7 common confusions about Voice to Parliament and racial equality in Australia, explained

^{By Esther Chan}

Australia’s landmark referendum – to be held between October and December 2023 – will decide whether to enshrine an Indigenous voice in the country’s Constitution. Upon a yes vote, a proposed advisory body made up of Aboriginal and Torres Strait Islander peoples will be set up, ensuring that they will always be able to advise the government and Parliament on matters that affect them. The mechanism is also designed in a way so that future parliaments cannot remove such voice, unless a referendum is held and manages to earn the support of a majority of voters across the nation, as well as the support of a majority of the states.

While the Voice to Parliament (“the Voice”) offers an instrument for reconciliation with Australia’s Aboriginal and Torres Strait Islander peoples, online misinformation and inaccurate statements have distorted and misinterpreted the proposed mechanism in numerous ways. One of the most popular and contentious narratives circulating online calls the referendum “racist” or “racially divisive”.

This has been echoed by prominent political figures, including former Prime Minister Tony Abbott, who told the audience at the 2022 conservative conference CPAC that the Voice would “institutionalise discrimination” (against the rest of the Australian population who are not Aboriginal and Torres Strait Islander peoples); Shadow Indigenous affairs minister Jacinta Nampijinpa Price went further to call it “racial separatism”.

CrossCheck has monitored social media content about the referendum since it was announced by Prime Minister Anthony Albanese in July 2022. Below we decode seven common confusions misconstruing the impact the Voice would have on racial equality in Australia, and offer critical context:

Claim 1

The Voice is racist and excludes others; Legislation to combat racism will be needed once the Voice to Parliament comes into effect.

Explained

What the Voice to Parliament proposes is a tool that helps achieve greater equality in Australia's policymaking, by providing a platform from which Aboriginal and Torres Strait Islander peoples can make representations on laws and policies that have an impact on them. One of the reasons why the concept of the Voice came to fruition was that in Australia’s history, policies that affected Aboriginal and Torres Strait Islander peoples were often developed and implemented without consulting them.

While these policies might not necessarily be harmful, biased, or unfair, they were the product of the systemic exclusion of Aboriginal and Torres Strait Islander peoples, denying them the rights to expression and to be informed. The Voice seeks to fix this.

“Systems and existing policies are historically built on racism, initiative [sic] like the Voice to Parliament will aim to undo the harmful impacts of colonisation,” RMIT Reconciliation Advisor Lewis Brown told CrossCheck in a May 30 email.

The misconception that the Voice prioritises one “race” over another misses the mark. “Although we fall under the word Indigenous, we are not a homogenous group,” Brown added.

The Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act) defines an “Aboriginal person” as “a person of the Aboriginal race of Australia”, and in Gibbs v Capewell (1995), Justice Drummond said that this specifically refers to the “group of persons in the modern Australian population who are descended from the inhabitants of Australia immediately prior to European settlement.”

However, while Aboriginal and Torres Strait Islander peoples are descendants of one of the above inhabitants, they are “made up of many different and distinct groups, each with their own culture, customs, language and laws. They are the world’s oldest surviving culture; cultures that continue to be expressed in dynamic and contemporary ways,” as illustrated by the Australian Institute of Aboriginal and Torres Strait Islander Studies’ Map of Indigenous Australia.

On the other hand, as explained by Australian Human Rights Commission’s Race Discrimination Commissioner Chin Tan, “equality does not mean we are all treated the same.”

“It has always been true that marginalised groups sometimes require unique representation,” Tan said. “The United Nations Committee on the Elimination of Racial Discrimination made this clear in its concluding observations on Australia in 2017, urging constitutional recognition of First Nations people and the establishment ‘of a meaningful mechanism that enables their effective political participation’.”

Claim 2

The Voice will divide the nation by race. Former Prime Minister Tony Abbott was featured in this meme, in a now-removed Meta ad, alongside a quote from his August 2022 interview with Sky News Australia on why he did not support the Voice: “I think it's wrong in principle to divide Australians by race.”

Explained

The Voice does not propose any racial segregation policies, but an advisory body that makes non-binding representations to Parliament and which may recommend changes to improve laws and policies that have an impact on Aboriginal and Torres Strait Islander peoples.

While the body can theoretically propose laws that soften the “race power” i.e. Section 51 of the Constitution which lets Parliament make special laws for people of any race, “in the meantime, a Voice to Parliament would help ameliorate its worst excesses,” Australian National University Professor of Law AJ Wood wrote.

In other words, the Voice is a corrective action for the discriminatory treatment against Aboriginal and Torres Strait Islander peoples in the past. “The ‘special treatment’ that has been meted out to Aboriginal and Torres Strait Islander peoples has often been painful: the removal of their children, for example, to prevent them speaking their language or practising their spiritual and cultural beliefs,” Professor Wood added.

Claim 3

The referendum implies a special treatment to Aboriginal and Torres Strait Islander peoples so in order to achieve racial equality, a programme for “anti-White discrimination” is needed.

Explained

Instead of additional privileges, the Voice will serve as a rectifying mechanism over the detrimental treatment that Aboriginal and Torres Strait Islander peoples received historically, by making sure they have a say on laws and policies that affect them.

Professor Gabrielle Appleby of the Law Faculty at University New South Wales told RMIT FactLab that “The Voice does not itself grant Aboriginal and Torres Strait Islander people rights, such as land rights or cultural rights, which are still granted, amended and even repealed by the parliament, as with all other laws.” While the Voice will secure Aboriginal and Torres Strait Islander peoples’ involvement in the decision-making processes of government and parliament, “It does not change or reduce the rights of any other Australian,” Professor Appleby said.

