Is the Voice Too Uncertain or Risky?
17.04.2023
Some people are concerned that the Voice is too uncertain or risky. The point has been expressed in different forms. Some worry that the Voice creates the risk of runaway litigation, producing a ‘lawyers’ picnic’. Others worry that entrenching the Voice in the Constitution is uncertain or risky because we do not know or cannot trust how the High Court will interpret it.
The Voice’s ability to make representations to the executive has attracted particular attention. Some are concerned it creates too much uncertainty because we do not know how the Voice will interact with the executive’s many components (Cabinet, government departments, statutory bodies, etc). Or that it creates too much risk because it might lead to administrative law challenges to government decisions.
The Voice’s details have also received critical commentary. Some worry there is too much uncertainty about how the Voice will operate, given that details of its composition and procedures will not be finalised until after the referendum.
This post is aimed at someone interested in some of the finer constitutional law points surrounding the Voice, but who is not necessarily a constitutional expert. It addresses the question — is the Voice too uncertain or risky? — in two parts. First, it considers the types and levels of uncertainty and risk that are a source of concern in the context of a constitutional amendment. Second, it considers how they map onto the proposal to establish the Voice.
What types and levels of uncertainty or risk are a concern?
Types of uncertainty and risk
Not all types of legal uncertainty and risk are equal. Take, for example, the risk that the High Court will issue a decision that we think is incorrect. That risk is markedly different if the decision concerns the interpretation of a statute than if the decision concerns the interpretation of the Constitution. Parliament can correct an interpretation of a statute by amending the statute. There is nothing unusual or onerous about this process. It is something Parliament does all the time. By contrast, altering an interpretation of the Constitution requires another constitutional amendment, a considerably more difficult task involving another referendum.
When evaluating a constitutional amendment, our focus should be on the potential for constitutional uncertainty and risk for two reasons. First, the non-constitutional forms of uncertainty and risk are broadly similar to those posed by every other law. If Parliament enacts new privacy legislation which causes too much litigation, or if the High Court interprets a corporations statute in a problematic way, Parliament can amend these laws to rectify the issue. Similarly, if Parliament enacts legislation on the Voice that causes disruption or the High Court interprets that legislation in a problematic manner, Parliament can amend the legislation to rectify the matter using the ordinary lawmaking process.
Second, a constitutional referendum is a vote on the constitutional text, not the implementing legislation. The concerns that need to be addressed before the vote are concerns with that text — in other words, the constitutional uncertainties and risks. The non-constitutional uncertainties and risks can be addressed at a later point — when the implementing legislation is enacted. At that later point, there will be opportunities to express and address those concerns through the parliamentary process. Indeed, they should be addressed at that later point. If Parliament releases the implementing legislation ahead of the vote, the public might be misled into thinking they are voting on that particular implementation of the constitutional text. But that is not true. Parliament would be free to amend that legislation after the vote.
Levels of uncertainty and risk
Every constitutional change involves some level of uncertainty and risk. As former Chief Justice French has noted, ‘[a]bsolute certainty in human affairs is no more attainable than absolute certainty in science. We can draft a constitution and our laws to minimise uncertainty but can never eliminate it.’
Fortunately, complete certainty and a complete absence of risk are not required before embarking on constitutional change.
Australia as we know it today would not exist if that were not the case. In the 1890s, Australians were asked to vote on a proposal for constitutional change: adoption of the Constitution we now have. That proposal involved considerable uncertainty and risk. A new system of government was being established. A new country was being envisaged. Many important questions could not be fully answered ahead of time, including how the courts would interpret the document the people were voting to approve or reject.
Despite these uncertainties, risks and unanswered questions, Australians voted yes. We continue to be the beneficiaries of that decision today. Australia has one of the more stable and well-functioning constitutions in the world. That does not mean the Constitution is perfect. Far from it. Even the drafters of the Constitution knew that, ensuring that the document could be amended from time to time. That has occurred eight times. Before these amendments were approved, there were new uncertainties, risks and unanswered questions. This is not uncharted terrain for Australia.
