Voice to Parliament will not lead to different laws for “settlers” and “original custodians”

^{By Madeline Lo-Booth}

Social media users are spreading disinformation about the proposed Voice to Parliament, wrongly claiming that it would divide Australians into “settlers” and “original custodians” resulting in a “2-Tier government” that would apply different laws to each category.

The false claims come as polling suggests support for the Indigenous Voice to Parliament is in decline.

The original post appeared on a Brisbane-based Facebook page and claims that a Voice to Parliament will “automatically Label 97% of Australians who don't identify as Indigenous, as Settlers (or Offspring thereof)”.

“It will define and segregate under the then changed Constitution, between Original Custodians (Indigenous) and those Australians that arrived and lived here for generations from other countries, including the more recent migrants and refugees.”

The post goes on to say that the Voice will lead to “a 2-tier Government with different applied laws for each category of Australians”.

FactLab has checked both claims and this is what we found. 

Will the proposed Voice to Parliament create two categories of Australians?

The Facebook post claims that if the Voice to Parliament is carried it would create two categories of Australians: “settlers” and “original custodians”.

But the claim is false. The wording of the proposed constitutional change does not contain any reference to “settlers” and “original custodians” or the creation of any other kinds of categories.

The Voice referendum proposes to amend the Australian Constitution to recognise Indigenous Australians as the First Peoples of Australia and to create an advisory body called the Aboriginal and Torres Strait Islander Voice. 

A successful Yes vote would insert the following lines into the constitution:

“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:

i. there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;

ii. the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;

iii. 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.”

Professor Anne Twomey, a constitutional law expert who was involved in the Constitutional Expert Group for the Voice referendum, told FactLab in an email: “There is nothing in the proposed constitutional amendment or, indeed, anything official I have seen, that labels people ‘settlers’ or ‘original custodians’.”

Notably, the phrase “original custodians” does appear in section 1A(2) of the Victorian Constitution, which recognises Aboriginal people “as the original custodians of the land on which the Colony of Victoria was established.” The New South Wales Constitution uses the phrase “traditional custodians”. 

Will the Voice lead to “a 2-tier Government with different applied laws for each category of Australians?”

The viral Facebook post also states that different laws will be applied to two categories of Australians under a “2-Tier” government. 

But the post does not define or explain what is meant by a “2-Tier” government. 

Professor Twomey told FactLab, “When people talk about the tiers of government, they are normally referring to the levels of government in a federal system.

“In Australia, the constitution provides for two tiers of government, being the commonwealth and state governments,” she said. “Local government is often described as the ‘third tier’ of government, although it is not formally recognised as such by the constitution and is instead established by state and territory legislation. 

Professor Twomey said, “The Voice referendum does not involve creating a new tier of government or altering the existing tiers of government. It does not create a body which has any power to make laws or exercise executive powers. All it does is establish a body that can make representations to the Commonwealth Parliament and the Executive Government (which is something that any person or organisation can do).”

On the subject of “different laws for each category of citizen,” Professor Twomey said, “There is an existing race power in section 51(xxvi) of the constitution, under which the Commonwealth Parliament can make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. But that power has existed since 1901. Its use is limited to ‘special’ laws that are deemed ‘necessary’ and does not apply to laws of general application.”

Professor Gabrielle Appleby, an expert in parliamentary law and First Nations constitutional recognition, told FactLab different groups of people are treated differently by different legislation. For example, tax and welfare laws treat people differently depending on their income and socio-economic position.

But the Voice, in accordance with international law, would provide Indigenous people with constitutionally guaranteed political participation in government and parliamentary decision-making, she said.

“This doesn’t create two tiers of government, but is a further example of the law treating different groups differently in recognition of their different position and status,” she said.

In summary, the Voice to Parliament proposal would not create two categories of Australians who would be governed under different laws.

Instead, the Voice is designed to provide independent advice from a body composed of members selected by Aboriginal and Torres Strait Islander communities.

The referendum for the Aboriginal and Torres Strait Islander Voice to Parliament is expected to be held between October and December this year, but no date has yet been set.