Narrow reform means voice vote without practical benefits
The success of the referendum to constitutionally enshrine a First Nations voice is going to turn in large part on convincing the Australian people that this is a reform that will deliver positive, practical change in the lives of Aboriginal and Torres Strait Islander people, and improve the future for all Australians.
Part of this challenge is making sure that the wording of the constitutional amendment is robust and flexible enough to give effect to the potential of the voice. Recently, there has been some opposition voiced to the Prime Minister’s draft amendment on the grounds that it might be subject to constitutional challenges in the High Court, and that the inclusion of the voice’s function of speaking to the executive government – including the cabinet, ministers and public servants – will jeopardise the success of the referendum.
This view is incorrect. This is why. Rather, the proposals made by these people, which seek to water down the voice behind the cloak of “simplification” and reducing “legal confusion”, are far more likely to cause the failure of the referendum.
The narrowing of the amendment risks losing the practical benefits of the voice. The proposals seek to narrow the amendment in two ways. First, they seek to reduce the matters the voice can speak on – to only those that are directed specifically at Aboriginal and Torres Strait Islander people. Which means laws of general application, like those that relate to environmental protection, child health, education, mining, would not be within the remit of the voice.
Anyone who has spent a day following Indigenous affairs knows that these laws of general application have enormous impact on Aboriginal and Torres Strait Islander people. This is why these laws of general application were included by First Nations peoples during the Regional Dialogues that delivered the Uluru Statement from the Heart. They know better than most that it’s not an academic or abstract exercise. It is their lives and their communities. If we want to improve outcomes across these areas, they need the input of the voice.
Second, the proposals seek to narrow the amendment by removing the constitutional guarantee that the voice can speak to the executive government, as well as to the parliament. Again, anyone following public policy, including in Indigenous affairs, knows that the executive’s actions are just as important as those of the parliament. The executive develops policies, drafts bills, makes decisions. For the voice to be effective, and achieve its goal of improving policies and laws that affect Aboriginal and Torres Strait Islander people, it must be able to speak to both branches. It must be at the table working with government as policies and proposed laws are being developed, sharing the views and experiences of Aboriginal and Torres Strait Islander people. That’s just as important as informing the parliament of its views when it determines whether a bill will become law. Speaking only to one or the other is not enough.
So, what about the worry that the constitutional amendment will give rise to litigation in the courts? The concerns are disingenuous and overblown.
The attempt to fence in the scope of what the voice can do in these alternative proposals, restricted to special laws about Aboriginal and Torres Strait Islander people, is more likely to be open to challenge in the court.
Because unlike the voice deciding what it should make representations on, a very narrowly defined scope will open up legal challenges as to what falls within these matters.
The idea that we should attempt to water down a constitutional amendment that is directed at practical outcomes because we are worried about a court challenge equates to being scared of the rule of law. Australia’s democracy is defined by the rule of law and a court system that marks the limit on public power.
There will, no doubt, be court challenges. That’s how our constitutional system and the rule of law operate. Whether those court challenges are likely to be successful, however, is another matter. Here is where the claims are overblown.
The vast majority of legal opinion, including from the Constitutional Expert Group that is advising the government, and the national consultations with legal professionals undertaken by the Indigenous Law Centre, the Law Council of Australia and the Australian Association of Constitutional Law, is that the court will not interpret the current amendment as forcing the government to respond, take into account, or follow the views of the voice. That is, the majority of experts agree that it is extremely unlikely these challenges will be successful.
In fact, in setting up the voice, it will be the parliament that will enact the necessary detail about how the voice will be informed about government decisions, and policy development, and how its views will be received.
This is the orthodox approach when it comes to constitutional change. The Constitution is for principle and the detail is for legislation. Two groups, the Referendum Working Group and the Referendum Engagement Group, have been preparing the detail for Australians to have an informed vote since September 2022, rendering inexplicable the suggestion the Prime Minister is “withholding” detail.
The referendum is asking Australians to agree to a principle: that First Nations should be consulted about the decisions taken about their communities. It is a practice that should be imbued in the constitutional system. The important thing – what is constitutionally guaranteed – is that the voice is able to inform and improve the work of government and the parliament in matters that affect Aboriginal and Torres Strait Islander people.
Whether ministers and parliamentarians listen will be up to them, to which they will ultimately be accountable to the Australian people.
Professor Megan Davis is the Balnaves chair in constitutional law at the University of NSW Law. Gabrielle Appleby is a professor of law at University of NSW.
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