Questions and answers about the proposed First Nations Voice to Parliament

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Questions and answers about the proposed First Nations Voice to Parliament

5.12.    Will the Voice lead to legal challenges?

References

  • Stephen Donaghue, ‘Opinion in the matter of proposed section 129 of the Constitution’, April 19, 2023.
  • Anne Twomey, ‘Indigenous Voice can be heard without undermining powers of parliament’, The Australian, July 26, 2019.
  • Gareth Evans, ‘Listening to the Voice’, Opinion, The Saturday Paper, January 21, 2023.
  • Lorena Allam, ‘How would an Indigenous voice work and what are people saying about it?’ The Guardian, August 28, 2022.

Will the Voice lead to legal challenges?

Stephen Donaghue, ‘Opinion in the matter of proposed section 129 of the Constitution’, April 19, 2023

https://www.aph.gov.au/DocumentStore.ashx?id=ea88212c-eccc-45d2-822c-8578fa96895c&subId=740367

Summary

The Solicitor-General, Stephen Donaghue KC, was asked by the government to provide a detailed opinion about the implications of the proposed constitutional amendment on the functioning of government, including the possibility of intervention by the courts. His report was presented to the Senate Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum by the Attorney-General. After a detailed consideration of the issues, Mr Donaghue concludes that:

  • The proposed amendment is not only compatible with the system of representative and responsible government established in the Constitution, but it enhances that system;
  • It would not alter the existing distribution of Commonwealth governmental power;
  • It would not prevent the Parliament from legislating until it receives a representation from the Voice, nor would it require the Parliament to consult with the Voice before legislating;
  • It would not fetter or impede the existing powers of the Executive Government and would not interfere in any significant respect with its ordinary functioning; and
  • An allegation that the Parliament has failed to consider representations made by the Voice ‘clearly would not have justiciable consequences’.

Excerpt

‘Question 1: Compatibility with representative and responsible government.

10. This question asks whether proposed s 129 is compatible with the system of representative and responsible government established under the Constitution.

11. In my opinion, it is. The proposed amendment is not only compatible with the system of representative and responsible government established under the Constitution, but it enhances that system …

… 16. In my opinion, proposed s 129 is compatible with Australia’s system of representative and responsible government for the following reasons.

17. First, and most significantly, the introduction of proposed s 129 into the Constitution would not alter the existing distribution of Commonwealth governmental power summarised above. Proposed s 129 does not confer legislative, executive or judicial power upon the Voice. That means that the Voice would have no power to make laws, to develop or administer policies or to decide disputes. Nor would it form part of either the Parliament or the Executive Government, instead operating only as an advisory body to those two branches of government. The Voice clearly has no power of veto…

… 18. Second, the Voice’s function of making representations will not fetter or impede the exercise of the existing powers of the Parliament. Specifically: (a) Proposed s 129 would not prevent the Parliament from legislating until it receives a representation from the Voice (which might never happen with respect to many proposed laws, given that the Voice is not required to make representations on any particular matter, and that the Voice will no doubt prioritise its resources by focusing on making representations on the matters it considers are of the greatest significance to Aboriginal and Torres Strait Islander peoples). Nor would it require the Parliament to consult with the Voice before legislating. The text of proposed s 129 — which imposes no obligations of any kind upon the Voice, the Parliament or the Executive Government — is incapable of supporting any such requirements. Further, no such requirements can be implied by reference to proposed s 129(ii), because that would be inconsistent with the deliberate textual choice to empower the Voice to make “representations” rather than to “consult”, and with the ordinary operation of representative government (pursuant to which members of the Parliament are politically accountable for their action or inaction to the voters in their electorates). …

… 19. Third, the Voice’s function of making representations will not fetter or impede the existing powers of the Executive Government. …

… An allegation that the Parliament had failed to consider representations made by the Voice clearly would not have justiciable consequences. …

… If, for example, the Executive Government did not consider representations by the Voice urging it to adopt a law reform proposal, or to change a policy that applies in remote communities, that decision would affect people only as “member[s] of the public or a class of the public”. A decision of that kind “is truly a ‘policy’ or ‘political’ decision and is not subject to judicial review”. …

… 40. The fact that many representations made by the Voice — whether to the Parliament or to the Executive Government — will concern matters that are not reviewable in a court means that proposed s 129(ii) cannot sensibly be read as impliedly imposing a legal requirement that all representations by the Voice must be considered.’

Anne Twomey, ‘Indigenous Voice can be heard without undermining powers of parliament’, The Australian, July 26, 2019

https://go.gale.com/ps/i.do?

Summary

This article was written in response to concerns that establishing a Voice would undermine the Australian Parliament. The article contends that a Voice could exist without infringing on the powers of Parliament should the constitutional amendment be worded carefully. It offers a draft amendment written in 2015 by Murray Gleeson as an example of how the constitutional enshrinement of the Voice could be worded.

The article notes that the amendment need only specify that an Indigenous Voice to Parliament should exist. It explains how its specific structure and powers could be determined by legislation passed after the referendum. Furthermore, Twomey discusses wording which would ensure that the Voice could not delay parliament. This would involve specifying that government would only be obligated to consider advice that had been presented in time for debates about legislation. Methods to ensure that the courts could not become involved in regulating use of the Voice’s advice are also discussed.

