- The Wording
- This chapter contains an examination of the key points of consideration and contention that arose during the Committee’s inquiry.
- Given the Committee’s mandate by its resolution of appointment to examine only the provisions of the Constitution Alteration, this chapter does not examine broader issues in relation to the pending referendum or the operations, functions and powers of the Aboriginal and Torres Strait Islander Voice (Voice). However, as will be discussed in later sections, some of these issues are outside the scope of the inquiry at this stage given that the Parliament has not determined these points.
Subsection 129(ii): A Voice to Parliament and Executive Government
3.3One of the key points of contention regarding the legislation was the wording in proposed section 129(ii) which empowers the Voice to ‘make representations to the Parliament and to the Executive Government of the Commonwealth’. There were two particular issues discussed in evidence – Executive Government and scope:
- the reasoning for and implications of the Voice’s capacity to make representations to the ‘Executive Government of the Commonwealth’; and whether subsection 129(ii) provides an obligation on the Executive Government to consult with or respond to representations from the Voice
- the intended scope of the power for the Voice to ‘make representations’; and the wording ‘matters relating to Aboriginal and Torres Strait Islander peoples’.
‘Executive Government’
3.4Proposed subsection 129(ii) provides that the Voice be empowered to make representations to the Executive Government of the Commonwealth. The term ‘Executive Government’, as explained in the Explanatory Memorandum, is intended to have the same meaning as in other parts of the Constitution. The term refers to Ministers and Departments of State.
3.5Professor Anne Twomey AO explained that subsection 129(iii), which provides the Parliament with powers regarding the form and operation of the Voice, including the way the Executive Government receives representations from the Voice:
Parliament could also legislate to require that all representations to the Executive Government are to be sent to one office – eg the National Indigenous Australians Agency, which could then refer them as appropriate to other agencies or officers. Alternatively, it could legislate to require that representations be sent to the relevant Minister. Such legislation would avert concerns that have been expressed about representations being sent to individual public servants, agencies and Commonwealth entities. Section 129(ii) refers to the Executive Government of the Commonwealth collectively – not to individual officers or agencies. As long as legislation enacted under s 129(iii) did not prevent representations being made to ‘the Executive Government’, it would be a matter for Parliament to determine the most efficient way to receive representations and deal with them.
3.6Mr Noel Pearson and Dr Shireen Morris similarly pointed to Parliament’s power to determine the Voice’s rules and procedures, which could create avenues for the Voice to effectively engage with policymakers with the goal of improving decision-making.
Why Executive Government?
3.7The inclusion of Executive Government was expressed by many witnesses, including numerous Aboriginal and Torres Strait Islander individuals and groups, to be essential to the Constitution Alteration’s effectiveness.
3.8Many submitters commented on the public policy failures in relation to Aboriginal and Torres Strait Islander peoples over decades and multiple governments, many of which had not heeded Indigenous voices. This was said to be evidenced in policies such as the Stolen Generations and the Northern Territory Intervention, with devastating effects on First Nations peoples. Stakeholders told the Committee that present-day public policy challenges and crises in Indigenous communities are a result of ‘decades of neglect of remote communities and from the failure to listen to the people of those communities’ by the Executive Government.
3.9Further, Aboriginal and Torres Strait Islander perspectives in public policy were said to be fragmented across multiple levels and systems:
You have different levels of access and engagement from a local, regional, state and national level. That is not good if you're looking at trying to close the gap for our people. When we have multiple levels of government not even talking to one another and expect that's going to happen on the ground, it's doomed to failure. Nineteen years of close the gap tells us that it hasn't worked. It's beyond target for two of them. The seven targets in 19 years tells us that what we're doing now, what we've been doing for the last 19 years, hasn't worked.
3.10Accordingly, submitters argued that the Voice’s capacity to engage with Executive Government was essential in order to better address policy relevant to Aboriginal and Torres Strait Islander peoples. Mr Noel Pearson and Dr Shireen Morris argued that the inclusion of advice to the Executive was the ‘practical substance of the Voice proposal’ which provides Aboriginal and Torres Strait Islander peoples with a ‘constitutionally guaranteed role in policy development that impacts their lives’.
3.11At the public hearing in Canberra, Mr Kerry O’Brien gave his perspective as a long-time journalist:
the issue about executive government, to me, is a no-brainer. Again, over decades, I have reported on the whole processes of government and parliament. I understand the separation between the two and where they come together. I know from my reporting of it where the vast bulk of policy that ends up going through the parliament and becoming law comes from. So much of it stems through ministerial offices, through their public servants and then through the cabinet. It just makes eminent sense to me that, if you are seriously going to have an Indigenous Voice to Parliament—a Voice that's making representations only—of course it should have access, with those representations, to the very beginning of the process.
