Written by Penelope Dawson

The Voice referendum represents a crucial moment in Australia’s constitutional history and a bid to heal the wounds of Australian dispossession. However, it also has provided a false pretense for a permanent enshrinement of a body whose authority has not been sufficiently detailed nor evaluated. What is so ridiculous about this debate is that there is a plethora of precedent and case studies from Canada, New Zealand and the US which demonstrate countless failed and somewhat successful attempts to transfer greater authority to the voices of their First Nations peoples. Australia has ignored the implications and lessons learned from those international policy approaches to Indigenous welfare by diving head-first into a legal quandary that may be near impossible to emerge from if the existing model is adopted. 

When the Voice was first proposed by the Cape York Institute within the Uluru Statement a key consideration concerning its implication was that all matters relating to the Voice should be non-justiciable. Most recently, the Calma-Langton co-design report described  non-justiciability as “an essential feature of the overall design”. However, it is now common ground that the government’s proposed constitutional amendment will give rise to a plethora of justiciable issues as recognised by various legal experts including retired justices of the High Court, Ian Callinan and Ken Hayne. 

Three other members of the Constitutional Expert Group, Professors Megan Davis, George Williams and Greg Craven, have each made public statements to similar effect.  Davis says the “justiciability of the Voice would be a straightforward part of Australia’s system of law.”  Williams says, “courts may be asked to rule on…the consequences of a minister failing to listen when the voice has spoken.”  Craven acknowledged that even if legal proceedings for judicial review of Executive decisions are rare as suggested by Hayne, “politically and practically, delay often means death to proposed action.”

The suggested amendment of section 129 proposes the establishment of the Voice as a representative body for Aboriginal and Torres Strait Islander peoples to make representations to Parliament and the Executive Government on broad issues relating to Indigenous persons and their communities. If the provision is implemented with the wording and manner proposed, the Voice will have the authority to make representations to the Executive on all matters relating to Indigenous persons. This means that there is a reasonable prospect the High Court will conclude that the Voice’s right to make representations is matched by a reciprocal obligation on the Executive to consider them. If the Executive fails to consider representations from the Voice, failure to do so would grant the courts the power to set those decisions aside or members of the Voice could ask the court to injunct the Executive from making a decision until the Voice has been given reasonable time to make a representation. The consequences of this include considerable delay and expense, demonstrating why this conflict between powers is detrimental to our system of governance. 

Comparatively, other legal experts have argued that such issues are manageable by the Parliament. Former Chief Justice of Australia, Robert French, argues that there is little or no scope for any court to find constitutional legal obligations in the government’s proposed amendment. However, this has prompted the question as to what is the nature of the authority being conferred upon the Voice, whether it be a power or capacity. A constitutional authority to make representations is unlikely to be viewed as a “capacity”, in the sense of being a mere freedom to act.  That interpretation is unlikely, because with or without proposed section 129, Indigenous peoples have the freedom to form bodies and make representations to government however they wish. Thus the Voice would be no different in its authority and effect to previous consultative Indigenous bodies. 

In contrast, a “power” is the ability to effect change to legal relations. This means that if section 129(ii) is characterised as a power, this would require representations exercised by the Voice to change legal relations. In the circumstances, it would confer no power if the Executive had the freedom to refuse to receive the representations meaning that if the Voice did indeed have a power to make representations this would impose a corresponding duty upon the Executive to receive and consider them. If this duty was imposed, Executive power could be threatened by the Voice as it would be unable to implement a law contrary to any representation made by the Voice pursuant to the proposed section 129(iii). 

French also argued that the creation of laws providingunintended opportunities for challenges to Executive action can be circumvented through law reform. While the solution seems simple, if the Constitution guarantees the Voice’s right to make a representation and the Executive’s obligation to consider it, Parliament could do nothing about this except propose another referendum. The seriousness of this problem and the consequences of imposing a constitutional amendment without proper regard to its effect is most clearly exemplifiedby the enshrinement of Canada’s not-withstanding clause. 

The introduction of the section 33 “not-withstanding clause” to Canada’s Constitution in 1982 was implemented for the purpose of preventing the courts from undermining the authority of the elected government, meaning it could be invoked to override certain rights within Canada’s Charter of Rights and Freedoms where the courts had “overstepped” their powers. It operates in the sense that if the legislature was of the belief that a decision by the judiciary to invalidate a law is wrong, it can enforce the statute “not-withstanding” the judges views of how the Charter of Rights operates. Law-makers assured the Canadian people that such a constitutional amendment would reinforce democratic decision-making by keeping “the last word with the elected branches”.

