Capitalising on the Activist Instincts of Unelected Judges
Peter O’Brien
Dr Shireen Morris seems to have secured a gig as one of The Australian’s constitutional experts promoting the Voice. She is part of a rapidly diminishing cohort. She first came to my notice when she claimed on the Kenny Report that the 1901 Constitution ‘explicitly excluded Aboriginal people’. A patent nonsense. So, I have followed her specious musings with interest since then. Here is an excerpt from her latest:
The government’s recent drafting change has perfected the voice amendment. There is now neat reciprocity in the change to clause three, strengthening parliament’s power and answering concerns about High Court uncertainty.
The voice has broad discretion to advise on matters relating to Indigenous people, and parliament has broad discretion to legislate on matters relating to the voice. This is balanced. Such reciprocity can underpin mutual responsibility, creating a new partnership to achieve better practical outcomes.
This presupposes that the Voice architects are disposed to co-operate with government, seeking only to ensure that their concerns are properly considered. That flies in the face of everything activists such as Marcia Langton and Megan Davis say, and it is given the lie by the uncompromising way in which the Referendum Working group flat out rejected amendments to the referendum question advised by the Attorney-General and the Solicitor-General.
Yet debate about the drafting is being debased by shallow tribalism.
That is mere abuse.
Let’s be clear on the facts.
Oh dear, now she’s borrowing Daniel Andrews’ favourite line, the one that serves as a prefix to his every next lie.
The constitutional amendment does not require the voice to be consulted. It provides only that the voice “may make representations” on matters relating to Indigenous people. The amendment does not require the Reserve Bank to consult the voice on interest rates, a question opposition legal affairs spokesman Julian Leeser posed during question time. There is no constitutional obligation for anyone to consult the voice.
If the Constitution says the Voice ‘may make representations’, the High Court will determine that there is an obligation on the part of government to consider those representations. That establishes a ‘right to be consulted’. Otherwise, why put it in the Constitution? Any organisation right now, eg the National Farmers Federation, ACOSS etc may make representations to government, but the government is not obliged to consider them. It may be politically unwise to ignore them, but it would not be unconstitutional.
Certainly, there is no obligation for the Reserve Bank to pro-actively consult the Voice but, by the same token, there is no impediment upon the Voice proactively making representations to it. Once the representation has been made the obligation to consider it is triggered. The government may specifically legislate against such representations, but all the Voice would have to do to convince the High Court that this restriction was unconstitutional would be to establish to the Court’s satisfaction that whatever the Reserve Bank was proposing would have a particular impact on Aborigines. Given the Love and Thoms cases, that a bar would seem to be set pretty low.
That gives Aborigines a right other Australians do not have.
But even if the Albanese government had no intention for the Voice to intrude on any and all matters and legislated accordingly, what is to stop a future government increasing its scope? Why would any future government wish to unnecessarily hamstring itself, you might ask? Well, you might also ask, why would any government go out of its way to destroy our energy and manufacturing base and put us even more at the mercy of China, in the absence of any evidence this will help the climate? If you cannot image a future (or even this current) virtue-seeking Labor/Greens government conceding more power to Aborigines by, for example, putting a ‘First Nations spiritual connection to their land’ cloak on anti-development activism, then you have very little imagination. The Greens are already talking about incorporating Article 19 of the UN Declaration on the Rights of Indigenous Peoples – the requirement to obtain the ‘free, prior and informed consent’ – into consideration of any development proposal on native title land.
Anyone who relies on the good sense of Australian parliaments not to abandon the national interest, or even pragmatic self-interest, in favour of virtue signalling, has only to recall the Rudd/Gillard years, the Turnbull years and the Morrison years. Oh, and the Andrews years, of course. Don’t think that because it’s a dumb idea, handing power to an unelected and unrepresentative coterie of Aboriginal activists, it won’t have enormous appeal to many MPs.
Which brings me to Professor Greg Craven, whom Morris excoriates in the remainder of her article. Craven, recently defending his criticism of the referendum question, said this in relation to a counter-attack by Noel Pearson:
We [Craven, Freeman and Leeser] would never accept any model that involved conferring power on the judges.
This is a basic principle of Australian constitutional conservatism. Unelected judges must never meddle in political or policy matters. These are for the democratically elected parliament alone.
I have spent 40 years as a constitutional lawyer defending this principle against judges, academics and the odd politician.
If that is so, why would he not question other aspects of the proposed amendment? The one that particularly concerns me is this:
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia: There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
This goes beyond recognising that Aboriginal people occupied this continent before 1788. The capitalisation of ‘First Peoples of Australia’ suggests to me that this is a defined entity. If that is the case, what is its definition? On the face of it, it doesn’t make sense. The first peoples of the constitutional entity known as Australia were all those who lived here in 1901. But the phrasing clearly contemplates that Aboriginal and Torres Strait Islander people comprise their own distinct polity within the nation. If this is to be included in the Constitution, it will be subject to consideration by the High Court. It is not hard to imagine the Justices linking this vague wording and Article 19 of the UN Declaration on the Rights of Indigenous Peoples to discover a separate Aboriginal sovereignty in the nation. Therefore, the wording should, at the very least, be amended to read:
In recognition that Aboriginal and Torres Strait Islander peoples were the original inhabitants of the continent now known as Australia: There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
That is not something I personally would support, but I wonder what a ‘constitutional conservative’ like Greg Craven would think of wording as imprecise as that proposed above. Any provision in the Constitution should be couched in language as unambiguous as possible, as Love and Thoms attest.
What could the High Court, that redefined the previously well understood term ‘alien’ to exclude those with a ’spiritual connection to the land’, not do with ‘First Peoples of Australia’?
Nelle's journey 