No, Indigenous Australians don't already have a Voice to Parliament

^{By Renee Davidson}

Sky News Australia commentator Rowan Dean has broadcast false information about the Albanese government’s proposed Indigenous Voice to Parliament, saying that Australians already have such a Voice in the form of the National Indigenous Australians Agency (NIAA).

The Sky News segment posted online on March 12, 2023, titled “Australia ‘already has’ a Voice to Parliament with the National Indigenous Australians Agency”, has been viewed more than a combined 53,000 times on Facebook and YouTube. 

In the segment, Mr Dean repeats false claims made by campaigners for the "No" vote in the upcoming Voice to Parliament referendum. 

He said the referendum was expensive and divisive and that an Indigenous Voice to Parliament was unnecessary. 

“We don’t need an Indigenous Voice to Parliament because we already have one. Yes folks, we already have the Voice, in all but name…it’s called the National Indigenous Australians Agency, or the NIAA,” he said. 

Citing the NIAA’s website, Mr Dean went on to explain how the agency’s vision, purpose, and responsibilities ticked “every single box that the Voice people want the Voice to do”. 

Mr Dean’s claims have been echoed by dozens of Facebook users online. 

For instance, one Facebook user wrote in a post: “Say No to the Voice in the referendum because we already have a Voice. The existing Voice is known as the National Indigenous Australians Agency.”

Another Facebook user wrote: "The NIAA performs the same purpose as an Aboriginal Voice to Parliament would do if it were approved but is not enshrined in the Constitution. Why do we need a Referendum?" 

But Mr Dean’s claim that an Indigenous Voice to Parliament already exists in the form of the NIAA is false. 

Constitutional and legal experts consulted by RMIT FactLab said there were major differences between the proposed Indigenous Voice to Parliament and the NIAA, in terms of their independence, accountability, representativeness and power.

INDEPENDENCE AND ACCOUNTABILITY: the Voice will be an independent body, unlike the NIAA which is an internal agency accountable to the executive government. 

According to the Australian government, the Indigenous Voice to Parliament “will be an independent, representative advisory body for First Nations peoples. It will provide a permanent means to advise the Australian Parliament and Government on the views of Aboriginal and Torres Strait Islander peoples on matters that affect them.”

Created by an executive order in May 2019, the NIAA is as an executive agency within the Prime Minister and Cabinet portfolio. 

Dr Dylan Lino, of the School of Law at the University of Queensland, told RMIT FactLab that the NIAA "has a range of functions, including leading and coordinating Commonwealth policy and service delivery concerning Aboriginal and Torres Strait Islander people".

He said the agency also advised "the Prime Minister and Minister for Indigenous Australians on government policy in Indigenous affairs" and was "a part of the Commonwealth executive government, which includes government ministers, departments and the public service".

Dr Lino and Professor Asmi Wood, of the Law School at the Australian National University (ANU), both told FactLab that as a result of being part of the executive, the NIAA and its public servant employees were not independent in the way a Voice to Parliament would be. 

"The NIAA and its employees are ultimately accountable to the executive government," Dr Lino said.

He said the proposed Voice on the other hand “wouldn't be an internal agency of the executive government; it would sit outside both the executive and parliament".

ADVICE: the Voice will be able to advise parliament and the executive government, whereas the NIAA can only advise the latter.  

ANU’s Professor Wood said that while public servants were "meant to give free and fearless advice", they were not, in a broad sense, "responsible for the decisions they make, because it's the minister, at the end of the day, who makes the final decision".

According to the NIAA's latest annual report, staff are "expected to adhere to the APS [Australian Public Service] Code of Conduct", which includes behaving "in a way that upholds the APS Values", one of which is impartiality.

Dr Lino said the type of advice provided by the NIAA [which can only advise the executive] was generally "confidential" and "based on its policy expertise and consultations with various stakeholders".

"By contrast, the advice of the Voice [which would advise both the executive and parliament] would generally be public and potentially highly political," he said.

REPRESENTATIVENESS: the Voice will comprise representatives of First Nations people, unlike the NIAA which is not an entirely Indigenous organisation.

Another key difference, Dr Lino said, was that while the Voice "would be composed of representatives of Aboriginal and Torres Strait Islander peoples who would be appointed by and accountable to First Nations", the NIAA was not an entirely Indigenous organisation.

According to the NIAA’s latest annual report, 22 per cent of the agency's staff identified as Aboriginal and/or Torres Strait Islander.

Therefore, it "seems a bit disingenuous", Professor Wood said, for people to argue that the NIAA was truly an Indigenous Voice.

POWER: the existence of the Voice would be guaranteed under the Constitution, unlike the NIAA which could be abolished by the government of the day.

As for the legal status of the two bodies, Dr Lino said the NIAA could "be abolished tomorrow by another executive order", while the proposed Voice to Parliament "would have its existence guaranteed by being enshrined in the Constitution".

"All of these things add up to really major differences between the NIAA and the Voice in terms of their power, independence, representativeness and accountability," he concluded.

This is the second time that FactLab has found Mr Dean to broadcast false information on Sky News Australia. In December last year, he falsely claimed that a county council in England planned to impose a “climate lockdown” that would prevent residents from leaving their neighbourhoods without permission from the local authority.