Federal focus on the Voice to Parliament, while Treaty and Voice progress continues in the States and Territories
25 July 2023
Native Title Year in Review 2022-2023
What you need to know
- The Federal Government continues to prepare for its upcoming referendum on the Aboriginal and Torres Strait Islander "Voice", which is anticipated to be held in the final quarter of 2023.
- A successful referendum would result in an amendment to the Australian Constitution, recognising Aboriginal and Torres Strait Islander Peoples as the First peoples of Australia, and see the establishment of an independent advisory body, advising Government on matters that affect First Nations people.
- Around Australia, most States and Territories are continuing efforts to develop Treaty, Truth-telling and/or Voice structures. The Federal Government has indicated that it will also be progressing with Truth-telling and Treaty making, in due course.
What you need to do
- Be informed about the Voice in preparation for the referendum later in 2023.
- While there is now momentum for truth telling and treaty making, do not expect fast outcomes. It will still take years.
Reminder of background to Treaty in Australia
澳大利亚仍然是唯一的联邦公司untry to have never signed a Treaty with its Indigenous people. However, the Federal Government and most State and Territory Governments are committed to developing Treaties with First Nations peoples.
This is our fourth annual update on the status of Treaty making in Australia, and focuses on developments in the second half of 2022 and first half of 2023. This update also covers the recent developments in the Federal Voice. For further information and background:
- OurNative Title Year in Review 2021-2022article "Treaty update: Federal Government commits to Uluru Statement from the Heart while Treaty momentum gathers in the States" provided a 2021 and early 2022 Treaty update.
- OurNative Title Year in Review 2020article "Treaty update: Progress in State based Treaty negotiations and proposals for a national Indigenous Voice" provided a 2020 Treaty update and set out the former Federal Liberal Government's proposal for a Voice to Parliament.
- OurNative Title Year in Review 2019article "Treaty making in Australia – Will the pieces of the puzzle come together?" Explained the concept of Treaty and set out how Treaty making was progressing in each State and Territory and at a Federal level.
Status of Treaty making around Australia
The status of Treaty making in Australian States and Territories can be broadly summarised as follows:
Commonwealth Although the Federal Government has committed to Treaty making in Australia presently (as a result of its commitment to implementing the Uluru Statement of the Heart in full), the Voice is the focus, with a referendum anticipated in October-December 2023. We set out more information on the Voice below. It had been anticipated that following a successful referendum on the Voice, the next step would be the establishment of a "Makarrata Commission". Makarrata is a Yolngu word which describes a process of conflict resolution, peacemaking and justice, and is used as a synonym for Treaty. It is not clear how the establishment of the Makarrata Commission will progress in the event of an unsuccessful referendum. |
Victoria On 23 August 2022, the Treaty Authority was established following the enactment of theTreaty Authority and Other Treaty Enactments Act 2022(Vic). The role of the Treaty Authority is to mediate negotiations between the State government and Aboriginal Victorians, in promoting fairness, due process and legal oversight on the development of Treaty. In October 2022, the First Peoples' Assembly of Victoria and the Minister executed the Treaty Negotiation Framework and Self-Determination Fund. The Treaty Negotiation Framework creates fundamental rules for negotiating Treaties in support of fair Treaty development. The Self-Determination Fund provides funding for First Peoples to support the objective of fair treaty development. Formal Treaty negotiations are set to commence in 2023, and are yet to begin. In May 2023, the State Budget allocated $138 million for investment into the Treaty process for a four year period. $82 million of this amount was directed to the First Peoples' Assembly. Voting in the First Peoples' Assembly Elections closed on 3 June 2023, which accounts for First Peoples' choice for representatives participating in Treaty negotiations. On 17 June 2023, the Traditional Owners who are to negotiate Treaty with the Victorian government were chosen after the State's Treaty Election. A total of 22 Traditional Owners were elected to represent the North West, North East, South West, South East, and Metro regions of Victoria. Truth-Telling in VictoriaThe Yoorrook Justice Commission, Victoria's formal Truth-telling inquiry, continues its work. Since our last article, Yoorrook delivered itsInterim Reportin June 2022. Since then, Yoorrook has continued to conduct hearings, including with Aboriginal leaders, experts, service providers, Aboriginal community members and Government and public service witnesses, in relation to Victoria's criminal justice and child protection systems. Yoorrook will deliver a Critical Issues Report on injustices against First Peoples in the criminal justice and child protection systems in August 2023. |
