On Monday 12 December 2022, the Minister for Indigenous Australians, the Attorney-General, the Special Envoy for Reconciliation and the Implementation of the Uluru Statement from the Heart, and the Assistant Minister for Indigenous Australians met with the Referendum Working Group (the Working Group) at Parliament House in Canberra.
Referendum (Machinery Provisions) Amendment Bill 2022
The Working Group acknowledged the Government’s introduction of the Referendum (Machinery Provisions) Amendment Bill 2022 and considered how the proposed changes would impact this referendum.
Constitutional Expert Group
The Working Group considered the advice of the Constitutional Expert Group (attached)
Pathway to a Voice
The Working Group considered the Pathway to a Voice, both in terms of the process that would be undertaken after the referendum to finalise and legislate a Voice model, and how to take forward the previously agreed design principles for a Voice.
Referendum Engagement Group
Working Group members discussed their role and the role of Referendum Engagement Group Members. The members discussed the best coordination approach for organisations and leaders to proceed in a unified manner towards referendum.
Next steps
The Working Group agreed to reconvene in late January to continue work towards the referendum in 2023.
ATTACHMENT – Advice from the Constitutional Expert Group
The Constitutional Expert Group (Expert Group) provided the Working Group with its views on the initial matters referred by the Working Group relating to the draft constitutional amendment put forward by the Prime Minister at Garma on 30 July 2022 to enshrine an Aboriginal and Torres Strait Islander Voice (Voice) in the Constitution.
The Expert Group agreed that there could be – and gave consideration to – different policy and process approaches to key features of the draft constitutional amendment. The Group advised that the draft amendment is constitutionally sound in providing a strong basis on which to conduct further consultation.
In relation to the initial matters referred by the Working Group, the Expert Group advised that:
1. The Voice will be able to advise the Parliament and the Executive Government
Under the draft constitutional amendment, the Voice would be empowered to make representations to the Parliament and the Executive Government about matters, including existing or proposed laws, policies or decisions that have a connection to Aboriginal and Torres Strait Islander peoples.
The Expert Group suggested that there may be merit in the draft provision explicitly stating that Parliament has the power to confer additional functions on the Voice.
2. The Voice does not have a “veto” power
The draft provision does not in any way provide the Voice with a veto power over the functions or powers of the Parliament or the Executive. The function of “making representations” appropriately reflects its advisory role.
3. The draft provision should be located in a new Chapter of the Constitution
A provision establishing the Voice should be located in its own separate Chapter in the Constitution. This new Chapter should not be placed between the first three Chapters dealing with the Parliament, the Executive and the courts.
Two options were proposed for the location of the draft provision: either a new Chapter VIA following ‘States’ and ‘New States’, or a new Chapter IX at the end of the Constitution.
4. The Voice does not provide anyone with “special rights”
The Voice gives Aboriginal and Torres Strait Islander peoples an opportunity to make representations to the Parliament and the Executive, and this is an opportunity available to any individual or organisation.
The Voice does not confer “rights”, much less “special rights”, on Aboriginal and Torres Strait Islander peoples. Nor would the Voice change or take away any right, power or privilege of anyone who is not Indigenous.
5. There are a range of mechanisms to address plainly incorrect assertions about the Voice
It is important to have a simple and clear constitutional amendment, and to respond to plainly incorrect assertions in a manner that is simple, direct and factual.