Membership of the Voice

The proposal for a First Nations Voice is to be put to the Australian electors at a referendum this year. This comment addresses the key issue of membership of the Voice. Legal determinations of membership and identity are complex and vexed. The High Court has struggled to articulate membership of ‘the people’ under the Constitution and has recently grappled with whether ‘Aboriginal Australians’ can be ‘aliens’; concluding that they cannot. Establishing legal rules of membership of First Nations peoples raises distinct challenges and Australian law has been notoriously imperfect in making, changing and applying such rules. Yet, the law must be involved to ensure that the Voice is both realised and representative. This comment argues that, taking into account the purpose of the Voice and Australian constitutional traditions, the best resolution for these tensions is that the institution of the Voice must be constitutionally entrenched, but its membership should be determined by Parliament, and that legislative drafting must occur in collaboration with First Nations people to ensure the promise of the Voice is realised