THE ABORIGINAL AND TORRES STRAIT ISLANDER VOICE:
CONSTITUTIONAL ISSUES, PROBLEMS, AND A SOLUTION.
Gray Connolly [1]
Herewith is my opinion as regards the Australian Constitution and the proposed alteration of it to include a new body to be called the Aboriginal and Torres Strait Islander Voice (Voice).
I have endeavoured to write in plain English, as best I can, in order to inform those of my fellow Australians who are interested in both our Constitution and this question.
Since, at least, the Voice was first proposed as a constitutional alteration, particularly from July 2022 onwards, the process for discussing it, meagre as it is, has been nothing short of shambolic, and demeaning to our Constitution. In our system, as I explain below, the parliament passes the law that both states the words of the proposed constitutional alteration and authorises the holding of the referendum, at which we, the Australian people, vote. Accordingly, there should have been in place an extensive and transparent process, centered on the Parliament, for determining, with precision, what amendment(s) to our Constitution was(were) needed. There should have been debates for the benefit of the public over what the choices of wording for the alteration were, as well as public inquiries and reviews by parliamentary committees. Advice should also have been provided by the Solicitor-General in plain English on the proposed constitutional alteration, and any issues surrounding the alteration, for public release — this, especially, is the minimum we should expect from the executive government of the Commonwealth that is proposing constitutional change. Should the Attorney-General of the day be a sufficiently able constitutional lawyer, then she or he should be leading the debate on the proposed alteration and making themselves available to answer all questions. The Voice is, after all, a proposed alteration of our Constitution and every Australian will be asked to approve or reject it. It is hard to overstate the gravity of what is sought to be done. There have, as yet, been few if any of these proper processes followed, nor informed public debates, sadly. Hopefully, for the good of Australia and our Constitution, good sense and proper processes may yet be salvaged from what seems, already, to have been a wreck.
I realise, fully, that there is a long and complex history behind the Voice, itself, particularly as it emerges from the Uluru Statement from the Heart of 2017. While the Uluru Statement is crucial to the history of the proposed Voice, that history is separate from the strictly constitutional question that I am considering here and that we will each have to vote on as Australians. Accordingly, while I will deal with Australia’s constitutional history, it will be in the context of the discrete legal questions raised by the Voice and I will leave the historical origins of the Voice to others.
What follows is, purely, my own opinion. I am sure that other jurists will comment and opine on the Voice. I trust that every Australian, lawyer or lay citizen, can speak for herself or himself. I will not be agreeing with, correcting, or otherwise amplifying, the arguments of others, here.
As I have said, and will continue to say, The Voice is, above all else, a constitutional alteration and, if successful, it will bind all Australians. Thus, it is important that the proposed Voice amendment to our Constitution — if Australians determine that it should be made — is in a form that is both safe and effective. That the process to date has been so chaotic only now makes more important the work of constitutional drafting.
All of what I say here is best read alongside the text of our Constitution.
A. THE VOICE
In July 2022, the Australian Government announced its intention to seek the Parliament’s approval to hold a constitutional referendum pursuant to s.128 of the Constitution. This referendum would seek the Australian people’s approval (or risk their rejection) of the entrenchment in our Constitution of the Voice and purport to confer power on the Parliament to create the Voice.
It is the case that the Parliament already has ample legislative power via s.51(xxvi) to create the Voice as a legislated body. A body that the Parliament creates by statute is a body that can always be abolished by the Parliament. Obviously, a body or entity that is created by the Constitution is beyond Parliament’s power to abolish.
Overall, our system proceeds on the basis that the elected Parliament can create or abolish everything except the Crown, the High Court, and the States, which are all constitutional creations, like the Parliament, itself. If the referendum question is approved, then the Voice would join this very exclusive club of entrenched constitutional entities.
Quite why the Government seeks to create the Voice as a constitutional body rather than simply legislate the Voice into existence, is unclear to me, other than denying the Parliament the power to abolish the Voice.