However, in 2019 Quebec relied upon the clause to pass Bill 21 which bars public employees such as teachers and lawyers from wearing religious symbols while at work. Under the fallacious message that the constitutional amendment would instil a stronger separation of powers, it was in fact used to implement a law that disproportionately affects religious minorities. Even more alarming was Quebec’s use of the clause to implement Bill 96 which restricted the use of English language in many situations within the province as a means of promoting the use of French. This Bill targeted the freedoms of language and culture through the means of holding up one cultural heritage as superior to the other. 

Quebec’s Court of Appeal has considered proceedings brought over concerns that the notwithstanding clause was misapplied in Bills 21 and 96, however, the broad powers granted by the clause imposed difficulties for courts and critics to limit a government’s ability to pass controversial laws. Further, an amendment of the clause would require a reopening of the debate over the constitution which could result in a crisis with provinces demanding new concessions or powers from the federal government. 

The Angus Reid Institute released a survey this year regarding public opinion of the use of clause demonstrating that Canadians are finally waking up to the fact that the constitutional amendment had not been properly considered, evaluated and planned out by law-makers. The Institute foundthat three-in-five (58%) say they have been “concerned” (32%) or “very concerned” (26%) with the recent popularity of the clause with provincial governments. 55% of Canadians would like to see it abolished.

While it is evident the purpose of the Voice is not to grant Indigenous Australians a superior power or right compared to non-Indigenous Australians, the concept of racial preference still lies at the core of this referendum. Canada’s experience demonstrates that any unique constitutional amendment affecting the law-making ability of the executive, parliament and judiciary in favour of one race must be sufficiently scrutinised as a means of properly detailing the extent and scope of the amendment. Similar to Canada, the broad and ambiguous authority granted by section 129 would impose difficulties upon the courts, state and federal legislatures alike to limit the Executive’s ability to pass certain laws, particularly when they have chosen not to adopt the advice provided by the Voice. Just like the not-withstanding clause, Australia has not developed, as a political culture, the sense of when it is legitimate for Parliament to consider the advice provided by the Voice and the ability to evaluate how it has been justified. Canada dove headfirst into a constitutional change that introduced incongruity into the separation of powers, has enabled the degradation of minorities freedoms and rights, and is severely difficult to revoke. The implementation of Australia’s proposed amendments constitutes a similar dive into depths we cannot fully identify nor comprehend.

The Solution

There are a multiplicity of ways framing the constitutional amendment could eliminate or reduce the prospect of judiciable issues and conflict amongst the separation of powers. Firstly, the remit of the Voice could be confined to the original idea which catalysed the proposal in 2017 concerning the power in s 51(xxvi) of the Constitution to make special laws for people of any race. Under this idea, a special consultative body such as the Voice can still make representations to Parliament limited to its power to make special laws. A second option is to allow the Voice to have a broad right to make representations to Parliament, but explicitly not the Executive, on matters affecting First Australians.  This would eliminate the prospect of legal challenges to Executive decisions and does not mean the Voice loses the ability to speak to the Executive as Ministers sit in and are responsible to Parliament for their departments. A third option is to include an express non-justiciability clause in the amendment, such as those included in the constitutions of Queensland and Victoria.

While these solutions to the Voice’s justiciable issues should be considered, there is a broader concern regarding how constitutional recognition can best be achieved. If you recall, the Uluru Statement considered other objectives to the Voice, specifically truth-telling and treaty. What is so perplexing about this debate is that truth-telling should have been the first and foremost objective considered. Truth should be at the centre of any debate. Many Australians do not understand the Australian History Wars or what and how the genocide of First Nations people was caused and carried out. Further, many non-Indigenous Australians for some reason believe that all Indigenous people want the same thing in terms of constitutional recognition and agree with the implementation of the Voice. Rather than truth-telling, both non-Indigenous and Indigenous spokespersons such as Stan Grant enjoy grouping all Indigenous peoples as in agreement with the proposal. The reality of playing the identity politics game is that it ignores the fact that each Indigenous person is an individual who can think, assess and speak for themselves. It degrades each individual perspective to one simple narrative that does not respect the nuances of experience or opinion. It is these nuances that help test the truth and are commonly being silenced throughout the debate. 