Claim 4

The Voice “risks increasing racism in society.” This claim cited an example from New Zealand where “thanks to judicial and Māori activism, what began as a modest constitutional advisory body has instead evolved to effectively become a binding quasi-judicial body shown to be unfair, undemocratic & politically & racially divisive”.

Explained

The claim was likely referring to the Waitangi Tribunal, established under the 1975 Treaty of Waitangi Act and its amendment in 1985. The Tribunal, which hears claims about breaches of the treaty, found in 2014 that Māori people did not cede their sovereignty in the Treaty of Waitangi, signed by Māori chiefs and representatives of the British Crown in 1984.

The draft words for the Voice that Prime Minister Anthony Albanese announced in July 2022 state that “The Aboriginal and Torres Strait Islander Voice may make representations to parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.” There is no mention of any “quasi-judicial body” or non-judicial body which can interpret law. 

The misleading claim is akin to a separate narrative that the Voice will create a “third chamber of parliament”, a term coined by former Prime Minister Malcolm Turnbull whose cabinet turned down the 2017 Uluru Statement’s proposal of an Indigenous Voice to Parliament. The Australian Financial Review quoted the Law Council president Tass Liveris in May 2022 as saying that “A Voice to parliament, enshrined in the constitution, would not be a third chamber of parliament... It would provide First Nations peoples the opportunity to inform the parliament on the laws and issues that affect them and their communities, their rights and aspirations.”

Turnbull has since walked back on the claim about the Voice being a “third chamber”, writing in a 2020 opinion piece: “Despite my previous concerns, the voice as proposed by Anthony Albanese won’t be a third chamber, and it has sufficient public support”.

“The voice will not be a third chamber of parliament in the way the Senate is the second chamber, but on matters relating to Indigenous Australians, it will be politically very challenging, although legally possible, to pass a law that the voice opposes especially when its members are united,” the former prime minister added.

Claim 5

Australia can have racial equality “without racial constitution equality”; If one race has greater constitutional representation than the other races, there will be “decreased racial harmony.”

Explained

The Voice referendum focuses on the unique relationship between Aboriginal and Torres Strait Islander peoples and the rest of the Australian population. Due to historic reasons as explored in the Uluru Statement from the Heart, this is vastly different to the relationships between other ethnic groups in Australia.

“Embedding a Voice in the Constitution would recognise the special place of Aboriginal and Torres Strait Islander people in Australia's history, but importantly would also mean that it can't be shut down by successive Governments,” the nonprofit Reconciliation Australia said.

Claim 6

Aboriginal people have the “same constitutional recognition” as other races in Australia because of section 51(xxvi) of the Constitution.

Explained

Section 51 (xxvi) grants the Commonwealth Parliament power to make special laws for any race. The initial wording empowered the Parliament to make laws for any race “other than the aboriginal race in any State”, subjecting Aboriginal and Torres Strait Islander peoples to exclusionary references in the Constitution. That part of the law was removed after Australian voted against it in a 1967 referendum. 

However, the alteration of the section to include Aboriginal and Torres Strait Islander peoples does not guarantee they would have their voice heard on laws and policies that affect them. As explained by Reconciliation Australia, “A Voice to Parliament will give Indigenous communities a route to help inform policy and legal decisions that impact their lives. Giving people a say will lead to more effective results.”

Professor Appleby also told CrossCheck in an April 17 email: “The legislative power of the Commonwealth to make laws with respect to people of any race under s 51(xxvi) performs an entirely different function to the proposed enshrinement of the Voice. Recognition of Aboriginal and Torres Strait Islander Peoples through the Voice is not recognition based on race, but on their unique collective identity as Indigenous Peoples, and their history of dispossession, disadvantage and disempowerment. It gives effect to the internationally recognised right for Indigenous Peoples to political participation in matters that affect them.”

Claim 7

One Nation leader Pauline Hanson was quoted in a Telegram post by party member, Senator Malcolm Roberts that the Voice would “effectively create apartheid in Australia, giving a minority of Australians more political franchise than the majority based on race.”

Explained

The term apartheid originally refers to a South African social policy in the late 20th century that discriminates against its non-white population. It came to an end in the 1994 elections when South Africans voted for Nelson Mandela and his non-racialism. The preamble to South Africa’s Constitution, promulgated by Mandela in 1996 and came into effect in 1997, states in 16 (2) (c) that everyone has the right to freedom of expression but that right does not extend to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

Contrary to the racial segregation under apartheid, the Voice proposes a more effective way to secure the participation of Aboriginal and Torres Strait Islander peoples in the development and decision of federal policy and law that have an impact on them.

The Voice, as Emeritus Professor Andrea Durbach pointed out, aims to be the means for Australia to rectify its racist history. “That is exactly the purpose of a Voice to Parliament: to validate Australia’s First Nations people who have endured the indignity and harm of exclusion for decades, and to guide our elected representatives on the design and development of laws and policies that will better reflect and enhance Indigenous lives,” she said.

* Correction: A previous version of this article said the Voice would make it "mandatory to involve Aboriginal and Torres Strait Islander peoples in discussions and decisions on policies that have an impact on them". The sentence did not explain clearly that while the Voice will be enshrined in the Constitution if a yes vote prevails, the government or parliament is not obliged to respond or give effect to the Voice's representations. The sentence has been corrected.