One of the questions which is of vital importance in the Voice referendum, but which has only recently been given the attention it deserves by academic only so far, is if the referendum succeeds, what effects does this have upon the federalist structure? The prime minister is falsely saying that the changes are only symbolic, but he also from the other side of his mouth proclaims that it would be a brave parliament that in any way did not follow the recommendations of the Voice, making it a third chamber of parliament. So, he is inconsistent, indicating that something is up.
A research paper in law, by Nicholas Aroney, The University of Queensland - T.C. Beirne School of Law; Emory University - Center for the Study of Law and Religion, and Peter Congdon, “The Voice Referendum and the Federal Division of Powers: A New Head of Commonwealth Legislative Power to Implement the Voice’s Representations?” suggests what is up.
Details are given below, including the link to the research paper, and abstract. But the core argument, simplified, is that the referendum by inserting an entirely new chapter into the constitution is creating a constitutional entity on legal par with the rest of the constitution, including the present structure of government. The Voice entity would be regarded by the High Court of Australia as essentially a third chamber of parliament. Only while it may not directly legislate, but, in principle delegated powers could come from the federal government, it will require the federal government to be able to legislate in principle on all the matters before it, of relance to indigenous people. And that is everything that parliament can address. To do this, federal power must be expanded to swallow up much of the legislative power of the states.
This explains the fanaticism of the Left, Labor Party, and other centralist communists in supporting the Voice. There has been no debate on the profound constitutional ramifications of this referendum, and that alone is good reason to vote No! Vote No, for the survival of the states!
“It is one thing to unify around a yacht race. This is a proposal to embed in our founding document, the nation’s constitutional instruction manual, an Indigenous-only body with special rights that no other Australians will have.
The Yes camp is threatened by the slogan “If you don’t know, vote No” because it is the perfect fit for the profound flaws of the Yes campaign. It is a reminder of the serious questions not considered by the Yes side before its insistence that we vote Yes; it encapsulates the answers the PM and others have not given to our own questions.
Questions such as: How will the voice change disadvantage on the ground? Will the prominent Yes activists, those influential in Indigenous policies for decades, entrench the same failed polices? Why are we cementing inequality based on race in our Constitution? What will the High Court and especially activist judges do with this new chapter creating a collective right for one race? Why create a permanent body premised on separatism and victimhood – shouldn’t we aim to end these things?
What will this body mean for farmers and miners – people a world away from those who have put Yes signs on multimillion-dollar houses and draped Yes banners on their dogs? How will this new constitutional chapter affect our Federation? These last two questions deserve particular focus.
The Yes camp won’t want Australians reading what follows: a new, explosive analysis of what the voice means for our Federation, released this week by a leading constitutional professor and prominent lawyer.
The contents of this 36-page paper by constitutional law professor Nicholas Aroney from the University of Queensland and lawyer Peter Congdon from Ashurst Lawyers should have been at the forefront of any discussion about the voice early on. It should have been thrashed out at constitutional conventions, debated by the lawyers, including by those in the Constitutional Expert Group, and others who have added their two bob’s worth to the constitutional consequences of the proposal to insert a new chapter into the Constitution establishing the Indigenous-only voice.
Except there have been no constitutional conventions, no robust public debates for voters. And that was no accident. There have been only deliberate gatherings of like-minded people committed to a voice. And that fundamental flaw in the process has had lasting and dire consequences for the Yes side. By intentionally rejecting an honest and vigorous debate, by excluding lawyers who had different views, the Yes side settled on a radical model. In short, no one kicked the tyres of this model, let alone lifted the bonnet.
With a week to go until referendum day, Aroney and Congdon have revealed the legal equivalent of an improvised explosive device in the wording of the proposed amendment to the Constitution.
They argue, in careful detail, that the Albanese government’s proposed new chapter establishing a body called the voice could fundamentally alter the division of powers between the commonwealth and the states. This alteration to the Constitution could allow the commonwealth to expand its powers over areas currently the domain of state government responsibility.
This is nothing short of groundbreaking legal research. As Aroney and Congdon point out, this potential alteration to the balance of powers has not been the focus of the referendum debate or extrinsic materials, including the two official Yes and No cases. The authors are too polite to say this failure is extraordinary.
