A case for 'yes' at the referendum regarding 'The Voice'

I support a “yes” vote at the upcoming referendum asking whether the Australian Constitution should be amended to:

1.?????? provide recognition, in Australia’s apex legal document (the Constitution), of Aboriginal and Torres Strait Islander (ATSI) peoples as the first peoples of Australia; and

2.?????? provide for the creation of a body to be called the Aboriginal and Torres Strait Islander “Voice” to Parliament.

In this post I explain some of the reasons for my approach.? The opinions expressed are my own and should not be attributed to the ACT Bar Association nor to ACT barristers generally.? I am aware that there are ACT barristers who oppose the proposed amendment.? I respect both their views and their entitlement to have and to express those views courteously (as they have).? Anyone interested in hearing more about “no” arguments, articulated by a legal practitioner, may wish to look up the views of former High Court judge the Honourable Ian Callinan KC (readily available online).

What is the proposed amendment?

As a lawyer, the words of the proposed amendment are important to me.? I have set them out, in full, below.? Specifically, the proposal is to add a new “Chapter IX”/“section 129” to the Australian Constitution (currently there are 128 sections so this would become the new “last” provision).? If passed, the new s 129 would represent the ninth amendment to the Constitution since federation. ?

“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.”

Analysis

It is plain from the proposed wording of s 129 that there are two key components, being:

1.?????? the preamble, which has the function of providing constitutional recognition to First Nations people; and

2.?????? the clauses contained in roman numerals (i) to (iii), which provide respectively:

a.?????? that there is to be an Aboriginal and Torres Strait Islander “Voice”;

b.?????? that the relevant body is to have a discretionary power to make representations, to the Parliament and the Executive, on matters relating to Aboriginal and Torres Strait peoples; and

c.?????? that the federal Parliament will have power to make laws with respect to the Voice (including its composition, functions, powers and procedures).

Constitutional recognition of First Nations people

The function of providing constitutional recognition to First Nations people, it seems, has bipartisan support.? Peter Dutton MP, current leader of the Opposition, announced not that long ago that if the current referendum fails and he is later elected as Prime Minister, he will run a referendum which asks Australians whether they wish to amend the Constitution in a manner which only provides Constitutional recognition.? He stated at the time that he believes “very strongly it is the right thing to do”.? Whilst it is unclear whether this remains his intended approach, what he said is consistent with positions articulated by former leaders of the federal coalition such as Tony Abbott (who previously committed himself to “correcting the great silence” in Australia’s constitution) and John Howard (who in October 2007 promised to hold a constitutional referendum on constitutional recognition if re-elected).

That the issue of constitutional recognition has bipartisan support is not to diminish its significance. ?By contemporary standards, it is startling that Australia’s foundation piece of legislation contains no reference at all to those who inhabited this continent for many tens of thousands of years prior to European settlement.? That omission is inconsistent with the proposition that the Constitution is, or is intended to be, a document for all Australians.? As it happens, the Constitution was drafted at a time when the theory of eugenics held sway; it was seen as appropriate at that time to include a provision that in effect (through its interaction with relevant State laws) prevented aboriginal Australians from being included in any census of the country’s population – i.e. First Nations people were not “people” for the purpose of determining Australia’s population.? The High Court decision in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 went some way towards extinguishing the fiction of “terra nullius” – but for as long as the Constitution continues to omit recognition of First Nations peoples, it will perpetuate outdated historical attitudes which are rejected by the vast majority of Australians today.

Constitutional recognition of First Nations Australians, if it happens, will be an outcome to be celebrated.? Conversely, an ongoing failure to recognise First Nations people – if that is a component of failure of the referendum – will be immensely disappointing, for many (though not all) indigenous Australians as well as for many non-indigenous Australians.

The Voice

Given that the most contentious aspect of the proposed constitutional amendment is the proposal for a Voice, the balance of this post will focus on that aspect.?

