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Submission Number
Public lawyers
Submission date
Main Submission Automated Transcript

Voice Secretariat
Reply Paid 83380
By email: Co-designVoice@niaa.gov.au

20 January 2021

Submission: The imperative of constitutional enshrinement
We write as a group of academics working in constitutional law and other areas of public
law. At its core, public law is concerned with the transparency, accountability, effectiveness
and quality of government decision-making and the institutional structures that govern our
society. We welcome the opportunity to respond to the Interim Report to the Australian
Government on Indigenous Voice Co-Design Process (October 2020).
The terms of reference for the co-design process specifically excluded making
recommendations about constitutional recognition. However, it is our strong and unanimous
view that for the Voice to have legitimacy, to achieve its objectives and perform its functions,
it must be constitutionally enshrined. In this respect, this submission speaks to the following
issues that are discussed in Chapter 2 of the Interim Report: the Voice’s objectives, its
functions, its interface with Parliament and the government, and its form.
In this submission we explain the reasons behind our consensus view that the Voice be
constitutionally enshrined, and that the government commit to a referendum to enshrine the
First Nations Voice in the Australian Constitution after the current design process is
What we mean by “constitutionally enshrined” is that the existence and core function of the
Voice should be included in the written text of the Constitution, alongside a power enabling
the Commonwealth Parliament to determine its composition, additional functions, powers
and procedures in legislation. As the former Chief Justice of the High Court of Australia, the
Hon. Murray Gleeson AC QC, explained, this is a model of the Voice that would be
“constitutionally entrenched but legislatively controlled”.1 In this way, the detail of the
Voice’s design, including its membership and governance structure, would be contained in
legislation passed after constitutional enshrinement, allowing the Voice to be adapted to
future circumstances.
Constitutional enshrinement of a First Nations Voice is not only necessary for the reasons
outlined below – it is a proposal that is consistent with our constitutional traditions. Most
importantly, as Gleeson explained, the proposal for a constitutional Voice is congruent with
the parliamentary system of democracy established in the Constitution. Rather than limiting
the law-making powers of Parliament through a legally enforceable set of rights, it is a Voice
to Parliament. It assists the Parliament in the performance of its functions, helping it to

Murray Gleeson, ‘Recognition in Keeping with the Constitution: A Worthwhile Strategy’ (Uphold and
Recognise, 2019).

develop better laws and policies that relate to Aboriginal and Torres Strait Islander people. It
is not a new institution within the Parliament, itself exercising legislative power or limiting it
in any way.

Constitutional enshrinement is essential for four reasons:
1. #Constitutional enshrinement of the Voice is the only form of constitutional
recognition that has been collectively endorsed by First Nations people themselves.
Constitutional recognition of Aboriginal and Torres Strait Islander peoples is widely
supported by people across the political spectrum, among non-Indigenous Australians as
well as First Nations.2 Constitutional enshrinement of a First Nations Voice would meet
the widespread desire among Australians for the Constitution to properly reflect
Australia’s history and values, acknowledge the country’s deep Indigenous past and
commit to respecting First Nations’ distinct status in an enduring way.
Successive processes, including the Expert Panel on Recognising Aboriginal and Torres
Strait Islander Peoples in the Constitution, the Referendum Council and the 2018 Joint
Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait
Islander Peoples, have emphasised how important it is that the form of recognition accord
with the wishes of Aboriginal and Torres Strait Islander people. A constitutionally
enshrined Voice is the only reform which satisfies this requirement.
The delegates who were locally selected to participate in the Regional Dialogues that
culminated in the Convention at Uluru were drawn from First Nations communities
across vast and differing regions throughout Australia. They were intentionally selected to
represent people who are often politically forgotten by government and parliament.
Delegates included Elders, Traditional Owners, community representatives, youth and
other First Nations representatives from local and regionally based organisations. The
experiences of this diverse range of delegates meant that the reforms in the Uluru
Statement provided an unprecedented insight into the wishes and needs of First Nations
communities across the country.
A First Nations Voice was unequivocally the sole constitutional reform approved in the
Uluru Statement from the Heart at the end of that exhaustive deliberative process. No
other form of constitutional recognition has garnered the collective endorsement of
Aboriginal and Torres Strait Islander peoples themselves, and as such no other
constitutional reform can be said to respect the wishes of Aboriginal and Torres Strait
Islander peoples. Further, this reform was sought as a matter of national urgency, to
address the acute social disadvantage that First Nations people face, and to precede and
facilitate national agreement making and truth-telling.

