Constitutional Law, and Conflict of Laws Paradoxes in The Voice Referendum Proposal By Ian Wilson LL.B
The Quadrant Special Digital Edition, August 2023 develops the most systematic critique of the voice referendum proposal to date. Among the contributions are three that strike a lawyer of particular note are: “Introducing Conflict” by Damien Cremean, “A Legal Ruse” by Alasdair Millar, and “The Voice Referendum: Cheating the Constitution,” by Professor Emeritus Michael Detmold, former constitutional law lecturers at the University of Adelaide. The first two items are letters, but profound ones, which alone, separately, destroy the Voice proposal; the latter article by Professor Detmold raises insuperable constitutional law difficulties the Voice referendum raises. A summary of the first two letters, now follows. The Detmold paper is discussed separately.
In “Introducing Conflict” Damien Cremean, points out that the proposed referendum section 129(iii) of the Constitution will give the Parliament power “subject to” the Constitution to make laws with respect to the Voice, including its composition, functions, powers and procedures. What these are exactly has not been outlined in any detail by the prime minister. Further, this section will be subject to section 51 of the constitution, the heads of power, and must therefore be consistent with it. But, here is the potential problem. What happens if here is a “conflict of laws” situation between section 129(iii) and section 51? It is possible that given the motivation of the Voice to ultimately morph into a treaty, that a vast land grab will occur; 60 percent of Australia is presently under native title and not doubt the aim is to get 100 percent of the land in the end, or at least via the coming treaty, a new black breakaway country. Thus, there will be a conflict of laws between section 129(iii) and the requirement to provide just terms upon acquisitions of land in exercise of the power in section 51(xxxi), for so much of the country will be taken, just as all beaches north of Broome are now native title.
Another example provided by Cremean, is “if section 129(iii) prevails, what might happen under the aliens power in section 51(xxvi)? Could the Voice determine in exercise of its (presently unspecified) powers that some of the Australian population are aliens? Could the “aliens” be all those who are not Aboriginal? Could most of us end up being aliens in our own land?” Of course, it would long ago ceased to be “our land,” and probably is not now. But, the paradox here, that Cremean does not elaborate on is, that such a decision would make the constitution itself an “alien” document, and hence invalid, but all this came from the constitutional amendment, so it is self-undermining!
In conflict of laws situations, there may be a conflict between federal and state laws, which in Australia is resolved under section 109 of the Australian Constitution: if a state parliament and the federal Parliament pass conflicting laws on the same subject, then the federal law overrides the state law. Section 122 of the Constitution allows the federal Parliament to override a territory law at any time. Conflict between federal laws is usually resolved by court deciding that the most recent law has precedence over the older law, for parliament is assumed to be rational and not embracing contradictions. However, internal conflicts within a constitution is more severe. It is said that logician Kurt Gödel had found such a contradiction in the US constitution, but Albert Einstein advised him to keep hush about it until he got his naturalisation. How the High Court of Australia would deal with the present issue is anyone’s guess. It seems that any such judgment would be entirely arbitrary, as here are no legal principles to go on in an “ultimate” document, such as a constitution. Call this the “constitutional suicide” argument.
In “A Legal Ruse” by Alasdair Millar, raises the fundamental primary flaw with the entire referendum, namely that it is logically incoherent. As he puts it: “the text asks whether the voter approves “this proposed alteration” but as the proposed alteration to the Constitution will not be on the ballot paper, a question of principle (of amending the Constitution) is confused with an actual amendment. The amendment is present online but it is not likely that many voters will read it. In effect, then, citizens are being invited to vote on a vital constitutional matter without knowing the wording of the amendment.” In other words, people are being asked to vote on something which is not explicitly before them on the ballot paper. Millar makes other points of criticism, but this one is reason alone to vote No. I call it the “blank cheque” argument, that people are being asked to vote on something that has never been fully outlined, and won’t be until it is law. This is simply absurd.
The only rational alternative is to vote No!
Comments