Constitutional drafting: Key questions
Gabrielle Appleby, Sean Brennan, Megan Davis, Elisa Arcioni, Stephen McDonald and Scott Stephenson
01.03.2023
In March 2023, the Public Law Review will host a special series in its comments dedicated to an analysis of the drafting of the constitutional amendment to enshrine a First Nations Voice. This blog provides an overview of those comments.
A First Nations Voice and the exercise of constitutional drafting (Gabrielle Appleby, Sean Brennan and Megan Davis)
In May 2017, after twelve months of consultation and design and six months of hard work and deliberation through a series of First Nations designed and led dialogues, First Nations people delivered the Uluru Statement from the Heart to the Australian people. The Uluru Statement represents an historic First Nations consensus position on the why and how of constitutional recognition. The rationale for recognition is the ancient and unique connection between First Nations people and the land that is now Australia, and the urgent need to address political and structural disempowerment. The form of recognition is a First Nations Voice enshrined in the Constitution, and then through Voice, Makarrata: the coming together of Australian people through agreement-making and truth-telling.
With the commitment by the Prime Minister Anthony Albanese to a referendum on the Voice before the end of 2023, attention has now turned to the drafting of a constitutional amendment, choosing the legal form of words that will be put to the Australian people at a referendum.
The drafting of words that will be put to the Australian people as the Voice amendment is at once an exercise in historical reflection on the treatment of First Nations, improvement to their present position, and a nation-building narrative for the future of First Nations and all Australians. It is also a political exercise involving pragmatic compromise, performed in a highly technical, legal arena.
The Voice reform is a modest and congruent proposal but also a transformative one. The proposal respects the traditions of constitutional democracy in Australia which give the elected Parliament a central role in governance. But it also offers a new constitutional settlement, aimed at including the First Nations in Australia’s foundational text, and having their voices recognised.
Constitutional drafting is the translation of purpose and intention into legal form. The purpose of the Voice reform must be captured in the language and structure of the amendment, supplemented by extrinsic materials that inform the referendum.
What then is the purpose of the First Nations Voice amendment? Here, we pull out three key strands to understanding its objective:
1. Recognition: First, at its foundation, this amendment is an exercise in recognition of the First Nations of the country that is now called Australia.
2. Structural political empowerment: It creates a new constitutional institution that is intended to reframe the relationship that the Parliament and the Government have with First Nations.
3. Self-determination: The amendment was expressly conceived in the Regional Dialogues as one that would progress First Nations’ right to self-determination, and specifically, the political right of Indigenous peoples to participate in decision-making in matters that would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as expressed in article 18 of the United Nations Declaration of Rights of Indigenous Peoples.
How does one move from purpose to the legal form of the constitutional text? There is never a single ‘drafter’ of constitutional words, and the history of the drafting of the Voice amendment is multi-authorial and complex (which we set out in more detail in the full comment). We identify four factors that have informed the drafting process to date.
Narrative: First, there is the question of whose narrative will determine choices of language. This has emerged in particular in relation to the name of the body and the name of a potential new chapter of the Constitution. The Uluru Statement from the Heart calls for recognition through a First Nations Voice, emphasising the Indigenous status and prior authority of the first peoples of Australia. However, the draft constitutional amendment released for discussion by Prime Minister Anthony Albanese in July 2022 proposed a body to be called the Aboriginal and Torres Strait Islander Voice, a term more commonly used by and within the Australian state. The use of the language of ‘Aboriginal and Torres Strait Islander’ is diminishing in the First Nations community as they replace generic labels with more ‘country’ or ‘nation’” names such as Arrernte, Alyawarre or Cobble Cobble, Barrungam. And in a recognition exercise, the views of the to-be-recognised are important.
Interpretive authority: The second question is who will have interpretive authority over the constitutional provision, or the ‘final word’ in giving effect to it. This centres on whether the Voice will be empowered to determine the scope of its engagement with Parliament and the Executive – in particular on what matters of law and policy affecting First Nations people it wishes to be heard by Parliament and the government. Omnipresent in this conversation is also the question of justiciability: over what questions, if any, will the High Court have the final say in the future operation of the Voice? And to what extent should drafters attempt to anticipate – and head off – interpretations that might undermine the amendment’s purpose (which is focused on participation in the political process, not the courts)?
Questions of interpretive authority are, of course, not new. The different facets of the relationships between the existing institutions of the Australian Constitution – the Parliament, Executive and Judiciary – have been worked through over the last 120 years with different emphases and conclusions about interpretive authority, tailored to the specifics of each relationship. In the course of settling how the Voice will operate and its relationships with other constitutional actors, no one can rule out litigation – given that, historically, litigation has arisen in relation to every other relationship between constitutional actors. It is nonetheless important to avoid incessant litigation, or litigation which cuts across the purpose of the amendment and its focus on the political process. Constitutional drafting should be approached with a balance between constitutional prudence and intergenerational generosity, that is, trust that these institutions will carry forward the purpose of the constitutional amendment into the future, including in the face of future litigation.