Section 129(i) – there will be a Voice

Proposed s 129(i) provides that there will be “a body, to be called the Aboriginal and Torres Strait Islander Voice”.?

This proposal is, in my view, unremarkable, as is the relative lack of detail about the structure of the proposed body.? By way of comparison, the Constitution says very little about the structure of the High Court (it refers to the Court having at least 3 judges – it now has seven), nothing at all about the Federal Court, the Federal Circuit Court, nor the Family Court, it does not provide for the number of members of the House of Representatives nor the Senate, and it says nothing at all about important advisory bodies which regularly make representations about the law - such as the Australian Law Reform Commission.

Section 129(ii) – discretionary power to make representations on “matters relating to Aboriginal and Torres Strait Islander peoples”

Section?129(ii) is the first substantive part of the proposed provision which, if passed, will confer a discretionary power on The Voice to make representations to the Commonwealth Parliament and/or the Executive on “matters relating to Aboriginal and Torres Strait Islander peoples”.?

The unambiguous effect of the word “may” is that it confers discretionary power.? In other words, the Voice may, but is not obliged to, make representations in relation to matters of the relevant kind.? Professor Anne Twomey has observed that there is “no obligation imposed upon the Voice, Parliament or the Executive Government of any kind by s129(ii). Sub-section 129(ii) is merely facultative – meaning it permits the Voice to make these representations”.[1] ?Professor Twomey further explained that words like “consult”, “consultation” and “advice” were rejected in the drafting process due to their potential to be interpreted as imposing some form of obligation.[2]

The discretionary nature of the Voice’s power to make representations is also relevant to consideration of whether any representations it chooses to make will be binding on the Parliament and/or Executive, as appropriate.? As a matter of logic, if the Voice has no obligation to make representations at all, it must follow that neither Parliament nor the Executive will be obliged to attach decisive significance to any representations which are made (this aspect is discussed further below).?

The fact that the Voice will be able to make representations to the Executive as well as Parliament is logical, as a measure to maximise its potential effectiveness.? Modern governments rely to a significant extent on the Executive to formulate government policy (as well as Parliament to implement those policies).? It makes sense for a body which has the intended function of improving the lot of First Nations Australians, and “closing the gap”, to be able to make representations to the Executive as well as the Parliament – indeed, the reverse would be surprising.

The Voice will not have power to interfere in the formulation of government policy in the sense that the Executive will be obliged to give effect to any representations made by it on a particular topic.? The Solicitor-General has observed on this issue:

The critical question is therefore whether proposed s 129(ii) governs the legal effect of representations to the Executive Government by implication, thereby taking that subject beyond the reach of laws passed pursuant to proposed s 129(iii). In my opinion, it is clear that it does not. I hold that opinion for three reasons.

First, the High Court has frequently emphasised that constitutional implications must be “securely based” [which] means that a constitutional implication can be drawn “only so far as is necessary” to give effect to the text or structure of the Constitution … Focusing on what the text of proposed s 129 relevantly “authorises or requires”, it authorises the Voice to make representations to the Executive Government, but it does not impose any reciprocal requirement upon the Executive Government to consider or otherwise address those representations. In place of such a requirement, proposed s 129(iii) gives the Parliament a wide power to legislate with respect to matters relating to the Voice’.

…

Second, while “it is the constitutional text which must always be controlling”, the text must be read in light of its context, including any relevant drafting history. The drafting history of proposed s 129(iii) points strongly against drawing a constitutional implication that would prevent the Parliament from legislating as to the legal effect of representations of the Voice.

