The Voice is Not about VETO or Controlling Government Action.
The Voice is About Creating a New Forum to Allow First Nations Voices to be More Clearly Heard
To understand what the Voice is, we need to understand its impact on our system of government - what it does and does not do.
Understanding the Legal impact of the Voice
How would the Voice impact upon our existing constitutional practices? The short answer is that it won’t – it wouldn’t directly alter how Government or Parliament act, how they legislate, or govern.
But of course it is not that simple – the Voice is designed to slowly change the culture of government decision-making. And the impact of that is harder to predict.
And because the Voice involves constitutional changes, there are inherent limits on anyone’s ability to definitively say what the legal impact of the Voice will be. See:
But of course it is not that simple – the Voice is designed to slowly change the culture of government decision-making. And the impact of that is harder to predict.
And because the Voice involves constitutional changes, there are inherent limits on anyone’s ability to definitively say what the legal impact of the Voice will be. See:
Since 2022 there has been a substantial public debate about the impact of the proposed changes on our existing constitutional practices, including that it could:
To address these concerns, the Federal Government sought legal advice from the Solicitor-General, which it release to the public in April 2023. A summary of that Opinion is available below. This Opinion provides a clear and useful analysis of the legal implications and constitutional impact of the Voice.
- Fundamentally alter Australia’s system of government.
- Force the Government to consult the Voice before making decisions
- Invalidate decisions where the representations of the Voice have been insufficiently considered;
- Limit the ability of Parliament to choose how it responds to the Voice, and engages with it in its legislative processes
To address these concerns, the Federal Government sought legal advice from the Solicitor-General, which it release to the public in April 2023. A summary of that Opinion is available below. This Opinion provides a clear and useful analysis of the legal implications and constitutional impact of the Voice.
The rest of this page provides an overview of the legal impact of the Voice on our system of government
The Foundations of Our System of Government
As a starting point, it is critical to understand that our system of government is built on two basic principles:
Representative GovernmentRepresentative Government (sometimes called 'Representative Democracy') means that:
Politicians are accountable to the electorate for their actions and decisions (principally through elections), but also have a responsibility to take account of the views of the people on whose behalf they act. |
Responsible GovernmentResponsible Government (sometimes called the 'Westminster System') means that:
The Executive Government is responsible to Parliament, and is subject to a number of accountability mechanisms including Question Time, Committees, and ultimately the ability to maintain confidence of the House of Representatives. |
These ideas mean that while the Australian people are the ultimate source of power and authority in nation, we rely upon elected officials to make decisions for us, within a framework outlined in our Constitution.
We do not rely on direct decision-making by the populations to change our laws or make decisions – other than in the very special case of when we propose to change the rules of the ‘game’ of government by altering the Constitution.
The Voice is not designed to disrupt either of these two core principles:
The Voice is not designed to disrupt either of these two core principles:
- we will continue to rely on elected representatives to govern and legislate, and
- our Government will be responsible to Parliament.
The Legal Impact of the Voice
So what does the Voice do? Perhaps the best place is to begin with what it does not do. The proposed amendment does not confer legislative, executive or judicial power upon the Voice.
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That means that the Voice would have no power to make laws, to develop or administer policies or to decide disputes. Nor would it form part of either the Parliament or the Executive Government, instead operating only as an advisory body to those two branches of government. The Voice clearly has no power of veto. |
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That last point in particular is worth highlighting – this new body has no ability to veto or block any Government decision or Parliamentary action.
Parliament can continue to legislate on any topic, and in any manner, it sees fit (within exiting constitutional constraints). The Voice will not alter this. The general powers and conduct of Parliament will be unaffected by the proposed amendment.
Similarly the Government has no obligation to follow representations of the Voice, or to consult with the Voice prior to developing any policy or making any decision
As a result of these considerations, the Solicitor-General was unequivocal in his assessment:
Parliament can continue to legislate on any topic, and in any manner, it sees fit (within exiting constitutional constraints). The Voice will not alter this. The general powers and conduct of Parliament will be unaffected by the proposed amendment.
Similarly the Government has no obligation to follow representations of the Voice, or to consult with the Voice prior to developing any policy or making any decision
As a result of these considerations, the Solicitor-General was unequivocal in his assessment:
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The influence of the Voice’s representations to the Parliament will be a matter to be determined by political considerations, rather than legal considerations. |
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A Forum for Representation not Consultation
Instead, the Voice is empowered to make representations, that is to present a particular viewpoint. It will be designed to ensure that viewpoint is as representative and consultative as possible. But it will simply be one voice amongst many that our Government and Parliament will listen too.
