Would every piece of legislation need Voice approval? No, that’s absurd

What was claimed

Every piece of legislation going through federal Parliament would have to be approved by the Voice to Parliament.

Verdict

False. The Voice would only be able to make representations on issues relating to First Nations peoples.

A Facebook post claims every piece of proposed federal legislation would have to be approved by the Aboriginal and Torres Strait Islander Voice to Parliament, if the upcoming referendum is successful.

This is false. The proposed constitutional amendment would only permit the Voice to make representations on matters relating to Indigenous peoples.

Constitution experts have told AAP FactCheck there would be no obligation for the Parliament or executive government to even consult the Voice before passing, amending or repealing any law, or making any decision.

“As an Australian, I am deeply concerned that every piece of legislation going through federal Parliament would have to be approved by the Voice-elected representatives in Canberra,” says the post (archived here) from April 12 2023.

It then outlines a number of items from an “initial list of matters to be introduced in the Voice”, such as university entry tests or fees for Indigenous peoples, income tax to be halved for Indigenous peoples and all new liquor licences to be vetted by the Voice.

The same claim is being shared by other social media users, as seen here and here.

This list is based on a speech by One Nation Senator Pauline Hanson (page 130) on March 22 about an anonymous letter allegedly sent to her office. AAP FactCheck has addressed claims about the letter here.

In March, the government released the formal wording of the proposed constitutional amendment, which recognises Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.

The amendment allows for a Voice to Parliament to “make representations to the Parliament and the executive government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander people” and gives Parliament the power to “make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures”.

Gabrielle Appleby, a law professor at the UNSW Sydney, told AAP FactCheck the Voice would have a “constitutionally guaranteed function of making representations to the Parliament on proposed laws”.

Professor Appleby added: “How that happens will be determined through future legislation and other instruments such as standing orders of the houses.

“It might be that a committee is set up to allow the Voice’s representations to be considered and reported to the houses.

“This is a similar process that already happens for every piece of legislation and subordinate legislation that is made, which is referred to technical and policy scrutiny committees for comment.”

While these specific details are yet to be decided, the government has released a set of design principles for the Voice to Parliament, which includes information about how the Voice would be able to give advice.

The co-design report led by Professor Marcia Langton and Professor Tom Calma also outlines the potential Voice model.

Neither of these documents suggests the Voice has to approve all proposed legislation.

University of Melbourne laureate professor emeritus of constitutional law Cheryl Saunders told AAP FactCheck the wording of the proposed constitutional amendment “does not require the Voice to be consulted (on) anything”.

“It leaves it to the Voice to ‘make representations’. Its authority is to make representations on ‘matters relating to Aboriginal and Torres Strait Islander peoples’,” Professor Saunders said in an email.

“How that would work in practice is an issue for the implementation of the new arrangements, if the constitution is altered and the necessary legislation made. It is an issue with which many other Commonwealth advisory bodies deal.”

Professor Appleby noted there was no obligation to follow any advice from the Voice.

“The constitutional guarantee is that the Voice can make the representations,” she said. “How the Parliament considers and responds to those representations is determined by the Parliament.”

Monash University constitutional law professor Luke Beck agrees.

“The constitutional amendment is to set up a ‘Voice’ to enable Indigenous Australians to speak. It is not to create an ‘ear’ that is obliged to listen,” he told AAP FactCheck in an email.

“The explanatory memorandum for the constitutional amendment says very clearly ‘The constitutional amendment confers no power on the Voice to prevent, delay or veto decisions of the Parliament or the executive government‘ and ‘The constitutional amendment would not oblige the Parliament or the executive government to consult the Voice prior to enacting, amending or repealing any law, making a decision, or taking any other action’.”

This is echoed by University of Sydney professor emerita of constitutional law Anne Twomey in her submission to the parliamentary inquiry on the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 bill.

“It is important to note what is not included in the words of s129(ii). There is no obligation upon Parliament or the executive government to respond to the representations or give effect to them. There is no obligation of prior consultation. There is no requirement to wait to receive a representation before the executive government of Parliament can act,” she wrote.

Conclusion

The claim every piece of legislation going through federal Parliament would have to be approved by the Voice is false.

The wording of the constitutional amendment does not confer any obligation on the Parliament or executive government to consult the Voice prior to passing, amending or repealing any law, making any decision or taking action.

The proposed amendment allows the Voice to make representations on matters relating to Aboriginal and Torres Strait Islander peoples. Under the amendment, there is no requirement for the Parliament or executive government to follow any advice from the Voice.

This piece has been modified and was originally published via AAP.

AAP FactCheck is an accredited member of the International Fact-Checking Network.