- Autumn 2023
- Some Legal Issues arising from Proposed Constitutional Reform to Recognise Aboriginal People and Torres Strait Islanders Presented to the Uphold and Recognise Forum, Sydney on 28 February 2023
Some Legal Issues arising from Proposed Constitutional Reform to Recognise Aboriginal People and Torres Strait Islanders Presented to the Uphold and Recognise Forum, Sydney on 28 February 2023
This paper was prepared for a public forum convened by Uphold and Recognise, an organisation ‘committed to upholding the Australian Constitution and the substantive recognition of First Australians’.1 It was based on the publicly available wording of the draft amendment at that time, which was substantially the same as that now contained in the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 Bill.
This paper focusses on the principles underpinning the proposed constitutional reform to recognise First Peoples, the opposition to the reforms and some of the legal issues which arise.
A principled approach
There are a number of principles which appear to be driving the proposed reforms.
They may be summarised as follows:
a. The Constitution must include recognition of Australia’s First Peoples;
b. Recognition of the First Peoples of Australia in the Constitution should: i. be both symbolic and substantive; ii. not interfere with the sovereignty of the Australian nation state; iii. not interfere with Parliamentary supremacy;
c. Recognition of the First Peoples of Australia should be consistent with First Peoples’ right to self-determination.
The need for constitutional reform to provide for some recognition of the First Peoples of Australia has been the subject of advocacy by Aboriginal people and Torres Strait Islanders (First People) for at least three decades. For instance, in 1995, the Aboriginal and Torres Strait Islander Commission (ATSIC) presented to Prime Minister Paul Keating a report entitled Recognition, Rights and Reform. That document was prepared to assist the development of the promised Social Justice Package, the third limb of the Federal Government’s response to the High Court decision in Mabo and Others v Queensland (No 2) (1992) 175 CLR 1 ('Mabo No 2'). The title of the report, Recognition, Rights and Reform, makes clear the importance that the principle of ‘recognition’ held for ATSIC. The report stated: 4.6 The Aboriginal and Torres Strait Islander Commission has adopted as one of the objectives in its corporate plan the securing of Constitutional recognition of special status and cultural identity of indigenous peoples. In its submission to the Council for Aboriginal Reconciliation the Commission pointed out that constitutional change is an issue which is 'quite central to redefining ourselves as a nation in a way that would promote meaningful reconciliation...'
4.7 'With the rejection of the doctrine of terra nullius and the emerging legal view that the powers of Government belong to and are derived from the governed that is to say the people of the Commonwealth we consider that constitutional change should not be minimalist. There needs to be recognition in the Constitution that the sovereign power accorded to Governments is derived from the people including the Aboriginal and Torres Strait Islander peoples whose native title rights predate British colonisation.'2
The term 'Recognition' as used in the present context, is not intended to convey mere acknowledgement of a group of people. Rather, it must convey acknowledgement that: This paper was prepared for a public forum convened by Uphold and Recognise, an organisation ‘committed to upholding the Australian Constitution and the substantive recognition of First Australians’.1 It was based on the publicly available wording of the draft amendment at that time, which was substantially the same as that now contained in the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 Bill.
• the Australian territorial possessions were owned and occupied by populations of people prior to the occupation and assertion of sovereignty by the British; and
• the populations of people with prior ownership and occupation continue to exist; and
• the populations of people with prior ownership and occupation by their continuing relationship to the lands and waters, under their own systems of laws and governance, have a special status.
The prior ownership and occupation of Australia was accepted by the High Court in the Mabo No 2 decision and has since been accepted in 474 native title determinations pursuant to the Native Title Act 1993 (Cth) in the Federal Court.3
Similarly, there has been broad acceptance via those same native title determinations that those populations or people with prior ownership and occupation continue to exist. Each native title determination must have as its factual basis, in part, that there is a group or groups of people who have continued to exercise traditional laws and custom in relation to the claimed lands. In the 2002 Yorta Yorta decision,4 the High Court found that ‘traditional’ as it is used in section 223 of the Native Title Act 1993 (Cth) was a reference to the ‘age of traditions’ and must have its origin in times pre-dating British sovereignty.5
The 474 native title determinations evidence the continued existence of peoples who have a special status.
