Additional Comments from Senator Andrew Bragg
The Voice is a concept which provides Indigenous people with a say on special laws and policies. This recognises Indigenous people are the only Australians for which a large body of special laws and policies exist. The Voice is a good and fair idea.
This process is an Inquiry into a constitutional amendment. Unfortunately, the majority report did not undertake the detailed analysis which was expected of this Inquiry. Chiefly, it failed to engage with the primary risks and to examine and assess the options required to address these risks. The majority report is a missed opportunity.
The Liberal Party report is a serious attempt to engage with the risks and the options for improvement. The Liberal members of this Committee have different views about the level of risk the proposed amendment presents to Australia’s institutional framework.
We are united in our belief that the risks should be addressed with amendments to the current model before the Referendum is conducted. The Referendum should be presented without risk. Even the lowest level of risk should be addressed. It can be done in a way which is entirely consistent with the function and capacity of the Voice concept.
If the legal risk is minimised, then the chances of a successful Referendum are maximised.
The drafting of the Voice encased in this bill is just one iteration of the concept which has been drafted differently on dozens of occasions. The idea that the proposed amendment cannot be improved or de-risked cannot be true.
There is one outstanding risk with the proposed wording before this Committee: whether the proposed constitutional amendment to enshrine a Voice would deliver an effective transfer of power from the Parliament to the High Court.
This is a technical legal question that could undermine the referendum and damage our institutions if it is not addressed.
It hinges on the second limb of the proposed constitutional amendment, which empowers the Voice to make “representations to the Parliament and the Executive Government.”
In my mind, there is no doubt that the Voice should be able to speak to the Executive, because it is the Executive that is responsible for a large portion of the daily decision-making that affects Indigenous people.
For example, the National Indigenous Australians Agency (NIAA) makes funding decisions about community programmes on Aboriginal Medical Services or childcare services. The idea that the Voice wouldn’t talk to the Executive is completely wrong. It would neuter the Voice.
There are two ways to look at this risk:
First, would the ability of the Voice to make representations to the Executive slow down decision-making in Australia, or would it unreasonably encroach on Executive decision-making?
Would there be excessive litigation on matters which do not specifically relate to special laws and policies concerning Indigenous people?
The primary question for this Committee is whether the Parliament will be able to effectively manage these legal effects of the Voice’s operation.
A slowing down of the system of government may occur if the High Court was to review administrative decisions of the Executive on a large scale, and potentially force decisions to be remade. In other words, litigation risk.
There are mixed views on the degree of risk, but it cannot be ruled out under the current wording.
Appearing before the Committee, Professor Emeritus Greg Craven AO described a scenario in which Executive decisions are invalidated by the courts on the basis of non-compliance with procedural fairness requirements.[1]
Professor Craven said that to give the Voice sufficient time to make a representation, Executive decision-makers may have to “facilitate that representation in the sense of giving notice. And you probably have to take account of it, which is not to mean to agree with it, it is at least to plug it in.”[2]
The court may invalidate a decision where the Voice has not been given prior notice or reasonable information during the decision-making process. This scenario has been canvassed extensively in the Liberal Party report.
However, Constitutional law experts, Professor George Williams AO and Professor Emerita Anne Twomey AO, rejected Professor Craven’s assessment. They told the Committee that the risk is low, and could only eventuate if Executive decision-makers “put their fingers in their ears”[3] and refused to receive representations from the Voice.
Professor Williams told the Committee:
“... but, here, I think it would be a stretch to read in an obligation to require prior consent, notification or even take into account a representation without some supporting statutory context.”[4]
Also dismissing the risk of High Court interpretation, Professor Twomey said:
“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.”[5]
The reality is that the evidence presented to the Committee varied. No one knows how the High Court would interpret a new provision. It is unclear if the current proposal provides for the Parliament to manage the legal effects. That is the risk.
The second issue is whether representations on matters unrelated to special laws and policies for Indigenous people could impact our system of government. Again, the subsidiary question is whether the Parliament can control the scope of the body’s activities.
