The Parliamentary Joint Committee on Human Rights published its report on the Constitutional Alteration (Aboriginal and Torres Strait Islander Voice) 2023 in May 2023. Its conclusion on human rights compliance is consistent with many other opinions on that issue.
The Committee’s functions under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) are to examine bills, Acts and legislative instruments for compatibility with the human rights set out in the seven international human rights treaties that Australia has ratified, and to report to both Houses of the Parliament on their assessment.
The Committee, chaired by Josh Burns MP (VIC ALP) has majority ALP membership and includes Voice supporter Mr Russell Broadbent MP, Deputy Chair (VIC LP). The Committee includes opponents of the Voice, but Senator Jacinta Nampijinpa-Price (NT CLP) and Senator Matthew O'Sullivan (WA LP) did not provide dissenting comments in the Committee’s report. Nor did Senator Lidia Thorpe (VIC IND).
The University of Sydney's Associate Professor Jacqueline Mowbray is the external expert legal advisor to the Committee.
"Like many other human rights experts, the Committee concluded:
"[I]f the Constitution were to be amended to establish the Voice, this would ... promote the rights of Aboriginal and Torres Strait Islander peoples to participate in public affairs; the right to self-determination, particularly the obligation to consult with Indigenous peoples in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them; and the right to equality and non-discrimination, and is therefore compatible with these rights."
The Committee did not agree with the no case’s claim that the recognition of Aboriginal and Torres Strait Islander peoples’ treaty rights would constitute unlawful discrimination under international human rights law. Rather the Committee concluded that differential treatment would be based on the legitimate objective of
"realising Aboriginal and Torres Strait Islander peoples’ right to self-determination and would not negatively affect the ability of members of the broader community to enjoy or exercise their rights and freedoms."
The Committee considered that the bill was compatible with the right to equality and non-discrimination under international human rights law.
The legal advice included in the report also noted that the United Nations Human Rights Council has said of the scope of Indigenous Peoples’ right to free, prior and informed consent:
"States' obligations to consult with indigenous peoples should consist of a qualitative process of dialogue and negotiation, with consent as the objective … Use in the Declaration [on the Rights of Indigenous Peoples] of the combined terms 'consult and cooperate' denotes a right of indigenous peoples to influence the outcome of decision-making processes affecting them, not a mere right to be involved in such processes or merely to have their views heard ... It also suggests the possibility for indigenous peoples to make a different proposal or suggest a different model, as an alternative to the one proposed by the Government or other actor."
by Hanna Jaireth