See further Francis Markham and Will Sanders, ‘Support for a Constitutionally Enshrined First Nations
Voice to Parliament: Evidence from Opinion Research Since 2017’ (Working Paper No 138, Centre for
Aboriginal Economic Policy Research, ANU, 2020).

2. &Constitutional enshrinement provides the Voice the best possible chance of being
effective because it gives the Voice legitimacy.
The success of the Voice in representing and advocating for First Nations will depend in
large part on how seriously Parliament and the government engage with the Voice. The
Voice’s standing with Parliament and government will in turn depend on the perceived
legitimacy and authority of the Voice among the Australian public.
Constitutional enshrinement will confer legitimacy on the Voice in two ways. First,
popular legitimacy will come from the process of constitutional enshrinement: that is, a
constitutional amendment approved by the people voting in a referendum. A referendum
will both educate the public about the Voice’s importance and, if successful, obtain their
endorsement for it. By contrast, if the Voice is established by legislation alone, there will
inevitably be far less public education about the Voice, public participation in its
establishment and public approval for its ongoing role in our system of government. A
legislated Voice will therefore lack the popular legitimacy of a constitutionally enshrined
Voice and be at much greater risk of being ignored or even abolished by Parliament. The
popular legitimacy conferred on the Voice through constitutional enshrinement would
also help ensure that parliamentary control of the design of the Voice is exercised in a
manner consistent with the spirit in which the Voice is endorsed by the public.
Second, legitimacy will come from the status conferred by constitutional enshrinement.
The Constitution is a document that establishes the foundational institutions of Australian
government. Including the Voice in the Constitution would signal to the Australian
people that the Voice is a foundational institution within Australia’s constitutional
system, and thereby help to establish its legitimacy with the public into the future. By
contrast, establishing the Voice only in legislation signals to the public that it has no
special importance. Having no constitutional status will diminish the Voice’s legitimacy
and thereby minimise its ability to be an effective representative of and advocate for
Aboriginal and Torres Strait Islander peoples.

3. #Constitutional enshrinement gives the Voice the best possible chance of being
effective because it gives the Voice stability and certainty, while allowing for flexibility
in design.
In order to effectively represent and advocate for First Nations, the Voice will require the
stability and certainty that only constitutional protection can provide. The history of
Australia’s experience with Aboriginal and Torres Strait Islander representative bodies –
creation through executive or legislative action followed by eventual abolition –
demonstrates the inadequacy of non-constitutional means in establishing the Voice’s
ongoing viability. Without constitutional enshrinement, there is a very well-founded risk
that a future parliament would abolish the Voice. Without constitutional enshrinement,
there is also a considerable risk that the Voice, facing the on-going possibility of
abolition, would be restricted in its capacity to speak necessary truths to government and
parliament and to properly represent the views of Aboriginal and Torres Strait Islander
peoples. This was at the forefront of delegates’ minds during the deliberative process that
led to the Uluru Statement.

All serious proposals for constitutional amendment have recognised that it is desirable for
the design of the Voice to be open to variation and improvement by Parliament from time
to time. We endorse this. Constitutional enshrinement allows for the correct balance to be
struck between stability and certainty on the one hand and flexible adaptation on the
other. In this respect, the constitutional enshrinement of the Voice would be similar to
many other constitutional institutions, including the Parliament itself and the High Court
of Australia. Each of these institutions is established and given core functions in the
Constitution, but much of the detail of their design and functions is found in ordinary
statute and amended from time to time.
Given that constitutional enshrinement would still afford the Parliament considerable
latitude in the design of the Voice’s detail, there is no need for the Voice to be established
in legislation prior to its constitutional enshrinement. Indeed, initial legislative
establishment of the Voice is not only unnecessary; it is undesirable. Legislating first
would dissipate the current popular momentum for constitutional enshrinement of the
Voice. Given the importance of constitutional enshrinement for the Voice’s effectiveness,
any actions that diminish the ability to achieve constitutional enshrinement should be