On the official government website, the Voice is described in the following way:
On the official government website, the Voice is described in the following way:
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The Voice would be an independent and permanent advisory body. It would give advice to the Australian Parliament and Government on matters that affect the lives of Aboriginal and Torres Strait Islander peoples. Aboriginal and Torres Strait Islander people have called for members of the Voice to be chosen by First Nations peoples based on the wishes of local communities. There is no legal or constitutional obligation for Parliament or the Government to consider, respond or engage with those representations. |
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The Voice is designed to do one simple thing – give Aboriginal and Torres Islander peoples a platform a voice that amplifies their capacity to make their position heard.
The Design Principles for the Voice make this clear:
The Design Principles for the Voice make this clear:
The key idea of the Voice is quite simple:
- The Voice is designed to make it easier for one particular, historically marginalised, group to make representations to our Government and Parliament.
- The Voice does not force anyone to listen to or, act upon, those representations.
What are Representations?
What are ‘Representations’? There is no special legal meaning – the Voice will have the ability to present their position to Government and Parliament, and to advocate for a particular position in the same way (legally) as an other interested party.
People make representations to Government and Parliament all of the time:
It is a vital part of our democracy that we have processes for engaging with our representatives so that they can hear our opinions, expertise, and proposals. As a *representative democracy* our politicians act on our behalf. We must, therefore, have ways of ensuring that they know what we want. We make representations to them.
The Voice, then, is nothing more and nothing less than creating a new forum to allow one group to express their view to official decision-makers. It does not impose any obligation that those views are followed.
But the creation of this new platform is designed as an important recognition that this particular group - Aboriginal and Torres Islander peoples – have historically been marginalised and excluded from official decisions made about them.
People make representations to Government and Parliament all of the time:
- Every time a lobbyist meets with a politician to further an agenda, they are making representations;
- Every time a member of the electorate writes a letter to their MP for assistance/intervention in a problem, they are making representations
- Every time an interest group (a mining lobby, a business council, and environmental group) launches a public media campaign to influence Government decision-making, they are making representations
- Every time an academic, expert, or affected person write submissions to a formal Parliamentary Committee or Inquiry, they are making representations
It is a vital part of our democracy that we have processes for engaging with our representatives so that they can hear our opinions, expertise, and proposals. As a *representative democracy* our politicians act on our behalf. We must, therefore, have ways of ensuring that they know what we want. We make representations to them.
The Voice, then, is nothing more and nothing less than creating a new forum to allow one group to express their view to official decision-makers. It does not impose any obligation that those views are followed.
But the creation of this new platform is designed as an important recognition that this particular group - Aboriginal and Torres Islander peoples – have historically been marginalised and excluded from official decisions made about them.
The Case Study below gives us a way to think about what it is that the Voice is. It invites us to think about the Voice as giving a speaker on the village green a soapbox and megaphone, so that in the marketplace of ideas their views have a better chance of being heard and engaged with (click on the + to expand):
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CASE STUDY: THE SOAPBOAX AND THE MEGAPHONE
We can imagine a village green, where every weekend people gather to discuss their ideas, to convince people of their arguments, and to gain adherents to their position. We can think of the as the Marketplace of Ideas. Some people will get others supporting them because they are charismatic speakers. Others will have brilliant arguments, with clear and accessible images. Some people will have the money to hire a microphone and speakers. Some people invest in a stage, with a band playing between their speeches. Everyone from the village gathers to hear thoughts and views about how the community should act, what it should do, and how they can all flourish. Over the course of the day, the Mayor wanders around the green. She notes which speakers have the biggest crowds. She stops to listen to what appear to be the most captivating speakers. And she takes the temperature of the populations from the speeches that are made, and the reactions of the crowds. The Marketplace of Ideas becomes a core part of how the village governs itself. We have formal equality here – but not necessarily equity: some voices are just louder, more likely to be heard irrespective of their quality. And other groups effectively never heard from. So the Mayor has an idea – she buys a special soapbox and megaphone, and sets up a spot called the ‘New Voices Corner’ (‘NVC’). Each week a speaker from a marginalised group – the homeless, the disabled, new immigrants – are given an opportunity to speak at the NVC. And the Marketplace of Idea becomes a richer and more interesting place, because these new perspectives can be heard over the cacophony of speakers. No one has lost their place. Crowds still move according to ideas and persuasion. But the NVC injects a new diversity of views. And over time, as the village hears more from these people, there is (perhaps) a shift in decision-making as people become more alert to those different views. This is the aim of the Voice – it gives a soapbox and a megaphone to a particular group, in the aim of achieving better quality decision-making. No body needs to listen. If bad arguments are put forward, the crowd will wander away. |
A number of legal academics from the University of Queensland Law School in their submission to the Parliamentary inquiry describe the importance of representations in the following way:
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the Voice can make representations about both laws and policies that are directly targeted at Aboriginal and Torres Strait Islander peoples and about general laws and policies that impact on Aboriginal and Torres Strait Islander peoples. ... it is entirely a matter for the Parliament to determine whether executive decision makers need to consider representations made by the Voice. |
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Enhancing Our System of Governance
The Voice is designed to achieve two particular outcomes:
As the Solicitor-General highlighted, given the historical barriers that have excluded Aboriginal and Torres Strait Islander peoples from legal and political discussions regarding matters that affect them, the creation of a new platform may lead to a better system of governance:
- The Dignitarian Argument: Firstly, the Voice aims to include in the national conversation who have, historically, been excluded from decisions about them. Doing so is inherently respectful, and recognises the dignity of those peoples
- The Enhanced Decision-making Argument: Secondly, the Voice hope that by creating a platform to hear from affected persons, relevant decisions will be of a better quality, and lead to enhanced outcomes.