3.12Some submitters pointed to examples of Government decisions which they claimed could have been fundamentally different if the Voice had been enacted.
3.13Illustrating this point, the Hon Mr Ken Wyatt AM, former Minister for Indigenous Australians, explained that legislation is regularly drafted and passed without significant consultation with Aboriginal and Torres Strait Islander groups despite its clear effect on them. He explained that he had conducted a review of Coalition party room papers to ascertain which entities had been involved in shaping the policy, and outlined his findings:
In the period of 2022, the social services legislation amendments certainly had carers in the carers sector but there was no Indigenous representation to that legislation. The amendments to the Religious Discrimination Bill had many, many groups but not Indigenous people whose dreaming is their religion and their faith and their belief of our country and our Nation and our origins. The government amendments to the social security legislation amendments streamlined participation bill have some 20 organisations listed but not one is Indigenous, yet they have profound impacts on Indigenous families and communities. The National Health Amendment (Enhancing the Pharmaceutical Benefits Scheme) Bill had no Indigenous involvement but everybody else was able to provide input to the minister at the time before it went to the party room. In the amendment to the Family Law Amendment (Federal Family Violence Orders) Bill, there were no Aboriginal organisations, and yet we know that violence within Aboriginal communities is substantial in some locations and we've seen the coverage of Alice Springs. I could go on.
3.14Aboriginal elders who have decades of experience interacting with Government explained that interaction with the executive was the critical circuit breaker in delivering long overdue progress. Aunty Pat Anderson AO stated:
They are the real decision-makers. The bureaucrats of the day decide how things are going to work and who they'll talk to and who they won't talk to. That's why it has to be—if we don't have that capacity to talk to them, there's not much left on the table, really, to be honest, in terms of practical application, to where the real needs are, for goodness sake.
3.15At the public hearing in Cairns, Mr Richard Ah Mat stated:
The executive government is where most rules, regulations and policies are made. You have a right of veto to whatever we say to you. We don’t have that right. But we’re giving you an example of what we know is best for the mobs.
3.16Professor Tom Calma AO stated:
… we have many programs the executive government delegate to implement themselves that don't require parliamentary intervention, so that's why it's important to work with the executive government and the bureaucrats particularly on how to implement a lot of their programs.
Alternative model
3.17One potential alternative model was suggested by Father Frank Brennan SJ AO, who supported the amendment in principle but argued that the prospect of a successful referendum may be improved if the words ‘Executive Government’ were replaced with a reference to ‘Ministers of State’. He submitted:
The one issue which I find difficult is this: the words, as they are at the moment, extend to executive government including public servants making routine administrative decisions. With a quarter of a million Commonwealth public servants, how do you deal with that in terms of it being constitutionalised? We've heard from all the legal experts that, under clause (iii), parliament can do what it likes, except for this: parliament cannot extinguish the capacity that's there under clause (ii). If, under clause (ii), executive government has a capacity to make representations to individual public servants about administrative decisions, then legitimate questions arise, such as: how is the Voice to know that an individual public servant is making an administrative decision which could affect Aboriginal and Torres Strait Islander people? For the Voice to make an adequate representation, how are they to have enough information available to be able to make a coherent representation? All my amendment is aimed at is saying that I agree with all of those legal experts who have said: 'Legislate all you like for the Voice to be not only a voice to parliament and not only a voice to ministers on matters of policy and practices. If you like, legislate for the Voice to be able to make representations to individual public servants on routine administrative decisions.' But that's got to be done by legislation, and to constitutionalise it is to risk that, in the future, as ex-justices Hayne and French have said, if you were to draw the implication that they were to have information about what could be done, that could clog the system of government.
3.18In response to this proposal, Mr Noel Pearson and Dr Shireen Morris argued that addressing only Ministers of State in the legislation would inappropriately stymie the power of the Voice. They argued that the Voice requires a ‘guaranteed role advising policy departments and bureaucrats, if it is to have real positive impact on practical outcomes’.
