What was claimed
Western Australia’s recently scrapped cultural heritage laws had the same function as the proposed Voice, and a successful Yes vote at the upcoming referendum would establish cultural heritage rights in the constitution.
False. The powers and functions of the WA laws and the proposed Indigenous Voice are in no way similar, according to experts. The proposed constitutional amendment would only establish an advisory body called the Aboriginal and Torres Strait Islanders Voice.
By Renee Davidson
The Western Australian government’s decision to scrap its controversial heritage laws has been seized upon by supporters of the No campaign to cast doubt on the viability of the Indigenous Voice to Parliament.
The laws, which were designed to protect Aboriginal cultural heritage in WA, were repealed by the state government on August 8, after a public backlash concerning potential costs, lack of consultation and confusion over how the new rules would operate.
Speaking at a press conference, WA premier Roger Cook said the laws had gone too far, and apologised for the unintentional stress, confusion and division that the legislation had caused.
Although the repealed laws have no correlation to the Voice, supporters of the No campaign have linked the two issues to push the No vote ahead of the upcoming referendum.
“WA is scrapping their dopey ‘voice like laws’ as they were unworkable,” one Facebook user wrote in a post.
Another post similarly claimed that the WA law “was intended to do the same thing as the voice. Looks like it is now going to be repealed in a couple of weeks. BUT the ‘voice’ can’t be repealed if it gets in.”
In a step further, others claimed that a successful Yes vote at the upcoming referendum would establish cultural heritage rights in the constitution.
“Imagine if the referendum goes through,” one Facebook user wrote. “Things like this [WA heritage laws] will be 'in the Constitution' and not able to be reversed. Vote NO to the Voice.”
But the claims are false. The WA cultural heritage laws do not perform the same function as the proposed Voice, according to constitutional law and legal experts. Moreover, the upcoming referendum’s proposed constitutional changes are not related to cultural heritage.
The WA Aboriginal Cultural Heritage Act (2021) came into effect on July 1, 2023, but was repealed by the state government five weeks later on August 8 after considerable opposition, particularly from landowners and farmers.
The legislation, which was developed in response to mining company Rio Tinto’s destruction of the sacred Aboriginal rock shelters at Juukan Gorge, required landowners to check for the presence of cultural heritage before conducting major works that could compromise such sites.
An Aboriginal Cultural Heritage Council, with functions limited to protecting cultural heritage matters, was also established under the repealed law.
The WA government said that in place of the repealed laws, it would restore the original Aboriginal Heritage Act of 1972, with simple amendments to safeguard heritage sites.
The Aboriginal and Torres Strait Islander Voice would be an advisory body enshrined in the Australian Constitution to provide advice to the government on matters relating to Indigenous Australians. The Voice would not have legal powers to enforce its recommendations, nor to pass or veto legislation.
Professor George Williams, a constitutional law expert at the University of New South Wales, rejected claims linking the WA laws to the proposed Voice.
“They are unalike in covering different matters and being directed to different ends,” Professor Williams told RMIT FactLab in an email.
He dismissed the claim that a successful Yes vote would establish cultural heritage rights in the constitution.
“The referendum will only create the Voice to make representations to parliament and government,” he said. “That might include, among other things, representations on cultural heritage, which parliament and government can act upon or ignore as they decide.
“Enshrining cultural heritage rights in the Constitution would require a further referendum,” he said.
Dr Kate Galloway, an associate professor at Griffith University’s Law School, told FactLab in an email that the WA laws in no way performed the same function as the proposed Voice.
“The difference between the two could not be starker,” Professor Galloway said.
The Voice is an institutional response to enhancing governance by providing a means by which Aboriginal and Torres Strait Islander people are able to have input into government decisions and parliamentary deliberations, on matters affecting them, she said.
“The cultural heritage legislation relates specifically to management of cultural heritage in WA,” she said. “The design of the protection mechanism includes a council [Aboriginal Cultural Heritage Council] that exercises statutory authority in accordance with the law. The Voice will have no such authority, and no such power.”
Dr Galloway pointed out key differences between WA’s cultural heritage council and the proposed Voice to dismiss claims likening the two.
“The council can exercise its powers only in relation to cultural heritage,” she said. “That is a significant limitation. By contrast, the Voice can make representations on matters concerning Aboriginal and Torres Strait Islander people.”
She said the council had a range of functions that included promoting public awareness, identifying and preserving cultural heritage, providing advice and making decisions.
“These decisions are constrained by the requirements of the Act,” she said. “However the Voice will only be able to make representations. It would have no power to make decisions. It is not compelled to make representations, but it may.”
“The proposed constitutional amendment is in no way concerned with the management of land or the exercise of any power by Aboriginal and Torres Strait Islander people,” she said. “Its purpose is solely to make representations to government and parliament.”
This is not the first time that supporters of the No campaign have tried to link the WA laws to the Voice.
In July, comments made by WA premier Roger Cook were used out of context by leading No campaigners to claim that the WA laws “do the same things as the Voice”.
Fair Australia and conservative lobby group Advance Australia both shared an image of the premier on their Facebook pages, overlaid with his partial quote: "Our Aboriginal cultural heritage laws do the same thing as the Voice" [their emphasis].
In its Facebook post featuring the image, Fair Australia wrote: “Worried about what the Voice will cost you? Vote no. #VoteNOAustralia”.
Similarly, in a video produced by digital media company ADH TV and viewed on Facebook more than 19,000 times, commentator Fred Pawle quotes Mr Cook to argue that WA laws “trample all over your property rights”, which is “what the Voice will do”.
But the premier’s quote lacks important context.
The transcript of a July 8 media conference shows that Mr Cook was, in fact, seeking to make clear that the two issues were separate, telling journalists: "The only reason why you would want to conflate these issues, particularly in the context of the current debate, is if you were somehow trying to use one or the other to cool that discussion."
He continued: "Aboriginal cultural heritage laws do the same thing as the Voice: that is they respect, acknowledge and consult. And nothing can be fairer than that."
False. The Western Australian Cultural Heritage Act (2021) was a state-specific initiative established by legislation, while the Voice would be an advisory body to the federal parliament and executive that can only offer recommendations without any legal power to enforce them, according to constitutional law and legal experts. Further, the proposed constitutional amendment has nothing to do with cultural heritage rights.
Acknowledgement of Country
RMIT University acknowledges the people of the Woi wurrung and Boon wurrung language groups of the eastern Kulin Nation on whose unceded lands we conduct the business of the University. RMIT University respectfully acknowledges their Ancestors and Elders, past and present. RMIT also acknowledges the Traditional Custodians and their Ancestors of the lands and waters across Australia where we conduct our business - Artwork 'Luwaytini' by Mark Cleaver, Palawa.