When the Prime Minister in July unveiled his proposed Albanese Amendment to the Constitution to enshrine an Indigenous voice to parliament, I was bemused.
The wording was so manifestly overreaching and potentially dangerous to the highly effective working of our parliamentary democracy, I wondered what legal advice Anthony Albanese had sought from the Attorney-General, the Solicitor-General and their department before he released his amendment? Did the PM really understand what he was proposing?
As more and more practising constitutional lawyers confirmed to me the likely practical and legal disaster of the wording, my dismay grew. And so, in numerous columns, correspondence and phone calls, I asked, almost begged, that the government release publicly the legal advice supporting this proposed change to our Constitution.
Rather than confirming that the public was entitled to this level of transparency at a bare minimum, there has been stone-cold silence from the Prime Minister and Attorney-General.
Now, courtesy of a question asked by Liberal senator Paul Scarr at Senate estimates last week, we know why. They didn’t get any legal advice.
The Prime Minister solemnly and publicly proposed a major change to our Constitution – a change he wants Australians to vote for – without having a blind clue as to its legal or constitutional consequences.
It is hard to comprehend this level of professional incompetence. It raises troubling questions, not only about how this debate has been conducted and will likely be conducted in future, but about the way we might expect this government to govern.
Prime Minister, are there any other proposals for great change that you intend to implement without getting any legal advice about the implications?
For today, however, let’s concentrate on what this means for the voice proposal. The government’s confirmation that it proposed the Albanese Amendment without getting its own advice on legal or constitutional implications confirms what we have known for a while. The voice proposal is essentially religious in nature, a blind leap of faith into the unknown in the hope of some form of spiritual redemption.
I am all in favour of religious sentiment – in the right time and place. But not in our Constitution, a document whose every word and punctuation mark is parsed endlessly by lawyers and courts for meaning and implication.
While the PM and many voice supporters are motivated by the highest feelings of spirituality, the lawyers who will interpret the Albanese Amendment are driven by practical questions of power: who holds it, and how is it exercised.
The more astute voice activists who understand this reality will, in time, surely jostle to exploit the inexplicable naivete of the PM and explore the prospects of leverage, lawfare and ransom offered by the Albanese Amendment.
Remember that the critical first two sentences of Albanese’s proposed wording read: “There shall be a body to be called the Aboriginal and Torres Strait Islander Voice. The Aboriginal and Torres Strait Voice may make representations to the parliament and executive government on matters relating to Aboriginal and Torres Strait Islander Peoples.” The third sentence gives parliament power to make laws about the details of the voice but, importantly, that power is expressly made subject to the first two sentences.
Therefore, the Albanese Amendment effectively confers on the High Court the power to determine if any laws passed by parliament under the third sentence comply with the overriding function and purpose set out in the first two sentences. If the High Court thinks laws passed by the parliament or conduct of the executive government are inconsistent with the words of the critical first two sentences or implications the High Court draws from these two sentences, it can and likely will declare them invalid.
Senior constitutional silks have told me that there is a real potential for the High Court to read those two sentences as requiring the voice to be given sufficient advance notice of proposed matters relating to Indigenous people, and sufficient time and resources to scrutinise those proposals properly. No law passed by parliament can abridge, limit or modify such an implication drawn by the High Court.
While some Yes proponents have finally recognised the dangers raised in this column over many months about the role of the courts, their suggested amendments to the Albanese Amendment are not the answer, and for now, in any case, have no status. They do not alter the fact that the voice as now proposed will remain a goldmine for litigation and lawfare.
Take the annual budget bills. Budget appropriations for Indigenous affairs are undoubtedly “matters relating to Aboriginal and Torres Strait Islander peoples”. Hence the government of the day will have to give the voice ample advance notice of its policy proposals for the budget. Altered budget proposals will have to return to the voice for further consultations. Forget the old budget media lockup. If the voice is unhappy with the degree or amount of consultation, or its result, it can go to the High Court to complain that the consultation with the executive government did not comply with the first two sentences of the Albanese Amendment.
Worse, the opportunities for delay to settling budget policy and thus the potential to hold the government to ransom are obvious. These opportunities can be multiplied across government portfolios and legislation endlessly.
Given what is at stake, the PM must carefully investigate the legal position of the voice and release that considered legal advice to the people. If it considers there is some residual risk of the voice becoming a piece of constitutional ransomware, then the government should propose some “auto-destruct” language to the Albanese Amendment which will dissolve the voice immediately upon the occurrence of events that show the representations made to voters to procure passage of the voice were false.
What is not acceptable is for the government to hurry to a referendum, as recently demanded by activists, without proper disclosure, analysis and debate about the proposal.
The government has already started down this path by announcing that donations to Australians for Indigenous Constitutional Recognition will be tax-deductible, while not extending the same benefit to the No cause.
If an amendment to our Constitution is procured by rushing a proposal without proper analysis and based on false or inadequate disclosure, not only will the amendment be seen as forever illegitimate, but those who procured it, or stood by while it happened, will deserve to wear forever the shame of that illegitimacy.
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