Voice proposal must be carefully considered

With the Voice referendum due later this year, it is important to consider the implications and effects of the Prime Minister’s draft constitutional amendment, and what modifications may be appropriate.

This article examines the ‘Voice’ element rather than the ‘recognition’ element, focusing on clause 2 of the proposal which specifies the Voice’s primary purpose and function. References to the Langton Calma report¹ are included, which give insight into how some elements of the Voice may be implemented and the underlying intentions of the Voice concept.

Contrary to the expectations of some, the draft proposal does not limit the Voice to advising Parliament on laws which specifically apply to Indigenous Australians. This article suggests that the constitutional amendment should be so confined.

The Voice is a new type of constitutional body with a new type of function, outside the traditional categorisations of legislative, executive and judicial. Despite being described as a “modest” change to the constitution,² the effect is to alter the structure and balance of our constitutional framework by adding a body representing a single interest group. Caution is therefore required.

Draft proposal

The draft proposal at the time of writing (February 2023) is as follows:³

“In recognition of Aboriginal and Torres Strait Islander Peoples as the First Peoples of Australia:

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

2. The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples.

3. The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.”

The elements of clause 2 require analysis.

‘make representations’

The Voice is entitled to “make representations”.

Although often described as an advisory body, presumably to distinguish it from a body delivering services or exercising power, the expression ‘advisory’ may give an inaccurate picture – of a body that will simply give advice to government on request.

In practice, it is envisaged that communication between government and the Voice will be initiated by either party – the Voice will be both proactive and responsive.⁴

The expression ‘make representations’ is broad in ambit and not confined to giving advice in the traditional sense. It most certainly includes advocacy, as when a lawyer ‘makes representations’ to the court on behalf of a client. The dictionary definitions of ‘representation’ and ‘represent’ attest to this.⁵ The intention is that the Voice will seek to influence government in respect of matters affecting Indigenous Australians, not simply advise.⁶

‘to Parliament and Executive Government’

Voice representations may be made to both Parliament (legislators, politicians) and Executive Government (government departments, public servants, Ministers). This means that it is not limited to making representations about laws (Parliament), but is also entitled to make representations about government policy, programs and decisions (Executive Government).

‘on matters relating to Aboriginal and Torres Strait Islander Peoples’

Voice representations may be on “matters relating to” Aboriginal and Torres Strait Islander peoples. It is not clear whether this means matters that only relate to Indigenous peoples, or whether it includes matters relating to all Australians which incidentally affect Indigenous peoples as part of the general population.

If the latter, the Voice will be entitled to make representations about matters of general application. Absence of the word ‘specifically’ (or similar) to qualify “relating to”, suggests the wider interpretation.

The expression ‘matters’ is broad. There need be no connection with any actual or proposed government measure. Hence the Voice could initiate discussions on matters not yet considered by government.

Notably, the provision makes no link to the race power in section 51(xxvi) of the Constitution, and so the draft proposal does not limit the Voice’s involvement to laws made under that subsection.

Observations on scope of Voice functions

The draft proposal is consistent with the Langton Calma report, which recommends the inclusion of Executive Government (not just Parliament),⁷ and calls for unrestricted scope – rejecting any limitation to matters referred by government, to laws and policies specifically directed towards Indigenous Australians, or to laws made under the race power.⁸

An entitlement to make representations to Executive Government will allow the Voice to inject itself into most aspects of government if it so chooses. Not being confined to advising about the drafting of Bills or review of existing laws, Voice representations will extend to the implementation and administration of laws by Federal Government departments. With no clear connection to matters which specifically affect Indigenous Australians, the scope of potential involvement is very broad.

There is an expectation in the Langton Calma model that government would engage with the Voice at the earliest opportunity when developing laws and policies, and at multiple stages throughout the development process.⁹ If the Voice legislation imposes consultation standards as recommended by the Langton Calma report,¹⁰ government departments will need to establish protocols to identify Voice consultation triggers, and then initiate consultation.

