Janet Albrechtsen The Australian August 13, 2022
At a philosophical and principled level, the Aboriginal and Torres Strait Islander voice is illiberal, divisive and inequitable. It creates permanent race-based privilege and turns Australia into a constitutionally endorsed two-tier society. Now that the Prime Minister has revealed the words proposed to be inserted into the Constitution to establish the voice – which I will call the Albanese Amendment – it is increasingly certain that the voice will also be a disaster as a matter of practical politics and governance.
The voice will create constant opportunities for a tiny minority of activists to hold parliament and executive government to ransom by using the immense leverage and opportunities for lawfare carefully woven into the Albanese Amendment. It is no exaggeration to say it will cause the end of parliamentary democracy as we have known it.
That conclusion is inevitable when we analyse with care the exact words of the Albanese Amendment and the implications of those words. It is a matter of great concern that this work was not done by the Prime Minister before announcing the amendment and that since then this analysis has not been done by the Attorney-General or any of the agencies of the federal government, nor by opposition legal affairs spokesman Julian Leeser or the Coalition, nor by any of our great law firms or by any prominent QCs. The silence from our constitutional law academics, too, on critical constitutional matters arising from the Albanese Amendment is glaring.
If any of these people have done this analysis, they haven’t made it public. It is a shocking failing of our public life that all these individuals and groups appear to be so busy cheering on the Albanese Amendment that they haven’t bothered to scrutinise it properly. Given this determined silence on important constitutional matters, I have embarked on this job by speaking with several prominent silks and other lawyers. Hopefully others will follow. We should not sleepwalk into what I believe will be Australia’s worst constitutional disaster in a practical sense, without proper analysis and debate. Drinking the Kool-Aid is irresponsible.
The most important sentence of the Albanese Amendment
The Albanese Amendment consists of these three sentences to be inserted into the Constitution.
There shall be a body, to be called the Aboriginal and Torres Strait Islander voice.
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.
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.
Of these sentences, the second is easily the most important. It sets out the purpose and functions of the voice, and controls the scope of the legislative powers conferred on parliament by the third sentence. The words “subject to this Constitution” contained in the third sentence, as well as the general principles of statutory interpretation, mean that the second sentence controls and limits the meaning of the third. This may seem technical but it is critical because it means the High Court, not parliament, will be the ultimate decision-maker on the key functions, powers and procedures of the voice.
A High Court role is assured
Experts warn if parliament attempts to pass laws that limit the matters on which the voice has to be consulted or the process of, or timetable for, consultation and the High Court decides these laws interfere with or hinder the scope of the voice’s essential features as set out in the second sentence of the Albanese Amendment, the High Court will simply declare the relevant laws invalid. Therefore it is likely, for example, that any attempt by parliament to legislate that matters such as banking regulation, foreign affairs, defence or other matters were beyond the voice’s remit, or to insert exceptions for less significant or urgent matters, could be invalid.
The High Court will be able to draw implications about the voice
Some of the country’s most senior silks have told me the wording of the second sentence in the Albanese Amendment has been carefully designed to enable the High Court to find a series of far-reaching and surprising implications that the court may think necessary to give effect to the voice, or that are reasonably incidental to its operation. In fact, in other cases the court has relied on far less to find remarkably wide implications in the Constitution. In the Love case, a majority of High Court judges found “metaphysical bonds” and a “deeper truth” were enough to dream up implications.
They say the court could find, for example, that the second sentence carried with it implications that the voice be allowed reasonable time, resources, personnel, premises and budget as determined by the court to make informed representations. The court might find the second sentence could require public hearings, the right to access government papers, the right to interrogate ministers or public servants or other measures to enable the voice to fully inform itself so it could make meaningful representations. Not only could the process of the voice informing itself and making representations be time consuming but the process might have to be restarted if amendments were made to a government proposal or executive action after the voice had reviewed it.
Importantly, once the High Court finds implications about the operation of the voice, those implications are permanent fixtures in the Constitution. Parliament has no power to alter or limit them with subsequent laws.
Equally important, if parliament passes a law (whether under the third sentence of the amendment or another head of power) or if executive government does an act without complying with the process laid down by the High Court, that law or act will be invalid.
The High Court will determine how parliament and the executive will have to respond to the voice’s representations
Relying on further implications, the High Court might find that parliament and the executive government must give bona fide and careful consideration to any representations made by the voice and not ignore them on irrelevant or improper grounds.
Senior silks have told me that the word “voice” is deliberate. It gives rise to a “right to be heard” – a familiar plank of administrative law. A large body of law in the migration area, for example, says that “representations” must receive “active intellectual consideration”.
It is very likely the High Court will be asked to rule that similar principles are implied in relation to the voice, and that parliament will be required to demonstrate, perhaps by written reasons, compliance with those requirements.