Detail v deferral: Third, there is the issue of what level of detail is contained in the Constitution, and what matters are deferred to be determined later, particularly through ordinary legislation enacted by the Parliament. The constitutional provision will necessarily be confined to enshrining high-level principles, leaving many other things about the Voice legally contingent. There can be many sound reasons for constitutional brevity. In this instance they may include decreasing the likelihood of justiciability, as well as preserving flexibility for changing circumstances and the lessons learnt from experience in the decades to come. Brevity is also relevant to the legibility of the proposal on the ballot paper. The balance between constitutional determinacy and legal contingency is an issue for all concerned: the Australian people, government institutions, and First Nations themselves. For First Nations for example, this issue is raised acutely with respect to the determination of membership of those who serve on the Voice, or the scope and exercise of its functions, and the fear that these may be unilaterally determined by a future Government that fails to act in good faith.
Pragmatism: Finally, there is the pragmatism of constitutional amendment: the need to achieve a successful referendum – a political and campaigning exercise involving millions of Australian voters and a high threshold for success. Australia’s modern referendum culture has been cautious, driven by the perception of the ‘high bar’ that s 128 of the Constitution poses, and the perceived need for certain pre-conditions for success, including bipartisan support amongst the main federal political parties. However, as referendum expert Paul Kildea has written, it is timely that this conventional wisdom is re-examined. The last time Australians voted at a referendum was in the pre-social media era in 1999 and the last successful referendum was nearly half a century ago. With significant changes to education, demographics, social attitudes and campaign environments, there needs to be a greater focus on the specific political, economic, and cultural context of a particular given referendum. Kildea also notes the danger, in particular, of the political drive to negotiate bipartisanship that can ‘result in minimalist proposals that fail to excite the electorate’ or ‘lead to paralysis’. In the context of the First Nations Voice referendum, the politics of the referendum also hinges on continued high levels of support from First Nations people themselves for the reform, which requires a proposal that delivers on the aspirations in the Uluru Statement and can make a practical difference in people’s lives.
While these four factors (narrative, interpretive authority, detail v deferral, and pragmatism) can give rise to tensions, and sometimes pull in different directions, a strong consensus has emerged over what the drafting needs to capture.
First, it must constitutionally enshrine the Voice. This will be an enduring form of recognition for First Nations people. It will create a constitutional and political imperative to establish the Voice and maintain its existence. And it will endow the Voice with the power and legitimacy which comes from popular endorsement at a referendum, the gravitas it will need in order to shift the political dynamic in Indigenous law and policy.
Second, the amendment must describe – and guarantee – the primary function of conveying the views of Aboriginal and Torres Strait Islander people to the national institutions of law-making and government.
Finally, it must provide a head of power for Parliament to legislate the detailed design of the Voice and make necessary amendments over time, to adapt to changing circumstances.
The process of moving towards a final version of the proposed Voice amendment to be voted on by the Australian people at a referendum has crystallised a number of issues that remain to be resolved. They include questions over the name of the body, the placement of the amendment, the inclusion of a preamble, the membership of the Voice, defining the scope of the primary function of making representations and the effect of those representations, and ensuring the flexibility of the provision.
In March, we will see the Government’s final draft wording introduced to the Parliament in a constitutional amendment Bill (conventionally titled a ‘Constitution Alteration’ rather than a Bill). That proposed Constitution Alteration will be subject to parliamentary scrutiny, and further public and expert input through committee scrutiny. The final legal form of the amendment will reflect a settlement on these issues that has been informed by the history, culture and politics of the current Australian constitutional moment.
Membership of the Voice (Elisa Arcioni)
The Voice is to be a forum through which First Nations can be heard. To ensure that the Voice reflects the voices, interests and concerns of First Nations peoples, its membership must be determined by First Nations peoples. The guiding principles of the Government’s Referendum Working Group, reflecting key elements of the Regional Dialogues that delivered the Uluru Statement, reflect this imperative. The best way to ensure that First Nations determine the membership of the Voice is to have the rules of its membership contained in legislation, the drafting of which is informed by, and amenable to refinement and change in collaboration with, First Nations people.
Parliamentary determination of membership of the Voice is consistent with Australian constitutional traditions. The Constitution establishes the existing branches of government – the Parliament, Executive and the Judiciary – but leaves detail to legislation. It is both legitimate and desirable to allow the Parliament to determine matters such as the composition of an institution like the Voice. That legislation is then amenable to judicial review by the High Court to ensure its validity. The judicial review function of the Court is generally undertaken with care and prudence and is necessary to ensure compliance with the conferral of power.
The political negotiations regarding legislative detail require good faith and judicial review of any legislation should be conducted prudently. We have reason to expect both to be forthcoming. The modest proposal of the Voice is consistent with our constitutional traditions and is worth the inevitable risks and uncertainties that come with any reform.