Yet even our most august and essential national bodies — from government departments to the universities, to the police and security services, to the armed forces — are all, ultimately, created by statute. It has been the historic practice of Westminster parliamentary systems, and especially of polities with written constitutions, that bodies of an advisory nature are created under statute, or even decreed ‘fiat’ by executive order. When one considers the Voice and the very problematic history of the earlier Aboriginal and Torres Strait Islander Commission (ATSIC)[2], it would, on one view, be wise for the Parliament to create the Voice — and also be able to abolish the Voice if it suffers the same maladies as ATSIC did.
I have doubts as to the wisdom of entrenching the Voice in the Constitution. I can see many good arguments for the Voice being a body legislated for by the Parliament rather than one fixed in the Constitution. In any case, for reasons I set out below, if the proposed wording of the Voice alteration does not change, then sensible people should demand the wording changes before the referendum — and if still not changed, then they should consider voting “No”.
Those advocating for the Voice must ensure that if it is to become a constitutional body, it must complement (not threaten) our historic constitutional order and its tripartite separation of different powers among Parliament (Chapter I). the Crown and Executive (Chapter II), and the Judiciary (Chapter III).
I have, below at [H], tried to design a constitutionally entrenched Voice that achieves the object of an advisory body that complements our constitutional order in a manner that is safe and effective.
B. THE PROPOSED WORDING OF THE VOICE
On its current wording, the proposed Voice alteration is:
“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.”
The Voice is to be a constitutionally entrenched body that is intended to represent (via “representations”) the views of Aboriginal and Torres Strait Islander Peoples to the Parliament (Chapter I) and the Executive Government (Chapter II) on matters “relating” to Aboriginal and Torres Strait Islander Peoples.
As I set out below, this proposed wording is hazardous to our constitutional structure, and it must change or risk being justifiably rejected at the referendum.
C. THE REFERENDUM PROCESS
The method by which the Constitution can be altered to create and entrench the Voice is via the referendum provisions in s.128. The s.128 provision is sometimes referred to as requiring a ‘double majority’ but there are three discrete challenges facing a proposed constitutional change:
(1) the Parliament must pass the referendum bill that authorises the referendum and states the question for the people to approve or reject — while s.128 does allow for the Governor-General to proceed with the referendum even if House and Senate disagree, it is very hard to see any Governor-General proceeding with a referendum in the absence of a clear parliamentary agreement on the exact nature of the proposed constitutional alteration;
(2) the proposed constitutional alteration must, at the referendum, win the support of a majority of Australians nationwide (ie electors voting in States and Territories); and
(3) the proposed constitutional alteration must, at the referendum, win the support of a majority of the States, ie the electors in 4 of the 6 States must also approve the proposed alteration.
While (2)’s and (3)’s barriers are both high ones to clear, it could be that (1) is where the Voice proposal also encounters difficult albeit not insurmountable opposition.
It is important, always, to remember that Australia, juridically, is a monarchy and a federation with an entrenched written Constitution — well before Australia is any sort of ‘democracy’.
It is notorious that, in the over 122 years of Australia’s federal history, we have held referenda for 44 proposed alterations to our Constitution — and only 8 have succeeded in satisfying s.128’s requirement of winning both a national majority and a majority of States.
Our national experience suggests that successive generations of Australians believe firmly — and with much justification — in two historic maxims: ‘The Australian Constitution was drafted by geniuses so the country could be run by fools’, and, also, that if something is not broken, there should be no attempt to fix it. There is much wisdom in this Australian disposition of grave scepticism towards constitutional change. After all, if there is no need to change, then there is a need not to change.[3]
Thus, noting this history, even the most well-worded Voice amendment faces a daunting task when seeking to alter the Constitution — and no serious or even unserious lawyer can say that the current Voice amendment is well-worded. We now come to the vital role of the High Court of Australia, our final constitutional court.
D. THE HIGH COURT AND THE CONSTITUTION
As of the time of writing, it could well be that the wording of the proposed Voice alteration may change or has changed — and for the reasons I set out below, it really must change.