3.19Mr Tom Brennan SC submitted that the inclusion of words in s 129(ii) ‘to Ministers of State’ would ‘operate as a substantive limitation on the functions of the Voice’. Further Mr Brennan stated that Father Brennan’s proposed amendment ‘would not avoid litigation, it would cause it’:
By his “to Ministers of State” criterion Father Brennan would draw a single line dividing representations which would be within the Voice’s functions to make and those which are legally invalid. It would fall to the Courts to apply that single test to the extraordinary variety of relationships between Ministers and the public service. The consequence is that unless the legal line that Father Brennan would draw (“to Ministers of State”) is very clear Father Brennan’s amendment will operate to render insecure and uncertain a vast array of administrative decisions.
3.20The importance of the reference to Executive Government in the legislation was displayed in submitters’ urging the Committee not to recommend its removal, as it was argued to be crucial to effecting real and systemic change in policymaking. MrNoel Pearson and Dr Shireen Morris stated:
If advice to the Executive is removed from the constitutional amendment, then advice on policy will most likely not be required under the legislation in any enduring way. The current pushback against the idea of the Voice having a guaranteed role advising policymakers demonstrates that many in power would prefer policymakers not to have to deal with Indigenous communities when making policies about them. Assuming true partnership will happen without a constitutional commitment is naïve: if policymakers were so willing to partner with Indigenous communities on policy development, why doesn’t it happen already?
Effect of Representations by the Voice
3.21The Explanatory Memorandum, and the advice of the Solicitor-General, outlines that the amendment was designed deliberately to ensure that Parliament has the power to determine the legal effect of representations made by the Voice. This was also the view of the overwhelming majority of constitutional experts who addressed this issue in their submissions or evidence.
3.22It clearly states a representation by the Voice is designed to communicate the views or wishes of the body to the Parliament or the Executive Government, but is not binding on its recipient:
A representation is a statement from the Voice to the Parliament or to the ExecutiveGovernment, or both. A representation would communicate the Voice’s view on a matter relating to Aboriginal and Torres Strait Islander peoples. The Parliament or the Executive Government may decide what action, if any, to take in response to a representation by theVoice. The Parliament may provide for the procedures to be followed by the Voice in makinga representation.
3.23The Solicitor-General addressed the question of the effect of representations to the Executive Government. He advised:
Nothing in proposed s 129(ii) expressly addresses the obligations of the Executive Government once it receives a representation from the Voice. For that reason, a law that purports to regulate the legal effect of such representations would not be contrary to any express constitutional requirement.
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.
3.24This opinion was supported by Mr Bret Walker AO SC, former High Court Justice the HonourableKenneth Hayne AC KC, former High Court Chief Justice the Honourable Robert FrenchAC, ProfessorGeorge Williams AO, and Professor Anne TwomeyAO.
3.25Professor Twomey submitted that proposed subsection 129(ii) does not require or oblige the Parliament or the Executive Government to respond or give effect to the representations made by the Voice. This interpretation was supported by other witnesses, including legal experts and participants in the drafting process. ProfessorTwomey explained 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’. She further stated that the words ‘consult’, ‘consultation’ and ‘advice’ were rejected due to their potentially imposing an obligation. 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.
The risks of ‘unintended consequences’
3.26In contrast, some submitters and witnesses raised issues that the reference to ‘Executive Government’ could cause unintended consequences, particularly that the High Court could interpret the section in a range of ways that were not intended by the legislation, including:
- Implying obligations on the Parliament or the Executive Government to consult the Voice before making laws or policies on relevant matters
- Implying obligations on the Parliament or the Executive Government to advise the Voice prior to making laws or policies on relevant matters, which may require additional time to make representations and thus slowing the passage of legislation
- Implying an obligation on the Parliament or the Executive Government to consider and/or give effect to any Voice representation before and during the process of making law or policy regarding related matters.
- According to some, these potential imputations would significantly slow the process of government, particularly if ‘Executive Government’ were broadly interpreted to mean the Australian Public Service at large and the Voice could make direct imputations to individual public servants or if all policy or legislative proposals required consultation. As expressed by Father Frank Brennan:
My issue [is] not with giving the Voice a broad panoply of roles in representation, but with constitutionalising all those roles, thereby rendering the system of governance more uncertain and ensuring ongoing litigation about such a novel constitutional set of functions. It is one thing to set up a new constitutional entity. It is another thing to give the entity a constitutional entitlement to make representations not only to parliament and ministers but also to public servants, thereby creating a constitutional duty for those persons, including all public servants, to consider representations, and presumably to give prior notice of intention to make a decision which might attract a representation.
