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Some politicians and pundits claim the Voice to Parliament would be a 'third chamber'. Five constitutional law experts weigh in

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CheckMate is a weekly newsletter from RMIT FactLab which recaps the latest in the world of fact checking and misinformation, drawing on the work of FactLab and its sister organisation, RMIT ABC Fact Check.

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CheckMate September 23, 2022

This week, we ask constitutional experts about suggestions that the proposed Indigenous Voice to Parliament would constitute a "third chamber of parliament".

We also debunk a claim made by former federal MP George Christensen that Labor wants to allow "foreigners to vote in our elections", and share the findings of an investigation into misinformation on TikTok.

Will the proposed Indigenous Voice to Parliament actually be a 'third chamber'?

Prime Minister Anthony Albanese announced the question to be put to the Australian people regarding the Voice at this year's Garma festival.(ABC News: Michael Franchi)

As part of its election commitment to implement in full the Uluru Statement from the Heart, Labor has vowed to hold a referendum on establishing an Indigenous Voice to Parliament, with the Prime Minister recently unveiling proposed wording for both the referendum question and changes to the constitution.

In a speech delivered at the Garma Festival in Arnhem Land, Anthony Albanese suggested asking Australians a clear and simple question: "Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?"

He also recommended three additions to the constitution:

  • There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice

  • The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples

  • The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice

But opponents of the Voice — including some politicians, media commentators and social media users — have suggested the change would create a "third chamber of parliament".

Former Sky News host Alan Jones, for example, has taken to Facebook on multiple occasions since Mr Albanese's Garma speech to suggest the Voice would constitute a third chamber.

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And consecutive Liberal Party leaders — Malcolm TurnbullScott Morrison and Peter Dutton — have also used language insinuating the Voice would be a third chamber, albeit prior to the release of Labor's proposed wording.

(Following Mr Albanese's Garma address, Mr Turnbull said he would vote yes to establish a Voice and that "the Voice as proposed by Anthony Albanese won't be a third chamber").

So, what do the experts say?

Five constitutional law experts consulted by RMIT FactLab were unanimous in rejecting the claim that the Voice, as proposed by the government, would effectively be a third chamber of parliament.

George Williams, a constitutional law expert at the University of NSW, told RMIT FactLab there was no suggestion that the Voice would have any of the powers or responsibilities of the existing two parliamentary chambers — the House of Representatives and the Senate.

"The Voice is proposed to be an advisory body that makes representations to parliament about matters involving Indigenous peoples," Professor Williams said.

"It would not have a veto or decision-making role on legislation. Nor would it hold the executive to account . . . This falls well short of amounting to anything akin to a third chamber."

Anne Twomey, professor of constitutional law at the University of Sydney, agreed.

She noted that the Voice would not be able to "initiate, debate, pass or defeat bills and would not have any of the powers or privileges of the existing houses".

Even the suggestion that parliament would need agreement from the Voice to make legislation was "wrong", she added, likening the Voice to other bodies which make recommendations and reports to parliament, such as the Human Rights Commission and the Australian Law Reform Commission.

Constitutional law expert Cheryl Saunders, a laureate professor emeritus at the University of Melbourne, also dismissed the idea that the Voice would establish a third chamber of parliament, as did Gabrielle Appeleby of the UNSW Law Faculty.

Luke Beck, associate dean (education) of the Faculty of Law at Monash University, likewise, denied that the Voice would be a third chamber of parliament.

"The role of the Voice will be as an advisory body," he told FactLab, noting that the parliament would be free to ignore the views of the Voice.

"It will not have any formal powers, let alone the powers of a chamber of Parliament."

Voting rights for NZ residents in Australia a possibility, but not for other foreigners

This Facebook post from former federal MP George Christensen was found by RMIT FactLab to be missing context.(Supplied)

Former Liberal National Party politician and federal MP George Christensen's claim that the federal government wants "foreigners to vote in our elections" is missing context, RMIT FactLab has found.

Taking to Facebook in August, Mr Christensen suggested Labor was "setting the stage to rig future elections", in part by supposedly "allowing non-citizens to vote".

Mr Christensen's post, which referred to an unnamed parliamentary inquiry, was accompanied by an image of a ballot box and a vote being cast with the words: "They want foreigners to vote in our elections!"

But as FactLab explained, the Albanese government in August asked the Joint Standing Committee on Electoral Matters to investigate and report on all aspects of the 2022 federal election — a routine post-poll process.

Its terms of reference include that the committee consider allowing New Zealand citizens residing in Australia to vote, as well as possible "truth in political advertising" laws and reforms to rules governing political donations.

However, as constitutional law expert Anne Twomey told FactLab, some foreigners already vote in Australian federal elections and have done so since federation.

Professor Twomey said that before 1984, people who were classified as British subjects could vote in Australian elections, including those from the United Kingdom, Canada, New Zealand and other British dominions.

This was changed in 1984, when Australian citizenship became a requirement, but Professor Twomey pointed out that anyone who was already on the electoral roll at that time was permitted to continue voting.

"There are, therefore, New Zealanders and others who can still vote in Australia without being Australian citizens," she said.

However, the inquiry is considering allowing voting rights only to New Zealand citizens residing in Australia, not to non-citizens from other nations.

Many countries allow foreigners who are permanent residents to vote in elections, including New Zealand, where Australians who are permanent residents can vote in the country's elections, Professor Twomey noted.

Luke Beck, professor of constitutional law at Monash University, said the parliamentary inquiry is an investigation into the feasibility of providing such voting rights.

"The constitution says the House of Representatives must be ‘directly chosen by the people of the Commonwealth'," he said.

"[The question being] would allowing people who are not Australian citizens to vote be consistent with this constitutional requirement?"

Professor Beck said the inquiry would assist in thinking about this issue of constitutional validity as well as understanding how many New Zealand citizens currently residing in Australia wanted to vote.

Report finds TikTok is 'pumping misinformation' to young users

TikTok regularly surfaces misinformation to users, a new report has found.(Supplied: TikTok)

Almost one-in-five TikTok videos that appear in response to searches on the platform for prominent news stories contain misinformation, a report has found.

The investigation, conducted by NewsGuard, a website that assesses the trustworthiness of news and information sites, found that searches made using both neutral language (for example, "January 6 FBI") and leading language (for example, "does mugwort induce abortion") often resulted in videos containing misinformation being pushed to users.

In fact, almost one in five of the videos presented in response to searches contained misinformation, the report noted.

"This means that for searches on topics ranging from the Russian invasion of Ukraine to school shootings and COVID vaccines, TikTok's users are consistently fed false and misleading claims," it concluded.

The report also found that TikTok encouraged users to search for "charged phrases" via its suggested search function.

"For example, when a user enters the term 'climate change', TikTok suggests searches for 'climate change debunked' and 'climate change doesn't exist'," NewsGuard reported.

"For a user who searches for 'covid vaccine', TikTok suggests a search for 'covid vaccine injury', 'covid vaccine truths', 'covid vaccine exposed', 'covid vaccine hiv', and 'covid vaccine warning'.

"A search for 'Jan 6' yields suggestions for videos proclaiming 'Jan 6 footage being let in' and 'Jan 6 antifa', among others."

In a statement to NewsGuard, a TikTok spokesperson said the platform's community guidelines "make clear that we do not allow harmful misinformation, including medical misinformation, and we will remove it from the platform".

"We partner with credible voices to elevate authoritative content on topics related to public health, and partner with independent fact checkers who help us to assess the accuracy of content."

Edited by Ellen McCutchan, with thanks to Renee Davidson

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