[22][24] The NACC saw itself as a legislative body, while the government expected them to be purely advisory, and this, along with other conflicts over the name, funding levels and control led to the end of the organisation.

[29] The Aboriginal and Torres Strait Islander Commission (ATSIC) was established by the Hawke government on 5 March 1990 as an elected body which had responsibility for administering Indigenous programs and service delivery.

It was successful in some areas as being a combined deliverer of services; however, low voter turnout for ATSIC elections, allegations of corruption and a lack of government support led to the demise of the organisation.

[21] A 2003 review recommended various changes, including more control of the organisation by Aboriginal and Torres Strait Islander people at a regional level.

[30] The Howard government (with Amanda Vanstone as Aboriginal Affairs minister) decided not to implement these changes however, instead abolishing ATSIC on 24 March 2005,[31] with the support of the Labor party under Mark Latham.

[35] Fewer than 10,000 Indigenous people signed up as members to elect congress delegates,[19] and the Abbott government cut off its main funding stream in 2013.

However, the government originally intended to pass that act as a part of a broader social and justice reform package, which would entail negotiations with Indigenous leaders to develop a mutually acceptable form of constitutional recognition.

The first draft of the preamble voted on was written by Prime Minister John Howard, along with poet Les Murray, and was heavily criticised after being released.

It rejected non-substantive changes, stating:[50] A minimalist approach that provides recognition in the Constitution’s preamble, removes section 25 and moderates the race power section 51(xxvi) does not go far enough, and would not be acceptable to Aboriginal and Torres Strait Islander peoples.This statement resulted in the created of the bi-partisan creation of the Referendum Council by new prime minister Malcolm Turnbull.

This reflected the view that, according to Megan Davis, Indigenous people do not seek inclusion in the Constitution to be recognised, that campaign being "a state-conceived project salvaged from the ashes of the failed 1999 referendum and arguably already achieved in 1967" but instead in order to "ameliorate the unintended (or intended) consequences of the drafting of the 1967 amendment" such as the continuing ability for the government to racially discriminate as seen in the Northern Territory Intervention and the Hindmarsh Island bridge controversy.

Additionally, it was argued that through the proposal being proactive, Indigenous people would be involved as "participants in Australia's democratic and parliamentary processes, rather than as litigants".

[69] In October 2016, the Council released the Discussion Paper on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, which outlined the various proposals to date, including that of an Indigenous voice.

[72] In October 2017, the Turnbull government rejected the major recommendations of the report, arguing that the constitutional proposal was neither "desirable or capable of winning acceptance at referendum" and that the body "would inevitably become seen as a third chamber of parliament".

[73] Instead, the government established the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples in March 2018.

Its final report, published in November 2018, included four recommendations, the first of which was to "initiate a process of co-design with Aboriginal and Torres Strait Islander peoples".

[78] An interim report by the Senior Advisory Group led by Langton and Calma was delivered to the government in November 2020,[79] and officially published on 9 January 2021.

It included proposals that the government would be obliged to consult the Voice prior to passing new legislation relating to race, native title or racial discrimination, where it would affect Indigenous Australians.

Also, the Voice would be subject to standard transparency measures, would exist in addition to current organisations, would not deliver programs nor have a "veto power".

The RWG, co-chaired by minister Linda Burney and special envoy Patrick Dodson, included a broad cross-section of representatives from First Nations communities across Australia.

Their remit was to provide advice to the government on how best to ensure a successful referendum, focused on the key questions that need to be considered, including:[8] The RWG included Ken Wyatt, Tom Calma, Marcia Langton, Megan Davis, Jackie Huggins, Noel Pearson, Pat Turner, Galarrwuy Yunupingu, Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar, and a number of other respected leaders and community members.

[98] An official pamphlet, containing details of the proposed change to the constitution and two essays written by the yes and no campaigns, was posted to every household before the vote and was also available on the Australian Electoral Commission website.

However Anne Twomey, argued that there is no such obligation in the proposal, and that past High Court rulings have found that the term extends to ministers and government departments, but not statutory bodies, which are distinct legal entities.

Retired superior court judges, including David Jackson,[110] Nicholas Hasluck,[111] and Terry Cole,[112] suggested that the changes could have unintended effects and would introduce inequality of citizenship into the Constitution.

[113] In October 2023 a paper by Aroney and lawyer Peter Congdon highlighted that the proposed alteration to the Constitution had the potential to significantly expand the powers of the Commonwealth over the states,[116] citing the examples of raising the age of criminal responsibility to reduce rates of Indigenous incarceration, or legislating land management issues affecting farmers and Indigenous people.

[118] Vice-president of the Rule of Law Institute of Australia Chris Merritt suggested that the proposal would "clearly restrict the sovereign power of the Commonwealth in a way that nobody has even considered".

[119] The Constitutional Expert Group appointed by the government to provide advice about constitutional law relating to the Voice (comprising Greg Craven, Megan Davis, Kenneth Hayne, Noel Pearson, Cheryl Saunders, Anne Twomey, George Williams, and Asmi Wood[120]) were unanimous in their opinion that the Voice would not have veto powers over legislation.

[122] He also advised that the Voice would help in "overcoming barriers that have historically impeded effective participation by Aboriginal and Torres Strait Islander peoples in political discussions and decisions that affect them" and would also "rectify a distortion in the existing system".

[128][129] The Anthony Albanese led Labor government supported the Voice,[130] arguing in the official Yes referendum pamphlet that the Voice will recognise Indigenous Australians in the constitution in the way they requested, improve government decision making through listening to advice on matters that affect Indigenous Australian lives, and make practical progress in closing the gap.

[134] However, the leader of the Nationals, David Littleproud, indicated that his party did not support this legislated regional and local voices model either, creating doubts as to whether this policy could be enacted if the Coalition gained government.

[135] Following the defeat of the proposal, Dutton stated that his party's prior commitment to symbolic constitutional recognition would be reviewed and that "it's clear the Australian public is probably over the referendum process for some time".