Following the release of the wording of the 2023 referendum question to be put to Australian electors being announced by the Prime Minister, The Sydney Institute held an important discussion on the legal realities around the constitutional change advocated by a Voice to parliament and executive government. For Minister Linda Burney the change proposed would be “simple” but “powerful”. To discuss the issues, Professor George Williams, Anthony Mason Professor and a Scientia Professor at UNSW, and Legal Affairs Contributor for The Australian Chris Merritt addressed The Sydney Institute on Monday 3 April 2023.

THE VOICE TO PARLIAMENT – THE LEGAL REALITIES

GEORGE WILLIAMS

Thanks, it is a pleasure to be here.

Before I take you to the proposed wording for the Voice, I want to provide little background as to why this change is being inserted into the Constitution.

The 1901 Australian Constitution was drafted at two Conventions held in the 1890s. Neither included women or representatives of Australia’s Indigenous peoples. In most cases, Aboriginal people were not qualified to vote for the delegates to the Convention and appear to have played no meaningful role in the drafting process. It is not surprising that the Constitution did not reflect their interests or aspirations.

While the preamble to the Constitution (“whereas” vs “we the people”) set out the history behind the enactment of the Constitution and the notion that the Constitution was based upon the support of the people of the colonies, it made no mention of the prior occupation of Australia by its Indigenous peoples.

The operative provisions of the Constitution were premised upon their exclusion, and even discrimination against them (see as a “dying race”). This then was the legal foundation upon Aboriginal people were made part of the Commonwealth of Australia on 1 January 1901.

This was reflected in the terms of Australia’s Constitution:

• Section 25 recognised that the States could disqualify people from voting in the elections on account of their race.
• Section 51(xxvi) provided that the Commonwealth Parliament could legislate with respect to “the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”. This was the so-called, “races power”.
• Section 127 went further in providing: “In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted”. Significantly, neither provision spoke of Indigenous peoples as people, but in the latter case as “aboriginal natives”.

Section 51(xxvi) was inserted into the Constitution to allow the Commonwealth to discriminate against sections of the community on account of their race.

The reasoning behind s 51(xxvi) was to permit racial discrimination. Edmund Barton, the Leader of the 1897-1898 Convention and later Australia’s first Prime Minister and one of the first members of the High Court, stated at the 1898 Convention in Melbourne that the power was necessary to enable the Commonwealth to “regulate the affairs of the people of coloured or inferior races who are in the Commonwealth”.

In 1967, a proposal was put before the Australian people under which the words “other than the aboriginal race in any State” in s 51(xxvi) would be struck out and s 127 deleted entirely. The people overwhelming voted “Yes”. The proposal was supported in every State and nationally by over 90 per cent of Australians. Out of the 44 referendum proposals put to Australian people since 1901, this is the highest “Yes” vote so far achieved.

The 1967 referendum was an important turning point in the place of Aboriginal people within the Australian legal structure. However, it is important to note that, while the referendum deleted an obviously discriminatory provision in the form of s 127, it did not insert anything in its place (not did it remove s 25).

The change also left the Constitution, including the preamble, devoid of any reference to Indigenous peoples. The Constitution makes mention of things such as Australia’s colonial history, with nothing of events prior to then. It is as if Australia’s Aboriginal peoples do not exist.

This gave rise to a movement spanning decades to change the Constitution to recognise our first peoples. It has been argued that our nation’s fundamental law should not permit discrimination against Indigenous peoples, and that the story of our nation is incomplete without the histories of the peoples who have inhabited this continent tens of thousands of years.

This culminated in a series of dialogues involving representatives of indigenous peoples from across the nation. They met at Uluru in 2017 and agreed upon the Uluru statement from the Heart, calling for:

• Aboriginal people to have a voice, so that they have a say in the making of laws and policies for them and their communities.
• The making of treaties between Aboriginal peoples and governments to redress past wrongs, and agree on a joint path forward.
• A process of truth telling that shines a light on the history of Aboriginal people on this continent, and the wrongs that have been done to them as part of the settlement of our nation.

After a number of twists and turns, we now find ourselves on the cusp of a referendum to bring about the Voice.

Prime Minister Albanese announced draft wording at the Garma Festival last July, and since then those words has been subject to scrutiny by an Indigenous working group and a second group of constitutional experts, including myself. The government responded by making changes to improve the draft.

The task has been to produce a safe and sound means introducing this important change to the Constitution. I believe that the wording achieves this by proposing three simple and direct sentences be introduced into the Constitution:

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:

1. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
2. 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;
3. 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.

First, the change is modest and constrained. It will create an advisory body of Indigenous peoples able to make representations to Parliament and government:

• note the use of representations – no veto, only advice;
• wording only guarantees representations may be made to the Commonwealth Parliament and executive; and
• no obligation is placed on Parliament or government to wait for advice or to act on it.

Second, Parliament is left with the key role of determining how the Voice will operate, including as to its composition, functions, powers and procedures. It has been given a general power to legislate about the Voice, including to determine the legal effect of its representations. This enables institution to be adapted according to experience and the expectations of the community.

Third, the Voice is established as a political institution, and its success will depend upon the quality of its representations and its ability to influence Parliament and government. There will however still be opportunities for the High Court may be called upon to interpret and apply this change, as it does with every other clause in the Constitution. This means:

• The High Court might be asked to ensure the Voice operates within its remit, for example, to call it to account if it makes representations about matters not related to Indigenous peoples or if it makes representations to other bodies such as the United Nations (unless this has been authorised by Parliament).
• In the case of Parliament, there is little or no prospect of a successful High Court challenge. The Court has said repeatedly that it will not intervene in the internal workings of Parliament. This is a key aspect of the separation of powers in Australia, and is not something the Voice would change.

  In the case of Parliament, there is little or no prospect of a successful High Court challenge. 

• Courts are more likely to scrutinise the work of ministers and public officials. We expect people who exercise public power will make fair decisions following a sound process. This includes taking into account information relevant to making the decision. If a public official fails to consider this information, courts routinely direct that person to go back and make the decision again, taking into account the information that was missed. The court does not direct what the decision should be, only that it is properly made.
• The upshot is that ministers and public officials who receive a representation from the Voice may need to read and consider that representation when they make a decision. For example, if a minister is considering whether to impose an alcohol ban on an Indigenous community, and the Voice had made representations about whether this was a sound idea and what the impact on the community would be, the minister should take this into account. If the minister refused to read advice from the Voice, someone might go to court to ask the minister to remake the decision with the benefit of all the relevant information.

This is our system of government working as it should. The High Court interpreting the Constitution and ensuring it is obeyed is a fundamental aspect of the rule of law and separation of powers in Australia. The High Court should operate as a check and balance when it comes to the Voice, as it does for other constitutional matters. Judicial oversight provides the community with confidence that the Voice will operate as set out in the Constitution.