What could be changed about the Voice through legislation, and what needs another referendum?

What could be changed about the Voice through legislation, and what needs another referendum?
  • PublishedOctober 6, 2023

CheckMate October 6, 2023

This week, CheckMate examines the difference between changes that can be made to the proposed Voice to Parliament by the parliament itself and those that would require another referendum.

We also check out suggestions that the National Press Club favoured the Yes campaign when choosing venues for recent speeches, and explain why Prime Minister Anthony Albanese’s claim about a young Indigenous man’s chances of going to jail versus attending university is a fair call.

Would another referendum be needed to change the composition of the Voice?

Three people walking at a polling station, with a sign which reads voting centre
What could the parliament change about the Voice if the referendum succeeds?(AAP: Joel Carrett)

Less than two weeks out from the Voice to Parliament referendum, debate around the historic vote dominated the ABC’s Q+A program on Monday night, with opposition MP and No advocate Dan Tehan at one point butting heads with Yes campaigner Noel Pearson over the parliament’s ability to change the Voice should it be established.

Asked by host Patricia Karvelas whether Mr Tehan agreed that he had “some powers as a parliamentarian to construct” the Voice, the Liberal MP instead suggested that once the body was in the constitution, “it cannot be changed or, to change it, you have to go to a referendum”.

Despite being corrected by both Karvelas and Mr Pearson, the misunderstanding that the composition and structure of the Voice could only be changed by a future referendum persists online.

On X (formerly Twitter), for example, one user asked why Prime Minister Anthony Albanese had not opted to legislate the Voice in the first instance, in order to “tweak any issues and see how it runs” before holding a referendum.

“Under the constitution, another referendum would be needed to make changes,” the user said.

But that’s not quite correct.

According to legal experts, the proposed addition to the constitution — that is, the change Australians are set to vote on next week — makes clear the parliament’s power when it comes to creating and changing legislation related to the Voice.

“The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures,” the third point of the proposed amendment states.

George Williams, a constitutional law expert at the University of New South Wales, told CheckMate:

“​​If the referendum succeeds, the constitution will guarantee the existence of the Voice and its capacity to make representations to government and parliament in relation to Indigenous peoples. Every other matter is left to parliament to determine.”

According to Professor Williams, parliament could be expected to pass legislation “governing a broad range of matters, such as how the membership of the Voice is determined and how this will represent Indigenous peoples across Australia”.

Australia's parliament house on a clear sunny day with yes and no boxes illustrated over the top.
Parliament would be responsible for changing the structure of the Voice if the referendum were to succeed.

Anne Twomey, a constitutional law expert at the University of Sydney, named more than a dozen provisions that were likely to be included in legislation should the referendum succeed.

These included provisions determining the number of members on the advisory body, their term lengths and remuneration, as well as any required qualifications or disqualifications, and the processes and rules for selecting members.

Legislation could set out rules for the Voice’s meetings and deal with its institutional operation (where it is located and whether it rents or owns a building, for example) and financial management, Professor Twomey said.

It could also impose a code of conduct, regulate the Voice’s operations in making representations and regulate when, how and to what extent the executive government may choose to consult the Voice.

Kim Rubenstein, a legal scholar and professor at the University of Canberra, added that design principles for the Voice had already been published by the government, but any legislation would still need to be introduced and passed through parliament.

“So, there is a lot that could change by the time the Voice comes into operation,” she said. “But this is all accountable to us as electors — we can influence our representatives and make submissions when the legislation is introduced.”

According to Professor Rubenstein, any laws made by the parliament in relation to the Voice would be “subject to the constitution”, as stated in the proposed amendment, which meant the body would not be able to “provide powers that go against constitutional principles like the separation of powers principle”.

She added that the proposed amendment was also clear that the purpose of the Voice would be to “make representations to the parliament and the executive”.

“So it couldn’t be given powers beyond that purpose.”

When it came to changes that parliament would not be able to make, Professor Rubenstein said constitutional change would be required should the parliament wish to make laws outside the powers in the proposed amendment, or to abolish the Voice.

Professor Twomey, meanwhile, noted that a referendum would be needed if the body were to be changed in such a way that it could no longer be fairly described as an Aboriginal and Torres Strait Islander Voice: “for example, if it were to become a Turkish Voice, with all its members being of Turkish origin and with a function of making representations about matters relating to Turkish people in Australia.”

