This post and the accompanying post by Paul Kildea continue a 2021 special series, which is a companion to the Gilbert + Tobin Centre of Public Law’s Global Public Law Virtual Book Series. The aim of the virtual book series is to invite leading scholars in public law around the globe to share ideas from a recent book with an Australian audience, and to engage with Australia-based commentators.

This book forum was co-hosted by the Indigenous Law Centre as a special event to mark the anniversary of the Uluru Statement from the Heart, and the call for a constitutionally enshrined Voice to Parliament. The posts in this forum are also published on the Indigenous Constitutional Law Blog.

BY GABRIELLE APPLEBY

Richard Albert reveals in the final page of the introduction to his book, Constitutional Amendments: Making, Breaking and Changing Constitutions, what he wants others to take away from it. First, he wants scholars to reflect on their system of constitutional amendment, to inspire interest in the subject matter and his arguments. Second, he wants the book to be a resource for those embarking on constitutional change: to become ‘a focal resource for leaders involved in making or remaking their constitution’ (at 36).

It is both as a scholar of constitutional law, and as an adviser involved in the Uluru Dialogues’ campaign to see constitutional change through the enshrinement of a First Nations Voice as called for in the Uluru Statement from the Heart, that I came to Richard’s work. And from these twin perspectives, I can say that it has indeed fulfilled its purposes. It has made me think and reflect on the Australian constitutional amendment process, and whether it meets its objectives of enhancing democratic participation and deliberation in a federal system. It has also given me a framework through which to try to understand the nuanced and sophisticated call for an amendment to enshrine a First Nations Voice.

A whole blog post could be written on the characteristics of Australia’s formal constitutional amendment rule in s 128 of the Australian Constitution, and what that means for understanding the nature of our constitutional system. I will just say this: in our system, all amendments are initiated in the same way – through Parliament. There is a distinction drawn between amendments that particularly affect a state, which must be passed by a majority in that state, and other amendments. But beyond this federally based distinction, amendments, big or small, are treated the same. As far as we know, there appear to be no limits to our constitutional amendment power, in the form, for instance, of a basic structure doctrine (although the High Court might disabuse us of this notion in the future).

The purpose of this post, rather, is to consider how we might understand the push to enshrine a First Nations Voice in the Constitution against Richard’s typology of constitutional changes. In Chapter 2 (page 69), Richard eschews the traditional binary distinction of an ‘amendment’ versus a ‘new Constitution’, and instead introduces the need for an understanding of constitutional amendment that has gradients of change along a scale of magnitude.

Richard proposes a versatile approach that looks to the content of the change. He introduces the typology of constitutional amendment and dismemberment.

Constitutional amendment and dismemberment

An amendment is ‘a constitutionally continuous change to a higher law – a change whose content is consistent with the existing design, framework, and fundamental presuppositions of the Constitution’ (p 79). And a constitutional dismemberment is a change that has the effect of transforming the constitutional system. A dismemberment ‘entails a fundamental transformation of one or more of the constitution’s core commitments’. ‘It intends deliberately to disassemble one or more of the Constitution’s elemental parts… by altering a fundamental right, a central structure, or a core feature of constitutional identity’ (pp 84; 91). Determining whether there has been a dismemberment requires an evaluation of ‘whether a constitutional change transforms something integral about a constitution’s rights, structure or identity’ (at 84-5).  Richard initially states this in fairly negative language: dismemberment as ‘do[ing] violence to the existing constitution’ and ‘destroying … structural pillar[s]’. But, as he clarifies, ‘a constitutional dismemberment can both enhance and weaken democracy, depending on what in the existing constitution is dismembered’ (at 78). The importance of this distinction, for Richard, is that transformative changes – dismemberments if you will –  ought to trigger a higher – or perhaps better described as a different – bar of constitutional amendment.

With this typology in mind, I turn to consider the push in Australia for the constitutional enshrinement of a First Nations Voice. This proposal does not necessarily fit into a neat position, even on a graduated scale of constitutional change. And this perhaps presents a challenge to the typology and this idea that amendments and dismemberments might engage different constitutional amendment procedures.