There is no obligation in the draft proposal on government to actually consider Voice representations. It seems unlikely that this will be overlooked in the Voice legislation. Absent such a legislative obligation, an interesting question arises as to whether the Voice’s entitlement to “make representations” enlivens a corresponding implied obligation on government to consider them. Is the constitutional purpose of the Voice undermined without such an obligation? This would be a matter for the High Court.¹¹

Depending on the volume and range of matters requiring consultation, and of Voice-initiated proposals requiring consideration, finalisation of policy and the making of governmental decisions will likely become more complex and time consuming. One senior bureaucrat has described a Voice to Executive Government as “unworkable” in practice,¹² especially if not limited to very specific subject matter.

Obligations to consult and consider also create scope for the Voice to challenge government actions on administrative law grounds – such as failure to take into account a relevant consideration, or a lack of procedural fairness.

The Langton Calma report suggests that the validity of law and policy should not be affected by a lack of compliance with consultation requirements, that Voice advice is non-binding, and that these elements are non-justiciable.¹³ However, the draft constitutional provision is silent on this.

It is suggested that the Voice’s scope should indeed be limited to laws, and to interactions with Parliament only. Mechanisms for interacting with Parliament are relatively straightforward, and also transparent¹⁴ – Parliament being more public in nature than Executive Government. Access to Parliament necessarily gives access to Ministers, who in our system have both executive and legislative roles – so there would remain a connection to Executive Government anyway.

Special rights

A principal objection to the Voice proposal is that it may have the effect of creating special rights for Indigenous Australians, contradicting the principle that all Australians are equal and therefore should have the same rights of democratic participation and influence.

Is this objection valid?

The Voice has a constitutional right to “make representations” to government. This right is vested in the body itself, not in Indigenous Australians individually. Ancillary to this right will be the individual legislative right to partake in appointing or electing members of the Voice, depending on the model adopted.

The Langton Calma report recommends that Voice membership be determined by Indigenous Australians, not government.¹⁵ All indications are that this will indeed be the case – the intention is that the Voice will be representative of Indigenous Australians. Accordingly, the Voice’s right to make representations is exercised for and on behalf of Indigenous Australians.

In combination, the practical effect of the above is that Indigenous Australians will thereby have two formal constitutional methods of influencing Federal Government laws and policies:

1. voting at federal elections (a right already held), and
2. representations made by the Voice to government between elections.

The method in 2 is not available to other Australians. They have a single constitutional method of influence, namely the right to vote in federal elections. There is no proposal to establish a taxpayer funded, representative, constitutional body to advocate for the interests of other Australians to government.

Additionally, it is expected that formal mechanisms¹⁶ will be in place to facilitate interaction between the Voice and government, likely contained in the Voice legislation. If implemented, these mechanisms will give the Voice avenues for access to government, and influence, not typically enjoyed by others.

For example, it has been recommended that there be a Voice parliamentary committee to hear from the Voice and consider its advice, and that the Voice be entitled to table its advice in Parliament regarding Bills.¹⁷ Other possibilities, gleaned from the First Nations Voice Bill 2023 in South Australia,¹⁸ include a right for a Voice member to address Parliament regarding Bills, and periodic meetings between the Voice and Cabinet, public service chiefs, and Ministers.

There is a view that “making representations” is merely the Voice’s function, not a right.¹⁹ This perspective would have force if the Voice was a technical advisory body which simply gave advice upon request to government. The Voice’s function cannot however be divorced from the representative nature of the body. It is a vehicle for enabling an additional say, and additional political participation, for a constituency who appoint or elect its members. The entitlement to an additional say is more akin to a political right, and the Voice’s function is to exercise that right.

There is also a view that special rights are not created because the Voice simply gives Indigenous Australians “an opportunity to make representations to Parliament and the Executive, and this is an opportunity available to any individual or organisation”.²⁰ However this statement, by its own admission, acknowledges that everyone already has the opportunity to make representations to government. What then is the need for a constitutional Voice if Indigenous Australians already have the relevant “opportunity” – other than to elevate this “opportunity” to something more?

