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Chris Merritt
Legal Affairs Contributor
5 April, 2023
Voice Risks Australia Breaching Human Rights Obligations

Good evening everyone. Before we start I want to thank the Sydney Institute for hosting this event which will hopefully get to the core of what this referendum is all about.

I also want to make it clear that while George Williams and I might hold different opinions about the issues under discussion, he is a friend of long-standing and I hold him in the highest regard as an authority on constitutional law.

I want to start by making it clear that I have long held the view that constitutional recognition of indigenous people is desirable and can be achieved.

The great tragedy is that the change we are now being asked to make would damage our system of government and is wrong in principle.

The principle I am talking about is this:

The sovereignty of the land on which we meet today derives from the people of this nation – all of them, regardless of race or national origin, and regardless of whether they arrived yesterday or have antecedents who arrived 60,000 years ago.

Until now, this idea has led to ever-increasing moves towards strengthening equality of citizenship – which is fundamental to all true democracies.

But we are now at a turning point. Will we stand firm and defend equality of citizenship? 

In the remarks that follow, I will be making the case that the change proposed at the coming referendum would take us back to the days when racial privilege was this country’s official policy.

It took us generations to rid ourself of that blight and replace it with a system that gives growing effect to the idea that everyone should be equal not just before the law, but before those who make the law: our elected members of parliament.

It makes no sense to abandon this principle, which is fundamental to all true democracies, when those who oppose this form of government are on the march internationally.

I will also be making the case that while constitutional recognition of indigenous people is necessary, this referendum is the wrong way to achieve that goal. 

It is simply incorrect to equate opposition to an indigenous voice to parliament and the executive with opposition to constitutional recognition of indigenous people.

Most people of goodwill would readily accept a constitutional change that recognised indigenous people were the first occupants of this continent.

But here’s the harsh truth about this referendum: explicit recognition of indigenous people was an afterthought.

It was added months after the preliminary wording of the proposed change to the Constitution was made public  last July.

The real purpose of this referendum is to change our system of government by injecting a permanent element of racial privilege into the heart of the Constitution.

This would risk placing this country in breach of international law. It would also open the door to a New Zealand-style system of co-governance that would kill the doctrine of equality of citizenship.

It would give Indigenous Australians – and their descendants for all time – a second method of influencing public policy that goes beyond the benefits of representative democracy that are already enjoyed by all citizens regardless of race.

It would constitutionalise a race-based lobby group, equipped with a separate bureaucracy, that would give indigenous citizens the ability to have an additional say on every law and administrative decision, not just those relating specifically to Aborigines and Torres Strait Islanders.

Constitutional recognition of indigenous people is a worthwhile goal, but not like this. 

Because this racial preference would be entrenched in the Constitution, it would be permanent – and that would put Australia at odds with the International Convention for the Elimination of All Forms of Racial Discrimination, which this country ratified in 1975.

But you would never know that by reading the official material tabled in parliament last week by the government.

Article 1.4 of that treaty makes it clear that special measures to secure the advancement of certain racial groups are not discriminatory provided they do not lead to “the maintenance of separate rights for different racial groups and that they shall not be continued” after their objectives have been achieved.

When the government unveiled the final form of the proposed constitutional change, it was acompanied by a statement of compatability with human rights.

Nowhere in that statement is there any mention of Article 1.4 and its requirement  that race-based mechanisms to improve the standing of particular groups should be temporary and should be terminated when their goals have been achieved.

This is despite the fact that the the International Convention for the Elimination of All Forms of Racial Discrimination is included in the definition of human rights under the Human Rights (Parliamentary Scrutiny) Act.

That flaw is the latest problem in a referendum process that has been notable for secrecy, dissembling and minimal involvement by the general community.

We are being asked to make a major change to our system of governance by inserting a new chapter into the Constitution where it will sit alongside the chapters dealing with parliament, the executive and the judiciary.

This is not modest nor is it symbolic. Yet the broader community has had no involvement in developing the proposed provision, which was drawn up in secret by insiders and sprung on the nation last July.

The true nature of this change only emerged from leaks and anonymous guidance from lawyers who feared for their professional future if they put the names to their concerns.

There has been no constitutional convention at which the views of the general community could be assessed and incorporated into the proposed constitutional change.

This is at odds with the fact that the Constitution is owned by the entire community, not by insiders and politicians.

What we are left with is a parliamentary inquiry that again leaves politicians and insiders in the driving seat.

The problem with the current model for the voice comes down to three associated issues: 

1) The first is the unlimited scope of the subject matter with which it can involve itself

2) The second is the fact that it will be empowered to make representations that reach into the executive branch of government, and not just the parliament

3) And the third is the fact that the High Court, and not parliament, will have the final say on whether any limits can be imposed on the scope of its subject matter, and its reach into the executive.