It is with respect to my third limb, acknowledgement of special status, that many of those who are currently expressing opposition to the Voice have trouble. This appears to be notwithstanding the adoption of the Declaration of the Rights of Indigenous People (UNDRIP) by the United Nations General Assembly on 13 September 2007. The central features of UNDRIP are the recognition of Indigenous People as having a special status and the right to self determination by reason of that status.
Domestically, on 3 April 2009 the Australian Government publicly communicated its endorsement on the UNDRIP. The endorsement of the UNDRIP by the Australian Government is a clear and unequivocal acceptance that indigenous people have a special status in Australia. Unfortunately, much of the advocacy opposing the Voice is articulated in terms of the deplorable language of ‘race’. In my view, any Parliamentarian who characterises the proposed reform in terms of ‘race’ should be censured. We are entitled to expect that they know and understand that the proposed constitutional recognition is about status and the language of race is divisive and wholly inconsistent with the notion of governing for the peace, order and good governance of the nation. The insistence of some in casting the debate in terms of ‘dividing us by race’, or ‘special treatment for one race’, is racebaiting or, in the vernacular, 'dog whistling'.
Furthermore, it appears to be pre-meditated, strategic and wholly intended to appeal to racists and play on Australians’ conscious and unconscious biases.
Those that would characterise the proposed recognition as favouring one race over others are, from my observations, the same people who speak of a unitary, egalitarian society in which we are all equal. They are the people who continue to deny the special status First Peoples have in our own territories, even though the General Assembly of the United Nations and the Australian Government recognised that status more than a decade ago.
That this divisive and corrosive narrative is tolerated and, in many cases, amplified tells us volumes about certain sectors of Australian society. On the other hand, the fact that the polls show that a majority of Australians are supportive of substantive recognition tells us that those who descend into the use of racial fear and distrust are in the minority.
In my view, it is the responsibility of all of us who understand the law to call out those who attempt to drag this reform debate down the low road of race politics. In making this observation, I am reminded of the famous Martin Luther King Jr quote:
In the end, we will not remember the words of our enemies but the silence of our friends.6
Symbolic and substantive recognition
Recognition of First Peoples in the Constitution in a symbolic fashion does not meet with great objection. Former Prime Ministers Howard and Abbott were in favour of some form of recognition in the preamble to the Constitution. It is the substantive recognition which has proved problematic.
The amendment wording current at the time of this paper provides for a chapeaux (or introductory words) and three paragraphs. The chapeaux provides for the unambiguous recognition of First Peoples as First Peoples and thereby fulfils the task of providing for symbolic recognition of a special status. It also frames the words that follow.
The three paragraphs beneath the chapeaux provide for substantive recognition in the form of a representative consultative body. The opposition to the consultative body, at present, takes four forms:
1. The recognition embeds a race-based distinction;
2. The symbolic and substantive recognition is wholly inappropriate;
3. The substantive recognition is wholly unworkable; or
4. The substantive recognition is partially unworkable.
The underlying problems with the race-based distinction point have been covered earlier in this paper.
There is objection in some quarters to the whole referendum including the consultative body on the basis that there is a pressing need for resources to be applied to the individual, family and community levels for relief from disadvantage. It is said that the expenditure of money on the Voice referendum and establishment of the consultative body will take money from desperate communities. This complaint is difficult to accept coming as it does from members of the LNP who were in government and oversaw the failure of the Closing the Gap initiative for a decade. However, this debate is not about point scoring in relation to previous actions or failures to act.
The critics who say the money is better spent elsewhere are either wilfully blind or ignorant to the fact that the legislative and policy frameworks across the country are designed to support government control and delivery of services, and that communities and families see very little of the resources. Simply adding funds to the existing arrangements will have very little return for the additional investment. This is the very ailment the Voice is designed to combat. It may be a trite observation, but individual First Peoples’ communities have never been able to drive structural change in government on their own.