While there are comparative examples where constitutions distinguish between total and partial amendments, these have been subject to criticisms of ambiguity, giving rise to the fundamental question of when the concept of a total as opposed to a partial amendment is engaged (p 192). I wonder whether Richard’s proposed solution, designating different parts of the Constitution for different processes, is perhaps too blunt a tool. My concern with such an approach is that it doesn’t necessarily capture the depth of the change, and leaves itself open to the technical work-around, rather than working to provide genuine protection and expression of foundational constitutional values.

Let me try to demonstrate my concerns by considering the typology and the proposal for a First Nations Voice: are we looking at an amendment or a dismemberment? The First Nations Voice is at once a modest proposal, yet it is also one that is deeply profound and draws into question the very basis of the Australian constitutional State. Let me explore this bifurcated claim in more depth.

The First Nations Voice as a Modest Proposal

The First Nations Voice is modest in a number of senses. It is modest in that it is not the insertion of a new constitutional right, whether that be a general right to equality, or a right that is specific to First Nations people. It has been argued that moves to constitutionally entrench such a right represent a major shift in our constitutional tradition: from one where the Parliament is responsible for making decisions about what are appropriate special laws for Aboriginal and Torres Strait Islander people, to one where the judiciary has the final say as to whether such laws amount to adverse discrimination against them. Former Chief Justice Gleeson claims it would be ‘incongruous’ that any proposal should reduce the law-making powers of Parliament.

By contrast, the call for constitutional enshrinement of a First Nations Voice is said to be consistent with the traditions of our Constitution. It is said to be a reform that is coherent with a Constitution that is, as Gleeson described it, ‘essentially a structural plan for a federal system of government, not what would now be called a human rights instrument’.

The Voice is, in Gleeson’s view, ‘consistent with’ the nature of our constitutional system. It does not limit Parliament’s law-making powers, and so is consistent with parliamentary sovereignty. It does not constitutionalise the constitution, structure, composition and functions of the Voice. Finally, Gleeson explains that the Voice is congruent with the current position of Aboriginal and Torres Strait Islander people in the Constitution as subject to the races power. In this context, establishing a First Nations representative body to advise on the exercise of that power ‘hardly seems revolutionary’.

The argument that the Voice is a reform consistent with our constitutional tradition is, by now, well known in the Australian debate, at least in legal circles. Richard’s book gives us another lens through which to consider this change: as a ‘coherent’ constitutional change, and thus a constitutional amendment in the sense that Richard encourages us to think of that word.

The argument that the First Nations Voice is a modest proposal is seen not only in its ‘consistency’ with parliamentary sovereignty and the races power that Chief Justice Gleeson refers to, but also in the claim to sovereignty on which the Uluru Statement bases its call for reform. The claim in the Statement is carefully crafted as one that is consistent with and may sit alongside the legal claim of British sovereignty that the High Court has persistently indicated is not subject to judicial questioning. Once established, the Voice would provide a mechanism through which the practice and exercise of First Nations sovereignty could be worked out in the iterative and ongoing constitutional relationship that is established between the Parliament and the Voice. In this way, the proposed amendment represents a significant shift in the Australian State through the recognition of sovereignty of First Nations, and giving effect to that through structural change. But it does so in a way that does not require the total rejection of the understandings of acquisition of British sovereignty in our constitutional system, and the operation of our parliamentary processes.

The First Nations Voice as a Transformative Change

The change is also one that seeks to reconstruct and reset the relationship between the State and First Nations people. It is a change that acknowledges the existence of First Nations people, previously not only not mentioned in the Constitution (as they find themselves post-1967), but in 1901, actively and explicitly excluded from the polity. It is a change that continues the changes to constitutional power that were given effect in 1967, and reflects the continuing changes since that time, over five decades ago, of community attitudes towards First Nations people, and the importance of legal, social and governmental recognition of their special status, place, rights, claims and needs.

So then we also have an attempted constitutional change that can be seen, I think properly, as transformative. A change that seeks to reconstruct the ultimate foundations of the Australian State in a way that acknowledges the existence of First Nations people and their sovereign status not just in a purely symbolic form, but in a structural way that gives expression to their right to self-determination. In this respect, it is an amendment to a central foundation of the Australian State. Once we think about the proposal for a First Nations Voice in this way, we perhaps start to get into the realm of, in Richard’s typology, constitutional dismemberment.