Excerpt

‘Would there be litigation about whether a house had considered advice, or what the body could advise about, grinding parliament’s legislative program to a halt?

No, again the provision is drafted to avoid this. First, the range of advice that can be given is intended to be very broad in (1) [There shall be an Aboriginal and Torres Strait Islander body which shall have the function of providing advice to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.], but what must be considered in (4) [The House of Representatives and the Senate shall give consideration to the tabled advice of the body in debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples.] is much narrower. The intention is for the body to be able to channel into parliament views on anything at all that affects Aboriginal and Torres Strait Islander peoples, so it could be drawn upon for purposes beyond parliamentary debate, such as influencing the executive government in developing policies and informing state and territory governments and legislatures. One of the key reasons behind tabling the advice is to make it a permanent public record that is accessible to all.

In contrast, the obligation to consider any such advice only falls on the parliament in the more narrow circumstance of when it is debating a proposed law with respect to Aboriginal and Torres Strait Islander peoples … In practice, when such a law was being debated, the minister, in the second reading speech in each house, would refer to any relevant advice from the body that had already been tabled. The minister would also say how the government had responded to it, just as the government currently announces how it has responded to parliamentary committee reports. There is no further obligation to consider it, let alone comply with it. But it is likely that members of the crossbenches and the opposition would raise issues from that advice as part of the parliamentary debate. In this way the body would influence, but not dictate to, parliament.

But the key point is that the obligation in (4) is not intended to be enforceable by the courts. The words “debating proposed laws” have been included to make clear that this is an internal parliamentary matter with which courts do not interfere. Just as sections 53 and 54 of the Constitution regarding money bills are not enforceable by the High Court, because they concern the  internal proceedings of the house, so too would the obligation in section 60A (4) be one that could not be enforced by the courts.’

Gareth Evans, ‘Listening to the Voice’, Opinion, The Saturday Paper, January 21, 2023

https://www.thesaturdaypaper.com.au/opinion/topic/2023/01/21/listening-the-voice

Summary

Gareth Evans is a former Labor Cabinet Minister. This essay for The Saturday Paper is a critique of three main Coalition responses to the Voice to parliament proposal: namely that there is no detail, that it will be a third chamber of parliament and that it gives one group special status.  Evans emphasizes the scale and nature of the current Voice proposal as one initiated and driven by first Nations people: ‘The product of an extraordinarily comprehensive national consultative process culminating in the Uluru Statement from the Heart’. Evans concludes by cautioning that the Voice will need non-Indigenous Australians to acknowledge a debt to our first Nations people and to genuinely listen to what they have to say.

Excerpt

‘The second familiar objection, again a Coalition favourite, is that embedding the Voice in the constitution will give it the de facto status of a third legislative chamber, or a body able not just to influence but to override executive decision-making, unconscionable in an institution with at best a very limited democratic mandate, sectional rather than broadly national. But the reality is that avoiding the Voice being marginalised will be a bigger challenge than curbing its power.

This objection ignores the plain text of the proposed amendment which enables the Voice only to “make representations to Parliament and the Executive Government”, not to make or amend legislation or override anyone. It also ignores everything we know about the attentiveness of every Australian government and parliament, from time immemorial, to maintaining its own prerogatives. And what we know about the strong Australian tradition of judicial restraint in constitutional interpretation and deference to democratic process.’

Lorena Allam, ‘How would an Indigenous voice work and what are people saying about it?’ The Guardian, August 28, 2022

https://www.theguardian.com/australia-news/2022/aug/28/how-would-an-indigenous-voice-work-and-what-are-people-saying-about-it

Summary

This is an informative news article published in The Guardian which discusses how a national Voice to Parliament would operate; recommendations from the ‘Indigenous Voice Co-design Report’; what the government is doing to promote the Voice; and the opinions of various politicians. The article begins with recommendations for the alteration of the Constitution from Prime Minister Albanese and an introduction to the Co-Design Report. The article relates information from the report to answer questions regarding how the Voice would work, its structure, how local and regional voices would be included and how disputes would be handled. It affirms that the Voice would provide guidance on issues that ‘overwhelmingly relate to Indigenous communities and that the government would have an ‘obligation’ to hear their advice and clarifies that the Voice would not have the power to overturn the law. The article concludes with a discussion of the perspectives of Peter Dutton, Tony Abbott and John Howard. It also details rebuttals of their positions from Marcia Langton, described as ‘clearly frustrated’ by requests for more detail on the Voice even after the publication of the Co-Design Report, and from Linda Burney, who critiques John Howard’s previous stances on attempts to introduce reconciliation processes.  

Excerpt

‘The voice would advise the Australian parliament and government on matters relating to the social, spiritual and economic wellbeing of Aboriginal and Torres Strait Islander peoples.

Parliament and government would be obliged to consult it on matters that overwhelmingly relate to Aboriginal and Torres Strait Islander peoples, such as native title, employment, housing, the Community Development Program, the NDIS or heritage protection.

The voice would be able to table formal advice in parliament, and a parliamentary committee would consider that advice. But all elements would be non-justiciable, meaning that there could not be a court challenge and no law could be invalidated based on this consultation.’

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