New split emerges over Indigenous Voice

Politicians are split on whether the wording of the proposed constitutional amendment to enshrine the Indigenous Voice should be changed before the referendum.

The parliamentary committee investigating the Voice to parliament and the executive government released its report on Friday, which revealed a divide along party lines.

Labor and the committee’s two non-government members — Greens senator Dorinda Cox and Nationals turncoat Andrew Gee, who quit the party to sit as an independent because he wanted to vote for the Voice — backed the proposed change as it stands.

Coalition members of the committee called for changes. But, given they were in the minority, the committee’s overall recommendation is that parliament pass the Constitution Alteration Bill without amendment.

This legislation paves the way for the referendum on altering the nation’s founding document to be held in the final three months of the year. MPs and senators are expected to vote on it when parliament resumes in June.

Labor senator and committee chair Nita Green said shortly after the report was released the committee had tested and considered “alternative proposals”.

“The committee’s view is no alternative proposals were necessary or justified, and in most cases, they would have watered down the intent of the proposal,” she said.

The committee held five public hearings, heard from 71 witnesses and received more than 270 submissions.

Attorney-General Mark Dreyfus and Indigenous Australians Minister Linda Burney released a joint statement after the committee’s report was published, saying the recommendations were based on evidence of “significant support” for the Voice among Indigenous communities.

“It also reflects the overwhelming consensus of constitutional and legal experts, who told the committee that the amendment is constitutionally sound,” they said.

“As part of this process the government provided the committee with an opinion from the Solicitor-General in which he confirmed the provision is not only compatible with Australia’s system of government, the addition of the Voice would enhance it.”

Nationals MP Pat Conaghan, Liberal senators Andrew Bragg and Kerrynne Liddle and Liberal MP Keith Wolahan represented the Coalition on the committee, compared with seven government MPs.

In their dissenting report, the Liberals said the Committee was “hamstrung” by the government’s refusal to provide any detail that would illustrate how the constitutional change might operate.

“The government has taken the extraordinary approach of saying that the institution would be designed after the referendum,” they said.

The trio said giving the Voice the power to make representations to the executive meant government could become “unworkable” and lead to disputes in the High Court.

“The response to risk can’t be judged by counting the number of lawyers for and against a particular argument,” they wrote.

“The fact is, serious experts, including former High Court and Federal Court judges, gave conflicting evidence about the risk.”

However, Senator Bragg, a longtime supporter of the Voice concept, provided additional comments attached to the Liberals’ dissenting report in which he said this risk could be minimised if the government added further clarification to the constitutional amendment.

He said in his mind there was no doubt the Voice should be able to speak to the executive, which includes the public service as well as federal cabinet.

“For example, the National Indigenous Australians Agency makes funding decisions about community programmes on Aboriginal Medical Services or childcare services,” he wrote.

“The idea that the Voice wouldn’t talk to the Executive is completely wrong. It would neuter the Voice.”

But Senator Bragg said the constitutional amendment should ensure parliament would have supremacy over the extent of the Voice’s representations to minimise the risk of the High Court becoming involved in disputes over interpretation of the Voice’s reach.

“The wording in the bill is just one of the dozens of iterations of the Voice drafting seen in recent years. The proposition that it cannot be further refined to eliminate risk is dishonest,” he wrote.

The federal Liberals had already decided to oppose the Voice. However, Opposition Leader Peter Dutton will allow backbenchers a conscience vote, but not frontbenchers – a decision which prompted former shadow attorney-general Julian Leeser to resign from the frontbench.

The federal Nationals announced last year they would campaign against the Voice, so it was unsurprising that Mr Conaghan took a dim view of the proposal in his own dissenting committee report.

Mr Conaghan said the Bill conflated recognising Aboriginal and Torres Strait Islander people in the Constitution with enshrining an Aboriginal and Torres Strait Islander body, which he said were two “entirely separate issues”.

However, the Liberals and Nationals’ reports said the Coalition didn’t intend to stand in the way of the referendum being held.

Indigenous leaders called for a constitutionally enshrined Voice as an important step towards reconciliation in their 2017 Uluru Statement from the Heart.

If a majority of Australians in a majority of states vote in favour of the Voice at the referendum, the following phrases would be added to the Constitution:

There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;

The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;

The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions powers and procedures.