Viral video is a ‘Trojan horse’ of false claims on the Voice

The Voice referendum proposes to amend the Australian Constitution to include a new section to recognise Indigenous Australians as the First Peoples of Australia and to create an advisory body called the Aboriginal and Torres Strait Islanders Voice that would advise the parliament and government on matters relating to Indigenous people.

The referendum is due to be held in the last quarter of the year, now that the Constitutional Alteration (Aboriginal and Torres Strait Islander Voice) 2023 Bill has cleared both houses of Parliament, enabling it to take place. A date for the referendum has not yet been set.

The explanatory memorandum of the bill draws a clear distinction between the Voice and Makarrata. It states: “The Uluru Statement from the Heart calls for a constitutionally enshrined Voice and the establishment of a Makarrata Commission to supervise agreement-making and truth-telling … The proposed constitutional amendment would implement the first element of the Uluru Statement from the Heart, to recognise Aboriginal and Torres Strait Islander peoples in the Constitution through a Voice.”

Two legal academics recently explained why a Voice is being progressed first. Professor Gabrielle Appleby and law lecturer Eddie Synot wrote: “Voice precedes Treaty because fair, modern treaty negotiations require first the establishment of a representative Indigenous body to negotiate the rules of the game with the state.”

Without treaty negotiations having started, it’s not possible to say what a treaty would encompass, but academics from UTS consider that it might involve: 

(1) an acknowledgement that Indigenous Australians are a distinct political community who governed Australia prior to colonisation; 

(2) the assurance of a fair process of negotiation between equals; and 

(3) both parties committing to future actions and responsibilities that are binding.

Notably, treaty negotiations have begun in the state of Victoria. The Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic) provided guiding principles on treaty negotiation, some of which included “[to] recognise historic wrongs”, “[to] address ongoing injustices” and “promote the fundamental human rights of Aboriginal peoples, including the right to self-determination.”

The claim that the Voice to Parliament is actually a treaty is false. Both are related, yet distinctly separate aspects of the Uluru Statement from the Heart. 

Claim: “The Voice means constitutional changes which creates new veto power over every major Australian public policy decision.”

The viral video claims, “Every new piece of new legislation will need approval by the voice bureaucrats,” and that the Voice will have veto power over legislation. But these claims are false.

In May, legal experts dismissed the claims, saying the proposed constitutional amendment would only permit the Voice to make representations on matters relating to Indigenous Australians.

Professor of Constitutional Law at the University of New South Wales (UNSW) Anne Twomey has also stated that, “The power and function of the Voice is to make representations. It cannot dictate, demand or veto”.

On several occasions, members of the government have also made it clear that the Voice is an advisory body that can only make non-binding representations to the parliament and government on such matters. 

Additionally, the Constitutional Expert Group, which is a selection of legal and subject matter experts appointed by the government to advise on legal and constitutional issues relating to the Voice,  advised in December 2022 that the Voice would not have a veto power. 

RMIT FactLab CrossCheck also recently explored this claim and concluded that it has “no legal basis”.

Meanwhile, RMIT FactLab has debunked similar posts that have wrongly claimed that the Voice, once it is enshrined in the Australian Constitution, will have the power to veto any future referendum that seeks to remove it from the nation’s founding document. 

Claim: “In short, it [the Voice to parliament] puts Australia’s land and resources into conservatorship.” 

The video connects this claim to American pop star Britney Spears, who’s estate and financial affairs were placed under legal conservatorship in 2008.

A conservatorship, in the United States, is a court-imposed order that gives a third party control over another person, typically when that person has severe cognitive impairments. They are commonly established for elderly people with cognitive impairments who are unable to care for themselves or manage their finances. 

Australian states have legislated for similar arrangements to take place, although these are most commonly referred to as “guardianships” or “administrators”.

Despite the existence of such arrangements in Australia, it is false to claim that the Voice would control Australia’s land and resources. As noted above, the Voice is an advisory body with no formal power to force the government into policy changes. Other fact checkers have also found the claim to be false.

Claim: “The Australian constitution addressed the full integration of Aboriginals [sic] with the 1967 referendum that removed the last barrier to recognising Aboriginals [sic] as Australians instead of therein before, when they were considered part of the nation's flora and fauna.”

The claim that Indigenous Australians were considered as flora and fauna, or governed by a “flora and fauna act”, before the 1967 referendum is a persistent myth that was fact checked and found to be false by RMIT ABC Fact Check in 2018.

The fact check quoted Professor Helen Irving, an expert on Australia's constitution, who wrote in 2015, “The myth that the constitution included a reference to Aboriginal people under the 'flora and fauna' section is entirely erroneous." 

Further, a range of experts concluded that there was never a flora and fauna act.

Prior to the 1967 referendum, Indigenous Australians were not included in the counting of Australia’s population for certain constitutional reasons, such as defining federal electoral boundaries.

Following the successful referendum, the constitution enabled the counting of the Indigenous Australian population for such purposes, as well as enabling the Commonwealth to legislate for Indigenous Australians. 

While the claim that Indigenous Australians were considered "flora and fauna" prior to the 1967 referendum is false, it highlights the fact that Indigenous Australians were viewed and treated as inferior peoples by British settlers.