Representations to the Executive Government
19.Subsection 129(ii) empowers the Voice to make representations, including to the Executive Government of the Commonwealth. This would include representations about any matter within the executive power of the Commonwealth, such as law reform, policy development, decisions made under specific legislation, and other matters of government administration, provided they relate to Aboriginal or Torres Strait Islander peoples.
20.The term ‘the Executive Government of the Commonwealth’ has the same meaning as elsewhere in the Constitution.
21.It is a matter for the Parliament to determine, in the exercise of its power under s 129(iii), whether the Executive Government is under any obligation in relation to representations made by the Voice.
‘Matters relating to Aboriginal and Torres Strait Islander peoples’
22.Subsection 129(ii) provides that the Voice’s core representation making-function concerns ‘matters relating to Aboriginal and Torres Strait Islander peoples’. This requires a connection between Aboriginal and Torres Strait Islander peoples and the matters on which the Voice makes representations.
23.The matters may relate to Aboriginal peoples or Torres Strait Islander peoples, or both.
24.The phrase ‘matters relating to Aboriginal and Torres Strait Islander peoples’ would include:
a.matters specific to Aboriginal and Torres Strait Islander peoples; and
b.matters relevant to the Australian community, including general laws or measures, but which affect Aboriginal and Torres Strait Islander peoples differently to other members of the Australian community.
25.Consistent with the principle of self‑determination, it would be a matter for the Voice to determine its own priorities with respect to the representations that it wishes to make, within the boundaries set by s 129. This is intended to ensure that the role and function of the Voice can evolve over time in response to the concerns of, and issues impacting, Aboriginal and Torres Strait Islander peoples.
The Parliament’s power to make laws with respect to matters relating to the Voice, including its composition, functions, powers and procedures
26.Subsection 129(iii) would allow the Parliament, subject to the Constitution, to make laws with respect to matters relating to the Voice, including its composition, functions, powers and procedures. It confers upon the Parliament a broad power to make laws in relation to the Voice, without detracting from its constitutionally guaranteed existence (under s 129(i)) and representation-making function (under s 129(ii)).
27.The particular matters specified in s 129(iii) are not exhaustive. Accordingly, the Parliament may make laws about any matters relating to the Voice, including how the Voice will operate, its relationships with other bodies and entities, and how those bodies and entities can respond to its representations. In particular, s 129(iii) would empower the Parliament to make laws establishing standard procedures to be followed for interactions between the Voice and the Executive Government or the Parliament. One aspect of that would be providing for the ways in which the Parliament and the Executive Government would receive representations from the Voice.
28.The legislative power under s 129(iii) would also allow the Parliament to make laws about the Voice’s representations, including specifying whether or not, and if so in which circumstances, an Executive Government decision-maker has a legal obligation to consider the Voice’s representations.
Composition
29.The Parliament’s power to make laws with respect to the composition of the Voice would support laws about the membership, structure and legal form of the Voice. This could include matters such as how members of the Voice will be selected, the number of members of the Voice, any eligibility criteria to be a member, and the length of members’ terms.
Functions
30.The Parliament would have power to make laws with respect to the Voice’s functions. This would allow the Parliament to make laws both about the Voice’s constitutionally-enshrined function of making representations to the Parliament and the Executive Government, and to confer other functions on the Voice, such as to make representations to state or territory parliaments or governments.
Powers
31.The Parliament would be able to make laws with respect to the Voice’s powers. This would allow the Parliament to confer powers on the Voice to assist the Voice in discharging its functions. For example, this could include powers to gather information required to perform its functions.
Procedures
32.The Parliament would have power to make laws with respect to the procedures of the Voice. This encompasses a wide range of matters relating to the functioning of the Voice. This could include governance arrangements, as well as the procedures to be followed by the Voice when deciding whether to make, or when making, a representation to the Parliament or the Executive Government and the form in which a representation should be made.
https://www.legislation.gov.au/Details/C2023B00060/Explanatory%20Memorandum/Text