Tasmania In December 2022, the Tasmanian government announced that, following meetings with Aboriginal representatives regarding how Truth-telling and Treaty should proceed in Australia, it would establish an Aboriginal Advisory Group. The Aboriginal Advisory group is comprised of six Aboriginal people who can work together with Government to design a process for Truth-telling and Treaty that is led by Aboriginal people. The Aboriginal Advisory Group met for the first time in February 2023. The Group has no set timeframe or predetermined outcome for its work. |
来自tralian Capital Territory The ACT is working towards self-determination for First People in accordance with itsACT Aboriginal and Torres Strait Islander Agreement 2019 – 2028. In July 2022, Professor Kerry Arabena provided a Final Report to the ACT Government. The ACT Government is currently considering the recommendations in the Report, as well as other community feedback in relation to the Report and Treaty-making process for the ACT. |
Northern Territory 2022年6月29日,北方领土条约Commission released its最终报告. On 29 December 2022, the Northern Territory Government provided its response to the Final Report, which included establishing a Treaty Unit within the Office of Aboriginal Affairs to support next steps in the Treaty process. The work of the Treaty Commission is now complete, with the Treaty Unit now focused on developing and implementing Treaty-related policies and legislation, stakeholder engagement, creation of a Truth-telling process across the Territory, and engagement with regional, local and national Commonwealth representatives for developing Voice at regional, local and national levels. |
Queensland Further to our 15 March 2023 article, "Queensland introduces Bill to Parliament to enshrine Treaty-making process", thePath to Treaty Act 2023was assented to on 17 May 2023. The Path to Treaty Act establishes a First Nations Treaty Institute and Truth Telling and Healing Inquiry. Over the coming months, we anticipate that the Queensland Government, in partnership with the Interim Truth and Treaty Body, will commence developing these two bodies, including appointing Institute and Inquiry members. While the Path to Treaty Act does not deal with the Voice, "a First Nations Consultative Committee has been established" that will assist with developing a First Peoples' Voice in Queensland. This Committee was established in July 2021, representing First Nations people in eight regions within Queensland, to inform the development of a Voice. The Committee is set to report back to the Government on their progress to recommend a model for the Queensland Voice in 2023. |
South Australia In March 2023, theFirst Nations Voice Act 2023(SA),通过建立的第一个国家ns Voice in South Australia. SA is the first Australian jurisdiction to implement a Voice. The SA Government website states that the SA Voice First Nations Voice will be a "direct and independent line of communication for First Nations people to South Australia's Parliament and the government." It will be made up of six Local First Nations Voices and a State First Nations Voice. The inaugural First Nations Voice election will be held on 9 September 2023, for Aboriginal and Torres Strait Islander people living in South Australia to vote for their Local First National Voice representative. SA had previously commenced a Treaty process in 2016, however this has been on hold for some time following a change in Government. The treaty-making process is expected to recommence later in 2023, following the re-election of a Labor Government. |
New South Wales Following the election of a Labor Government on 25 March 2023, there are hopes of progress towards Treaty in NSW. However, there has been little progress in the months since. In January 2023, the Labor Opposition stated that it would commit $5 million towards a year-long consultation on the legally binding agreement between the government and Indigenous people, which allows for partnership around decision making. However, the commitment was timed to commence after the referendum on the Voice, and would go ahead regardless of the outcome. Accordingly, it is likely that there will be little progress in the NSW Treaty Process until 2024. |
Western Australia Western Australia is now the only State or Territory that is not committed to a formal Treaty process. However, as noted in our previous articles, Settlement Agreements such as the Noongar Settlement and the Yamatji Settlement are considered by some to be Treaty equivalents. The recent Tjiwarl Palyakuwa (Agreement) also provides for settlement of most of the State of WA's compensation liability to the Tjiwarl people. Since our last article, then Premier Mark McGowan has noted that his focus will be to ensure the success of the Federal referendum, before turning any attention towards developing a State Voice. |
Voice
What is the Voice?