…

Third, and finally, the argument that proposed s 129(ii) implicitly requires the recipient of a representation to consider that representation is plainly not correct in that absolute form, because proposed s 129(ii) concerns representations both to the Parliament and to the Executive Government. An allegation that the Parliament had failed to consider representations made by the Voice clearly would not have justiciable consequences.[3]

The last aspect of s 129(ii) worthy of comment is that the discretionary power to make representations is limited to “matters relating to Aboriginal and Torres Strait Islander peoples”.? The power is not open-ended.? Given that, for the reasons set out above, the Voice’s representations will not be binding, and given also that it (presumably) will have limited resources, it seems unlikely that those who ultimately form part of the Voice will strive to make representations on all aspects of government policy (as feared by some commentators).? The less obvious the connection between a particular policy matter and “Aboriginal and Torres Strait Islander peoples”, the more scope there will be (and, perhaps, the greater the likelihood) that government will disregard the Voice’s? representations on that issue.?

Section 129(iii) – power to make laws with respect to the Voice’s composition, functions, powers, procedures, etc.

Proposed s 129(iii) is necessary to clarify that the federal Parliament will have power to make laws in relation to the The Voice (under the Constitution, the federal Parliament only has legislative power in relation to those matters where there is an express conferral of power, with everything else left to the States).?

The proposed insertion of s 129(iii), particularly the reference to the federal Parliament being able to pass legislation regarding the “powers” of The Voice, reinforce the view that it will be an advisory body only.? Indeed, it will be for the federal Parliament itself, through the normal process for considering, debating and passing legislation, to determine the procedures and powers of The Voice.? If some aspect of those powers or procedures is regarded as unsatisfactory, it will be within the ordinary power of subsequent governments to pass amending legislation accordingly (i.e., without the need for another referendum).

Why is it necessary to propose to amend the Constitution?

As set out above, it is in my view entirely appropriate that Australia’s apex legal document contain constitutional recognition of First Nations peoples.

It is also, in my view, appropriate and proportionate that the proposal for The Voice be enshrined into the Constitution.? The past 50 years has demonstrated inconstancy in institutional arrangements for First Nations people to have representation through a body at the federal level (absent constitutional provision):

·?????? In 1973 the Gough Whitlam Government established a ‘National Aboriginal Consultative Committee’.? Malcolm Fraser subsequent replaced this committee with the ‘National Aboriginal Conference’.

·?????? Bob Hawke then replaced that body with an ‘Aboriginal & Torres Strait Islander Commission’.

·?????? Malcolm Turnball abolished ATSIC and instead set up the ‘National Congress of Australia’s First Peoples’.

·?????? The National Congress of Australia’s First Peoples was later defunded and then abolished altogether by the Morrison government.

Via the consultative process which preceded the “Statement from the Heart” – a process not entirely different from consultative process involving the Australian colonies prior to the original enactment of the Constitution – First Nations people articulated a consensus position on their preferred method for constitutional recognition which involved giving them a defined role in connection with legislation affecting Aboriginal and Torres Strait Islander peoples.? As an advisory body only, in context their proposal was modest.? By comparison, we have a second chamber of Parliament – the Senate – which is designed to ensure that politicians from every State and Territory get a say in the law-making process, thereby giving them more ownership of the result.? This arrangement, on one view, “divides Australia by State” (and Territory), but it is an accepted and uncontentious part of our current federal system.

From a more pragmatic perspective, there is a compelling argument that legislation which affects First Nations people is likely to be better and more effective if First Nations people have input into it.? Attempts to date to address entrenched disadvantage of First Nations people have had very limited success.?

Will the proposed amendment endanger Australia’s constitutional stability and/or create uncertainty?

Some commentators have warned that the proposed amendment represents “the biggest proposed change” to the Australian constitution since it was enacted.? Underlying these warnings seems to be a view that the Constitution is a “complete” and perfectly functioning document.

As any student of constitutional law could tell you, that is not so.? The Constitution has been in force for less than a century and a half, during which time it has been amended on eight occasions.? As a legal document, it is a product of its time and of those who were involved in its drafting – for example, when the Constitution was being drafted, it was not clear whether the colony of Western Australia would even join "the Commonwealth" (see the chapeau and section 26), and those who lived in Territories (like the ACT and the Northern Territory) were made ineligible to vote in referenda.? Notwithstanding the thought which went into its drafting, its provisions have been and will continue to be the subject of extensive litigation, among other things in relation to the delicate balance which they endeavour to strike between the rights and powers of the States compared with those of the federal Parliament .