This relates to the Voice’s representations to the Executive under proposed subsection (ii) and whether the Voice would be able to make extraneous representations to the Executive.
Professor Twomey told the Committee:
“the representations are to be ‘on matters relating to Aboriginal and Torres Strait Islander peoples’. The words ‘relating to’ have been interpreted broadly by the High Court. They would require a connection or association between the representation and Aboriginal and Torres Strait Islander peoples. The degree of that connection would be governed by the context, and may be direct or indirect.”[6]
The question that remains is whether the proposed constitutional amendment addresses the scope issue adequately, or whether more clarity can be provided.
This was a matter of debate during the Committee hearings:
“Senator Bragg: Okay, my last question is just to clarify then. There's an Explanatory Memorandum and there's a Bill. You've said there you think that the EM does a good job in confirming what exactly the body should be doing, or the body should be doing. Do you think the Bill reflects the EM?
Professor Twomey: I think that the EM helps clarify the intention of the Bill. As I've said before, I'm relatively relaxed to the extent I do not believe the High Court will draw the implications people have said. Could the wording be more precise? The answer is always yes. Do I have objections to it being more precise? The answer is no.”[7]
Professor Twomey went on to consider the Solicitor-General’s reported proposal during the drafting stage that seven additional words be included in the amendment, a proposal that was also discussed with Professor Craven. The proposed additional words to be placed at the end of section 129(ii) are “and the legal effect of its representations.”
This matter was not addressed in the Solicitor-General’s submission to the Committee, but it was reported in the media.
The purpose of these words would be to guarantee the Parliament’s capacity to legislate the scope of the Voice’s representations and manage future legal effects. In other words, the alteration is intended to assure parliamentary supremacy.
“I have no objection to putting in the words that Professor Craven was so concerned about being, and the effects of its representations. I have no problem with putting that in. I don't think it overly complicates the legislation. I personally have no objection about that.”[8]
Professor Williams said:
“If there's a sensible, modest way of clarifying that which is consistent with the intent, then, yes, that would be a reasonable and appropriate thing to do to help mitigate the political [risk]..”[9]
There are four alternative sets of words that have been proposed to address risk.
First, the “Seven Words” model raised above. This is the addition of the words “and the legal effect of its representations” to the end of subsection (iii). This model gives the Parliament the express power to determine the legal effect of the Voice’s representations.
Second, the “Press Club” model proposed by Mr Julian Leeser MP. This is the removal of subsection (ii). The amendment creates a constitutionally-enshrined Voice without constitutionally-prescribed composition, functions, powers or procedures.
Third, the model proposed by Father Frank Brennan SJ. This is the replacement of the words “Executive Government” with the words “Ministers of State”. This would empower the Voice to make representations to Government Ministers, as opposed to any agency or official under the umbrella of the Executive Government.
Fourth, the alternative to subsection (ii) proposed by Uphold & Recognise. This is the replacement of the proposed wording of subsection (ii) with:
“The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Ministers of State for the Commonwealth on proposed laws and matters with respect to Aboriginal and Torres Strait Islander peoples and to the Parliament and the Executive Government of the Commonwealth on such other matters as the Parliament provides.”
In addition to limiting the Voice’s power to make representations to the Parliament and Government Ministers, this amendment seeks to clarify the matters that may be the subject of a representation.
These models were comprehensively examined during the Committee process, particularly through an exhaustive series of questions on notice. While each alternative model may have merit, the Committee did not collect a large body of evidence to support options two, three and four.
In response to the many questions on notice I asked of the legal expert witnesses, the weight of the evidence was supportive of alternative model one: the “Seven Words” model.
It was reported in the media that this model was proposed in the Referendum Working Group by the Solicitor-General and Attorney-General to various stages in their internal debates.[10]
The practical effect of this amendment would be to guarantee the Parliament’s capacity to legislate the scope of the Voice’s representations and manage future legal effects. In other words, the amendment would assure parliamentary supremacy.