While it is correct that other Australians have rights to create their own bodies to advocate for collective interests, if this is the rationale for suggesting that the Voice creates no special rights,²¹ the Voice could simply be created as a private incorporated body. Insistence on the constitutional option, in preference to the private or even a legislated option, looks very much like affirmation that the constitutional option is ‘special’.

Regardless of characterisation as a right, function, or opportunity, the practical effect is that a constitutional mechanism will exist to provide additional influence for a subgroup of the population, while no equivalent constitutional mechanism exists for anyone else.

Are there any circumstances where such measures are justifiable?

In anti-discrimination law, ‘special measures’ (sometimes called ‘affirmative action’²² or colloquially ‘reverse discrimination’) may be appropriate to redress disadvantage, compensate for past discrimination, and ensure equal enjoyment of human rights.

If the Voice is a justifiable special measure, there is however a requirement that special measures not lead to the maintenance of separate rights for different racial groups, and that they should not be continued after the objectives for which they were taken have been achieved (that is, they should be temporary).²³ Including the Voice in the constitution is the most permanent legal form known to our system, and for practical purposes could be considered indefinite.

Notably, special measures and the entire Voice concept can be implemented by legislation without constitutional change.²⁴ The constitutional Voice concept should not be conflated with the constitutional recognition concept – the latter could be dealt with by itself.

Finally, on the question of whether special constitutional measures are justifiable, it must be noted that there is existing Indigenous representation in Parliament, providing influence via the usual democratic process.²⁵

An alternate approach, potentially minimising or avoiding the issue of special rights, is to limit the Voice to making representations about special laws made under the race power.

The race power – an alternate Voice proposal

The race power in section 51 (xxvi) allows the Commonwealth to make laws with respect to “the people of any race for whom it is deemed necessary to make special laws”. This includes, since the 1967 amendment,²⁶ power to make laws with respect to people of the Aboriginal race.²⁷ This was achieved by removing from the provision, the exception “other than the aboriginal race in any State” which had meant that the states were responsible for Aboriginal affairs.²⁸ The amended provision then applied to all races at Commonwealth level.

Indigenous Australians are in practice the only racial group in Australia for whom laws are made exclusively.²⁹

If we accept the principle that all Australians are equal regardless of race, but despite this the Commonwealth may make special laws in respect of a particular race, then it makes sense that members of that race should be entitled to a say on such laws. If this were the limit of the Voice’s authority, it would fit neatly with an existing constitutional provision and compliment the race power.

A counter argument might be that, since the Commonwealth may legislate in respect of multiple other areas under section 51, affecting multiple readily identifiable groups,³⁰ why should only one such group have a separate voice mechanism?

The difficulty with the race power is that it applies to “any race”, and so the government could make special laws applying to other races as well. Given the obvious question about whether the race power is even appropriate in modern Australia,³¹ it is surprising that this whole question is not part of the current referendum debate. It may indeed be preferable to replace the race power with a power in respect of Aboriginal and Torres Strait Islander people (without which the Commonwealth would have no such legislative power), as recommended by the Expert Panel on Constitutional Recognition of Indigenous Australians.³² Conceptually, the focus of the power would then be First Peoples rather than race.

Whether (xxvi) stays in its current form, or is amended to refer to Indigenous Australians only, the following may be appropriate instead of the proposed clause 2:

2. The Aboriginal and Torres Strait Islander Voice may make representations to Parliament about laws made, or proposed to be made, under section 51(xxvi) with respect to Aboriginal and Torres Strait Islander Peoples.

Conclusion

There is a reasonable argument that the Australian constitution is deficient in omitting any reference to Indigenous people as the first inhabitants, and omitting a right of response to special race-based laws for those affected (principally Indigenous Australians).

However, if Australians wish to go down the path of altering our constitutional structure, so that outside of our legislative, executive and judicial institutions there sits a special constitutional body to generally pursue the interests of a select identity group, this is a conversation of much wider ramifications than many would seem to appreciate. Does this imply, in fairness, that equivalent bodies be created for other societal groups?