3.28Advice from the Solicitor-General provided for the purposes of the inquiry states the following in relation to this issue:
- There would be no obligation for the Parliament to wait to receive a representation from or consult with the Voice before legislating on a matter, given the Voice is not required to make representations and there is no imputation contained in the text;
- Proposed section 129 does not contain an enforceable obligation on the Parliament to consider or follow representations from the Voice;
- The Voice would not impose obligations on the Executive Government to follow representations or consult with the Voice before developing policy or make decisions;
- There may be some argument as to whether decision-makers would be required to consider representations depending on the context.
- The Committee heard evidence from a range of constitutional experts who agreed that the High Court would not interpret the section to confer an obligation on the Executive Government to seek or act on the Voice’s representations. Former Chief Justice of the High Court the Honourable Robert FrenchAC, Mr Bret Walker AO KC and Professor George WilliamsAO all agreed with Professor Twomey’s assessment that the High Court would interpret this section based on its intended purpose. This would include sources such as the Explanatory Memorandum and the Attorney-General’s second reading speech. In this case, these materials ‘make clear, in unequivocal terms, that the proposed amendment is not intended to give rise’ to consequences such as unintended conferrals of obligations. Further, Professor Twomey noted that all sides of politics in the Parliament have indicated that an imputation should not be drawn, which would also affect a court’s interpretation of the section.
- Former Chief Justice of the High Court the Honourable Robert French AC and Professor Geoffrey Lindell stated:
In any event it is now likely in the light of modern developments regarding the use of extrinsic materials in relation to constitutional interpretation that a court interpreting the new provision could have regard to its context and purpose as disclosed by the Explanatory Memorandum and Second Reading Speech in interpreting it.
3.31In assessing the argument that a potential implication could be drawn, Professor Twomey stated:
Both the government and the opposition say that they do not want this constitutional amendment to give rise to this implication. So what, effectively, people are arguing is that, when asked, the High Court will look at a provision of a constitutional reform where there is nothing in the words that suggests any kind of obligation of prior notice or prior consultation or prior information that a decision is going to be made or a requirement for consideration—where there is nothing, absolutely zero, in the words—yet it will still draw an implication, even though the terms of that implication are completely against what the Australian people were told that they were voting for at that referendum in official documents, in the explanatory memorandum and in the second reading speech. So we're saying the High Court will go contrary to the words of the Constitution despite the fact that the High Court has previously said that it's the text that's controlling, and that it will go completely contrary to the intent of both the government and the opposition—the parliament—and what the people thought they were doing when they voted on the basis of what they'd been told this meant in the Constitution. Yet we still come to this kind of implication which everyone has said would, if it were drawn, have catastrophic effects on government by gumming up the system and making government ungovernable. Do we really seriously think that the High Court is in a position that it would do that? And my answer is: no, I'm sorry, I don't.
3.32The legal experts described the risk of the High Court interpreting an imputation to consult with the Voice or act on its reputations as being ‘very low’. Former Justice Kenneth Hayne AO argued that the potential disruption such an imputation could cause was exactly why a High Court would not interpret it so. Mr Hayne stated that a court would ‘not make implications in a constitution that will bring government to a halt’, and that the point was ‘untenable’. In response to whether an imputation could be found in the text, Mr Bret Walker AO SC expressed:
I must say I would regard it as a double backflip with pike, as an advocate in the High Court, to suggest that section 129 should be read with your ruler, coming down the text, and looking at (ii) without looking at (iii). I don't think I'd get half a sentence out if I was advancing an argument like that. I really think that we need to get a grip concerning this magical process of implication, which is only a matter of teasing out the meaning of text. It might be difficult, it might be subtle, but that's why we have the High Court.
…
It just seems to me that this notion that there is an implication threatened in the proposed subsection (ii), whereby the validity of executive action—multifarious decisions great, small and middling, by officials great, small and middling—will be somehow jamming the courts from here to kingdom come as a result of this enactment, is really too silly for words.
3.33The Honourable Robert French AC stated:
It’s a big thing to draw a constitutional implication, and the implications which have been suggested are not supported by the text and will in fact be inconsistent with it.
3.34It was noted, however, that the Parliament could legislate to provide that obligations to consult or act on representations, in addition to determining processes and rules to accompany such a requirement to avoid undue delay to the work of Government.
Matters relating to Aboriginal and Torres Strait Islander peoples
3.35The Explanatory Memorandum defines ‘Matters relating to’ as:
Subsection 129(ii) provides that the Voice’s core representation making-function concerns ‘matters relating to Aboriginal and Torres Strait Islander peoples’. This requires a connection between Aboriginal and Torres Strait Islander peoples and the matters on which the Voice makes representations.