In grasping just how hazardous is the Voice’s current wording, all Australians should understand that once a new provision enters our Constitution — and in this case, creates a new body or entity — then, like every section of our Constitution, whatever may once have been intended, a new constitutional existence commences.
The exact wording of the provision is thus decisive — the intentions of the advocates are irrelevant.
It is the exact wording of the alteration, after all, that the Australian people either approve or reject at the referendum.
Australians have been blessed that our High Court has been a final constitutional court of almost unqualified legal orthodoxy, from the foundational Engineers decision of 1920[4] down to the Court’s unanimous decision in Re Canavan [5] almost a century later in 2017.
The High Court has, almost without fail, interpreted our Constitution’s text in its “natural meaning”[6], “in its ordinary and natural sense”[7], and its “ordinary and natural meaning”[8]. The High Court has, most commendably, avoided the inventive and fabricating tendencies that have afflicted American courts[9], and, sadly, have tempted even now the British courts[10], in relation to constitutional texts and structures.
We must, as Australians, hope that the High Court can maintain this historic approach of legal orthodoxy. No one knows who will constitute the future benches of the High Court. However, even the soundest bench of a future High Court will, inevitably, be called upon by litigants to make some sense of the words of the Voice, which, again, is why the precise wording of the proposed alteration matters so much.
What will be the nature of the Voice’s existence, and the width of its ambit in national affairs, is a matter that will, inevitably, be litigated and determined by the High Court.
It is an enduring reality of our written and entrenched Constitution — and an enduring reality, also, of our final constitutional court performing its adjudicative task — that the Voice, like anything else in our Constitution, will be whatever four or more of the seven members of the High Court hold it is to be. Regardless of whatever public assurances are given now by Ministers, parliamentarians, advocates (including legal academics who should know better) — or even former judges — the reality is that the High Court will have more influence over the Voice’s future than anything the Parliament will do. It is the High Court’s task, after all, to give any Voice amendment its full legal effect according to “its ordinary and natural sense”.
Constitutional words matter. The choice of ‘bad’ wording and not ‘good’ wording will determine whether the Voice operates in a manner that undermines or supports our Constitution’s historically smooth operation. This is why the Voice’s wording — if the Voice must be entrenched — matters so much.
E. THE VOICE: PROBLEMS
As the Voice is currently proposed, there is one fundamental structural problem with the Voice and also a series of obvious specific problems.
The Fundamental Structural Problem
Our monarchical and federal Constitution creates — it literally “constitutes” hence the name — both of the Federal and State polities, as well as divides the Commonwealth’s own power among the legislature, the Crown and executive, and the judicature.
The fundamental structural problem posed by the current Voice proposal is best understood by looking at the words of s.61 of the Constitution:
“The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”
Section 61 reflects the most basic task for constitutional monarchy in a system such as ours: the monarch is the enforcer of laws and the ultimate protector of the Constitution. The Crown’s duty, generally, is to superintend and protect the body politic and the Constitution, and to enforce the laws[11] and orders[12] that are made under it. The Governor-General, as the monarch’s representative, thus has this ongoing constitutional duty of “… the execution and maintenance of this Constitution …”.
For the last 122 years, the Governor-General has been the ultimate guarantor of the Constitution. While Australia has been mercifully spared constitutional crises, one can most clearly see the Governor-General discharging this duty in the November 1975 constitutional impasse, where the Governor-General, Sir John Kerr, commensurate with his duty under s.61, exercised his power under s.64 to terminate the Whitlam Government and commission a caretaker government, and under s.5 to prorogue the Parliament pending the double dissolution election. The Crown’s duty is to protect the constitutional order and to ensure that disputes, especially those among Parliament and Government, should they go unresolved, will be resolved by the Australian people at a federal election.[13]
Noting our system of Legislative, Executive, and Judicial, powers, the Voice as proposed will sit outside these three sites of our most fundamental law.
The Voice will exist outside and beyond both the power of the Parliament to abolish and the Executive government to direct. The Voice is essentially a fourth ‘locus’ if not an actual fourth branch of the government.
