By Paula Gerber
Australians have many questions about what The Voice to Parliament will look like, how it will work and why it is needed. These are all important questions and it is reasonable that people want to know the answers before they cast their vote in the referendum later this year. This piece explains the principles that will underpin the process of appointment of people to The Voice and how we can have confidence that the chosen representatives are indeed Indigenous.
Who will make up the Voice and how will they be appointed?
The Design Principles recommend that The Voice consist of 24 members, made up of two representatives from each state and territory, five from remote communities, two from the Torres Strait, and one representing Torres Strait Islanders living on the mainland. This means that Tasmania is guaranteed to have two representatives who will be part of The Voice.
It is important that members of The Voice come from a broad geographical spread because Aboriginal and Torres Strait Islander communities are many and varied, each having their own unique culture, identity and often, language. It would not be appropriate for the Wurundjeri Woi Wurrung people who are the traditional owners of Naarm (Melbourne), to represent the Muwinina people from Nipaluna (Hobart) or other Palawa (Tasmanian Aboriginal peoples).
The design principles, developed by the First Nations’ Referendum Working Group, require that, in addition to having a broad geographical representation, The Voice must also be gender balanced and include youth. This is important to ensuring that The Voice genuinely represents the diverse voices of Australia’s many First Nations communities.
Who gets to be a member of the Voice is determined by local Aboriginal and Torres Strait Islander communities, not the government. This is appropriate since the whole point of The Voice is that First Nations people have a channel to have their concerns heard by decision makers. Therefore, they should be the ones who decide who will speak for them. So it is local communities who will determine who they want to represent them on The Voice.
After the referendum, there will be a process of deep consultation with Aboriginal and Torres Strait Islander communities about the fine detail of The Voice, following which, Parliament will enact legislation to establish The Voice. This is in keeping with how our democratic system of government works. For example, section 71 of the Constitution gives the federal government power to establish the High Court and federal courts. Parliament used this constitutional power to pass the Judiciary Act 1903 (Cth) setting out the ‘mechanics’ of our judicial system. It will be the same for The Voice. We, the Australian people, will decide if the Constitution should be amended to include The Voice, and then Parliament – assuming the referendum is successful – will give effect to that vote, by passing legislation setting out the requisite mechanics.
Determining if a person is Indigenous
A question that many people have is how do we know if a person is Indigenous. We can take guidance on this issue from the 1998 Tasmanian case of Shaw v Wolf, in which the court noted that “Aboriginality as such is not capable of any single or satisfactory definition”. Rather a three-part test is used. This three-part test provides that a person will be considered Indigenous if:
- they are of Aboriginal or Torres Strait Islander descent;
- they identify as an Aboriginal or Torres Strait Islander; and
- they are accepted as such by the community in which they live.
What is meant by descent was considered by the High Court in Tasmanian Dams case which held that words which relate to ‘race’, which ‘descent’ does, have a wide and non-technical meaning. Thus, an ‘Aboriginal person’ is a person descended from the inhabitants of Australia prior to European settlement.
The elements of the three-part test are interwoven and while some degree of descent is necessary, the court in Tasmanian case of Shaw v Wolf noted there are often a lack of written records regarding descent and therefor community recognition may be the best evidence of proof of descent.
This approach was endorsed by the High Court in the Mabo case and essentially leaves the decision about who is Indigenous in the hands of Indigenous communities.
Ultimately, who makes up the 24 members of The Voice will be determined by local communities from all around the country. The precise details of how this will occur will be finalised after the referendum, but what we do know is that it will be a grassroots Indigenous led process that they will culminate in a democratic, representative body that will listen to all Indigenous communities and facilitate their views being heard by Parliament.
Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.
This article was originally published in print version of The Mercury on 10 May 2023.