4. #Constitutional enshrinement is the highest expression our political system can give
to an Australian identity based on an increasingly respectful relationship between
First Nations and the Australian polity.
While the Constitution establishes the institutions of government, it also acts as an
important cultural document that reflects the basic identity, values, culture and aspirations
of the people that it governs. In Australia, in certain aspects the Constitution already
performs this function. It captures the nation’s deep commitment to democratic
participation in government and the foundational commitment to the rule of law. The
involvement of the Australian people in referendums to achieve constitutional amendment
highlights the Constitution’s status as reflecting the aspirations of the nation. Establishing
the Voice heralds a cultural shift in Australia. By committing to hear the views of
Aboriginal and Torres Strait Islander people before legislating and making decisions that
affect them, the Australian polity changes its relationship with the First Nations who have
occupied this continent for 65,000 years. A constitutionally enshrined Voice will develop
and sustain a respectful relationship between First Nations peoples and others in
Australian society based on respect for equal dignity where, in the past, lack of that
respect has contributed to their exclusion and disempowerment. This profound shift
should be marked through a referendum of the Australian people and reflected in the
words of the Constitution, not left to legislation alone.

Yours sincerely,

Rebecca Ananian-Welsh, Senior Lecturer, University of Queensland
Gabrielle Appleby, Professor, UNSW

Elisa Arcioni, Associate Professor, University of Sydney
Narelle Bedford, Assistant Professor, Bond University
Kevin Bell AM QC, Director, Castan Centre for Human Rights Law, Monash University
Sean Brennan, Associate Professor, UNSW
A J Brown, Professor of Public Policy & Law, Griffith University
Peter Burdon, Associate Professor, University of Adelaide
Anne Carter, Senior Lecturer, Deakin University
Melissa Castan, Associate Professor, Monash University
Jonathan Crowe, Professor, Bond University
Fergal Davis, Reader, Kings College London
Megan Davis, Professor, Balnaves Chair in Constitutional Law, and Pro Vice Chancellor
(Indigenous), UNSW
Jacob Deem, Lecturer, Central Queensland University
Rosalind Dixon, Professor, Director of the Gilbert + Tobin Centre of Public Law, UNSW
Heather Douglas, Professor, University of Melbourne
Andrea Durbach, Professor, UNSW
Kate Galloway, Professor, Griffith University
Caitlin Goss, Lecturer, University of Queensland
Ryan Goss, Associate Professor, ANU
Susan Harris Rimmer, Professor, Griffith University
Paul Kildea, Senior Lecturer, UNSW
Danielle Ireland-Piper, Associate Professor, Bond University
Dani Larkin, Director of HDR and Nura Gili, PVC (Indigenous), UNSW
Ron Levy, Associate Professor, ANU
Dylan Lino, Senior Lecturer, University of Queensland
Lucas Lixinski, Professor, UNSW
Andrew Lynch, Professor, UNSW
Dan Meagher, Professor, Deakin University
Justine Nolan, Professor, Director of the Australian Human Rights Institute, UNSW
Sarah Murray, Professor, University of Western Australia
Katie O’Bryan, Lecturer, Monash University
Anna Olijnyk, Senior Lecturer, University of Adelaide

Graeme Orr, Professor, University of Queensland
Alexander Reilly, Professor, University of Adelaide
Sophie Rigney, Senior Research Associate, UNSW
Kim Rubenstein, Professor, University of Canberra
Kristen Rundle, Professor, Co-Director of the Centre for Comparative Constitutional Studies,
University of Melbourne
Ed Synot, Research Associate, Indigenous Law Centre, UNSW
Rayner Thwaites, Senior Lecturer, University of Sydney
Tamara Tulich, Senior Lecturer, University of Western Australia
Adam Webster, Associate Professor of Law and Public Policy, Oxford University
Murray Wesson, Senior Lecturer, University of Western Australia
George Williams, Professor and DVC (Planning and Assurance), UNSW
Matthew Zagor, Associate Professor, ANU