It is difficult to see how any Governor-General could perform their duty to superintend the Constitution under s.61 in the circumstances of the Voice as currently proposed. The Voice will, simply, be beyond the Governor-General’s power to execute or maintain — whereas in Chapter I there is the Senate President[14] and House Speaker[15] to assist, in Chapter II there are Ministers of State[16] to assist, while in Chapter III there is the Chief Justice and other Justices to conduct the business of an entrenched High Court of Australia.[17]
The current model of the Voice by contrast is for it to be constituted under the Constitution to make representations to the Parliament and Executive, as if the Voice is a foreign entity granted some special domestic status, albeit springing from the same Constitution. This particular structure, if entrenched, may destabilise our Constitution and could become obstructive to its working.
Would, for example, the Voice’s members be able to seek injunctive relief in the High Court to stop a government policy or a law’s passage in circumstances where the Voice’s members considers its representations have not been considered by the executive or the by the parliament? A constitutional body would, on on any view, have every right to hold the other bodies in the Constitution to account. The Voice, on the current wording, would have every right to require its representations on a range of issues to be addressed by the parliament and the executive government.
To be fair, there is no real precision, as yet, on how the Voice would operate — and that is also a major problem, too. There is not even an exposure draft of the legislation that will create and erect the Voice. However, as of now, these fundamental constitutional hazards are, at least, obvious.
The Specific Problems
There are specific (and also obvious) problems with the Voice, as currently proposed, that none of its advocates have addressed. These problems are best posed as questions:
A. Why is the recognition of Aboriginal and Torres Strait Islander Peoples not placed in the Preamble to the Constitution?
The most logical place for indigenous recognition to be sited is in the Preamble. In 1999, there was a proposal to amend the Preamble — that failed, sadly — which accompanied the vote on the proposed Republic. The altered preamble would have included these words: “…honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country.”[18] The issue of recognition (as a matter of correcting a past omission) is obviously different from the Voice proposal now (which is to influence the country’s governance going forward). However, insofar as there may be a national consensus around recognition, it is most strange that an amendment to the Preamble is not being pursued now;
B. Where does the Voice sit in the Constitution?
As adverted to above, no one can say where the Voice will sit in the Constitution. It is the case that our Constitution is written in plain English and is composed of 128 sections divided into eight chapters, each dealing with different bodies, functions, powers, and/or subjects. It is a document that is, generally, precise — not vague. Thus, where, precisely, will the Voice sit in the Constitution? The Voice must sit somewhere in the document — the Voice cannot ‘orbit’ the Constitution — so where will the Voice be placed? It is quite strange that no one advocating for the Voice can say, even now, where the Voice will be sited in the Constitution;
C. Who will appoint or elect the Voice and how will the Voice as a body be composed?
There is no draft legislation to suggest how the Voice will be composed. While much is made of the Langton-Calma report, which few if any people citing it seem to have read, this report simply gives a range of options for what a Voice may look like. While most Australians may presume, as I once did, that the work of the Voice would be to assemble the traditional elders and leaders of the ~500 Aboriginal and Torres Strait Islander tribes, to then advise the Government, this presumption appears to be in error;
D. Will the members of the Voice be “officers of the Commonwealth” for the purposes of s.75(v) of the Constitution?
The Constitution provides in s.75(v) for remedies to be available in the High Court’s original jurisdiction against “officers of the Commonwealth”, who can be everyone who holds Commonwealth offices, from the Governor-General down to Ministers and public servants and members of the armed forces, as well as some judicial officers.[19] So, then, the question is, will the Voice’s members be considered to be “officers of the Commonwealth” and subject to the same liability for certain constitutional remedies (mandamus[20], prohibition[21], and injunctions[22]) that can be made by the High Court? If so, is this a liability that members of the Voice should, fairly, be exposed to?;
This is by no means an exhaustive list of the problems with the Voice as currently proposed. New and additional objections will be raised by others, I am sure.
If the desire still remains to entrench the Voice in the Constitution, then these questions, and others, must be answered to a degree of comfortable satisfaction. A place within our Constitution must be found by advocates for the Voice that allows not just for the Voice to benefit Aboriginal and Torres Strait Islander Peoples, but, also, crucially, does no harm to our Constitution.