Aroney and Congdon make a compelling case that this proposed change to the Constitution will trigger “a readjustment to the popular foundations of the Australian federal system at the most fundamental level”.
That is a legal way of saying the voice will up-end the division of power between the commonwealth and the states. And where it lands is, at this stage, any one’s guess.
First, the proposed section 129 is a stand-alone new chapter. This, say the lawyers, “would accord the voice a structural prominence and constitutional status comparable to the parliament, the executive and the judicature”.
Second, the High Court is likely to lean to a broad interpretation of both section 129 (ii), the provision that vests power in the voice, and section 129(iii), the provision that vests power in the commonwealth.
Taking the commonwealth power first, the proposed section 129(iii) says “parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice”.
Aroney and Congdon point out that, as drafted, this new power is not limited to making laws about the institutional aspects of the voice, its composition and functions. Neither does the proposed wording in section 129(iii) limit parliament to making laws arising from voice representations in areas enumerated in the commonwealth’s existing powers as set out in section 51 and section 52 of the Constitution.
The proposed wording of section 129(ii) – which gives the voice power to “make representations to the parliament and the executive government of the commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples” – is equally broad.
As the authors say, “The proposed text does not require that the representations must be on matters specific to Indigenous peoples or general laws or measures that affect (them) differently.” It means the voice may make a representation about any matter that affects Indigenous peoples.
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Shadow Attorney-General Michaelia Cash says the question Prime Minister Anthony Albanese is putting to…
Also, nothing in the proposed section 129 (ii) limits the voice to making representations to areas over which the commonwealth has power in section 51 and 52. As Aroney and Congdon conclude, the wording of section 129 (ii) “is likely to encompass a very broad range of matters, including topics that are beyond the parliament’s existing legislative competence”.
Third, the introductory words to the new section 129 – “in recognition of Aboriginal and Torres Strait Islander People” – would make it more likely that the High Court would lean to a wider interpretation of the voice’s power in section 129(ii) and the commonwealth’s powers in 129 (iii).
And fourth, the explanatory memorandum to these changes says 129 (iii) would permit parliament to legislate “about the voice’s representations”. Add to that the fact the Albanese government attached the Uluru Statement from the Heart to the EM.
In simple words, the proposed new section 129 creates a broad new head of commonwealth power not explicitly limited by specific areas of commonwealth responsibility set out in section 51 or 52.
This changes our federation. Let’s take an example where this could lead. The Uluru statement says “proportionally, Indigenous people are the most incarcerated people on the planet”. If the voice makes representations to executive government or federal parliament to raise the criminal age of responsibility to reduce rates of Indigenous incarceration, does this new head of commonwealth power in the proposed section 129 give the commonwealth power to encroach in an area currently the responsibility of states? This, the authors say, is merely one example where the proposed new voice chapter would potentially alter the division of commonwealth and state powers, with more power being centralised at the federal level.
What if the voice suggests, and federal parliament one day agrees, to a higher age of criminal responsibility for Indigenous people only due the consequences of colonisation?
If the voice makes representations about land management issues affecting farmers and Indigenous people, could the commonwealth use this new head of power in section 129 to legislate a version of Western Australia’s cultural heritage laws? What about voice representations concerning health and education that are currently the domain of state? What other areas could be used to justify a commonwealth takeover once there are representations by the voice? As one lawyer raised with me this week, this could be the Woodside entanglement on steroids.
Aroney and Congdon do not, and cannot, tell us the outer limits of the new commonwealth powers as the High Court will determine those parameters, but they do say the proposed model that voters are being asked to vote on next Saturday “represents a material increase in the commonwealth’s existing powers”. They say “these are matters that should be considered as the Australian people exercise their responsibility to determine whether to approve the proposed amendment”.
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Did the Albanese government consider these issues? Is this potential federal power grab in the wording of section 129 deliberate? Or down to sloppy drafting?
Did any of the esteemed lawyers on the Constitutional Expert Group advising the Albanese government and the Referendum Working Group explore the implications of the broad wording on federal and state powers? Did premiers get advice about this potential centralisation of powers before they said Yes to the voice?