It continues:
The phrase ‘matters relating to Aboriginal and Torres Strait Islander peoples’ would include:
a. matters specific to Aboriginal and Torres Strait Islander peoples; and
b. matters relevant to the Australian community, including general laws or measures, but which affect Aboriginal and Torres Strait Islander peoples differently to other members of the Australian community.
3.36A small number of stakeholders argued that the reference to ‘matters relating to Aboriginal and Torres Strait Islander peoples’ could involve a range of diverse and potentially unconnected issues.
3.37Professor Twomey observed that the term ‘relating to’ has been ‘interpreted broadly’ by the High Court, requiring some degree of connection between the representation made and those it purported to affect (i.e. Aboriginal and Torres Strait Islander peoples). She explained that a valid exercise of the representation would likely be dependent on contextual factors, but that a tenuous or distant connection to the subject matter would likely be considered insufficient.
3.38Professor Twomey also explained that any attempt by the Parliament to prevent the Voice making representations on matters that were demonstrably on issues relating to Aboriginal and Torres Strait Islander peoples would be invalid.
3.39It was argued to be unlikely that representations would be made by the Voice on a myriad of remote subjects due to the Voice needing to restrain its power for matters which most require its attention. Mr Noel Pearson and Dr Shireen Morris observed:
While clause 1 gives the Voice broad discretion to make representations to Parliament and the Executive, the Voice will operate through political influence: it will need to protect its credibility and authority. The Voice will only have influence if it gives sensible and targeted advice. If it gives silly or irrelevant advice, its influence will quickly wane. Indigenous people do not want this, so they are unlikely to want to give advice on irrelevant matters. Nor will they have time: the Voice will be busy advising on how to improve Indigenous wellbeing.
3.40Mrs Kristyne Davis, Chief Executive Officer of the Cape York Institute stated:
The purpose of the Voice to Parliament and the Executive Council is to create change for the future. We propose this, Indigenous people propose this, as a way to work in partnership with the government to create change and close the gap. We find it offensive that there are certain voices out there that are trying to put this as anything other than that.
3.41Mr Pearson and Dr Morris also pointed to the importance of the Voice’s capacity to make representations being flexible to accommodate for unusual or seemingly unconnected matters. For example, environmental policy was suggested as a policy area which ‘may not directly target Indigenous communities, but which may have detrimental impacts to economic development on underdeveloped Indigenous land’. In relation to what should be covered by ‘matters’, Mr Bill Allen said:
… the same old things that have been problems for us for a long time, and they are housing, health, educational opportunities and all those sorts of things.
3.42Dr Morris, at the Cairns public hearing, stated:
… given that parliament and government already make special laws and policies about Indigenous people, which they need to, surely Indigenous people should have a guaranteed say in those laws and policies and other matters that affect them that they want to advise on. Given the history, that is not asking too much.
The effect of subsection 129(iii): The role of Parliament
3.43Proposed subsection 129(iii) provides that:
the Parliament shall, subject to [the] 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.
3.44The Explanatory Memorandum defines the role and scope of the Parliament’s power:
Subsection 129(iii) would allow the Parliament, subject to the Constitution, to make laws with respect to matters relating to the Voice, including its composition, functions, powers and procedures. It confers upon the Parliament a broad power to make laws in relation to the Voice, without detracting from its constitutionally guaranteed existence (under s 129(i)) and representation-making function (under s 129(i)).
3.45Advice from the Solicitor-General stated the following in relation to the power of the Parliament under s129(iii):
The Parliament’s power under proposed s 129(iii) to make laws “with respect to matters relating to the … Voice” will be construed with “all the generality which the words used admit”. It plainly empowers the Parliament to make laws with respect to the four topics mentioned after the word “including”, being the “composition, functions, powers and procedures” of the Voice.
However, unlike the Garma draft, the power conferred by proposed s 129(iii) extends well beyond those four topics. The double use of wide connecting language – to enact any law with respect to matters relating to the Voice – textually produces a legislative power of great width, because the subject-matter of the power is not “the Voice”, but the wider “matters relating to the Voice”. The result is that the Parliament may enact any law that has more than an insubstantial, tenuous or distant connection either to the Voice itself or to any subject relating to the Voice.
