5.10. Could the Voice undermine the power of parliament?
- Harry Hobbs, ‘Solicitor-general confirms Voice model is legally sound, will not “fetter or impede” parliament’, The Conversation, April 21, 2023.
- Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Final Report (Canberra: Parliament of Australia, November 2018).
- Megan Davis, ‘What happens next for the Voice?’, The Saturday Paper, August 6, 2022.
- Fred Chaney and Greg Carne, ‘The Long Road to Uluru and Beyond’, The University of Notre Dame Australia Law Review 21, Article 6 (2019).
Could the Voice undermine the power of parliament?
Harry Hobbs, ‘Solicitor-general confirms Voice model is legally sound, will not “fetter or impede” parliament’, The Conversation, April 21, 2023
In this essay for The Conversation Associate Professor Hobbs discusses the solicitor-general’s advice to the government on the Voice to Parliament proposal. The advice implicitly dismisses concerns from conservative commentators and leader of the opposition that the Voice would bring about significant delays in the legislative process or be a radical alteration to Australian democratic processes. Hobbs includes a brief outline of the solicitor-general’s role as a non-political position. He quotes the solicitor-general’s advice and concludes that the Voice will be a way for Aboriginal and Torres Strait Islanders actually to participate in the democratic live of the country.
‘The solicitor-general was asked to advise the government on two questions.
- whether the proposed amendment is compatible with Australia’s system of government
- and whether the proposed amendment gives parliament the power to decide the legal effect of any representation, or whether parliament and the executive are required to consider or follow those representations.
What does the advice say?
The solicitor-general [Stephen Donaghue] was very clear. The Voice “would not pose any threat” to our system of government. In fact, it would “enhance” our system.
Donaghue reached this conclusion for two reasons. First, the Voice does not alter the powers of parliament or government in any way. Section 129(2) makes clear the Voice has no veto. Section 129(2) also does not impose any obligation on parliament or the executive to consult with the Voice or follow its advice.
Second, more fundamentally, the Voice would remedy a “distortion” in our system of government. The solicitor-general explained that the Voice would help overcome “barriers that have historically impeded effective participation by Aboriginal and Torres Strait Islander people in political discussions and decisions that affect them”. In short, it would improve our democracy by ensuring Indigenous people can have their voices heard.
The second question was directed at the scope of the Voice’s power. It asked whether the parliament or executive would be required to consider or follow representations made by the Voice.
Once again, the solicitor-general was very clear: the answer is no. Donaghue explained that although it would “plainly be desirable for the Executive Government to consider any representations that the Voice makes to it”, parliament has the ultimate say.
This means parliament could enact a law to require ministers or public servants take the advice of the Voice into account when making decisions. However, parliament could always amend or remove such a requirement. The Voice is subject to parliament.’
Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Final Report (Canberra, Parliament of Australia, November 2018)
This Report discusses and makes recommendations regarding the establishment of a Voice to Parliament to be co-designed with First Nation peoples and the Australian government. Constitutional amendments, the Uluru Statement from the Heart as well as recommendations for and the importance of truth-telling are also discussed.
The purpose of the Report is to consider and formulate recommendations regarding the potential amendment of the Australian Constitution; to examine the current involvement of First Nations people in formulating policies they are impacted by; and how to make progress in self-determination. It also seeks advice on how to constitutionally enshrine or legislate the powers of the Voice in a way which will be supported by Aboriginal and Torres Strait Islander communities, the Australian public and Parliament.
Specifically, the Joint Select Committee recommends after the co-design process that the government discuss ‘legislative, executive and constitutional options’ for the instatement of a Voice. The Committee also calls on the government to support a process of truth-telling, and to consider forming a ‘National Resting Place’ for First Nations people who have passed away. The report also includes recommendations to spread knowledge of Aboriginal and Torres Strait Islander history and culture and responds to questions issued in the Interim Report.
‘Function and operation
Addressing the “third chamber” argument
- Consistent with the report of the Referendum Council (see paragraph 2.9), the Committee heard that The Voice would not exercise a veto over the Parliament and that it would instead serve to advise the Parliament.
- For example, Mr Ah Mat told the Committee:
… the voice will give advice to the government of the day. Everybody said it — they shouldn’t have the right. Well, we don’t have the right of veto. We can discuss it. At the end of the day, I believe that the voice is the main stump for all of us.
I’m giving you advice now. You are asking me for advice. It’s the same thing.
- Similarly, Professor Alexander Reilly, Director of the Public Law and Policy Research Unit, explained:
… the voice is advisory and, therefore, anything that comes through the voice is not binding on the parliament or the executive.
- Associate Professor Rundle rejected the characterisation of The Voice as being a third chamber of the Parliament:
[The Voice] would not be a third chamber of parliament because it would be established outside of parliament and it does not involve a transfer of power. … It would not be a third chamber because it would have no real power of veto with respect to political deliberations at either the parliamentary or the executive level. It would be advisory only. Its advice is non-binding.