Press club ‘snub’?

In the final days of the referendum campaign, advocates from both the Yes and No camps have taken the opportunity to make their case in televised keynote speeches at the National Press Club in Canberra.

On social media, however, some users claimed the club unfairly treated the No camp, with prominent campaigners being relegated to an upstairs “broom closet” while Yes advocates spoke in the main function room.

“The National Press Club made a much larger room available for Noel Pearson to preach the YES case,” one user wrote on X. “This room was NOT available for Senator Jacinta Nampijinpa Price or Warren Mundine, strangely!”

Another claimed renovations at the club had been “magically completed” in time for Mr Pearson, a leading Yes campaigner and Indigenous academic, to deliver his address last week.

Since July, a number of prominent Yes campaigners, including Minister for Indigenous Australians Linda Burney and Indigenous elder and academic Marcia Langton, have delivered speeches in the club’s main function room, the regular venue for such events.

Meanwhile, prominent No campaigners, including Senator Nampijinpa Price, who is the Shadow Minister for Indigenous Australians, and Mr Mundine, a businessman and former political candidate, delivered their addresses in a venue known as the Situation Room, one of several smaller rooms available for hire within the club’s building in Barton, less than a kilometre from Parliament House.

Mr Pearson’s speech, however, was delivered in an entirely different building: he spoke in the National Ballroom located at the neighbouring Hotel Realm.

So, what’s going on?

According to a statement issued by National Press Club president and ABC journalist Laura Tingle, the Situation Room had been utilised due to planned renovations at the club and last-minute changes to Mr Mundine and Senator Nampijinpa Price’s availability.

“The board and executive of the National Press Club have been working for months to arrange speakers from both sides of the debate on this nationally important issue,” read the statement, published on September 17.

“The task of organising speakers has been made more complicated by the fact that long-planned renovations in the club’s main broadcast room were scheduled to begin on September 6, as soon as the address of that day, by Professor Marcia Langton, concluded.”

Alternative locations for the club’s regular Wednesday addresses (which are broadcast by the ABC and Sky News) had been organised “months ago”, Tingle noted.

Indeed, the Press Club’s website shows a number of speakers in the intervening period delivered their Wednesday addresses at alternative locations in Sydney and Canberra.

According to the club’s statement, Senator Nampijinpa Price and Mr Mundine were advised that options to speak during the club’s regular Wednesday slot prior to the referendum were “narrowing” and that the club could not guarantee that it would be able to find a suitable venue on other days of the week.

Senator Nampijinpa Price “only infomed the club” of her availability “a week before” her address on September 14, Tingle said.

“It was not possible to arrange an alternative venue in the time available, so the club arranged to hold the address from a smaller space in the club.”

Notably, Mr Mundine had originally been scheduled to deliver his speech on August 16 — prior to the club’s renovations and, therefore, in its usual venue, the main function room.

Mr Mundine withdrew, however, with the slot being offered instead to Victorian independent Senator Lidia Thorpe, who advocated for the so-called ‘progressive No’ case.

Mr Mundine also withdrew from a second scheduled appearance on September 27, Tingle added, which was subsequently given to Mr Pearson. Mr Mundine finally appeared at the club on Tuesday, September 26.

Contacted by CheckMate, neither Senator Nampijinpa Price nor Mr Mundine was available for comment.

Despite claims that Mr Pearson had benefited from the completion of the club’s renovations, his speech was not delivered in the main conference room, as explained by press club moderator David Crowe.

“We’re presenting today’s address in a different venue than usual,” Crowe told those gathered at Hotel Realm on the day. “That’s purely because of some renovations being done in the club’s main room.”

Is a young Indigenous man more likely to go to jail than to university?

Speaking on ABC Radio earlier this week, Prime Minister Anthony Albanese argued that voting No in the Voice to Parliament referendum would result in “more of the same” outcomes for Indigenous Australians.

“We know that there’s a greater chance of an Indigenous young male going to jail than university,” he said.

That claim is one the prime minister has repeated close to 40 times since May, with RMIT ABC Fact Check this week deeming it to be a fair call.


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