This is the second of five posts in a special series that AUSPUBLAW is featuring on the First Nations Voice to Parliament. This series is co-hosted with the newly launched Indigenous Constitutional Law Blog, and also features posts by Megan Davis, Sana Nakata, Gabrielle Appleby and Eddie Synot, and Harry Hobbs. If you are interested in this, and other constitutional issues facing Indigenous peoples, we encourage you to visit that blog and consider subscribing for future posts.

BY GEOFFREY LINDELL

In 2017 the Uluru Statement from the Heart called “for the establishment of a First Nations Voice enshrined in the Constitution”. It stated that in 1967 Aboriginal and Torres Strait Islanders “were counted.” In 2017 they sought “to be heard”.

As was observed by Sir Robert Menzies, Australia’s longest serving Prime Minister, in Central Power in the Australian Commonwealth (1967, at 152, 28):

a written Constitution is an expressed scheme of government designed to give a basic structure in a changing world; not designed to inhibit growth in a growing world, nor to make the contemporary world subject to the political, social, or economic ideas of a bygone age… [A] Constitution is not a strait-jacket: it is a frame of government.

The purpose of this post is to explore the importance of establishing a constitutional relationship between the proposed national First Nations Voice and the Parliament, and why, while there might be ways of facilitating a relationship between the Parliament and the Voice through legislation and standing orders, it would be important for the success of this relationship to ground it in the “scheme” and “frame of government” contained in the Australian Constitution.

1. Nature of “consultation” between the Parliament and the Voice

Whatever language is used to describe it in the ultimate legal instrument, the call for a First Nations Voice in the Uluru Statement seems in essence to propose some kind of a duty of the Parliament (and Government) to consult with First Nations people on matters specially affecting those peoples. If working ideally, the concept of consultation in this context can be broken down into the following three elements:

  1. A is required to notify and seek advice from B on matters likely to affect B;
  2. B is authorised to provide advice to A on these matters, whether or not that advice is sought by A under (1);
  3. A is required to give the advice provided by B genuine consideration, but is not required to agree with the advice provided by B in its decision-making.

Emeritus Professor Rowse has observed that according to the Uluru Statement “parliament would be obliged to take notice of [the Voice and] to refer issues to it for advice and to respond to any advice that the Voice sent back or offered unilaterally” (at p 6). Arguably to be heard and ignored is little better than to be ignored altogether. Genuine consultation requires a good faith response to, and real consideration of, the advice provided. It is important to make sure there is a real interactive process between the relevant parties which stems from a desire to listen and take seriously that advice falling short of a need to agree.  That said, however, whether it is realistic to seek the adoption of all those elements will doubtless depend on what is politically possible to stand any chance of parliamentary and electoral acceptance.

2. The effect of a statutory relationship

As can be seen from the model put forward in the Interim Report of the Indigenous Voice Co-Design process, it would be possible to give some effect to the Uluru Statement by adopting a purely statutory model of the Voice and consultation. One of the main advantages of a statutory model is that, consistently with what the Hon Murray Gleeson AC, QC the former Chief Justice of the High Court, has observed, it could give the voter an opportunity to see how the proposal operates in practice and make any changes needed to be adopted in the light of the experience gained from time to time with the statutory model (at p12). Those changes would not be needed to be put the voters at a referendum to alter the Constitution.

The Interim Report proposes an “obligation to consult” (at p 52) in relation to matters that would be connected to the races and territories power, and measures that would engage the Racial Discrimination Act 1975 (Cth); and to an “expectation to consult” (at p 53) in relation to matters that would have a significant impact on Aboriginal and Torres Strait Islander people of national significance. Both the “obligation” and “expectation” would be the result of the enactment of ordinary legislation or perhaps a change in the standing orders of both Houses. The Interim Report also refers to the adoption of transparency mechanisms based on the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (at p 54). Although these mechanisms may be desirable and necessary to facilitate the interactions between the government, the Parliament and the Voice, whether or not a constitutional relationship was established, they would only operate as the result of ordinary legislation. As will be emphasised below, not only can legislation and standing orders be unmade or changed at the discretion of the Parliament or the Houses of Parliament  in the interests of political expediency, but the mechanisms proposed or envisaged also fail to show how they would help to guarantee the proper  parliamentary consideration of the fruits of any advice provided by the Voice.