Justiciability and the Voice (Scott Stephenson)
Justiciability has been a key issue in the debate over and design of the Voice. To ensure the Voice does not interfere with ‘parliamentary supremacy’ or act as a ‘third chamber’ with ‘veto power’, the common view has been that the Voice should not be justiciable. This article makes three arguments. First, justiciability and the Voice is a more complex subject than is sometimes assumed, because justiciability itself is not a monolithic concept, implicating multiple constitutional relationships. Second, due to this complexity, there are risks with attempting to ‘overengineer’ the constitutional text by including express non-justiciability language. Third, despite this complexity, it is possible to establish the Voice in a way that responds to the justiciability-related concerns.
Justiciability is used to describe four aspects of the Voice. The potential for judicial review of (1) legislation for compatibility with the Voice’s representations, (2) executive acts for compatibility with the Voice’s representations, (3) legislation constituting the Voice, and (4) the Voice’s representations. As the justiciability-related concerns about the Voice principally relate to (1), they are largely addressed by ensuring Parliament is free to legislate in opposition to the Voice’s representations. The current draft of the proposed constitutional amendment reflects this position.
That does not mean there will be no constitutional litigation on the Voice or that the High Court will not issue some decisions on the subject of the Voice’s representations or constitution at some point in the future. However, that does not provide a convincing basis for opposing the Voice because (1) some forms of litigation have no impact on the justiciability-related concerns, (2) the Court has been slow to draw constitutional implications that significantly reduce the scope of executive and legislative freedom, and (3) the Court has always played a role in interpreting the Constitution’s provisions.
The article finishes by warning against the inclusion of express non-justiciability language in the constitutional text, arguing that it may, in fact, make more aspects of the Voice justiciable.
Federalism and a First Nations Voice (Stephen McDonald SC)
There are a number of different ways in which the proposal for a First Nations Voice may intersect with Australia federalism. I identify four ways in which federal considerations may impact upon the design and operation of a First Nations Voice.
First, Australia is a federal nation and the Commonwealth Parliament is itself a federal institution in several respects. The members of its two Houses are chosen not just by the people of the nation, but by the people of the States. That is most obviously so in the case of the Senate, where Senators are elected to represent their State and each State has equal representation, but is also more subtly reflected in the House of Representatives, where geographical electoral Divisions cannot cross State lines. The federal executive government is ‘federal’ in the sense of belonging to the central government of a federal state, but also, through its responsibility to the Commonwealth Parliament, is indirectly a ‘federal’ institution in the same additional ways as the Parliament itself. Whatever its precise form, the proposed Voice will be a federal institution at least in the sense that its primary function will be to make representations to these federal institutions of government.
A further question that arises is whether the Voice may, or should, also be given the function of making representations to State and Territory Parliaments or governments in relation to matters of interest to Aboriginal and Torres Strait Islander peoples. If so, the Voice could provide the machinery for the expression of a valuable national First Nations perspective to State institutions. Consideration of this possibility raises questions, given the positions of the Commonwealth and the States as separate governments in a “dual” system, as to whether the proposed constitutional amendment would enable the Commonwealth Parliament to empower the Voice to make representations to State Parliaments and governments, and whether the place of States as governments separately organised suggests that there should be limits on any such power (such as, for example, a requirement for consent from the State concerned before the Voice is given such a function).
The next intersection with federalism concerns a major issue of the design of the Voice itself. There would be potential advantages to a Voice elected, and/or organised, wholly or partly ‘along State (and/or Territory) lines’ (eg, the creation of an identifiable group of Voice members with natural responsibility for the interests of the Aboriginal and Torres Strait Islander people within a particular State). But there are also potentially compelling reasons to depart from a wholly ‘federal’ model. One possible model for a Voice is that which was proposed by the Indigenous Voice Co-design Process Final Report. It proposed a body comprising two members representing each State and the Northern Territory and the ACT, and two members representing the Torres Strait Islands, as well as an additional five members representing remote regions in each of the Northern Territory, New South Wales, Queensland, Western Australia South Australia, and a representative of Torres Strait Islanders living on the mainland. This need not reflect the model ultimately selected by the Parliament, but it illustrates the way federal considerations, along with other significant practical and cultural considerations, might help to shape the design of a First Nations Voice.
Finally, the process provided by the Constitution for the amendment of the Constitution is itself importantly ‘federal’ by design – most notably in the insistence of s 128 of the Constitution on a ‘double majority’. So not only will the Voice itself become part of Australia’s federal constitutional system; if the referendum is successful, it will have the political legitimacy that comes with the ‘federal’ approval of the Australian people.
Gabrielle Appleby is a Professor at UNSW Law.
Elisa Arcioni is an Associate Professor in Public Law from the University of Sydney.
Sean Brennan works in the areas of constitutional law and Aboriginal legal issues.
Megan Davis is Pro Vice-Chancellor Indigenous UNSW and a Professor of Law, UNSW Law
Stephen McDonald SC is a barrister at Hanson Chambers who practises in constitutional and administrative law.
Scott Stephenson is an Associate Professor at Melbourne Law School
Suggested citation: Gabrielle Appleby, Elisa Arcioni, Sean Brennan, Megan Davis, Stephen McDonald and Scott Stephenson, ‘Constitutional drafting: Key questions’ on AUSPUBLAW (1 March 2023) <https://www.auspublaw.org/blog/2023/3/constitutional-drafting-key-questions/>