Will the proposed Indigenous Voice to Parliament become a third chamber?

^{By Renee Davidson}

In his address to the Garma Festival on July 30, Prime Minister Anthony Albanese reaffirmed his commitment to hold a referendum on an Indigenous Voice to Parliament, while endorsing a “yes” campaign that would enshrine the Voice in the Australian Constitution. 

The Indigenous Voice to Parliament, as proposed by the Albanese government, is a body enshrined in the constitution to advise the Australian Parliament on matters relating to Aboriginal and Torres Strait Islander Peoples.

But social media users, including former Sky News host Alan Jones, claim the Voice would effectively be a third chamber — a claim rejected by Australia’s foremost constitutional experts.

This fact check article is based on expert, legal analysis and information made available by the federal government.

To establish the Voice, Mr Albanese made a recommendation to add three sentences to the Australian Constitution: 

1. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.

2. 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.

3. The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

In one Facebook post, Mr Jones, who has 193,000 followers, headlined his post: ‘INDIGENOUS THIRD CHAMBER OF PARLIAMENT.’ Towards the end of the post he further stated: “Vote 'no' to Labor's referendum to introduce a third chamber into the parliament.” The post recorded more than 1,100 likes and more than 400 shares. 

In another Facebook post, Mr Jones wrote: “It’s effectively a third chamber of parliament.”

A chamber of parliament is a body of elected representatives that exercises legislative power and can hold the executive to account. Australia’s Federal Parliament has two chambers (also known as houses) – the House of Representatives and the Senate. Under Section 1 of the constitution, each chamber has the power to initiate, pass and veto legislation.

Five constitutional law experts consulted by RMIT FactLab rejected the claim that the Voice, as proposed by the government, would effectively be a third chamber in parliament.

Professor George Williams, a constitutional law expert at the University of New South Wales (UNSW), told RMIT FactLab there was no suggestion that the Voice would have any of the powers or responsibilities of the existing two chambers in Australia’s parliament. 

“The Voice is proposed to be an advisory body that makes representations to Parliament about matters involving Indigenous peoples,” he said. “It would not have a veto or decision-making role on legislation. Nor would it hold the executive to account.

“The government has released its wording, and it makes clear that the Voice could do no more than make ‘representations’ to Parliament and Government. “This falls well short of amounting to anything akin to a third chamber.”

Anne Twomey, Professor of Constitutional Law at the University of Sydney, told RMIT FactLab that the Voice would not alter the composition of parliament or impinge upon its supremacy. 

“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.”  

Even the suggestion that parliament would need agreement from the Voice to make legislation was “wrong”, she said.

“The current proposal is simply that it could make representations to parliament,” she said. “It could inform parliament, so it makes better decisions, but it would not in any way control how majorities of members of parliament act in either house.”

Professor Twomey likened the Voice to other bodies which make recommendations and reports to parliament, such as the Human Rights Commission and the Australian Law Reform Commission. 

Constitutional law expert Cheryl Saunders, a Laureate Professor Emeritus at the University of Melbourne, also dismissed the idea that the Voice would establish a third chamber of parliament. 

For it to qualify as a third chamber, “Much of chapter 1 of the constitution, dealing with the legislature, would need to be reconceived and rewritten,” she said. “Unlike the Voice, which is presently proposed to be added to the constitution by a single new section,” she said.  

Professor Gabrielle Appleby, of the Law Faculty at UNSW, told FactLab that it was “incorrect” to suggest that Mr Albanese’s proposal would be a third chamber of parliament. 

“The body would have no power to pass, or veto, legislation,” she said. “Thus it would not act as a third chamber in the legislative process. 

“Rather, what is proposed is a separate constitutional body that has a role in providing advice to parliament and the executive when laws and policies are developed that relate to Aboriginal and Torres Strait Islander people.”

Professor Luke Beck, Associate Dean (Education) of the Faculty of Law at Monash University, also denied that the Voice would be a third chamber of parliament. 

“The role of the Voice will be as an advisory body,” he said. “It will not have any formal powers, let alone the powers of a chamber of Parliament,” he said.

Parliament would be free to ignore the views of the Voice. “The advisory role of the Voice is an explicit recognition of the supremacy of parliament and in no way a challenge to that supremacy,” he said. 

The notion of a “third chamber” was initially promoted by leaders of the Coalition in 2017, after the Uluru Statement of the Heart was presented to the federal government.

The Uluru Statement called for the establishment of a “First Nations Voice to Parliament enshrined in the Constitution, and the establishment of a Makarrata Commission for the purpose of treaty making and truth-telling.”

Then Deputy Prime Minister Barnaby Joyce dismissed the Voice as an “Indigenous Chamber” and Malcom Turnbull’s Coalition government in 2017 ultimately rejected the Uluru Statement, saying it was “not capable of winning acceptance in a referendum” and that “it would inevitably become seen as a third chamber of parliament.” 

Mr Joyce has since admitted he was wrong to label the Voice a third chamber, and following Prime Minister Albanese’s address to Garma, Mr Turnbull said he would vote yes to establish a Voice and that “the Voice as proposed by Anthony Albanese won’t be a third chamber”. 

The government’s draft referendum question asks: “Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?”

Mr Alabanese has argued on several occasions that the Voice would be a “source of advice and accountability”, and not be a third chamber, “rolling veto” or a “blank cheque”. He also said it would not change in any way the primacy of Australia’s democratically elected parliament. 

Indigenous leaders Marcia Langton and Tom Calma explicitly address concerns over a third chamber in their final report to the Australian Government, which outlines a proposed model for an Indigenous Voice to Parliament. The two professors were appointed by the Australian government in 2019 to design a model for an Indigenous Voice. 

In their report, Professor Langton and Professor Calma propose “consultation standards” on how parliament should consult with the Voice to ensure it “does not disrupt or interfere with parliament”. The proposed standards on parliament include an “obligation” and an “expectation” to consult with the Voice on legislation and proposed policies and laws that overwhelmingly impact Aboriginal and Torres Strait Islander Peoples. 

But they assert that the consultation standards “must be non-justiciable”. This means that whether parliament complies with the standards could not be challenged in court and could not affect the legal validity of laws or policies. 

Constitutional law experts consulted by RMIT FactLab rejected the suggestion that the Albanese government’s Indigenous Voice referendum would introduce a third chamber into parliament, and said the Facebook posts incorrectly suggest the Voice would create a third chamber of the parliament. 

_{Thumbnail photo credit: ABC - Bindi Bryce}