3.46According to Professor Twomey, proposed subsection 129(iii) authorises Parliament to determine multiple aspects of the Voice’s operations and powers, including the procedures for the receipt and referral of representations to the Parliament or the Executive Government. She further explained that this means that the composition, procedures and functions of the Voice could be changed by the Parliament at a later date if the model was not working well or to confer additional powers on the Voice if required.
3.47Importantly, Professor Twomey noted that Parliament’s power in subsection129(iii) is subject to the remainder of the Constitution, indicating that not only would Parliament’s power be subject to other constitutional provisions and implications such as the separation of powers, but also that the Parliament could not ‘legislate so as to abdicate its legislative power by requiring approval by the Voice before passing a law, as this would be inconsistent with Chapter I of the Constitution’. On Twomey’s interpretation, the Voice would therefore not create a ‘third chamber’ of Parliament or confer voting rights on the Voice.
3.48Additionally, Dr Elisa Arcioni and Associate Professor Andrew Edgar argued that the Constitution Alteration’s sections relating to consultation clearly indicate that they are not enforceable by the courts. Further, other legislative requirements on Commonwealth regulations explicitly state that ‘the form of consultation is a matter for the discretion of executive government officials and that the failure to consult does not affect the validity or enforceability of a regulation’. They suggested that, given subsection 129(iii) empowers the Parliament to determine matters such as the process in which representations are received, the legal impact of representations would be better addressed after a successful referendum when the Parliament considers the scope and processes of the Voice. On the issue of legal effect of representations made by the Voice, the Honourable Kenneth Hayne AC stated:
The construction of 129(ii) would have to be a construction that takes account of 129(iii), and 129(iii) plainly allows parliament, subject to the Constitution, to make a law with respect to a matter relating to the Voice. The legal effect of representations made by the Voice is, I would have thought, plainly a matter relating to the Voice.
Race and the Constitution
3.49The Constitution includes a ‘race power’ which has, for decades, been used to make laws about Aboriginal and Torres Strait Islander peoples (and only Aboriginal and Torres Strait Islander peoples).
3.50The majority of evidence indicated that the proposed Constitution Alteration would not create inequality nor encourage discrimination; Rather, it could be a means of facilitating the right to equality for Indigenous Australians.
3.51Despite some submitters asserting that the proposed amendment would insert race – or recognise Aboriginal and Torres Strait Islander peoples on the basis of race – in the Constitution, the overwhelming majority of submitters repudiated that evidence. The Honourable Robert French AC stated that the proposed amendment moves away from the issue of race:
Put shortly, the Voice provision provides for the recognition of Aboriginal and Torres Strait Islander peoples not as a race but as the First Peoples of Australia—that is, their particular part in the history of this continent, which goes back up to 65,000 years before the enactment of our Constitution. So the criterion of recognition and the basis for the creation of the Voice is their status as First Peoples, not their status as Aboriginal people or as Torres Strait Islander peoples, but that particular historical role. That provides a significant shift away from the existing race based legislative power that the Commonwealth has with respect to Aboriginal and Torres Strait Islander people, although that power is still there.
3.52Professor George Williams AO agreed in relation to race:
… and I think the whole race issue is a complete misnomer. Race is a 19th-century concept that has no longer any scientific credibility attached to it. A group has been identified because they're a unique group within our community. They are rightly identified because of their current and prior connections to land, and our nation is built upon their ancestral lands.
3.53Professor Anne Twomey AO argued that the proposal of a Voice is not to favour one race of people over other races, but in recognition of Aboriginal and Torres Strait Islander peoples as the first Australians and their holding a distinctive place in Australia’s cultural history. This recognition also asserts Indigenous Australians’ status in international human rights law, affording them protections and rights on this basis. Dr Elisa Arcioni and Associate Professor Andrew Edgar further noted that:
To enshrine a Voice is not to import an illegitimate racial element into the Constitution. It is simply to recognise the distinct place of First Nations peoples in the Australian polity, consistent with the ongoing development of the constitutional identity of ‘the people’.
3.54The Honourable Ken Wyatt AM stated that the backlash to the Voice is based on race and that Indigenous Australians ‘don't see ourselves as a race. We are nations of people and we are Australians. We retain our identity’. He also observed that there are already race provisions in the Constitution which have been used in respect to Indigenous Australians.