To make good this allegation that the people in the communities have been forgotten it has been necessary to paint the proponents of the Voice as a self-interested ‘elite’ who do not know or have forgotten about the people in the remote communities. There is also a false dichotomy which has been prosecuted regarding differences between remote communities, and urban communities. My observation as someone with vast experience with communities across the country is that while there are many differences, the underlying issues are very similar, and the structural blockages and deficiencies are identical.
As regards the accusations of elitism, I will only say that the racism and segregation policies that were overt in this country until the federal Racial Discrimination Act 1975 (Cth) started to bite ensured all First Nations people and their parents and grandparents were impoverished and had no generational wealth. Every First Nations person who grew up in a First Nations community understands that disadvantage and it is clear that all the First Nations advocates agree that the reform must ensure nobody will be left voiceless.
There is also criticism that the Voice is inappropriate because it is unnecessary. First Peoples, it is argued, are already represented and able to make representations. Ironically, the falsehood in that proposition is demonstrated by the LNP position, which appears to be that it prefers the views of a first term CLP senator over the views of the many people who have supported the reform, including those people of great knowledge and stature appointed to the Government’s Referendum Working Group and Referendum Engagement Group. The LNP posturing has made stronger the case that without a well-resourced mandated representative consultative body, it is possible for those engaged in control of Australia’s law and policy to pick their own spokesperson and reject the more difficult propositions such as those put forward by ATSIC in its Recognition, Rights and Reform report.
The gaping hole in the fabric of our civil society created by the absence of nationally representative body politic is particularly apparent when matters of national importance require attention. When the 46,000 year old caves at Juukan Gorge were destroyed in 2020, a national body was needed. When the former Commonwealth Attorney-General sought an expedited appeal to overturn the decision in Love and Thoms,7 a national body was needed. When the former Attorney-General rolled Aboriginal and Torres Strait Islander legal service funding from an Indigenous-specific program into a mainstream funding program, notwithstanding a report he commissioned recommended otherwise, a national body was needed. When the Council of Attorneys General considered whether there should be a nationally consistent approach to raising the minimum age of criminal responsibility, a national body was needed. When the Federal Parliament passed laws establishing a stolen generations reparations scheme for the Northern Territory, a national body was needed. Now, when the Federal Government is considering reform of the Aboriginal Torres Strait Islander Heritage Protection Act 1984 (Cth) a national body is needed. When the Native Title Act 1993 (Cth) is next amended, we will need a national body. Whenever the next attack on sections 18C and 18D of the Racial Discrimination Act 1975 (Cth) occurs, a national body will be needed. When it comes time for broadscale structural, economic and social transition due to climate change, we will need a national body. And, when it finally comes time to implement the UNDRIP domestically, we will need a national body that can speak for us, without fear of reprisal.
There are also those objectors to the Voice who say the proposal is wholly unworkable because it will interfere with parliamentary and government processes and will expose the parliament and the government to the risk of judicial intervention. The review of executive government decisions will be dealt with below. As regards the Parliament, the proposition that there is some risk of intervention by the High Court in the decisions of the Parliament, and thereby an interference with Parliamentary supremacy, is entirely without foundation. There are no grounds on which it can be said that the obligation to receive a representation creates any obligation to make decisions consistent with that representation. At its highest, there will be an obligation to receive a representation made or reasonably sought to be made.
As far as the Parliament is concerned, the introduction of an obligation to receive representations from a single First Nations’ consultative body should have no or minimal impact on the parliamentary process. The legislation establishing the Voice could provide, for instance, that a Minister would provide a copy of a proposed bill to the Voice in advance of the First Reading, and table any representations at the same time as the Bill and explanatory memorandum.
However, the focus of debate at the moment appears to be in relation to the final point, whether the consultative body is partially unworkable to the extent that it is proposed to make representations to the executive government. The complaint is that it will make those decisions subject to judicial review by the High Court.
My response to that proposition is 'why shouldn’t the ordinary law apply to such representations?'8 There are a couple of practical consequences that can be seen to follow a successful referendum establishing a Voice to the executive government. First, all cabinet minutes and ministerial briefings should record consideration of whether a First Nations right or interest is or is possibly affected, whether the Voice has been notified, whether any representation has otherwise been received, and a copy of the Voice representations could be attached to the minute.