But, and this is key to understanding the subtlety and sophistication of the call in the Uluru Statement, it does so while still being a formally modest and constitutionally consistent and coherent amendment proposal. All of this is not to just problematise Richard’s typology and leave it there. No, indeed, I have found the process of trying to understand the First Nations Voice proposal within Richard’s typology an illuminating one. In trying to characterise the Voice through Richard’s typology, I’ve been reminded of the sophistication and challenge of what is trying to be done here in Australia, and also the restraining strictures of our constitutional change procedures.

The political nature of the debate in Australia

The sophistication of what is being done in relation to the First Nations Voice amendment is not happening at the constitutional level: that is, it is not a debate about what constitutional amendment process might be triggered by an amendment of this type. Rather, in Australia, the question of what type of constitutional change is being proposed, one that is coherent and consistent with our constitutional traditions or one that radically changes them, is one that is raised in the political sphere.

The argument – which is not, in my view, in any way disingenuous – that it is a coherent, consistent and modest change that would enhance our current parliamentary system of democracy appeals to the constitutional conservative, the politician and the member of the Australian public who might want to see positive change for First Nations people, and want to see constitutional recognition of their status, but does not want to see the other foundational principles of our Constitution upended, and potentially feels threatened by an amendment that might see the powers of existing institutions reduced. This is particularly important in Australia with our single pathway to amendment, which can only be initiated by the Parliament. Further, as my colleague Paul Kildea explains in his post, there is a culture of amendment cautiousness amongst the Australian elite, particularly our elected representatives, that makes them reluctant to embrace proposals. Appealing to this group is vital.

The Voice proposal speaks also, though, to those wanting to see the very foundational claim of our Constitution upended: it seeks reform founded on First Nations sovereignty, and the redistribution of political, if not legal, power in policy-making with respect to First Nations affairs. It speaks to this broader cross-section of the public in a system where there is a referendum requirement for all amendments and compulsory voting. So, it must appeal to those who want coherency and those who want the system upended.

What would a different pathway have looked like?

I want to conclude this post by imagining a different constitutional system in which this debate might have unfolded, prompted by Richard’s arguments. This is a system in which Australia had a multi-path constitutional amendment procedure for amendments that differ in their nature, beyond that which exists for state-affecting proposals. The First Nations Voice proposal has made me think about what the key trigger for a different pathway would be. I wonder whether it could be where a proposal affected – changed, reduced or tempered – the Parliament’s or the government’s powers. I can’t see a reason why this type of proposal ought not still be subject to the requirements of the referendum and state-majorities as is required by s 128, but perhaps, given its objectives, it is the type of proposal that ought to be initiated not only by passage of legislation by an absolute majority of both houses, but also by citizen initiation subject to a certain threshold. The justification for such an alternative would be to reflect the democratic foundations of our constitutional system, and acknowledge that proposals which change, and maybe diffuse or weaken the powers of, established institutions should be able to be initiated outside of those institutions.

This would find us in a very different political and constitutional position to where we are currently stuck – although I remain an optimist and think we will move beyond this current stasis.

We would be in a position where supporters of a First Nations Voice, if they could meet the relevant threshold, might be able to initiate a referendum on this question. It could not be blocked by established institutions from going to the people. Further, the proposal would not be in danger of distortion in an effort to get it through established institutions before going to the people. All of which could have meant that we might have been in a situation of running a referendum campaign, and not, as we currently find ourselves: four years on from the delivery of the Uluru Statement, with public support growing, but the referendum blocked by those holding political power – the very power that the Voice would seek to temper for the benefit of First Nations people across the country.

Gabrielle Appleby is a Professor at UNSW Law & Justice

Suggested citation: Gabrielle Appleby, ‘The First Nations Voice: A modest and congruent, yet radically transformative constitutional proposal’ on AUSPUBLAW (11 June 2021) <https://auspublaw.org/2021/06/the-first-nations-voice-a-modest-and-congruent-yet-radically-transformative-constitutional-proposal>