What Can Be Changed in "The Voice" through Legislation and What Requires Another Referendum?
CheckMate October 6, 2023 This week, CheckMate explores 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 examine assumptions that the National Press Club favored the "Yes" campaign when choosing venues for recent events and explain why Prime Minister Anthony Albanese's statement about the chances of a young indigenous person going to prison compared to attending university is a fair decision.
Will Another Referendum Be Required to Change the Composition of "The Voice"? Three people are heading to a polling station with a sign that reads "voting center." What can Parliament change in "The Voice" if the referendum is successful? (AAP: Joel Carrett) Less than two weeks before the "Voice to Parliament" referendum, debates about this historic vote have dominated the Q&A program on ABC on Monday evening, as Opposition MP and "No" campaign supporter Dan Tehan at one point argued with "Yes" campaign activist Noel Pearson about Parliament's ability to change the Voice if it's established.
When asked by host Patricia Karvelas if Mr. Tehan agrees that he has "some powers as a parliamentarian to create" the Voice, the Liberal MP instead suggested that once this body is enshrined in the constitution, "it can't be changed, or to change it, you'd have to go to a referendum."
Despite Karvelas and Pearson correcting this misconception, there is still a misconception online that the composition and structure of "The Voice" can only be changed through a future referendum.
For example, on X (formerly Twitter), one user asked why Prime Minister Anthony Albanese didn't decide to legalize "The Voice" first to "address any issues and see how it works" before holding a referendum.
"According to the constitution, another referendum will be required for changes," the user said.
But that's not entirely correct.
According to legal experts, the proposed constitutional amendment, which Australians will vote on next week, clearly outlines Parliament's powers when it comes to creating and amending legislation related to "The Voice."
"Under the current Constitution, Parliament has the authority to pass laws concerning the Voice of Indigenous and Torres Strait Islander peoples, including its composition, functions, powers, and procedures," the third point of the proposed amendment states.
George Williams, a constitutional law expert from the University of New South Wales, told CheckMate:
"If the referendum is successful, the constitution will guarantee the existence of 'The Voice' and its ability to represent the interests of Indigenous peoples to the government and Parliament. All other matters remain at the discretion of Parliament."
According to Professor Williams, one can expect Parliament to pass a law "regulating a wide range of issues, such as how membership in 'The Voice' is determined and how it will represent Indigenous peoples across Australia."
The Parliament House of Australia on a sunny day with "yes" and "no" signs on top. Parliament will be responsible for changing the structure of "The Voice" if the referendum is successful. Anne Toomey, a constitutional law expert from the University of Sydney, listed over a dozen provisions that are likely to be included in legislation if the referendum is successful.
These provisions would define the number of members of the advisory body, the duration of their terms and remuneration, any necessary qualifications or disqualifications, as well as the processes and rules for selecting members.
The legislation could establish rules for "The Voice's" meetings and regulate its institutional activities (e.g., where it is located and whether it leases or owns a building), as well as its financial management, said Professor Toomey.
Support for Indigenous Australians Crisis support line for Aboriginal and Torres Strait Islander peoples 13YARN: 13 92 76 Resources from the First Nations Electronic Security Commission It could also introduce a code of conduct, regulate "The Voice's" statement-making role, and specify when, how, and to what extent the executive government can consult with "The Voice," Professor Toomey added.
Kim Rubinstein, a legal scholar and professor at the University of Canberra, also mentioned that the principles for establishing "The Voice" have already been published by the government, but any law would still need to be introduced and passed through Parliament.
"So, much can change by the time 'The Voice' becomes operational," she said. "But it's all up to us as voters—we can influence our representatives and make suggestions when the law is being passed."
According to Professor Rubinstein, any laws passed by Parliament regarding "The Voice" would be "subject to the constitution," as stated in the proposed amendment, which means that the body cannot "exercise powers that are inconsistent with constitutional principles, such as the separation of powers."
As for changes that Parliament won't be able to make, Professor Rubinstein stated that constitutional amendments would be needed if Parliament wants to pass laws that go beyond the powers provided by the proposed amendment or abolish "The Voice."