As the Solicitor-General highlighted, given the historical barriers that have excluded Aboriginal and Torres Strait Islander peoples from legal and political discussions regarding matters that affect them, the creation of a new platform may lead to a better system of governance:
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Insofar as the Voice serves the objective of overcoming barriers that have historically impeded effective participation by Aboriginal and Torres Strait Islander peoples in political discussions and decisions that affect them, it seeks to rectify a distortion in the existing system. For that reason, in addition to the other reasons stated above, in my opinion proposed s 129 is not just compatible with the system of representative and responsible government prescribed by the Constitution, but an enhancement of that system. Solicitor-General's Opinion
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Ongoing Debate
The Opinion of the Solicitor-General does not authoritatively and finally determine the constitutional impact of the proposed amendment on Australia’s system of government. In our system it is only the Courts that may finally determine what the law is on a given issue. This is a core aspect of judicial power.
This means that only the High Court of Australia can ever authoritatively and finally determine the constitutional impact of the proposed amendment.
But the High Court will not give a ruling on the potential impact of the proposed amendment prior to its adoption.
Since the earliest days of Federation , the High Court has made it clear that it does not give legal advice: it will not hear hypothetical cases about changes that might happen. This means that the Court will not give an Advisory Opinion about the potential impact of the proposed amendment.
This means:
As a result there will necessarily be ongoing debates about all matters of legal interpretation and constitutional implications. This is not because of some inherent ambiguity in the nature of the proposal, but because of the fundamental nature of our legal system.
This means that only the High Court of Australia can ever authoritatively and finally determine the constitutional impact of the proposed amendment.
But the High Court will not give a ruling on the potential impact of the proposed amendment prior to its adoption.
Since the earliest days of Federation , the High Court has made it clear that it does not give legal advice: it will not hear hypothetical cases about changes that might happen. This means that the Court will not give an Advisory Opinion about the potential impact of the proposed amendment.
This means:
- That the people willing to give opinions about the constitutional impact cannot do so authoritatively
- The only body able to give authoritative interpretations will not do so on a hypothetical basis
As a result there will necessarily be ongoing debates about all matters of legal interpretation and constitutional implications. This is not because of some inherent ambiguity in the nature of the proposal, but because of the fundamental nature of our legal system.
Further Information
- National Indigenous Australians Agency, Voice Design Principles
- National Indigenous Australians Agency, Fact Sheet: How will an Aboriginal and Torres Strait Islander Voice work? (2023)
- National Indigenous Australians Agency, Indigenous Voice Co-design Report: Final Report to the Australian Government [Executive Summary available]
- What would the Voice Do? Part I
- What would the Voice Do? Part II
- Does the Government have to Accept the Recommendations of the Voice?
- What will the Voice NOT Do?
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The following submissions from two leading constitutional law academics, adopts a more cautious approach to highlights some of potential ambiguities and concerns that may arise if the Voice is enacted:
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See also:
James Allan, "Very High Risk, Very Low Reward: This Voice Referendum Deserves to Be Defeated" (2023) 97(6) Australian Law Journal 411
James Allan, "Very High Risk, Very Low Reward: This Voice Referendum Deserves to Be Defeated" (2023) 97(6) Australian Law Journal 411