Further obvious points emerge from this explosive legal work. First, there is an excruciating level of uncertainty surrounding the consequences of this proposed change to the Constitution. Second, the seductive nature of power means it is inevitable that a federal government will try to amass more power. Third, the High Court will become heavily involved in this question.
And finally, in a healthy democracy where government respects voters, these serious legal questions should have been explored and explained months ago, indeed years ago, by a series of constitutional conventions, and more recently by the Albanese government before a proposal was put to the people.
It beggars belief that anyone, let alone respectable lawyers or a prime minister, would assert this is a modest change. And fancy calling Australians “d**kheads” for not fully understanding this proposal.
This unexploded Pandora’s box of potentially permanent changes to our federation explains why Yes supporters such as Martin resort to insults when confronted with the slogan “If you don’t know, vote No”.
“An Indigenous voice to parliament could significantly expand the commonwealth’s legislative powers over the states, new legal analysis of the proposal has found.
Nicholas Aroney, from the University of Queensland, and lawyer Peter Congdon, from Ashurst Lawyers, found the proposed alteration to the Constitution could allow the commonwealth to expand its powers over areas currently the domain of state responsibility.
Professor Aroney and Mr Congdon find the proposed change to the Constitution will trigger “a readjustment to the popular foundations of the Australian federal system at the most fundamental level”.
“The proposed constitutional alteration has real potential to expand the commonwealth’s legislative powers vis-a-vis the states,” they write in their research paper, The Voice Referendum and the Federal Division of Powers.
“By empowering the commonwealth parliament to make laws ‘with respect to matters relating to … the voice’, the proposed constitutional alteration would also confer a legislative power of ‘great width’,” they write in a 36-page paper that sets out a number of legal reasons why the proposed new chapter to the Constitution could upend division of powers in the federation.
“(T)here is reason to think that such a power would expand the commonwealth’s existing powers … we contend that it represents a material increase in the commonwealth’s existing powers.”
An explanatory memorandum published alongside the referendum bill in March says the commonwealth parliament could “make laws both about the voice’s constitutionally enshrined function of making representations to the parliament and the executive government, and to confer other functions on the voice, such as to make representations to state or territory parliaments or governments”.
“In discussion about the upcoming Indigenous voice referendum there has been little analysis or comment on the potential impact of the proposed constitutional amendment on the division of powers between the commonwealth and the states,” Professor Aroney and Mr Congdon write. “Neither of the official Yes or No cases make any reference to this issue.”
Every premier and chief minister reaffirmed their support for the voice during a meeting of the Council for the Australian Federation in Adelaide on Friday.
At a phone bank event for the Yes campaign at Sydney Town Hall on Thursday night, Indigenous Australians Minister Linda Burney thanked volunteers.
“We are winning it conversation by conversation,” she said.
“Do not think for one minute that what you are doing doesn‘t make a difference. It does … do not think for one minute that this is not winnable. It absolutely is.
“This is not just about Aboriginal people, it is about all Australians, and that is why it’s going to be such a unifying moment for this country.”
On Friday former High Court chief justice Robert French said matters relating to the Indigenous voice could spill into the High Court if a government official breached their obligations to seek Indigenous input or a condition had not been “satisfied”.
But Mr French dismissed the suggestion “activist judges” could undermine the parliament, warning rulings about the voice that pushed the boundaries would be readily overturned.
“You go to court and say, I want you to exercise that power properly, take account of what I have said … and there’s nothing activist about that. That’s kind of an administrative law 101,” Mr French said at the National Press Club on Friday. “Of course, if you get a judge who pushes the boundaries and strains a result, then that judge would get overturned on appeal anyway. So I don’t see that as a real threat.”
“The Voice Referendum and the Federal Division of Powers: A New Head of Commonwealth Legislative Power to Implement the Voice’s Representations?”
