A MORE MODEST OPTION COULD LIFT PROSPECTS FOR A VOICE

Former Chief Justice of the High Court of Australia Murray Gleeson in Recognition in keeping with the Constitution: a worthwhile project opined, “That Indigenous people have a special, and unique, status in the history and the life of the nation is beyond question. That the Constitution is an appropriate place in which to recognise that status is a matter of debate.” As Australia approached a referendum on The Voice to Parliament following the Uluru Statement from the Heart, The Sydney Institute began a series of discussions on the proposal for constitutional change. On Monday 15 August 2022, Sydney barrister Louise Clegg and lawyer, academic and former Vice Chancellor and President of the Australian Catholic University Greg Craven AO addressed The Sydney Institute to discuss some of the issues.

A MORE MODEST OPTION COULD LIFT PROSPECTS FOR A VOICE

LOUISE CLEGG

In recent decades, progressive thought leaders in our country have advocated for a bill of rights to be inserted into our Constitution so our citizens may prosecute individual political freedoms. This never got much of a foothold in Australia. Now, with the advent of identity or group politics, our progressive thinkers have lost interest in personal political rights.

The great political rights conceived around individual freedom of speech, religion, association, property, voting rights and a fair trial – which underpinned US democracy and were assumed by our founders to be so self-evident they barely needed prescribing – are suddenly unfashionable in progressive circles.

Although our Constitution contains express and implied limitations on laws that impede personal political freedoms, those limitations have been interpreted conservatively by our High Court. Significant deference has been accorded by the High Court to Westminster parliamentary sup­rem­acy that overlays our otherwise peculiarly American constitution. In recent times the court has shown surprisingly scant interest in upholding these limitations. Instead, in our polity we rely on elected representatives in our democracy – otherwise known as parliaments – to make laws that best suit us and the times.

This is why the Voice as proposed by the Prime Minister – a new and entirely unprecedented proposal – is such a big deal. It amounts to skipping over long-promoted individual political freedoms not expressed in our Constitution but entrenched in others. Instead, we are running headlong into embedding an unparalleled collective or group right.

It is true that in the US, Canada and New Zealand there are references in constitutional documents to indigenous people such as “aboriginal peoples” or “Indians” and treaties. This provides what might be described as light-touch indigenous recognition, although in Canada that touch is heavier and has been amplified by the courts.

But none of the constitutional arrangements in those countries can be said to afford substantive, positive rights to indigenous people, individually or collectively, over and above other citizens.

It would be terrible for our country to emerge divided from a referendum on Indigenous recog­nition because the referendum failed or because the changes to the Constitution succeeded but divided us down the track. Yet the words proposed by the Prime Minister to effect Indigenous recognition in our founding document go further than are necessary or desirable and may divide us.

I have often said in relation to the enshrinement of the Voice in the Constitution that my heart said yes but my head said no – but I would await the proposal. But when I read the words, I was stunned and my heart sank. The three proposed sentences are:

• 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.

Most of the commentary has since been dedicated to the third sentence – derided by critics as providing a blank cheque – but this is not the main concern. It is consistent with many other provisions in the Constitution that throw responsibility for identified matters over to the parliament. It is a mere process clause and reflects, in alignment with Westminster tradition, that the parliament can do what it can already do right now: namely, create an ATSI voice and determine how it should operate.

The real problems lie in the more substantive proposed first and second sentences.

The first sentence is a statement providing that the body should be called the ATSI voice. It is grand and declaratory, akin to provisions establishing the Constitution’s big repositories of power in sections 1 (the parliament), 71 (the High Court) and 101 (the now abandoned Inter-State Commission). Mandating the name of the body to include the word voice – now employed as a proper noun – jars a reader familiar with the Constitution. The word is being used in the sense of attribution of political opinion or attitude, with emotive undertones. It does not sit comfortably with the language or cadence of our technocratic Constitution. Nothing even close to it exists in any other written liberal democratic constitution.

The second sentence is the operative sentence. It defines the ATSI voice. It employs a more familiar and appropriate word, representations, but then goes on to constitutionalise representations to the parliament and government “on matters relating to” ATSI people. This is critical. By deliberately eschewing a narrower path of confining the ATSI representations to respond to special laws made about Indigenous affairs or people, this clause constitutionalises representations about any matter that can be said to relate to ATSI people. By doing so it elevates, and therefore could weaponise, ATSI representations about laws of general application (laws that affect all of us) above representations of other citizens.

This was an issue addressed by the Referendum Council report delivered in June 2017. It said: “It would not be realistic (for the body) to provide advice on all matters ‘affecting’ Aboriginal and Torres Strait Islander peoples because most laws of general application affect such peoples. On the other hand, it may be too narrow to limit the subject matters to laws with respect to Aboriginal and Torres Strait Islander peoples because some laws of general application have particular impact on or significance to such peoples.”

In other words, there was clear consensus that the voice could not extend to laws of general application, but there might not have been consensus on whether it should be confined to laws or policies with respect to only Indigenous affairs or ATSI people.

By using the words “relating to” there is an attempt to strike a balance between the two options, but it does not land in a satisfactory place. The ATSI voice applies to laws and policies of general application or it does not. By extending the reach of the ATSI voice to “matters relating to ATSI people” it arguably extends its reach to pretty much everything.

The political impact of the constitutionalisation of representations by ATSI people on everything is anyone’s guess, but there is a reasonable prospect in our increasingly polarised and populist world that it gets ugly.

An ATSI representative body would fit better in an amendment to the current section 51(xxvi), which adds the italicised words: “The parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the commonwealth with respect to Aboriginal and Torres Strait Islander people for whom it is deemed necessary to make special laws after the parliament has received representations about the proposed laws from a body which represents Aboriginal and Torres Strait Islander people.” This would better reflect the true purpose of s51(xxvi), provide constitutional recognition of ATSI people and entrench a representative ATSI body in the Constitution – but only for laws proposed specifically for ATSI people. The attraction of such a clause is that the representative body has work to do only for as long as special laws for ATSI people are necessary.

The long overdue more declaratory recognition of ATSI people in our Constitution could accompany an amendment to s51(xxvi) by way of a new preamble, or a statutory declaration of recognition that recognises ATSI people.

Given our history, our Constitution can accommodate an alteration to redress the existing imbalance in s51(xxvi) and at the same time provide for an ATSI body to be heard with respect to ATSI affairs. But as proposed, the ATSI voice overcorrects and overreaches. There are more modest options that conform more closely to the tone, text and structure of the Constitution, that present a less risky, more unifying way to proceed.

Constitutional recognition is now long overdue in Australia. Achieving this in a minimalist way in conformity with our Constitution with a beautiful new preamble, or a representative body with a conspicuously narrow mandate fashioned around balancing the races clause, would not amount to embedding identity politics in the Australian Constitution.

But the creation of substantive group rights in a new chapter that provides for an Indigenous voice on everything is an affront to the norms of the liberal democratic constitutions against which we compare ourselves.