Although it has been argued that it is an unnecessary amendment given the non-exhaustive drafting of the Parliament’s s 129(iii) powers, the evidence tells us that the amendment is inoffensive at worst, but productive at best.
Professor Williams told the Committee “if there is a sensible, modest way of clarifying that which is consistent with the intent, then, yes, that would be a reasonable and appropriate thing to do to help mitigate the political [risk].”[11] Professor Williams later confirmed that the amendment “reflects the intended scope of the clause.”[12]
The Hon Robert French AC noted the merits of the amendment in gathering political support for the referendum, and confirmed that it would not create any further legal complexities.[13]
Professor Craven submitted that the amendment would “make it significantly clearer that Parliament has full power to determine a legislative environment within which the Voice would operate.”[14]
Professor Twomey, accepting that the proposed wording could be more precise, also had no objection to the inclusion of these seven words to address the concerns of those seeking clarification around the intended scope of the Parliament’s powers.[15]
The wording in the bill is just one of the dozens of iterations of the Voice drafting seen in recent years. The proposition that it cannot be further refined to eliminate risk is dishonest.
It is on this basis that I recommend that those seven words be added to the constitutional amendment.
The “seven words” proposal is sound. It balances the need to minimise the risk of High Court interpretation, while preserving the capacity and function of the body. It guarantees parliamentary supremacy. It should be adopted.
Recommendation 1 - the “seven words” model be adopted into the constitutional amendment.
I am grateful for the opportunity to serve on this Committee. I thank all my colleagues and the secretariat. I had hoped for a bipartisan Committee process to have been established early in this Parliament.
It would have been better if the Parliament had been given an opportunity to recommend the wording before the government introduced a bill. This Bill has been treated as if it was a routine government Bill. This has reduced the opportunity for bipartisanship, or at least broader support within the Parliament. Regardless, I acknowledge the collegiate manner in which the Chair and Deputy Chair have engaged throughout the process and I thank them both.
I also acknowledge the contributions to the recognition and Voice debate over the past decade and everyone who has engaged with this Committee. I particularly appreciate the effort made by the witnesses in answering my endless questions.
Finally, Australia is a great country but it has badly let down Indigenous people over the past 250 years. The status quo is not good enough. We should be coming together to find common ground, rather than reverting to talking points and glib slogans. We have to do better than this.
Senator Andrew BraggSenator for New South Wales
Footnotes
[1]Professor Emeritus Greg Craven AO, private capacity, Proof Committee Hansard, 14 April 2023, 27.
[2]Professor Emeritus Greg Craven AO, private capacity, Proof Committee Hansard, 14 April 2023, 27.
[3]Professor George Williams AO, private capacity, Proof Committee Hansard, 14 April 2023, 39.
[4]Professor George Williams AO, private capacity, Proof Committee Hansard, 14 April 2023, 38.
[5]Professor Emerita Anne Twomey AO, private capacity, Proof Committee Hansard, 14 April 2023, 41.
[6]Professor Emerita Anne Twomey AO, Submission 17, 3.
[7]Proof Committee Hansard, 14 April 2023, 44.
[8]Professor Emerita Anne Twomey AO, private capacity, Proof Committee Hansard, 14 April 2023, 44.
[9]Professor George Williams, Committee Hansard, 14 April 2023, p. 47.
[10]Paul Sakkal and James Massola, The Sydney Morning Herald, The seven extra words that could broker a compromise deal and win the referendum, March 13 2023, https://www.smh.com.au/politics/federal/the-seven-extra-words-that-could-broker-a-compromise-deal-and-win-the-referendum-20230312-p5crct.html (accessed 12 May 2023).
[11]Professor George Williams, Committee Hansard, 14 April 2023, p. 47.
[12]Professor George Williams AO, supplementary submission 5.1, 1.
[13]The Hon Robert French, Committee Hansard, 14 April 2023, p. 51.
[14]Professor Greg Craven, Submission 25, p. 1.
[15]Professor Emerita Anne Twomey AO, supplementary submission 17.1, 2.
The Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum inquired into and report on the provisions of the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023.
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