the constitution makes no mention whatsoever of Indigenous seats in parliament. The only change is to bring about an Indigenous Voice able to make representations to parliament and government.'
It has also been noted that nothing in the proposed Constitutional amendment would give the Voice the power to block Parliament's legislative powers. Constitutional experts have criticised suggestions the Indigenous Voice could have veto power in the Australian parliament, calling such prophecies 'distorting' of the truth. Speaking at the first hearing of the joint select committee on the Aboriginal and Torres Strait Islander Voice referendum, the former chief justice of Australia, Robert French, explained that any opinion the Voice offered on any issue 'would be no more than advice and it certainly wouldn't bind anybody, and it wouldn't be a veto.' The same point was again made by former high court justice Kenneth Hayne, who has stated he could not see 'anything in those drafts that comes anywhere near providing anything like a veto'.
Assurances regarding how the Voice will function have been presented within an Australian Government information package which explains some of the principles under which the Voice would operate and some of the safeguards that would be in place to ensure its proper operation. The package states, 'The Voice will be accountable and transparent .' It then explains, 'The Voice would be subject to standard governance and reporting requirements to ensure transparency and accountability. Voice members would fall within the scope of the National Anti-Corruption Commission. Voice members would be able to be sanctioned or removed for serious misconduct.' The package also explains that the Voice would operate in conjunction with existing organisations, neither replicating them, impeding, or replacing them. It states, 'The Voice will work alongside existing organisations and traditional structures. The Voice would respect the work of existing organisations.'