Nicholas Aroney
The University of Queensland - T.C. Beirne School of Law; Emory University - Center for the Study of Law and Religion
Peter Congdon
Abstract
On Saturday October 14, 2023, the Australian people will vote in a referendum to amend the Australian Constitution to recognise Australia's Indigenous peoples and to establish an Aboriginal and Torres Strait Islander Voice to make representations to the Parliament and the Executive Government. The referendum has prompted widespread discussion. However, scant attention has been devoted to the potential ramifications of the proposed constitutional amendment on the distribution of powers between the Commonwealth and the States. Instead, focus has centred on the extent to which the Parliament will be able to regulate the Indigenous Voice’s functioning as a means of ensuring its democratic accountability. Notably absent is a close examination of whether the proposed constitutional amendment will confer a new and distinct power on the Parliament to make laws implementing representations made by the Voice. The Commonwealth presently has power to make laws with respect to ‘[t]he people of any race for whom it is deemed necessary to make special laws’ under s 51(xxvi), but this is not the same as a power to make laws with respect to ‘matters relating to the Aboriginal and Torres Strait Islander Voice’ under the proposed s 129(iii). Would this latter provision, if inserted into the Constitution, confer power to make laws implementing a representation made by the Voice, particularly if the representation was that the Parliament enact a law of a particular description or to achieve a certain legislative purpose in a specific way?
Part I of this paper considers the scope of the Voice’s representation-making function under the proposed s 129(ii) as a necessary reference point for the consideration of this question. Part II then develops and analyses potential arguments concerning the scope, nature and limits of the legislative power under s 129(iii). We find that it is reasonably arguable that the ‘double use of wide connecting language’ would confer a new power on the Commonwealth to enact legislation implementing representations of the Voice on matters relating to Indigenous peoples, irrespective of whether the legislation would otherwise fall within one of the Commonwealth’s existing heads of power. Part II also discusses whether the implied intergovernmental immunity doctrine protecting the States from undue Commonwealth interference would operate differently in relation to laws enacted by the Commonwealth under s 129(iii), particularly due to the absence of the qualifying phrase ‘for the peace, order, and good government of the Commonwealth’, which is used in ss 51 and 52 but is absent from the proposed s 129(iii). Finally, Part III compares the prospective legislative power that would be granted by s 129(iii) with the most relevant existing head of power, the 'race' power in s 51(xxvi) of the Constitution. We conclude that the power to legislate under s 129(iii) would not be limited to the enactment of ‘special laws’ as is required by the existing s 51(xxvi). Despite our reservations about this conclusion, we find that the proposed constitutional alteration has real potential to expand the Commonwealth’s legislative powers vis-à-vis the States.
CONCLUSION The proposed constitutional alteration has real potential to expand the Commonwealth’s legislative powers vis-a-vis the States. This potential arises from two key features of the proposed s 129: (a) the breadth of the matters upon which the Voice may make representations under s 129(ii); and (b) the significantly widened language of the power to legislate under the revised s 129(iii), especially when compared to the Garma draft. Under the proposed s 129(ii), the Voice may make representations on ‘matters relating to Aboriginal and Torres Strait Islander peoples’. This phrase is likely to encompass a very broad range of matters, including topics that are beyond the Parliament’s existing legislative competence. By empowering the Commonwealth Parliament to make laws ‘with respect to matters relating to … the Voice’, the proposed constitutional alteration would also confer a legislative power of ‘great width’.152 It is arguable that this ‘double use of wide connecting language’ is apt to include the power to make laws implementing the content of Voice recommendations. Not only would this power extend to the types of representations and laws referred to in the EM and the Solicitor-General’s Opinion, but there is a reasonable prospect that it would include the enactment of laws implementing Voice representations on matters that affect Indigenous peoples. Furthermore, there is reason to think that such a power would expand the Commonwealth’s existing powers, particularly given the specific limits placed on the Parliament’s power to make laws under the race power (s 51(xxvi)). We do not express a concluded view on the outer limits of the legislative power that would be conferred by the proposed s 129(iii), but we contend that it represents a material increase in the Commonwealth’s existing powers. We make these observations despite our reservations about the consistency of such an outcome with the prevailing understanding, at this time, of the nature and intent of the proposed amendment. We believe they are matters that should be considered as the Australian people exercise their responsibility to determine whether to approve the proposed amendment.””