In such circumstances, it is only imaginable that judicial invention could be called upon where there has not been any notice or reasonable notice to the Voice of the matter or there is some other lack of procedural fairness. The procedural issues would likely arise from the Voice legislation and not directly from any Constitutional obligation. Just as any other decision of a Minister may be reviewed in the Federal Court, so too could a decision to which a Voice representation was made.
In the event that the Voice receives information that a matter is being considered for determination by a Minister or the Cabinet about which the Voice has not been given notice, the Voice could bring a proceeding in the High Court pursuant to section 75(v) of the Constitution for injunctive relief. Section 75(v) provides that the High Court has jurisdiction where 'a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth'. The applicant for such injunctive relief or writ must be able to satisfy the court of the pre-conditions to the grant of the relief sought. For a constitutional writ to be ordered, the applicant must show an error of law. A failure to provide procedural fairness is an error of law. A failure to give notice of consideration of a matter in a form that allowed representations to reasonably be made would likely be a denial of procedural fairness.
Notwithstanding the High Court’s section 75(v) jurisdiction, administrative law practitioners will know that the High Court almost invariably remits such matters to the Federal Court of Australia pursuant to section 44 of the Judiciary Act 1903 (Cth).
It is also worth noting that the High Court has rejected all invitations to engage in a merits’ reviews of government decisions, and this proposed amendment to the Constitution will not provide any foundation for such a fundamental change of heart or legal decision-making.9 In layman’s terms, the High Court has refused to overturn government decisions on the basis that the government got it wrong.10
So, for absolute clarity, a Minister who has given notice to the Voice of an intention to make a decision about a matter cannot have that decision delayed if the notice is reasonable, or have to remake the decision merely because the decision is inconsistent with the representations of the Voice. There is always an obligation on a decision-maker to take into account any relevant material provided to it. But, of course, no obligation arises to agree with that material. We expect that should the referendum pass, the parliamentary processes will be brought to bear to ensure that the legislative arrangements give life to the constitutional amendment in a way that ensures efficiency, effectiveness and that the spirit of the amendment is captured.
In a liberal democracy, every constitutional amendment, legislative enactment and policy position is a compromise at some level, and the proposed reform of the Australian Constitution to provide for a consultative body for First Peoples is no different. The art in this particular compromise will be to ensure that the outcome remains faithful to the agreed principles, in the knowledge that the operation of the body will be open to the parliament to determine.
With all of the foregoing in mind, I can comfortably say that I am not satisfied that there are any legal issues arising from the words which cause the amendment to be inappropriate or unworkable. In those circumstances, if my views are accepted, it comes down to a willingness to accept the underlying principles and for all of us to work towards the development of a mature relationship.
1 Uphold and Recognise Website 28 February 2023, Uphold & Recognise (upholdandrecognise.com).
2 ‘Recognition Rights and Reform’, Aboriginal and Torres Strait Islander Commission, 1995, v (unsw.edu.au).
3 National Native Title Tribunal website, determinations in which native title has been found to exist in the whole (189) or part (285) of the claim area, 26 February 2023, Search Native Title Applications, Registration Decisions and Determinations (nntt.gov.au).
4 Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.
5 Ibid per Gleeson, Gummow and Hayne at  commenting on the term traditional: 'First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are 'traditional' laws and customs.'
6 Martin Luther King, Jr.’s Steeler Lecture, Dexter Avenue Baptist Church, Montgomery, Alabama, November 17, 1957.
7 Love v Commonwealth of Australia; Thoms v Commonwealth of Australia  HCA 3.
8 See also 'High Court to Keep Voice within the Limits of Power', Professor Megan Davis, Australian Financial Review, 22 February 2023, Uluru dialogue leader Megan Davis says court challenges to the Voice to parliament would not be excessive (afr.com).
9 Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J); and in a Racial Discrimination Act 1975 (Cth) context Maloney v The Queen  HCA 28; 252 CLR 168.
10 Noting the possibility of a finding of Wednesbury unreasonableness.