F. THE VOICE: SOLUTIONS
In my proposed Voice wording at [H] below, I believe I have devised a solution to the main structural problems by siting the Voice in Chapter II as part of the executive government.
Accordingly, I have looked at the other foregoing problems and can see some fairly clear solutions:
A. Why is the recognition of Aboriginal and Torres Strait Islander Peoples not being placed in the preamble?
There should be a species of recognition in the Preamble. It is the logical place for such recognition to be sited. The wording proposed in November 1999 was sound and was defeated only because the vote on this proposed alteration coincided with the referendum on the doomed republican model;
B. Where does the Voice sit in the Constitution?
I would place the Voice in Chapter II with the Crown and Executive government, for reasons I set out at [H] below. I do this for two reasons: (i) throughout the history of the British Empire, from which the Australia constitutional order emerged, the Crown has had a particular ‘duty of honour’ to indigenous peoples that continues to this day, and, (ii) the matters that affect our Aboriginal and Torres Strait Islander Peoples are overwhelmingly decisions made by the Executive government in relation to federal budgetary allocations, policy approaches, and service delivery;
C. Who will appoint or elect the Voice and how will the Voice as a body be composed?
This should be a matter for Parliament to exclusively determine, with no room for executive appointees or judicial meddling. My own view is that the Parliament’s model should limit Voice membership to the leadership of the ~500 historic Aboriginal and Torres Strait Islander tribes. This is the only rationale for the Voice that any makes sense in terms of actually representing Aboriginal and Torres Strait Islander Peoples. If the Voice is, instead, simply to be composed of elected representatives with indigenous ancestries, then, obviously, a clash of mandates with the elected Parliament is inevitable;
D. Will the members of the Voice be officers of the Commonwealth for the purposes of s.75(v) of the Constitution?
Members of the Voice should not be “officers of the Commonwealth” for the purposes of s.75(v) and thus not vulnerable to litigation.
I build on these solutions in the wording of my own proposed Voice alteration at (H) below.
G. THE CROWN’s ‘DUTY OF HONOUR’
It is true that our Constitution has omitted provide for the formalised relations between the Crown and with indigenous peoples that have been an ‘honour of the Crown’ in almost every other former British Crown colony and, indeed, provided for in the Roman Law[23] that governed former French and Spanish colonies.[24] The history of this failure is worth examining. The history of Australia’s British settlement never had to be — and, indeed, should never have been — what it was, in respect of our indigenous peoples. This history, which I have attempted to summarise, is crucial to understanding how we got to this particular juncture.
Over 250 years before the British colony of New South Wales commenced in what is now Sydney, the West’s leading theologians, at least in the Catholic world, had by 1532 already recognised the rights of indigenous peoples encountered by Portuguese and Spanish explorers, and held that, in respect of indigenous lands and possessions, they:
“… possessed true public and private dominion. The law of nations, on the other hand, expressly states that good which belong to no owner pass to the occupier. Since the goods in question here had an owner, they do not fall under this title.” [25]
As if to confirm his theologians’ arguments, Pope Paul III issued his papal bull Sublimis Deus in May 1537, which recognised that the indigenous people of the ‘New World’ were human beings to be respected and not to be enslaved:
We define and declare by these Our letters … that, notwithstanding whatever may have been or may be said to the contrary, the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and have no effect.
Pope Paul III went even further in his brief of the same year, Pastorale Officium, that those who enslaved native populations would be automatically excommunicated. This Pope’s instructions to his faithful in what was Christendom were, then, reflected in the “New Laws of the Indies” [26] promulgated by Charles V, both Holy Roman Emperor and King of Spain, in 1542, which included this:
“We ordain and command that from henceforward for no cause of war nor any other whatsoever, though it be under title of rebellion, nor by ransom nor in other manner can an Indian be made a slave, and we will that they be treated as our vassals of the Crown of Castile since such they are.”