There was much concern at the time of the Mabo decision and the introduction of native title legislation that the Australian legal system or at least its system of land title would collapse.? That did not occur.? The making of provision for an advisory-only body will not bring the Australian legal order to its knees – there will of course be some litigation, but as a country with one of the most sophisticated legal systems in the world we can readily accommodate that.

Will the amendment “divide” Australians on the basis of race?

It is correct for opponents of The Voice proposal to assert that the proposed amendment will result in a slightly different treatment of a subset of Australians based on race.? Through The Voice, First Nations people will have a constitutional entitlement to make non-binding representations to the federal Parliament and Executive on laws relating to First Nations people.

To the extent that this constitutes an area of concern, a couple of observations can be made in response.

The first is that the constitutional entitlement to make non-binding representations regarding federal laws is hardly a huge advantage for this subset of Australians to have.? It is not as though First Nations Australians will somehow be elevated into a higher class.? Although constitutionally enshrined, the “rights” afforded to First Nations peoples will in practice be no different to the “rights” exercised by the hundreds if not thousands of lobbyists in Canberra who provide “advice” to government every day.?

Secondly, the aim of the proposed amendment is plainly to ensure that the voices of First Nations people are heard for the purposes of their inclusion in the law-making process, not for the exclusion of others.? The strength of a country’s democracy can be measured by how well it treats its most disadvantaged citizens.? There seems to be little argument that many (not all) First Nations people are affected by entrenched disadvantage.? Whilst as a matter of absolute theory I agree that no single group should be afforded special status in the law-making process, the amendment proposal which the referendum reflects cannot be divorced from the particular historical time and space in which it takes place.? The fact is that in real terms Australians are already “divided”, to some extent, by race – the aim of the proposed amendment is in fact to overcome that division.

Thirdly, it is important to note that, until 1967, so far as First Nations Australians were concerned, Australia was explicitly a country divided by race.? Until that time, the States had a specific entitlement to make laws specifically relating to “the aboriginal race” in their State – a right which they exercised (Aboriginal and Torres Strait Islanders had no entitlement to vote in elections in Queensland until 1965).? Even now, there remains a “race” power in the federal Constitution (s?51(xxvi)), albeit one that is not used.? Having been specifically disadvantaged by the Constitution in the past, is it not acceptable for some small measure of advantage for First Nations people to now be incorporated into the Constitution?

There will undoubtedly be a financial cost associated with the additional layer of bureaucracy created in relation to part of the law-making process if the The Voice referendum is passed.? Having said that, it is not inconceivable there may end up being net savings to the federal government if legislation which is passed is more effective in addressing entrenched disadvantage of First Nations people.

We can only decide as individuals whether or not we are prepared to accept the likely financial imposition (through payment of taxes to the federal government) resulting from the creation of The Voice and whether the other benefits which may flow from a ‘yes’ vote are sufficient.?

My own view, and merely my view, is that the advantages overwhelmingly outweigh the potential disadvantages.

[1] Professor Anne Twomey AO, Submission 17, p. 3.

[2] Professor Anne Twomey AO, Submission 17, p. 5.? A number of legal experts similarly noted that the inclusion of the word ‘may’ is a permissive term, which indicates that the Voice is not obliged to make representations: Gilbert + Tobin, Submission 189, p. 12; Indigenous Law Centre, UNSW, Submission 44, p. 5; The National Indigenous Australians Agency and the Attorney-General's Department, Submission 90, p. 11; The Hon Mark Dreyfus KC, MP, Attorney-General, Submission 64, p. 5.

[3] Attorney-General, Submission 64, pages 18-22.