Furthermore, we should not see all uncertainty and risk in wholly negative terms. Some uncertainty and risk are a result of the Constitution’s generality. That generality enables the document to adapt to new circumstances and thus endure for long periods of time without the need for constant amendment. While some provisions have not aged well (e.g. s 44), some are now redundant (e.g. s 101) and others appear quaint to contemporary eyes (e.g. s 113), the Constitution has done a remarkable job of remaining relevant despite being written at a time when horses and steam engines provided the primary modes of transportation.
The key is, therefore, to create an appropriate degree of constitutional uncertainty and risk, not completely avoid it. In working out what is appropriate, it is helpful to have a detailed understanding of the specific constitutional proposal’s uncertainties and risks. The next section considers this matter in relation to the Voice.
Does the Voice create an appropriate degree of constitutional uncertainty and risk?
Sources of possible non-constitutional uncertainty and risk
One of the Voice’s striking features is how little constitutional uncertainty and risk it creates. All that the proposal constitutionally entrenches is the Voice’s existence and its power to make representations to Parliament and the executive. Most aspects of the Voice, including its composition, functions, powers and procedures, can be modified by Parliament using the ordinary lawmaking process.
This fact alone addresses many of the concerns expressed at the start of this post. The constitutional amendment does not give the Voice the power to veto laws or governments decisions. The constitutional amendment does not contain any obligation on Parliament or the executive to heed the Voice’s representations.
If, by some remote chance, the Voice started to cause ‘policy chaos’ by trying to insert representatives into every government department, demanding advance consultation on every single government decision or initiating tidal waves of litigation, Parliament could adjust the Voice’s composition, resources and processes to direct its work in a more productive direction.
Indeed, fears of this nature miss the point that the biggest risk in any of these scenarios is to the Voice, not to the executive and Parliament. If the Voice acts in a way that is widely seen as destructive, that will provide the executive and Parliament with political justification to strip the Voice of, for example, resources or personnel, inhibiting its ability to function. The Voice is the constitutionally vulnerable institution. It will only succeed with the cooperation of the executive and Parliament.
The fact that so little is constitutionally entrenched also addresses concerns about the Voice’s details, such as its composition and funding. Those matters will be determined by statute, not by the constitutional amendment. As a result, it makes sense to set out design principles ahead of the referendum, as has been done, then finalise the specific details after the referendum. If the details were finalised ahead of the referendum, voters might think they were voting on those details. As it currently stands, even if it were announced that the Voice would have 10 members ahead of the referendum and the people voted on that basis, Parliament could still change that number after the referendum.
Sources of possible constitutional uncertainty and risk
That leaves two main sources of possible constitutional uncertainty and risk — the type that needs to be addressed before the vote. One is the application of administrative law to the Voice. While most administrative law is regulated by statute and the common law, s 75(v) of the Constitution gives it a constitutional dimension. That section creates ‘an entrenched minimum provision of judicial review’. It means Parliament cannot remove the High Court’s ability to review government decisions for what is called ‘jurisdictional error’.
Section 75(v) is a complex constitutional provision. Even judges can sometimes get entwined in a ‘terminological tangle’ trying to explain it (Hossain v MIBP [17]). As a result, the provision can be used to stoke fears by speculating how it might operate in relation to the Voice. But there are two important reasons why s 75(v) is not a cause for concern.
First, what is ‘jurisdictional error’ is primarily determined by statute — that is, by Parliament (Hossain v MIBP [24]). Put simply, if a person wants to challenge a government decision, s 75(v) prevents Parliament from taking away that person’s right to access the courts to start the challenge. But for that challenge to go anywhere, the person must show that the decision was beyond the power of the purported decision-maker. How do we work out what is beyond power? We look to what Parliament said in the statute.
