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Third tier of government? Fact-checking & analysing claims about the Indigenous Voice to Parliament

There's a lot we don't know about the Voice - but let's look at what we do know.

According to Sky News host Rita Panahi, the Indigenous Voice to Parliament will “undermine the democratic principle of one man, one vote.”

Panahi’s comment came during a segment of the Outsiders on the morning of August 13th, where the show’s co-hosts, Panahi, Rowan Dean, and James Morrow, openly condemned the Voice proposal for enshrining “racial privilege,” with Dean commenting that “this is actually about totalitarianism.”

But is the Voice really an affront to democracy?

Speaking at the Garma Festival, Prime Minister Anthony Albanese unveiled the draft text of the proposed amendment, made up of three sentences. The second sentence says that the Voice can “make representations,” or in other words can provide advice, to Parliament about “matters relating to Aboriginal and Torres Strait Islanders Peoples.”

Morrow alleged that “activist lawyers [and] activist judges” will use the High Court of Australia, which has constitutional jurisdiction, to ensure that the Voice can give advice on any law before Parliament, because all laws apply to all Australians, and Aboriginals and Torres Strait Islanders are Australians. Morrow said that this is “lawfare.”

In addition, they suggested that its recommendations would effectively become law. However, one of the most prestigious constitutional law experts in Australia, University of Sydney Professor Anne Twomey, argued that this would not be the case. She said that the only way that these recommendations could be seen as a veto power is if Parliament voluntarily decided that they would be obliged to follow the Voice’s recommendations.

Professor Cheryl Saunders from Melbourne University agreed with Professor Twomey, and made the observation that the government had been very careful in its choice of words. Even Janet Albrechtsen, a former solicitor who is critical of the amendment, recognised that senior barristers endorsed the name of the ‘Voice,’ as it reflects the administrative law doctrine of the right of all people to be heard.

Panahi and Dean criticised Labor for ignoring constitutional experts that are opposed to the Voice.

One such expert is Professor James Allen, an academic at the University of Queensland, who shared their concern about judicial activism, which may lead to a more socially liberal and broad interpretation of the amendment. However, Professor Allen conceded that he is in the minority, and it cannot be said for certain whether an activist stance would be adopted by the High Court.

At the same time as claiming what the Voice would do, the three co-hosts recognised that no one knew details about how the Voice would be funded or operated. If that is the case, then it is incorrect for the co-hosts to make their own claims with any degree of certainty.

According to Ryan Goss, a public law lecturer at the Australian National University, there are many details on which clarity is still needed, and these will come out as time goes on. He also expressed support for the proposal.

A spokesperson from the office of Linda Burney, Minister for Indigenous Australians, has told 6 News that “further consultation” will be needed to determine those details, including how members of the Voice will be chosen, but democratically-elected representatives are a likely option.

Morrow, Panahi, and Dean are correct that there are some special privileges that are held by Aboriginals and Torres Strait Islanders. For example, the High Court narrowly held in Love v Commonwealth (2020) that Aboriginals and Torres Strait Islanders cannot be considered ‘aliens’ under the Australian Constitution, due to their connection with the land, although the court stopped short of granting automatic citizenship. However, these privileges are not necessarily undemocratic.

The decision in Love was only made possible by court decisions in favour of native title and the Native Title Act 1993 (Cth), which originally recognised this connection. And, given that the High Court found in the Native Title Act Case (1995) that the Act was made possible by Section 51(xxvi) of the Constitution, there is evidence that the decision in Love was made possible by Australia’s democratic Constitution.

You can read more from 6 News about Love here.

It’s also worth noting that the Voice would only be included in the Constitution if it was passed in a referendum by a majority of all Australians, and a majority of Australians in a majority of states. This is a democratic process.

Therefore, the argument that the Voice is undemocratic and goes again the ‘one man, one vote’ principle, relies on the possibility of that Aboriginal and Torres Strait Islander Australians would be able to vote for a representative on the Voice, in addition to Parliamentary elections, and then that the representative that made up the Voice would have veto powers. The current academic consensus appears to be against this, and not all of the details of the Voice have been determined with certainty, so the claim made by the Outsiders co-hosts is tenuous at best.

This comes just weeks after Pauline Hanson’s One Nation appointed itself as leading the ‘no’ campaign against the Voice, claiming that it would create a “third tier of government.”

This statement is incorrect, as Australia already has three tiers of government, with federal, state, and local tiers of government.

However, even assuming that One Nation intended to refer instead to three levels of Parliament, with the Voice joining the House of Representatives and Senate as another House of Parliament, the statement is still wrong.

It is generally agreed that the operations of the House of Representatives and Senate are immune from the legislative powers of one another. The same cannot be said for the Voice, under the government’s proposed text.

Under Section 50 of the Constitution, each House has the exclusive legislative authority to determine its own internal rules and practices, as well as “the order and conduct of its business and proceedings.” Although subsection (ii) allows the two Houses to jointly set internal rules that apply to both Houses, neither House can set the rules of the other House without their agreement.

The language of the proposed amendment does not include similar exclusive internal jurisdiction. Not only does it not refer to the Voice as a House of Parliament for the purposes of Section 50, but the third sentence also allows Parliament to “make laws with respect to the…procedures” of the Voice.

If the Voice was intended to operate as a House of Parliament, then it would have the same immunities to protect its internal processes and procedures that the Constitution gives the House of Representatives and the Senate. However, with the amendment making both the powers and the internal processes and procedures of the Voice subject to Parliament, it is clear that the Voice is meant to be separate from Parliament.

According to Professor Twomey, Section 1 of the Constitution grants exclusive legislative power to Parliament, and as it is evident that the Voice is not part of Parliament, One Nation’s claim is also incorrect. In Professor Twomey’s words, it is “bizarre” to claim otherwise.

Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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