The High Court could easily find such implications were necessary to give proper effect to the purpose of the voice as set out in the second sentence of the Albanese Amendment
The practical significance of all this is that it creates massive opportunities for litigation and lawfare. Any suggestion the deliberations or powers of the voice will be non justiciable – meaning beyond the courts – is, at minimum, manifestly incorrect. At worst, this suggestion is deceptive. Activists who are members of the voice will have leverage over parliament that previously they, and we, never imagined possible.
On what matters does the voice need to be consulted?
We were initially told we would be asked to approve a voice to parliament and that its function would be to comment on draft legislation. The reality exposed by the Albanese Amendment is dramatically different. The voice is to make representations on “matters”, not proposed legislation.
The meaning of matters takes its colour from the fact the voice can make representations not merely to parliament but to executive government.
In other words, the voice will have power to make representations not merely about proposed legislation but about any act or omission of the parliament, or the government, or any of its agencies.
So, for example, bureaucratic practices or procedures, or any changes to them, will have to be the subject of consultations with the voice. To illustrate, if the government cuts the budget or resources available to departments dealing with Indigenous affairs, or seeks to move departmental offices from, say, Alice Springs to Darwin, it will first need to consult with the voice and give it a chance to make representations.
Of course, the government could take the chance of not seeking representations, but this creates another opportunity for High Court lawfare and creates more leverage for activists.
Note that the word “matters” in the second sentence of the Albanese Amendment is not limited by any qualifier; for example, that the matters be significant. On the face it, the voice will have to be consulted even on trivial matters.
At this point we should ask what is covered by the words “relating to Aboriginal and Torres Strait Islander peoples” since this phrase is the only limit on the word “matters”. Logically almost any matter can relate to Aboriginal and Torres Strait Islander peoples, in the sense that it can affect Aborigines and Torres Strait Islanders in a different manner or to a different extent to the way non-Indigenous people are affected.
The safest assumption, then, is almost any matter can relate to Aboriginal and Torres Strait Islander peoples. In any case, the reach of the voice will be exclusively decided not by parliament but by the High Court. More lawfare, more leverage.
Given this, we are entitled to ask: Who will be running the government? To his credit, Malcolm Turnbull was both brave and correct to get to the heart of this fundamental governance change: the voice is looking remarkably like a third chamber of parliament.
When and how does the voice make its representations?
We can expect parliament to make laws under the third sentence of the Albanese Amendment to set out the processes for getting the voice involved, how and when it acts, how long it gets and what resources it is given to enable it to act. However, as explained above, parliament is not the ultimate decision-maker on these matters, meaning it is a lottery, and governments may cave in to threats of strategic litigation to avoid uncertainty and delay. Once again, more lawfare and leverage.
Moreover, while the processes and timetables for consultation with the voice on proposed legislation should be relatively predictable, although drawn out, there may need to be fresh consultations if amendments are suggested after the voice reviewed initial drafts of legislation.
The processes and timetables for consultation on acts or omissions by executive government that relate to Aboriginal and Torres Strait Islander peoples are likely to be more difficult to legislate with any precision, and are therefore replete with opportunities for lawfare.
While it may be safest for government to consult well in advance of any act or omission of executive government relating to Aborigines or Torres Strait Islanders, what happens if something has to be done urgently? For example, what if, due to some disease outbreak in the Northern Territory, it is necessary to undertake some urgent public health actions that in practice burden Indigenous people more than non-Indigenous people but for which there is not time, or even the information, for detailed consultation with the voice? If the action is undertaken without adequate consultation, and the High Court will be the judge of adequacy here, the action may be invalid and have to be reversed. Another lottery, more lawfare, more leverage.
What are representations?
Again, the parliament will no doubt try to prescribe the form of representations in legislation passed pursuant to the third sentence of the Albanese Amendment. Again, the High Court no doubt will be asked to confirm that it agrees that the legislation adequately gives life to the constitutional demand that the voice have the opportunity to make representations.
Issues will include whether representations can be conditional or contingent on certain events, whether the voice has to speak unanimously or by majority (and if by majority, what majority), and whether representations have to be formal or can be informal. This should keep lawyers busy, and happy, for a while. And slow down the work of parliament and executive government.
Consequences of failure to comply with express or
implied rights and powers of the voice or duties and
obligations of parliament/government
Legislation passed, or actions taken by the executive government, without proper compliance with the second sentence of the Albanese Amendment as elaborated by the High Court will be invalid. The draconian consequence of invalidity will mean parliament and the executive government will live on a knife edge, constantly beholden to the voice. It will be no exaggeration to say that all of Australian political life will have to be conducted with one eye on the voice. The power, influence and opportunity thus handed to a small proportion of Australians will be remarkable. Parliamentary democracy as we have known it will be dead.
1/ The power, influence and opportunity thus handed to a small proportion of Australians will be remarkable. Parliamentary democracy as we have known it will be dead.Picture: PMO
2/ Edmund Barton’s annotated copy of the 1891 draft of the Constitution. Source: National Archives
3/ The Uluru Statement From The Heart.