3.55The Honourable Fred Chaney AO, former Minister for Aboriginal Affairs, similarly asserted that the Constitution Alteration ‘is not an affront to our equal citizenship’. He explained further:
I believe equal citizenship is an important principle. That's what motivated all of us in the early days in setting up Aboriginal legal and medical services, trying to get a better deal for Aboriginal people. But this important principle has to live with the facts. In Australia's democracy, like the democracies of Canada, the United States, New Zealand and the Scandinavian countries, it has to deal with the particular and distinct legal rights of the original peoples. In addition, it permits inequality between the states in terms of the voting powers of individual citizens. It has to accommodate that. It will legislate about first peoples in their particularity.
3.56Conversely, it was argued that the Bill would insert a race component into the Constitution and that a body defined by race is not consistent with the principle of equal citizenship. Stakeholders argued that the basis of democracy is that all citizens have equal rights and a constitutionally enshrined body defined by race is not consistent with this principle. The HonourableNicholas Hasluck AM KC stated that a Voice defined by race is ‘contrary to the democratic spirit of the constitution which is based on all citizens having equal democratic rights’. Mr Nyunggai Warren Mundine AO is further noted that the Bill would be ‘reinstating racial segregation into the Constitution. This Bill is reinstating race-based treatment of Aboriginal and Torres Strait Islander people’.
3.57Some stakeholders also argued that Aboriginal and Torres Strait Islander Australians can and do represent their interests as parliamentarians, and that a Voice was thus unneeded. However, others responded by noting that parliamentarians are elected to represent their constituency rather than Indigenous peoples specifically.
3.58Additionally, Mr Mundine put the view that the proposed Bill further entrenches Aboriginal and Torres Strait Islander peoples as a ‘race of people’ and does not recognise their nations. He argued that the Constitution Alteration’s premise is that Aboriginal and Torres Strait Islander peoples are a homogenous group, but that there exists hundreds of nations and communities of people who do not have homogenous views and perspectives. Mr Mundine asserted further that he did not believe the Voice can adequately represent First Nations people and will in fact undermine them.
3.59On this point, the evidence received by the Committee was consistent with the Explanatory Memorandum, with multiple legal experts concluding that the alteration is consistent with international human rights law. Mr Wyatt disagreed with Mr Mundine’s assessment while agreeing that not all Indigenous peoples share the same viewpoints. Mr Wyatt stated that the Voice would represent every Indigenous Australian and require governments to consider consulting Indigenous people on matters relating to them.
3.60Of particular relevance was the Solicitor-General’s advice that:
Insofar as the Voice serves the objective of overcoming barriers that have historically impeded effective participation by Aboriginal and Torres Strait Islander peoples in political discussions and decisions that affect them, it seeks to rectify a distortion in the existing system. For that reason, in addition to the other reasons stated above, in my opinion proposed s 129 is not just compatible with the system of representative and responsible government prescribed by the Constitution, but an enhancement of that system.
3.61Further to this evidence, Mr Jamie Newman, Chief Executive Officer of the Orange Aboriginal Medical Service, expressed that the current advisory system does not adequately address the needs of Indigenous communities. He explained:
If you look across our systems right now—whether it's police, health, education or housing—we have all these liaisons with reference groups and consultation groups, and they're a mix of Aboriginal people from the same community. To me they're tokenistic. If our people don't have a single line where we are heard, then we're going to have 'divide and conquer' happening within our communities. This has happened for generations. We have too many liaison and referral groups or reference group advisory bodies that tick the box for government entities but do not meet the needs of our people. That creates division within our communities by saying, 'Well, such and such is on this committee; such and such is on that advisory committee; we have a bunch of elders here,' and then that creates division in our community.
Consistency with international human rights
3.62Evidence to the inquiry indicated that the Bill was consistent with international human rights and in some cases advanced human rights, particularly the human rights of Aboriginal and Torres Strait Islander peoples. The Explanatory Memorandum contends that the Bill engages the following rights:
- The right to self-determination;
- The right to equality and non-discrimination; and
- The right to take part in public affairs.
- Professor Ben Saul argued that, under Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Australia is required to consult with Indigenous representative bodies before implementing ‘legislative or administrative measures’, which would affect them. He explained that the Voice meets these standards under international human rights law, as it would enable Aboriginal and Torres Strait Islanders to have input into decisions relating to Commonwealth laws and policies which impact on Indigenous peoples. Professor Saul also asserted that it is consistent with international law that the Voice have the power to make representations to the Executive Government and the Parliament.
- Further, Professor Saul stated that the proposed Voice to Parliament is consistent with international human rights law as it relates to Indigenous people. Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) asserts the right to:
participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures.