As will be seen further below, the apparent “advantage” of the statutory model carries within it the seeds of its own disadvantage. Moreover, many of the changes suggested by experience could also be made within a constitutionally enshrined model without having to amend the Constitution, as the constitutional model envisages constitutional establishment of the body and its primary function, but its detail being otherwise established in legislation.

3. Nature of a constitutional relationship

As has been argued by Gabrielle Appleby and Ed Synot, the proposal for a First Nations Voice will require more than careful design of the Voice as a new constitutional institution; it will require existing constitutional institutions within the legislature and executive to learn to ‘listen’.  However worded, and as a basic minimum, any constitutional relationship would have to provide in the Constitution:

  1. for the establishment of the Voice (as occurs, for instance, in relation to the High Court in s 71 of the Constitution); and
  2. for the conferral on the Parliament of a power to legislate to provide for the composition, functions, powers and procedures of the Voice, as has been indicated by two former Chief Justices (the Hon Murray Gleeson AC, QC (at p 12) and the Hon Robert French AC).

This is not the place to discuss the extent to which, if any, a further legislative power is needed to establish a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about history. Nor is it the place to suggest the wording of the constitutional amendment needed to give effect to the relationship in question.

Instead, the aim of the discussion below concentrates on why such a relationship is important.

4. Effect of a constitutional relationship

A          Stability and certainty

Establishing a constitutional relationship between the Parliament and the Voice is necessary and desirable for a number of reasons. First and foremost, it would prevent at the federal (and state/territory) levels of governments, the Parliament from abolishing the Voice and the need to consult it on matters affecting First Nations peoples in the making of laws by the Parliament (and the development of executive or administrative policies or programs). As other public lawyers have pointed out, a constitutional relationship will help to provide stability and certainty. At most, the Parliament could only alter or modify the Voice’s composition, powers, and procedures – rather like the kind of details which have to be provided in relation to such constitutionally entrenched bodies as the High Court. It would help to place the existence of the Voice and the performance of its core consultative functions beyond the reach of ordinary and transient parliamentary and government majorities.

B          Constitutional backing for relationship with Parliament

Secondly, a constitutional relationship between the Parliament and the Voice would provide constitutional backing and authority to protect the enactment and operation of legislation and standing orders that regulate the workings of the Parliament in order to ensure that the Voice is consulted in the making of laws which affect First Nations peoples. Examples of such measures include:

  • Those that could stipulate that the Voice’s advice be accorded priority by the Houses of Parliament in considering legislative measures, to avoid the advice becoming just another piece of information amongst the many other committee reports and other documents presented to the Parliament.
  • A standing mechanism that gives Voice representatives a right to speak directly to the Houses.
  • Procedural ways of encouraging (short of requiring) Parliament to respond to the Voice by, for example, providing for:
    1. the tabling of any advice by the Voice in both Houses through the Presiding Officers;
    2. a parliamentary officer to be responsible for monitoring and requesting the House to respond to advice received from the Voice before any legislation proceeds any further whatever stage the legislation has reached;
    3. the Presiding Officers to make available adequate time during which discussion of the tabled advice would take place unless and until the House decided by resolution that either no discussion or no further discussion, was warranted;
    4. the same parliamentary officer to notify the Voice and publicise any failure of the Parliament to consider the advice within a time specified in the standing orders; and
  • Measures to limit the extent to which urgency can be used as a reason for not responding to the Voice before legislation is passed by both Houses.
  1.  

So far as urgency is concerned, it needs to be borne in mind however that s 58 of the Constitution already states:

The Governor-General may return to the House in which it originated any proposed law so presented to and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation.

Because of the conventions of responsible government, the Governor-General would act on the advice of the Government when performing this function. With the agreement of the Government, then, it could be used to deal with any amendments desired by the Voice after legislation has passed through all stages and before it receives the Royal Assent. This may, to some albeit limited extent, minimise the need to limit measures to prevent consultation at the earlier stage of legislation on grounds of urgency.

A constitutional duty to consult may be sufficient by itself to enact and protect the operation of these kinds of measures. But even if not, legislation could provide for their protection especially if the legislative power conferred on the Parliament was wide enough to provide for what is reasonably necessary to implement the duty to consult with the Voice. As indicated at the outset there might be ways of facilitating a relationship between the Parliament and the Voice through ordinary legislation and standing orders. But the Interim Report of the Indigenous Voice Co-design process fails to highlight that without further constitutional backing and authority there would be nothing in law to stop the repeal  or changes made to that legislation or those standing orders (at pp 51 – 4).