Those who point out that the third clause in the proposed provision would give parliament the power to make laws about the voice’s powers have clearly missed the real point about that provision.

At the moment, the power to make representations that reach into the executive branch is unlimited. The only limit on the scope of subject matter is that it must relate to Aboriginal and Torres Strait Islander peoples.

And that is no limit at all because indigenous people, like all citizens, can be affected by all laws and policies. Tax laws relate to indigenous people, as do decisions about whether military alliances would expose citizens who happen to be indigenous to the risk of enemy action.

There is no requirement in the provision for the voice to be limited to matters that relate ONLY or SPECIFICALLY to Aboriginal and Torres Strait Islander people.

It is futile to argue that the new institution would never use its powers to involve itself in matters that only marginally affect indigenous people. If that is the case, why give it the power to do so?

While the new provision would give parliament authority make laws about the powers of the voice, that needs to be considered in context.

The same clause that would give parliament that power – clause three – also makes it clear that this power would be bestowed “subject to this Constitution”.

And that invokes chapter three of the Constitution which vests the judicial power of the Commonwealth in the judiciary, not the parliament. 

Parliament might try to make laws limiting the legal effect of representations by the voice, but those laws would be vulnerable to challenge if they infringe the powers of the judiciary.

Once a provision is inserted in the Constitution, its meaning and the resulting implications become the ultimate responsibility of the High Court – not parliament.

So if, after the referendum, parliament tries to legislate to limit the scope and reach of the voice, that legislation would be subject to interpretation by the High Court.

And because the proposed constitutional provision contains no real limits on the scope and reach of the voice, any legislative attempt to impose restrictions after a successful referendum could be struck down as inconsistent with the unlimited reach and scope outlined in the constitutional provision.

This raises the question of whether the government is really serious about preventing the voice from making representations to certain parts of the executive and preventing it from involving itself in certain public policy debates.

At the moment, the explanatory memorandum to the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) Bill makes a series of assertions about the second clause of the provision that are best described as speculative, if not courageous.

It will be recalled that the unlimited nature of the second clause would empower the voice to make representations to parliament and the executive on matters relating to Aboriginal and Torres Strait Islander peoples.

Yet at paragraph 14 of the notes to clauses, the memorandum asserts that parliament and the executive would not be required to wait for the voice to make a representation on a matter before taking action.

Nor would the executive be required to seek representations before enacting any law or making any decisions – at least according to that document.

The basis for these assertions is not provided.

Now consider how this might be presented to the High Court. If the Constitution empowers the voice to make representations, surely that would give rise to an implication that the representations should be listened to?

And if representations are to be made, surely there would be another implication that the voice should be provided with information about pending decisions? Otherwise how would it be possible to make representations?

The reality is that this referendum would amount to a massive transfer of policy making power from parliament to the High Court. That needs to be clearly understood before we vote on this proposal.

The great tragedy is that these difficulties could have been avoided if the referendum had focused on something achievable.

There is a legitimate argument that Indigenous people should be heard before parliament makes special laws about them under the Constitution’s race power in section 51(26). In practice, that power has only been used to make laws on indigenous affairs.

So because indigenous people are the only Australians singled out by race for special laws, there is a logical argument for matching that power with a requirement that they should be heard before that power under section 51(26) is exercised.

It would therefore make sense to establish a voice if it were limited to providing advice to parliament, not the executive, on laws enacted under section 51(26). It might even be feasible to give it a flexible boundary so it could provide advice on matters that have a specific impact on indigenous people that goes beyond the impact on the general community.

But even then, it should not be part of the Constitution.

If such a redesigned voice were statutory, instead of constitutional, it would not be permanent so it would not appear to infringe the requirements of the Convention against racial discrimination.

Once the goals of such a mechanism were achieved – such as closing the gap on indigenous disadvantage – the statute establishing the voice could be repealed.

That would achieve the goal of the Convention which is best described as equality of citizenship.

But such a mechanism is not on the table. The government and its team of insiders has seen to that.

The tragedy is that a reasonable form of constitutional recognition, accompanied by a statutory voice of defined reach and scope,  would almost certainly split the no vote at the coming referendum.

The current proposal will probably do the reverse.

What we are faced with is a proposal that is shot through with uncertainty, that would transfer policy-making power to the High Court, and which would probably put this country at risk of breaching one of its international treaty obligations.

If this provision remains unchanged, the government might eventually need to consider withdrawing its ratification of the Convention against Racial Discrimination.

That might be the logical way of reintroducing racial preference as a permanent part of the Australian system of governance.