Second, administrative law does not control the outcome of government decisions. It instead ensures that decisions are made in accordance with long-established principles of good governance. For instance, it ensures government officials do not take into account irrelevant considerations when making a decision. It does not tell the government official what decision to make.
Elisa Arcioni and Andrew Edgar explain the Voice’s operation in relation to the executive in greater detail in this post. In it, they also address other administrative law concerns, showing, for instance, why the Voice will not lead to a flood of litigation.
That leaves the final source of possible constitutional uncertainty and risk: the High Court. If the referendum succeeds, questions about the new constitutional provision will undoubtedly come before the Court years or decades later. Some people are concerned that we do not know or cannot trust how the Court will answer those questions.
The High Court will answer questions about the new constitutional provision in the same way it answers questions about all the Constitution’s existing provisions. Consequently, there is much less uncertainty and risk for us today than there was for Australians voting in the 1890s. We have 120 years of history to guide us.
That history teaches us a few key lessons. First, we cannot yet know all the answers the High Court will give because we do not yet know the questions it will be asked. The Court does not answer broad hypothetical questions. Instead, it answers specific questions based on specific arguments put to it in the context of specific laws applied to specific sets of facts. It is, therefore, impossible to know which questions will come before the Court in advance. That is not a cause for concern. We would not want the Court deciding constitutional questions before hearing all the facts and arguments.
Second, the major fear some people have — that the High Court will upend the provision with some broad implication requiring Parliament or the executive to consult the Voice before acting — is at odds with the Court’s approach to constitutional interpretation that has existed for the past 120 years. All the factors it considers when interpreting the Constitution — the text, purpose, history and legal consequences — point against the making of such an implication. Constitutional law Professor Anne Twomey’s submission (pp 5-8) to Parliament’s Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum provides a clear explanation of this matter.
Third, there will never be complete consensus among lawyers and judges on constitutional issues. The design of constitutions, predictions about how the Court will decide individual cases, and evaluations of judgments are difficult matters. It is not a cause for concern that we see disagreement on these challenging topics. Indeed, it is a sign of a vibrant democratic system that respects freedom of speech.
When someone points to a decision such as Love; Thoms to suggest that judges cannot be trusted with the Voice because it shows they make ‘activist’ or ‘radical’ decisions, all they are doing is using colourful language to label a decision with which they disagree. This is simply one opinion on the decision. Other people consider the decision to be legally sound and would not describe it as ‘activist’ or ‘radical’.
This is the law’s circle of life. A constitutional change is proposed, or a court decision is issued. Some people disagree with it. Other people disagree with that disagreement. And on it goes.
The worry about trust is also nothing new. In the 1890s, British officials thought that the High Court could not be trusted with the new Constitution. Their fears — for example, that Australians judges would fail to protect the interests of British investors — never came to pass.
If the constitutional amendment is passed and the Voice is established, we will see criticism of the High Court’s decisions on the Voice, just as we have seen criticism of the High Court’s decisions on every other part of the Constitution for the past century. The law’s circle of life will continue.
This leaves one last question. Why bother amending the Constitution? Many people have given answers to this question already, highlighting the case for the Voice from both a symbolic and practical perspective. See, for example, the points made by former High Court Justice Kenneth Hayne, the speech given by former High Court Chief Justice Robert French, and the explanation given by Professor Gabrielle Appleby and Eddie Synot. Recently, Professor Megan Davis summarised it as follows: ‘This is an opportunity for Australians to change the nation for the better … To imagine that Australia can change because the Constitution is built to change.’
Scott Stephenson is an Associate Professor at Melbourne Law School, University of Melbourne.
Suggested citation: Scott Stephenson, ‘Is The Voice Too Uncertain or Risky?’ on AUSPUBLAW (17 April 2023) <https://www.auspublaw.org/blog/2023/4/is-the-voice-too-uncertain-or-risky/>