The Voice referendum is not illegal

^{By Renee Davidson}

Opponents of the Indigenous Voice to Parliament are spreading a message on Facebook that alleges the upcoming referendum is illegal because there is no legislation that allows it to take place.

The message also claims that the proposed Indigenous Voice to Parliament is a “third chamber” of government. 

Both claims are false.

The message, spread on several Facebook posts, refers to Section 128 of the Australian Constitution, which states that any proposed law to alter the constitution must be passed by an absolute majority in both houses of the Commonwealth Parliament before it is submitted to a referendum between two and six months after it has been passed. 

Despite correctly identifying Section 128 as the relevant section, the message goes on to falsely claim that “There is no proposed " LAW " there is a feeble attempt at defrauding the AUSTRALIAN PEOPLE with TWO VAGUE CONCEPTS”. 

“Don't be fooled by THIS TRAITOROUS ATTEMPT OF AN ILLEGAL REFERENDUM,” the message concludes. 

Comments posted by Facebook users in response to the message suggest many believe the claim, with some labelling the Indigenous Voice as “treason” and others citing the referendum as a breach of the constitution. 

But the referendum will be legitimate because the enabling legislation was passed earlier this year. The Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 bill, whose purpose is to amend the constitution, was introduced into parliament on March 30, 2023. 

It passed through the House of Representatives on May 31, and gained approval from the Senate on June 19. This paved the way for the proposal to be put to Australian voters for approval in a referendum to be held before the end of this year.  

At the Voice referendum, Australians will be asked to vote “yes” or “no” on a single question: “A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?”

The proposed law to alter the constitution would recognise First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice to provide advice to the government on matters relating to Aboriginal and Torres Strait Islander peoples.

For a referendum to pass, a “double majority” is needed. This means not only do a majority of Australian voters need to support the proposed constitutional change, but a majority of states – four out of six – need to support the change also. Northern Territory and Australian Capital Territory votes count towards the national majority only.

No date has been set for the referendum but it is expected to be held between October and December this year.

Meanwhile, the claim that the proposed Indigenous Voice to Parliament would be a “third chamber” of government is also false. 

RMIT FactLab fact checked this claim in September 2022 and found it to be false.

Five constitutional experts consulted by FactLab at the time unanimously rejected the claim, saying the Voice would not have the authority to legislate or act as a third chamber. 

Anne Twomey, Professor of Constitutional Law at the University of Sydney, said that the Voice would not alter the composition of parliament. 

“A ‘third chamber’ is intended to mean an additional body, the approval of which would be required to pass legislation, and which could exercise the same powers as the other Houses of Parliament,” she said. 

“A Voice to Parliament would not be a third chamber because it would not be a part of parliament,” she said. “It could not initiate, debate, pass or defeat bills and would not have any of the powers or privileges of the existing houses.”