Further laws and repeated Papal encyclicals were to this effect, even if admittedly ineffectual in remedying all colonial abuses.[27]
Even in the British imperial tradition that founded modern Australia, obviously if regrettably, here, more Protestant than Catholic by nature, there was within it a worthy juridical model to follow for Australia’s settlement in the form of what is now Canada.
In 1763, the Seven Years War ended with the Treaty of Paris[28]. As part of that Treaty, the French kingdom ceded territories in North America (in which various indigenous peoples lived) to the British Crown. That same year, to clarify the British position, for the benefit of his old and new subjects in what is now Canada, King George III made his Royal Proclamation — one made some 25 years before the New South Wales colony began. In this proclamation, George III declared:
“And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds. …” [29]
The King made clear in this proclamation that indigenous populations lived under the Crown’s protection. The King went on to forbid those British settlers entering into his new North American territories from purchasing or settling indigenous lands without royal approval:
“We do hereby strictly forbid, on Pain of Our Displeasure, all Our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without Our especial Leave and Licence for that Purpose first obtained.”
With this history in mind, it was then and remains to this day, unsurprising to read the manuscript of the Royal Instructions subsequently given, almost a quarter of a century later, by the very same King George III to Captain Arthur Phillip, RN, on 25 April 1787. Captain Phillip would lead the First Fleet to what is now Sydney and become the first Governor of the New South Wales colony.
In the 1787 Royal Instructions for the new British settlement in Australia, the King repeated, in substance if not in identical form, his intentions for the Crown’s relationship with those who would become the New South Wales colony’s indigenous peoples:
“You are to endeavour by every possible means to open an Intercourse with the Natives and to conciliate their affections, enjoining all Our Subjects to live in amity and kindness with them. And if any of Our Subjects shall wantonly destroy them, or give them any unnecessary Interruption in the exercise of their several occupations. It is our Will and Pleasure that you do cause such offenders to be brought to punishment according to the degree of the Offence.”[30]
As in North America, so, too, these same original understandings could and should have applied to the British settlement of Australia from January 1788 onwards. This was, after all, in every respect, the same British Crown.
That the history of the New South Wales colony did not realise the King’s good intentions was a tragedy with which we as Australians have lived and which has left us, in respect of our first peoples, with what two Justices of the High Court termed, “…the legacy of unutterable shame”.[31]
It is not, at all, overstating the position to recognise that our constitutional history, great though it is, has lived, also, with this ‘original sin’ for some 225 years now.
Yet, however breached in practice the instructions given by the Sovereigns and religious authorities of the British, French, and Spanish, empires to their colonies, were, there did still remain, throughout all this history, an acceptance in principle by Christian monarchies, founded on religious as well as civil law principles, that those indigenous to the ‘New World’ had their rights, too.
Thus, however poorly fulfilled, there was and remains borne by our Crown — which is the same Crown as existed in 1788 — a special duty towards indigenous peoples such as Aboriginal and Torres Strait Islander peoples.
Strangely, these special and enduring duties of the Crown are not often discussed, even now, by constitutional and public lawyers, in the context of the Voice and its proper place in our constitutional order.
That these duties of the Crown have been neglected or performed inadequately does not alter the reality that these duties do exist and endure to this day.[32] In these respects, the Voice may be potentially be a means of remedying errors of our history.
What the same Crown should have done, and did elsewhere in the British Empire, the same Crown can still here do, in Australia, and make good on its design for this new realm. It is for these sound reasons, as well as out of considerations of sheer constitutional practicality, that the Voice should be sited, if it is to be entrenched, as an advistor to the Crown in Chapter II.
Moreover, if it is the wish of Australians that a Treaty or Makarrata be negotiated and executed by the Crown with the Aboriginal and Torres Strait Islander peoples, then, even more so is the proper place of the Voice in our Constitution with the Crown and executive government in Chapter II.
In any case, as a matter of history and of constitutional law, the only position for the Voice that makes historical sense, and which is constitutionally safe, is in Chapter II with the Crown.
H. A BETTER MODEL FOR THE VOICE
In light of what I say above, I would site the Voice in Chapter II of our Constitution as an advisory body that is convened and relied on by the Crown and executive government.
