Why enshrine the Voice in the Constitution? Can’t we just establish it by legislation?

Why enshrine the Voice in the Constitution? Can’t we just establish it by legislation?

There is a common question regarding whether or not a Voice to Parliament should just be legislated, rather than enshrined in a Voice to Parliament. There is a substantial distinction between a legislated Voice and an enshrined voice, due to the political nature of legislation and the history of legislated bodies that represent Aboriginal and Torres Strait Islander people. 

As the history of Indigenous Policy in Australia, established bodies that have experienced challenges or does not have the support of the political class, has not been maintained due to the structure of the body.  


History of Legislated Bodies for Aboriginal and Torres Strait Islander People:



ATSIC was established by the Hawke Government with the aim of advising governments at all levels on indigenous issues, advocating the recognition of Indigenous rights on behalf of all Indigenous people and delivering and monitoring some of the Commonwealths’ Indigenous programs and services. 

ATSIC was established through the Aboriginal and Torres Strait Islander Commission Act 1989 and was funded out of the Budget. 

ATSIC was plagued with the perception that it was not delivering outcomes, that were also not assisted by various allegations of wrongdoing made against senior ATSIC office-bearers. 

ATSIC was reviewed by the Howard Government and both major political parties pledged to abolish it. This was the third national body for Indigenous Australians that had been abolished (the other two were the National Aboriginal Consultative Committee and the National Aboriginal Conference).


National Congress of Australia’s First People

The Rudd Government established the National Congress, with the aim of being a credible body independent of government and properly resourced to “give advice, advocate, monitor and evaluate government performance on Aboriginal and Torres Strait Islander issues, but not deliver services or programs as ATSIC did”. 

The Congress was established as a company, representing more than 180 Indigenous organisations and nearly 10,000 individuals. It was established as a company as there is a history of establishing and disbanding national representative bodies, however the Rudd Government did not establish a perpetual funding source, just funded through the Budget. 

Without consultation, the Abbott Government withdrew funding for the National Congress as part of the Indigenous Advancement Strategy reforms. 

Subsequently, another body designed to give advice to the Government was defunded and lacks support, even if it was established as a Corporation to stop political changes.


Enshrining the Voice in the Constitution

A Voice to Parliament in the Constitution would ensure that the Voice wouldn’t be subject to any potential politicking as previously experienced by Aboriginal and Torres Strait Islander bodies established. Legislation is easily changed by any government of the day, and would not ensure that a Voice to Parliament is protected from politics. 

Constitutional enshrinement would provide substantive recognition of the history of Aboriginal and Torres Strait Islander in Australia after over 100 years of being not being included in the Constitution. 


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