The Voice and the Executive
Elisa Arcioni and Andrew Edgar
31.03.2023
The Voice is designed to be the mechanism through which First Nations views can be received by the key national institutions of public power – the Parliament and the Executive. The concerns raised publicly regarding the ability of the Voice to make representations to the Executive fail to take account of the power conferred on the Parliament to make laws about the effect of the Voice’s representations.
Introduction
The Prime Minister has released the proposed wording of the Voice referendum and it will soon be debated in Parliament. One issue of contention in recent weeks has been the effect of the Voice being able to make representations to the Executive government. In this post we explain how the claims of negative impacts of such a function are premature and neglect to consider the existing processes and operation of administrative law, including the capacity of the Parliament to restrict judicial review of executive action.
The Voice has been deliberately designed to fit within existing public law structures and processes. As constitutional experts have explained here and here , the structural design of the Voice is consistent with orthodox constitutional practices in enshrining the institution and deferring detail to the Parliament. In relation to the operation of administrative law relating to judicial review of executive action, we also see that the Voice fits within existing established practices.
The Voice is to be given the function of making ‘representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples’. The Parliament is to be conferred the power ‘subject to this Constitution … to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures’. While the Constitution guarantees the Voice can make representations, under these provisions, Parliament will have the capacity to determine the legal effect of any representations made by the Voice, including restricting judicial review of the consultation process. This power is key to understanding how the concerns around the impact of representations to the Executive are premature.
Standing and relevant considerations – not causes for concern
Frank Brennan argues that ‘the design must ensure that the representations made by the Voice are not regularly the subject of legal proceedings and are not likely to clog unduly the working of government’ (p 57). He adds Bob Ellicott’s view that referendums should ‘contain no element of possible substantial confusion on legal or other grounds’ (p 85).
Concerns relating to the potential for litigation and for confusion due to the potential for administrative law litigation have recently been debated by former High Court justices, Kenneth Hayne (The Australian, 28 November 2023) and Ian Callinan (The Australian, 17 December 2022). The issues addressed by the two judges focused on administrative law doctrine; in particular, standing and the failure to consider a relevant matter ground of review. Surprisingly however, the judges said nothing regarding administrative law in relation to consultation – a matter we will address below.
Our view is there is no substance to the concerns that were expressed in this debate regarding the proliferation of administrative law litigation and there is no need for confusion regarding the laws that would apply. It is worthwhile dispelling some of the confusion in the views expressed by the former judges in relation to administrative law doctrine.
The judges debated standing in administrative law litigation in relation to a possible future claim that an executive decision-maker failed to consider the Voice’s representations. Hayne stated that ‘finding a plaintiff with standing to make that submission may be difficult’; simply recognising that standing can be a restriction on judicial review of administrative decisions. Callinan responded by noting that courts have interpreted standing principles ‘expansively in recent times’ and went on to say that ‘one only has to glance at the litigation that environmental concerns have generated as to standing that this is so’.
Neither of the judges refer to the most important point - that standing for Aboriginal peoples regarding government action that affects them was established by the High Court over 40 years ago in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27. Onus v Alcoa contributes to the now orthodox principles of standing, not any later expansion that Callinan indicates in relation to environmental groups. There has not been a flood of cases involving Aboriginal people since Onus v Alcoa.
The recent Samuels Review into Commonwealth environmental legislation indicates there is also no flood of litigation challenging environmental decision-making. The main Commonwealth Act regulating environmental impacts, the Environment Protection and Biodiversity Conservation Act 1999, includes a provision that extends standing for challenges by environmental groups to decisions made under that Act beyond the principles developed by the courts. Even with that extension, there is no flood of litigation supported by that extension. The Samuels review provided statistics of challenges to approvals under the Act using the extended standing provision which show that judicial review challenges vary between zero and eight per year compared to the approximately 6500 projects dealt with under the Act per year (p 86).
The former judges also debate the possibility of administrative law litigation regarding the relevancy ground of review. Hayne recognises that such litigation could involve a claim that the ‘executive ignored what was said’, referring to administrative law principle enabling decisions to be invalidated when the decision-maker has failed to consider a relevant matter. Callinan’s response to this point is that this ground involves ‘shifting criteria’.
Callinan overstates the uncertainty in the relevancy grounds of review. As Hayne recognises, the courts require the decision-maker to be ‘bound’ to consider the particular factor that has not been considered. It is standard, well-accepted, administrative law doctrine that ‘bound’ in this context means that the statute empowering the administrative decision-maker requires, as a matter of law, that the particular consideration must be taken into account by the decision-maker (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24). The common current terminology is that the matter that has not been considered must be mandatory.
There is scope for debate in administrative law litigation about whether considerations are mandatory or not. However, it is important to recognise that resolving it involves statutory interpretation, not simply the personal views of the judges as to what are and are not relevant matters. The considerations that are mandatory are those that the statute granting the administrator power makes mandatory. The Parliament can decide whether or not to make a consideration mandatory through the legislative drafting. The wording of the proposed Constitutional amendment suggests that it will also be the case for consideration of representations made by the Voice to the executive if the referendum succeeds. The Parliament will be able to determine whether particular representations must be taken into account by the executive or may be taken into account by the executive.