- Professor Twomey also submitted that the proposal for a voice to the Parliament was “clearly” not a third House of the Parliament:
I am not aware of any serious suggestion that the Uluru proposal [for a Voice] is one for the establishment of an Indigenous House of Parliament that can initiate, pass and veto legislation.
- Professor Twomey suggested that if there was concern that The Voice would impose an obligation on the Parliament to consider its advice, then the proposal could be re-conceptualised so that it did not involve the imposition of such an obligation. Professor Twomey went on:
Reliance could be placed on the good sense of Members of Parliament to give consideration to useful advice when appropriate.
- Mrs Lorraine Finlay emphasised that The Voice should be designed to be consistent with, and complementary to, the existing governmental structures in Australia.
- Mrs Finlay cautioned that The Voice should not marginalise Aboriginal and Torres Strait Islander peoples from the primary political process in Australia or supplant their voice in the Parliament.
- Associate Professor Rundle suggested that one of the most promising aspects of the proposal for a Voice was that it “seeks to work clearly, transparently and institutionally with the channels of parliamentary democracy”:
It seeks, in many ways, to be a model political participant from the point of view of how many Australians would like their democracy to function.
- Sydney Students for an Indigenous Voice proposed the establishment of a parliamentary committee to oversee the function of The Voice, in order to maintain its effectiveness, but not to exercise any power over The Voice.’
Fred Chaney and Greg Carne, ‘The Long Road to Uluru and Beyond’, The University of Notre Dame Australia Law Review 21, Article 6 (2019)
This paper, delivered as a lecture in honour of High Court Judge Sir Frank Kitto, explores the significance of the Uluru Statement from The Heart as a ‘profound act of Indigenous leadership’ and as a constitutionally informed proposal. The initial rejection of the Uluru Statement by the Government was a blow to Indigenous Australians, and an examination of the reasons for opposing a constitutionally enshrined Voice to Parliament is needed. It is argued that the Voice to Parliament is of value both symbolically and practically. Understanding the reasons why some sections of the Australian community find any constitutional recognition proposition difficult is a key to successfully achieving such recognition.
‘There are no real constitutional reasons for not accepting constitutional recognition of the sort requested by the Uluru Statement from the Heart.
Two retired Chief Justices of the High Court, Murray Gleeson and Robert French have confirmed that there are no constitutional problems inherent in a constitutionally entrenched Voice to Parliament. They are supported in that by other lawyers, including Professor Anne Twomey and leading legal practitioners including Danny Gilbert and Mark Leibler.
A Voice to Parliament can be mandated in the Constitution while Parliamentary supremacy is preserved as well as the balance between the High Court and the Parliament. The form of the Voice remains within the legislative power of Parliament and the process of co-design is to ensure that what is acceptable to Parliament is also seen as legitimate by Aboriginal and Torres Strait Islander peoples. After all it is their Voice.
The equal citizenship of all Australians will be preserved as will the present and future reality that the collective identities of our First Nations continue to exist and have a unique place in our nation. That reality has not gone away in New Zealand, the United States, Canada and Scandinavia. Indigenous recognition has not destroyed equal citizenship in those successful nations.’
Megan Davis, ’What happens next for the Voice?’ The Saturday Paper, August 6, 2022
This article critiques calls for more detail and explains some of the reasoning behind the lack of specific information about potential legislation. Davis describes a ‘hysteria’ over details and the deliberately ‘adversarial and acrimonious’ manner in which the Voice is discussed in the media. Media reporting on the Voice is largely guided by a misconception that this referendum will operate in a similar way to the referendum for a republic. However, the Voice is different to the republic referendum, and the ‘tenor’ for a national conversation is different, beginning with the Uluru Statement coming out of the regional dialogues which opted to speak directly to the Australian public. The Voice referendum seeks to enable the creation of a Voice to Parliament and would require minor editing of the Constitution; the two referendums are ‘apples and oranges’.
The article goes on to explain the benefits of holding a referendum before deciding on the exact structure and powers of the Voice. Through this process, details concerning the Voice will be determined by legislation, which may be changed by the government as it needs to be. Davis also suggests that determining specific functions of the Voice has been deferred to allow Aboriginal and Torres Strait Islander people to have more of an input. If Indigenous communities have a right to contribute to the formation of legislation that impacts them, they should logically be closely involved in designing the Voice, Davis reasons.
Calls for more detail are therefore useless and misleading, and, according to Davis result from those who ‘are disingenuous and predictably opposed’ to the reform. The article asserts that these are the same people who have ‘turned a blind eye’ to issues facing the indigenous population in the past, and they are obscuring the progress being made towards reconciliation.
‘In my 12-year career as a United Nations Indigenous Rights expert, I have seen most UN member states with substantial populations of Indigenous peoples adopt mechanisms that ensure the proactive participation of Indigenous peoples in law-making and policymaking. This is a pedestrian reform. But it is one that will enhance the democratic functioning of Australia by recognising the agency of Indigenous Australia.’