In terms of constitutional wording that is both safe and effective, this is my suggestion form of words:
“Section 70A — The Aboriginal and Torres Strait Islander Voice
(i) There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice (Voice), which shall be convened by the Governor-General in accordance with (ii) to advise the Executive Government of the Commonwealth on special laws, measures, and policies, that directly relate to Aboriginal and Torres Strait Islander people.
(ii) The Parliament shall have the exclusive power to legislate for the meetings, composition, structure, membership, duties, activities, powers, and procedures, of the Voice.
(iii) The members of the Voice are not officers of the Commonwealth for the purposes of s.75(v).
(iv) The States and Territories shall not create or maintain any entity that is similar in form to the Voice or that purports to exercise any functions and powers of the kind conferred by the Parliament on the Voice.”
My above proposed wording solves or mitigates the problems posed by the Voice’s current wording to our Constitution. The Governor-General convenes the Voice to perform this explicitly advisory role, especially advice in respect of what Government is doing or should be doing, or even what laws it should be proposing to the Parliament.
There is, above all, in my model, a home for the Voice in the Constitution and a clear mechanism for its convening by the Crown to advise government on clearly defined subject matter.
The Parliament will, meanwhile, legislate, exclusively, for the Voice’s creation and functions, which can be refined by the Parliament as circumstances and experience require. The Parliament can give what powers it wishes to give to the Voice and, also, exempt the Voice from federal laws where such exemptions are considered prudent and desirable.
The operation of the Australian constitutional order is thereby preserved by erecting the Voice in Chapter II an advisory body that is both safe and effective, and fully subject to parliamentary regulation and oversight.
My model expressly denies capacity to the States and Territories to complicate problems that the Voice should be solving by needless duplication and nugatory bureaucracies at the State and Territory level. If the Voice is to work, then, like any government activity, the Voice must have focus and accountability — and this will not be possible if there is a plethora of muddling government bodies at various levels of our Federation all trying to replicate the Voice’s work.
The key result of the successful 1967 referendum was to ensure the Commonwealth would have ample legislative power to make laws for Aboriginal and Torres Strait Islander peoples. The Commonwealth’s primacy — and hence responsibility — in indigenous matters is constitutionally preserved here, as it must be.
I. CONCLUSION
I have set out here some problems of and some solutions to the proposed Voice alteration to our Constitution. I consider that the problems posed by the Voice, as currently worded, are significant ones and believe that the solutions I advocate here will solve them.
The Voice would, ideally, be a body brought into existence by legislation, first, and not as a constitutional creation. What the Parliament does, the Parliament can undo. A constitutional alteration, by contrast, is very hard to both do and then undo.
This said, I am mindful of the lamentable history of injustices done to our Aboriginal and Torres Strait Islander peoples and the obvious importance of the Voice to its proponents. I suspect many Australians are aware of the current Voice model’s significant problems but will still vote “Yes” because of the importance of symbols, however constitutionally reckless. After all, who of us can fail, in that regretful phrase of a 19th century Sydney grandee, to look at our governments’ and parliaments’ past history with our Aboriginal and Torres Strait Islander peoples and not ask, also, “What means this whispering in the bottom of our hearts?”[33] To the degree this lachrymose question can be answered by a constitutional response, I have attempted to do so here.
I am, however, also mindful of the reality that we are discussing, here, a constitutional alteration, which will have effects, for good or ill, long into the future. Our entrenching a symbol in the Constitution carries with it obvious risks. The Voice, if it is made a constitutional body, will be a new creation with a new existence. None of us can know the future of that existence.
In terms of the current Voice model, were it to be approved, it would, in my view, likely prove to be constitutionally unsafe. Further, if the wording for the Voice model is not changed, then those answering “No” in a future referendum will, likely, include many who would, otherwise, have wholeheartedly supported a Voice alteration if worded in language that was more constitutionally sound, even if not impregnable.
My own wish is to vote “Yes” but, for reasons I have explained above, I have grave reservations in respect of entrenching the current Voice model in our Constitution.