3.65The Indigenous Law Centre and the Law Council of Australia agreed with ProfessorSaul’s interpretation, arguing that the Constitution Alteration would give Aboriginal and Torres Strait Islander peoples the right of self-determination in accordance with international human rights. The Voice was said to provide Indigenous Australians with a forum to participate in public discourse and make representations on decisions which would affect their rights and interests. The right to self-determination is a principle of international law, which is also underlined by the UNDRIP. It was noted by some submitters that the constitutional enshrinement of the Voice has been endorsed by multiple international human rights organisations.
3.66This point was expanded upon by Aboriginal and Torres Strait Islander stakeholders, who expressed an approach to policy that treats First Nations People as incapable of being involved in decision-making for policies that affect them. One stakeholder noted that they felt as though the Aboriginal and Torres Strait Islander people of this nation have been treated like children.
Potential amendments
3.67A number of submitters recommended making amendments to the Constitution Amendment. The most prominent argument was the removal of ‘Executive Government’ in relation to the Voice’s capacity to make recommendations in proposed section 129(ii). This was supported by stakeholders such as Father Brennan, Professor Greg Craven and the Institute of Public Affairs, many of which argued (as discussed in other sections of this report) that the reference to ‘Executive Government’ lacked clarity.
3.68Responding to these concerns, Professor Twomey observed that such concerns regarding the Voice’s capacity to make representations to Executive Government fundamentally misunderstand the nature of the Voice as a political entity:
The Voice would have political, not legal, influence. Political pressures would both give the Voice authority and operate as a constraint on its operation and effectiveness. For example, the Voice’s influence on law and policy would only be effective if it focused on things particularly relevant to Aboriginal and Torres Strait Islander peoples, where it has expertise and knowledge from people on the ground about the impact of the laws and policies. Concerns about the legal scope of the matters the Voice could make representations about are misconceived, because there will be political and practical constraints on the representations it makes. If the Voice were to make representations on matters that affect Aboriginal people in the same way as all other Australians, its representations would most likely be ignored in favour of those made by bodies with special expertise on the subject. Such an approach by the Voice would dilute its influence and squander its resources. Indigenous peoples would rightly be angered that the Voice was not focused on matters that have a direct and serious impact upon them, and it would be likely that they would change their representatives to ones that focus directly on the many Indigenous issues that need attention.
3.69Professor Twomey also observed that drafting amendments to the Constitution requires consideration of two audiences: the legal audience who will inevitably need to engage with the section to understand its meaning, and the broader Australian populace who need to understand what they’re voting for at referendum. Drafting with one audience in mind can potentially come at a cost to the other, which has subsequent broader impacts in terms of the proposed amendment’s success at referendum and – more critically – its support amongst those it is meant to address. She explained:
If one was only drafting for lawyers and judges, one could be very precise and include complex clauses to make the intention abundantly clear. But because one has to draft something that is comprehensible and acceptable to a general public with no constitutional expertise, the provision needs to be short, simple and easily understandable.
…
From a legal point of view, there was an attraction to nailing down the various possibilities – making clear that the amendment would allow for this and would not permit that. But this would have made the provision appear too complex and confronting to the general public and cause it to fail at the referendum.
3.70Supporting this perspective, a majority of the evidence received urged that the proposed section not be changed in order to retain the simple and legally effective wording. As expressed by Mr Noel Pearson:
These are beautiful words. The proposed provision will adorn the Constitution. I've listened to many submissions, I've read all them and I've listened to people present, and I haven't found a really compelling reason to change the words that the government has introduced into the House. I think children of the future will look back on these words and really be proud of the Constitution. I think this is a good provision. It has a real sense of history. It honours Aboriginal and Torres Strait Islander people. It's a safe provision. It's a provision that meets the needs of Australia and the needs of Aboriginal and Torres Strait Islander people.
3.71To that effect, Dr Shireen Morris advised the Committee:
As I said before, we need to be really careful about rushed scrambling to appease what are actually exaggerated concerns. What we've been seeing playing out in the last few months is some constitutional conservatives diving into wholly political tactics, abandoning true legal principles and getting fully bogged into the politics of this….
They've been asking for this for decades. Think about what they've been through: the dispossession, the policies of discrimination and the historical violence. All they're asking for is a constitutionally guaranteed advisory voice in their affairs, and all the details that matter after that are up to parliament, including changing the composition. They are prepared to wear all the risks that come with leaving the details up to parliament in that. Yes, a future body could be weakened. So this is already a compromise. They are not asking for much in the grand scheme of things, and I think we should remember that before scrambling to whittle it down to almost nothing.