Such an approach alters the underlying concepts of our constitutional framework, and is why the creation of such bodies is typically a private endeavour, or at most legislative.

Duane Sewell is a Brisbane lawyer.

Footnotes
¹ Marcia Langton and Tom Calma, ‘Indigenous Voice Co-Design Process, Final Report to the Australian Government’, July 2021 (Langton Calma report).
² Anthony Albanese described the change as “modest” in a speech at the Chifley 2023 Conference.
³ This is the wording suggested by the Prime Minister at Garma in 2022, including introductory words considered by the Referendum Working group in February 2023.
⁴ Langton Calma report, p11, 19, 148.
⁵ The Macquarie Dictionary, Fourth Edition, 2005 defines ‘representation’ to include, “a statement of facts, reasons etc., made in appealing or protesting” and defines ‘represent’ to include, “to set forth clearly or earnestly with a view to influencing opinion or action or making protest”.
⁶ The Langton Calma report speaks of “influence” throughout.
⁷ Langton Calma report, p148, 151.
⁸ Langton Calma report, p150-151.
⁹ Langton Calma report, p148.
¹⁰ Langton Calma report p160 – consultation standards include ‘obligation to consult’ and ‘expectation to consult’ elements depending on the subject matter.
¹¹ The High Court has implied concepts into the constitution which are not expressly stated, in relation to freedom of political communication: Lange v Australian Broadcasting Corp (1997) 189 CLR 520.
¹² Peter Conran, ‘Many more questions than answers before we even vote’, The Australian, 28 January 2023.
¹³ Langton Calma report, p159, 160, 168.
¹⁴ The Langton Calma report recommends transparency mechanisms p159, 168, e.g. Voice parliamentary committee to hear from the Voice and consider advice, tabling of Voice advice in Parliament.
¹⁵ Langton Calma report, p113.
¹⁶ The Langton Calma report recommends a “formal interface”, p159, 169.
¹⁷ Langton Calma report p 168.
¹⁸ First Nations Voice Bill 2023 (SA) ss39, 40, 41, 43, 45, 46.
¹⁹ Renee Davidson, ‘Proposed Indigenous Voice to Parliament will not confer “special rights” to one race of people’.
²⁰ Communique for Referendum Working Group –- December 2022 (Attachment –- Advice from the Constitutional Expert Group).
²¹ Renee Davidson n19.
²² See a discussion of affirmative action in Marc Bossuyt, ‘The concept and practice of affirmative action: final report’ 2002.
²³ International Convention on the Elimination of All Forms of Racial Discrimination, Article 1, Para 4 (see Schedule to Racial Discrimination Act 1975 (Cth)).
²⁴ Racial Discrimination Act 1975 (Cth) s8; The Constitution s51(xxvi).
²⁵ There are 11 people who identify as Indigenous elected to Federal Parliament.
²⁶ Australian Electoral Commission, referendum dates and results.
²⁷ Koowarta v Bjelke-Petersen and Others (1982) 153 CLR 168, 186 per Gibbs CJ; The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1, 274 per Deane J. To fall under the power, the law must also be “special”. A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race: Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373, 461.
²⁸ Constitution Alteration (Aboriginals) 1967 (Cth). Prior to this amendment, the states had jurisdiction over Aboriginal affairs. Since the referendum it is a concurrent power.
²⁹ Langton Calma report, p106.
³⁰ For example, bankrupts, naturalised Australians, married people, parents, invalid or old-age pensioners, unemployed people, students, Medicare recipients, taxpayers.
³¹ For a discussion on the history and appropriateness of the race power, see Sarah Pritchard, ‘The race power in section 51(xvi) of the constitution’ (2011) 15(2) AILR 44; Jane Lee, ‘Does the races power still have a place in the Australian constitution?’ ABC News, 4 June 2020.
³² ‘Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution’, Report of the Expert Panel, January 2012.