This form of challenge can currently arise under statutes dealing with Aboriginal and Torres Strait Islanders, whether or not the Voice is added to the Constitution. Such challenges would not be based on any legislated consultation process; they are based on statutes requiring consideration of Aboriginal and Torres Strait Islander peoples’ interests. There is no flood of litigation involving Aboriginal and Torres Strait Islanders or their representative groups bringing cases according to the relevant considerations administrative law ground of review. In fact, landmark cases involving the relevant considerations ground go the other way: businesses challenging executive decisions regarding Aboriginal land rights (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24) and Aboriginal heritage protection (Tickner v Chapman (1995) 57 FCR 451).
Consultation – designing to avoid litigation while also providing for transparency
The surprising aspect of the debate between the judges from an administrative law perspective is the lack of reference to Commonwealth legislation regarding consultation processes, which we consider has obvious importance in light of the core consultative function of the Voice.
It is worthwhile considering the laws for consultation on legislative instruments, the regulations made by Commonwealth ministers, departmental officials and agencies, and the possibilities for litigation of the consultation provisions. These regulations can affect Aboriginal and Torres Strait Islanders and are an important reason for extending the Voice to consultation with the executive as well as Parliament. It is important to understand this law because it shows how consultation provisions can be designed to avoid litigation – the primary concern raised in these debates – and instead to encourage parliamentary accountability.
One of the objects of the Legislation Act 2003 (Cth) encourages regulation-makers to conduct consultation. It implements this purpose through s 17 which requires regulation-makers to be satisfied that consultation that is appropriate and reasonably practicable is carried out with experts and persons likely to be affected by the proposed regulation. These provisions are sometimes referred to as a form of discretionary consultation. However, it is clear that these provisions create an expectation that consultation occurs with experts and persons affected by the regulation. The provisions also strongly deter administrative law litigation challenging the failure to consult. Section 19 of the Legislation Act states that ‘[t]he fact that consultation does not occur does not affect the validity or enforceability of a legislative instrument’, a provision which administrative lawyers describe as a ‘no invalidity clause’. The clause deters litigation because it excludes the primary remedy, determining the regulation to be invalid, even if a court is persuaded that lack of consultation involved a legal error. The ‘no invalidity clause’ undermines the reason for bringing the challenge.
The combination of discretion regarding the form of consultation and the continued validity of regulations despite any failure to consult has deterred litigation challenging consultation processes for Commonwealth regulations. As Dennis Pearce and Stephen Argument have noted, ‘[t]hese requirements do not seem to have given rise to litigation’ (p 312). In our research for this post we could not find any cases either.
Successfully restricting litigation is only part of the scheme. There are additional provisions that provide for transparency and for parliamentary scrutiny of executive officials’ consultation practices. Section 15J(2) of the Legislation Act requires explanatory statements for regulations to include a description of the regulation-maker’s consultation and if they do not conduct a consultation process they need to explain why not. One of the tasks of the Senate Scrutiny of Delegated Legislation Committee is to scrutinise regulations for whether ‘those likely to be affected by the instrument were adequately consulted in relation to it’ (Standing Order 23(3)(d)). The Committee scrutinises the explanatory statement and raises questions with regulation-makers if there is a failure to consult or if the consultation is apparently inadequate.
These provisions highlight that in relation to regulations, an important executive function that can affect Aboriginal and Torres Strait Islander peoples, consultation provisions that have operated since 2005 have deterred litigation while also providing for transparency regarding the nature of consultations and parliamentary accountability.
This suggests that drafting the consultation provisions for the Voice legislation can include consideration of provisions that deter administrative law litigation and instead direct concerns about lack of consultation or inadequate consultation to Parliament. However, we do not seek to advocate for the provisions in the Legislation Act 2003 to be relied on or copied into the Voice legislation. The discretionary aspects have been subject to significant criticism by the Senate scrutiny committee and are weaker than we would recommend (Regulations and Ordinances Committee, Parliamentary scrutiny of delegated legislation (3 June 2019) [3.39].
There is hence a range of options for designing consultation provisions, from discretionary provisions that can be scrutinised by parliaments and cannot be challenged in courts, to mandatory consultation provisions for which failure to consult or poor, tokenistic, consultation can be challenged and remedied by the courts. Concerns about litigation in relation to the consultation process are matters which can be considered and effectively managed when drafting the Voice legislation. It should therefore not be a reason for concern that the Voice may make representations to the executive.
Conclusion
The Voice is to be a mechanism through which First Nations views can be received by the key national institutions of public power – the Parliament and executive - which establish law and policy that impacts upon First Nations people. The operation of executive power, the development of policy, is key to how the Australian state impacts upon First Nations peoples. The concerns raised publicly regarding floodgates of litigation regarding executive action fail to take account of the power conferred on the Parliament to make laws about the effect of the Voice’s representations. We live in the ‘age of statutes’ whereby most executive action occurs under statute and judicial review of such action is also dependent on statute. There are forms of drafting that expand judicial review (eg extended standing) and techniques that limit it (eg ‘no invalidity clauses’). These issues will be considered in the drafting process so the Parliament can make a considered decision as to what legal effects any representations of the Voice may have on executive decision-making.
Elisa Arcioni and Andrew Edgar are Associate Professors at the University of Sydney Law School.
Suggested citation: Elisa Arcioni and Andrew Edgar, ‘The Voice and the Executive’ on AUSPUBLAW (31 March 2023) <https://www.auspublaw.org/blog/2023/3/the-voice-and-the-executive/>