EXCHANGING IDEAS SYMPOSIUM

On Saturday, 4 February 2023, the New South Wales Bar Association, the Law Society of NSW, and the Judicial Commission of NSW, led by its Ngara Yura Committee, co-hosted a symposium. The aim of this symposium was to facilitate communication between the legal profession and First Nations people about key issues. Below is an excerpt delivered by the Honourable Robert French AC, former Chief Justice of Australia.

The Voice – High return, low risk

The Voice is a big idea but not a complicated one. It is low risk for a high return. The high return is found in the act of recognition, historical fairness and practical benefit to law-makers, governments, the Australian people and Australia’s First Peoples. It rests upon the historical status of Aboriginal and Torres Strait Islanders as Australia’s indigenous people. It does not rest upon race. It accords with the United Nations Declaration on the Rights of Indigenous Peoples for which Australia voted in 2009. It is consistent with the International Convention on the Elimination of all Forms of Racial Discrimination. Suggestions that it would contravene that Convention are wrong.

The proposed draft amendment to the Constitution to establish The Voice provides, as presently framed:

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.

Those words set out the basic constitutional elements of what The Voice will be and do. They leave it to the Parliament to make laws on the detail and to change those laws from time to time. Parliament will have a high democratic mandate to make such laws. It will not have a legal, constitutional obligation to do so.

The first constitutional element of The Voice is that it will be a ‘body’. The relevant ordinary meaning of that word is a group of people who work or act together. The only constitutional requirement in relation to the body is that it be called the Aboriginal and Torres Strait Islander Voice. The function of The Voice is set out in paragraph 2. To ‘make representations’ is to make official statements to the Parliament and the Executive. Those words cover submissions or advice about existing or proposed laws and administrative policies and practices. There is no constitutional legal obligation for the Parliament or the Executive to accept or be bound by such submissions or advice. There would, however, be a high democratic obligation to respect them and take them into account.

The Voice may make representations about ‘matters relating to Aboriginal and Torres Strait Islander Peoples’. The term ‘relating to’ can cover a broad range of matters. Its limits are likely to be defined by commonsense and political realities. Laws, policies and practices relating to Aboriginal and Torres Strait Islander education and training, family and social welfare, health, remote community services, community policing, Aboriginal art, cultural and heritage protection, traditional ownership of land and waters, are well within that range. The third paragraph of the amendment confers power on the Parliament to make laws to give effect to The Voice. It does not impose a constitutional legal obligation on Parliament to do so. Nor does the amendment require that the Parliament adopt a particular composition or confer particular functions, powers or procedures on The Voice. That is left to its discretion. Any laws made by the Parliament would necessarily contain elements supporting the leading function of The Voice which is to ‘make representations’. Parliament could not make a law which could confer on The Voice a legal right to veto a proposed law. Parliament could not make a law limiting its own law-making powers by legally requiring prior consultation with The Voice.

The Voice is not a third chamber. The constitutional amendment would, however, support the adoption by Parliament of internal procedures to provide for The Voice to be heard. The Parliament could also make a law requiring the Executive to have regard to representations by The Voice to the Executive when adopting or changing policies and practices relating to Aboriginal and Torres Strait Islander peoples. The Voice will present First Nations’ views at a national level. The Parliament, in determining its membership and the mode of election, will necessarily want to ensure that representations made by The Voice reflect a distillation of the views of First Peoples across Australia. That is not a constitutional legal obligation. The composition of The Voice is left to the Parliament. It is, again, a powerful democratic expectation given the functions of The Voice. The practical benefit of input from national representatives of First Peoples is that it derives from their lived experience across the country. The input of The Voice may not be the only view of First Peoples. There is certain to be diversity of opinion and even dissent on particular issues. Those opinions and that dissent can also be heard. Indeed, there would be nothing to prevent The Voice from drawing attention to that dissent or diversity, whether it comes from a minority of its own members or beyond.

There would be nothing to prevent the submission of different views of those who disagreed with a particular representation made by The Voice. What, if any, part would the courts have to play in the working out of the constitutional and legal role of The Voice? There is little or no scope for constitutional litigation arising from the words of the proposed amendment. The amendment is facilitative and empowering. Parliament cannot legally be compelled to make laws for The Voice. It cannot be compelled to make a particular kind of law. Nor can it be prevented from repealing or amending the laws it makes. This leads to two important questions. The first is — why not leave The Voice out of the Constitution altogether and just make a law using the races power to create The Voice? The first answer is that The Voice is not about race. It is about our First Peoples as the indigenous people of Australia. The second answer is that by providing for The Voice in the Constitution, the Australian people perform an act of recognition and acknowledgement of First Peoples as the bearers of the first history of our continent. That is a history which stretches across tens of millennia. The third answer is that the constitutional provision creates a democratic mandate for the Parliament to create and continue The Voice as a significant institution in our representative democracy. It would be a democratic mandate because it is approved by a majority of electors in a majority of States as required by s 128 of the Constitution.

The Voice will present First Nations’ views at a national level. The Parliament, in determining its membership and the mode of election, will necessarily want to ensure that representations made by The Voice reflect a distillation of the views of First Peoples across Australia.

The second question is why not spell out the detail of The Voice now, beyond what is set out in the proposed amendment? The most that government can sensibly do is to indicate in broad terms the model it favours and which it would submit to the Parliament after a successful referendum.

In the end it will be a matter for the Parliament, the elected representatives of all Australian people, to decide. The Co-design Model, proposed in the report by Professor Marcia Langton and Professor Tom Calma, sets out likely elements of a body with representatives drawn from across Australia. It explains how that model would work. But even if the government were to commit to a detailed model now, its commitment would not have any constitutional legal effect.

Careful planning must go into the nuts and bolts of The Voice to be established by the Parliament in order to give it the best chance of working and, through its workings, benefiting Australian society as a whole. There are numerous examples of powers conferred on the Parliament by the Constitution, as adopted in 1901 when the way in which those powers would be exercised was left to the Parliament. The 1967 referendum gave power to the Commonwealth Parliament to make laws for Aboriginal and Torres Strait Islander people. The government of the day was not required to spell out how it would exercise them.

As to litigation, there is always the possibility that someone, someday will want to litigate matters relating to The Voice as can anybody who seeks recourse to the courts. That flows from the fact that Australia is governed by the rule of law which provides access to the courts where it is said that public officials have exceeded their power. That said, there is little or no scope for any court to find constitutional legal obligations in the facilitative and empowering provisions of the amendment.

And if Parliament made a law which created unintended opportunities for challenges to executive government action, the law could be adjusted. There are many examples of that. A law providing that the Executive was required to take into account representations from The Voice as a condition of the exercise of executive power would, in all probability, be justiciable. For if Parliament imposed such a requirement, the Executive must be held to account if it does not comply with it. But in providing for representations to be made to the Executive, the law does not have to impose such a requirement. That is a matter for the Parliament.

The Voice proposal is a once in a lifetime opportunity for Australia to fill a gaping hole in our Constitution — to recognise our first history and the First Peoples who bear it and the painful legacy of its collision with the second history of colonisation. The high return against low risk is that The Voice will provide a practical opportunity for First Peoples to give informed and coherent and reliable advice to the Parliament and the Executive to assist them in law and policy making in one of the most difficult areas of contemporary government. It empowers First Peoples and the Australian people as a whole to acknowledge, address and move forward from the legacy of their colliding histories. BN