On 23 March 2023, the Federal Government announced the question and Constitutional amendment that will be put to the Australian people at referendum later in 2023. The announcement came as part of the Government's commitment to implement the Uluru Statement from the Heart in full, with "Voice" being one of three elements of the Uluru Statement (along with Treaty and Truth).
The question and Constitutional amendment were developed in consultation with the First Nations Referendum Working Group, and are as follows:
Question: "A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?"
提议的宪法修正案进行ed via theConstitution Alteration (Aboriginal and Torres Strait Islander Voice) Bill 2023(Cth), which was passed in the House of Representatives and Senate in June 2023.
The Constitution Alteration proposes to amend the Australian Constitution as follows:
Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples
129 Aboriginal and Torres Strait Islander Voice
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
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 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.
How will the Voice work?
TheFederal Government websitestates that the "Voice would be an independent and permanent advisory body. It would give advice to the Australian Parliament and Government on matters that affect the lives of Aboriginal and Torres Strait Islander peoples."
The Federal Government has also released "Voice design principles" which have been developed in conjunction with the First Nations Referendum Working Group. These state that the Voice will:
- give independent advice to the Parliament and Government
- be chosen by Aboriginal and Torres Strait Islander people based on the wishes of local communities
- be representative of Aboriginal and Torres Strait Islander communities, gender balanced and include youth
- be empowering, community-led, inclusive, respectful and culturally informed
- be accountable and transparent
- work alongside existing organisations and traditional structures
- not have a program delivery function
- not have a veto power
Following a successful referendum, there will be a detailed consultation process with First Nations people, Parliament and the broader public to determine the Voice design. This will culminate in legislation to establish the Voice, which will go through the standard parliamentary processes.
Further context to the Voice
This is not the first referendum that has considered First Nations issues. In 1967, over 90% of Australians voted to change the Constitution such that Aboriginal and Torres Strait Islander people would be counted in the census, and the Federal Parliament would be able to make laws for them. However, this Constitutional amendment did not recognise Aboriginal and Torres Strait Islander Peoples as the First Peoples of Australia, unlike the current proposal.
The concept of the Voice is not new, and calls for a Voice date back to the 1800s. As noted, calls for the Voice were reflected in the May 2017 Uluru Statement from the Heart, and the Voice has been actively progressed at the Federal level 2018, albeit in a slightly different form.
As noted in our 1 April 2021 article, since October 2019, the former Liberal Government had been progressing an "Indigenous Voice co-design process" and had published an Interim Report seeking feedback on its Indigenous Voice Proposals. However, the former Liberal Government proposal differed from the current proposal, in that it did not support establishing the Voice in the Constitution. The Liberal Opposition Government has announced its formal opposition to the Labor Government's model for the Voice.
Constitutional recognition of the Voice would align Australia with other international jurisdictions. For example, Brazil's Constitution is structured to integrate Indigenous peoples' views on various matters, including participation rights where development projects affect traditional lands. Additionally, Canadian courts have found that Canada's Constitution also confers consultation rights on matters including resource development.
Where to from here?
Given the intense political debate around the Voice, the likely outcome of the referendum is not clear. While a successful referendum will mean an exciting development for First Nations peoples and a more representative Australia, an unsuccessful referendum may set back the progress towards implementing the Uluru Statement from the Heart in full, and reconciliation in general.
Ashurst will continue to monitor updates and progress towards both the Voice and Treaty at the Federal level and around Australia.
Authors:Tess Birch, Senior Associate; Clare Lawrence, Partner, and Patrick Stratmann, Graduate.