Accordingly, I have drafted words to create a Voice that is both constitutionally safe and a valuable Aboriginal and Torres Strait Islander advisory body in Chapter II under the Crown.
I trust that this work has been of use to my fellow Australians and of service to our nation and to our Constitution.
GAFC
20.III.2023
[1] Author biography here:
https://ebc44.com/home/barristers/connolly-graham/
All of the views expressed herein are mine and not those of any other person or institution.
[2] ATSIC was created by Parliament in 1990 and abolished by the Parliament in 2005.
[3] Maxim attributed to Prince George, Duke of Cambridge (1819–1904).
[4] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 162 per Higgins J.
[5] Re Canavan & Others (2017) 263 CLR 284.
[6] Engineers (1920) 28 CLR 129 at 149 per Knox CJ, Isaacs, Rich, and Starke, JJ.
[7] Engineers (1920) 28 CLR 129 at 162 per Higgins J.
[8] Re Canavan (2017) 263 CLR 284 at 299 [19], 301 [27], 307 [46]-[47].
[9] For example, Dred Scott v Sandford (1856) 60 US 393, Roe v Wade (1973) 410 US 113, and Obergefell v Hodges (2015) 576 US 644.
[10] For example, R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41.
[11] Laws made by the Parliament.
[12] Orders whether made by the Executive or by the Judiciary.
[13] See the published Statement by the Governor-General, Sir John Robert Kerr AK, GCMG, GCVO, QC, of 11 November 1975.
[14] Constitution, s.17.
[15] Constitution, s.35.
[16] Constitution, s.64.
[17] Constitution, s.71.
[18] While irrelevant to the legal matters at hand, I did vote for this preamble alteration even while I voted against the proposed Republic.
[19] Plaintiff M68–2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 95[126] — 96[128] per Gaegler J.
[20] An order of the Court mandating some public official to do some lawful act.
[21] An order of the Court prohibiting a public official from doing some unlawful act.
[22] A broad remedy whereby a Court may restrain an officer of the Commonwealth from acting unlawfully even when acting within the scope of the authority conferred on that officer by the Constitution or by legislation: see Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 363 per Dixon J and Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at [126] per Gaegler J.
[23] ADE Lewis and DJ Ibbetson (editors), The Roman Law Tradition (1994) Cambridge University Press, Cambridge UK, at 13.
[24] See Kirsty Gover, “The Honour of the Crowns: State-Indigenous Fiduciary Relationships and Australian Exceptionalism” (2016) 38(3) Sydney Law Review 339
[25] Francisco de Vitoria, On The Indians (1532).
[26] Charles V, Holy Roman Emperor and King of Spain, New Laws of the Indies for the Good Treatment and Preservation of the Indians, 20 November 1542
[27] See also the following Papal encyclicals:
Urban VIII, Commissum Nobis [1639] condemns abuse of Indigenous peoples;
Benedict XIV, Immensa Pastorum [1741] condemns indigenous peoples being enslaved and abused, and reinforcing Pope Paul III’s excommunication of any Catholic involved in the slave trade; and
Gregory XVI, In Supremo [1839] condemns slavery and the slave trade in Africa and the West Indies.
[28] Treaty executed in Paris on 10 February 1763 among the Kingdoms of Great Britain, France, Portugal, and Spain.
[29] King George III, Royal Proclamation, made 7 October 1763.
[30] King George III, Royal Instructions to Arthur Phillip Esq, Our Captain-General and Governor in Chief, in and over Our Territory of New South Wales and its Dependencies, or to the Lieutenant Governor or Commander in Chief of the said Territory for the time being, 25 April 1787.
[31] Mabo v Queensland [No 2] (1992) 175 CLR 1 at 104 per Deane and Gaudron JJ.
[32] Cf Mabo v Queensland [No 2] (1992) 175 CLR 1 at 202–205 per Toohey J.
[33] Henry Reynolds, This Whispering In Our Hearts — Revisited (2018) UNSW Press, Sydney, at 21.