The essential reason for this is because both:

  1. the Parliament in relation to the making, altering or repeal of laws under ss 51 and 52 of the Constitution, and
  2. each of the Houses of the Parliament under s 50 of the Constitution in relation to the making of standing orders and rules

would not be able to bind their successors. Thus although a requirement in the standing orders which facilitated consultation with the Voice might be effective while it stood, a further attempt to entrench such standing orders would be legally ineffective against their alteration or repeal (for further explanation of this view, see Anne Twomey, ‘Minority Government and  the Validity of  Standing Order Requirements for Absolute Majority Votes’ (2019) 30 Public Law Review 142, and especially at pp 156 – 7). Equally any attempt by the Parliament to give the standing orders a special protection against repeal or alteration would also be ineffective. The reason for that ineffectiveness in both cases is essentially because the procedure by which Parliament and Houses of Parliament make, alter or repeal laws or standing orders is fixed by the Constitution. This is of course binding and cannot itself be altered without an amendment under s 128 of the Constitution.

Hence there is a need for the additional backing and authority for standing orders and legislation which facilitate consultation between the Voice and the Parliament and for their protection. That said, the extent to which this can occur will doubtless raise politically sensitive questions which may bear on the political viability of any referendum proposal put to the Parliament and the Australian electorate. Yet sensitivity may be outweighed by the importance of ensuring that not only is the Voice able to give advice to the Parliament, but that this advice is heard and considered by the Parliament.

The discussion above has concentrated on the reasons why a constitutional relationship between the Voice and the Parliament is important and more effective than a statutory relationship in achieving the aims of the Uluru Statement. No attempt has been made here to explain why a constitutional relationship would accord with international best practice and also be required at the state and territory levels of government if it is desired to establish the same kind of relationship between local and regional Voices and state and territory Parliaments. Nor has any attempt been made to discuss why a constitutional relationship would help to signify a deeper and more permanent symbolic recognition by the Australian community of the First Nations peoples

5. Justiciability

The Interim Report states that the transparency mechanisms proposed would not be justiciable (at p 54). Doubtless a consultative relationship – whether it be statutory or constitutional or both – can be worded in such a way as not to require judicial review to supervise whether legislation is being or was enacted without adequate consultation. This occurs, for instance, in the case of subordinate legislation, where s 19 of the Legislation Act 2003 (Cth) states:

The fact that consultation does not occur does not affect the validity or enforceability of a legislative instrument.

It may even be possible to go further by providing that total compliance with the relevant constitutional and statutory provisions necessary to give effect to the constitutionally enshrined Voice can be left solely to the supervision of the Parliament without the assistance or intervention of the courts. This has been largely the case with the provisions in ss 53 and 54 of the Constitution, through the reference to “proposed laws”, which the Court has treated as an intramural matter between the Houses to themselves enforce.  However it needs to be remembered that the constitutional provisions mentioned presuppose a relationship where both Houses have a mostly equal relationship which gives them the ability to bargain with each other. As Gabrielle Appleby has noted, this may be lacking in the relationship between the Voice and the Parliament, especially when it is remembered that the Voice is meant to be a Voice to and not a chamber of, the Parliament (at p 100). The last paragraph of s 53 of the Constitution states:

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

To make total compliance self-policing would also detract from the main reason for seeking a constitutional relationship: namely to prevent the Parliament abolishing the Voice and/or the duty to consult it on matters affecting First Nations peoples. Its effectiveness as such mechanism would have to rely solely on the moral and political force of the constitutional entrenchment of the Voice.

6. Conclusion

One of the primary rules of natural justice – the so called ‘hearing rule’ – is that people who will be affected by a proposed decision must be given an opportunity to express their views to the decision maker. If the proposal for a Voice enshrined in the Constitution is ever put to the Australian Parliament and voters at a referendum they will have to decide whether the hearing rule should apply to the relationship between the Parliament and First Nations people as part of our “expressed scheme” and “frame of government”.

Geoffrey Lindell is Emeritus Professor of Law at the University of Adelaide.

Suggested citation: Geoffrey Lindell, ‘The relationship between Parliament and the Voice and the importance of enshrinement’ on AUSPUBLAW (2 March 2021) <https://auspublaw.org/2021/03/the-relationship-between-parliament-and-the-voice-and-the-importance-of-enshrinement>.