What Actually Goes into the Constitution if the YES Side Wins? By Ian Wilson LL.B
When you go to vote in the Voice referendum, there will be before you a single question, where people will be asked to vote Yes or No: “A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?”
So, millions of people will read this and think to themselves, if they think, well, what is the law, I can’t see anything? What is the law actually? And right they are. What goes into the Constitution is not the question, which would be nonsensical, even though that was what was voted on, but a new Chapter IX:
“In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
“i. there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
“ii. the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
“iii. the Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.”
Now, it has been strongly argued that this is a jurisprudential disaster, as noted by Damien Cremean in his Quadrant Online piece, introducing a conflict of laws contradiction within the constitution itself:
“Proposed 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. Being subject to the Constitution, it is subject also to section 51 of the Constitution. That provision gives the Parliament its various legislative heads of power. But section 51 is also expressed as “subject to” the Constitution. The question is this: if section 129(iii) becomes law, which head of power prevails in the event of a conflict—section 129(iii) or section 51? Each is “subject to” the other. There is no reason to say in advance which power prevails. Under section 129(iii) the Parliament cannot ignore limitations on powers in section 51, but if section 129(iii) prevails those limitations can be ignored by Parliament. For example, if section 129(iii) prevails, the requirement to provide just terms upon acquisitions of land in exercise of the power in section 51(xxxi) can be ignored. So much, in that event, for security of land tenure in Australia. Vast tracts of land and territory could be at risk. Minister Linda Burney assured us on July 5 that the Voice is “constitutionally sound and legally safe”. Plainly that is not true. And 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?”
That we will.
The problem with the Voice referendum question is that the content is hidden from the voters, contrary to the constitutional process of amendment, as Professor Michael Detmold notes in his Quadrant online paper, “The Voice Referendum: Cheating the Constitution”:
“The power to construct the Voice is given to the legislative power of Parliament. Now, the conferral of a new legislative power (as was achieved in the 1946 Benefits referendum, and attempted in the 1951 Communist Party referendum) is not a delegation of the amendment power to the Parliament, it is the creation of a legislative power. The difference with the Voice referendum is that it is intending to create a new and unique constitutional entity that it only partly defines; it is leaving (delegating) the rest of the definition to Parliament—hiding it from the referendum. A law not submitted to the electors cannot be approved by them and therefore cannot amend the Constitution.”
The constitutional difficulties have been skirted over in the debate in the rush to achieve the woke communist goal of deconstructing traditional Australia:
https://quadrant.org.au/product/hidden-agenda-aboriginal-sovereignty/
Comments