A further objective that should have been considered prior to the Voice proposal is a treaty. This is because treaties with First Nations people have been tried and tested numerous times in similar jurisdictions such as the UK, New Zealand, Canada and the United States. A treaty is intended to create legal relations and define the rights and responsibilities of the signatories towards each other. Traditionally, signatories are sovereign states which raises concerns regarding the nature of sovereignty granted to Indigenous Australians if a treaty is implemented and how it conflicts with Commonwealth state sovereignty. This is because the traditional notion of sovereignty or “external sovereignty” defines sovereign states as having the powers to form government, define territory and interact with other sovereign states. 

Most of Australia’s common law affirms that an external sovereignty granted to Indigenous peoples is incompatible with Australia’s legal system and commonwealth sovereignty.However, various Indigenous academics have introduced the notion of an “inherent sovereignty” in which Indigenous peoples are granted the right to govern themselves under customary law all within the ambit of Commonwealth sovereignty and the general law.

The real task in recognising an inherent sovereignty or treaty arises when contemplating how Aboriginal customary laws can exist within the framework of the general criminal law. Australian criminal law provides that certain conduct may constitute an offence which is punishable by the courts whereas Indigenous customary law consists of a pattern structuring the ways in which responses to conflicts occur, which of course differ per tribe. Thus conflicts between Aboriginal customary laws and the general law may require different responses in different contexts. For example an Aboriginal may be positively required under his customary laws to perform a certain act which will result in an offence against the general laws eliciting questions as to whether the general law should in such situations allow the requirements of customary laws to operate as a defence to the charge. 

States such as New Zealand and Canada provide potential solutions to this issue. New Zealand’s approach to sovereignty was to instil full sovereignty and legislative supremacy to the Crown whilst also respecting and maintaining customary law. The Treaty of Waitangi establishes the Māori’s surrender of sovereignty to the Crown in exchange for their recognition as British rights-holder subjects and the protection of their property rights. More importantly and applicable to Australia’s context, is that the Treaty is perceived as being more about shaping the relationship between Maori and the Crown, or providing a framework for the ongoing negotiation of that relationship, than it has been about clearly defining the question of sovereignty.

This approach aligns with Michael Mansell’s argument that the concept of ‘sovereignty’ need not be mentioned in a treaty at all if it will inhibit its enforcement and fuel unnecessary debate. He argues that the closer discussion gets to the practical application of a treaty the more blurred is the distinction between democracy and sovereignty. This reflects the perspective of the Canadian Royal Commission of Aboriginal Peoples 1996 which was sceptical that agreement on the meaning of sovereignty could be reached and was inclined to set it to one side in resolving the practical issues of coexistence. Canada has attempted to “merge sovereignties”by recognising the inherent right of self-government vested in First Nation’s people which is stipulated in section 35 of their Constitution. Whilst Canada is still yet to recognise the right to sovereignty, the right to self-government circumscribes First Nations people with powers that enable them to operate within a sphere of sovereignty as dictated by the Constitution. 

While Canada and New Zealand’s approaches to constitutional recognition are not without issue, they provide valuable guidance to Australia particularly as a contentious debate regarding the nature of Australian Indigenous sovereignty is inevitable. Thus, in merging the approaches of New Zealand and Canada, constitutional recognition may be best achieved through the implementation of an inherent right to self-government vested in Indigenous Australians that is explicitly stipulated in the Constitution by way of a treaty. This approach still grants Indigenous Australians with the constitutional recognition they deserve and rights to exercise customary law, all under the powers and supervision of the Commonwealth. Moreover, a treaty would instil this permanent legal relationship between the Commonwealth and Indigenous peoples whilst facilitating negotiation and participation in the development and enforcement of law. 

However, this is a simplistic approach to the issue, as the real task demonstrated most effectively by Canada and New Zealand’s experiences is determining how customary law is to operate within with ambit of Commonwealth and state jurisdictions. A proper legal evaluation of how a treaty process may be viable would serve Australia better compared to the Voice, which has never been tried and tested. This is not to say a special consultative body like the Voice should not be implemented, but it may be easier from a legal perspective to test and contemplate the implementation of a treaty where there is international precedent.

For now, the power of the Voice (if we can even call it a power) appears to be cowering as more individuals are awoken from an idealistic dream that yet another bureaucratic system concealed by an Indigenous mask is the answer to everyone’s problems

Penelope Dawson is a member of the Sydney University Conservative Club