Reconciling the Voice and section 116 of the Constitution
In this special mini-series as part of our Voice posts this year, we present a series of posts on the question of the future design of the Voice with a specific focus on questions of determining Indigeneity, and how this might interact with the religious freedom clause in section 116 of the Constitution. We bring you two different domestic perspectives on this issue from Michael Douglas and Luke Beck, and an international perspective from Lucas Lixinski.
25.07.2023
How would the proposed Aboriginal and Torres Strait Islander Voice (‘the Voice’) interact with the prohibition of religious tests for Commonwealth offices under section 116 of the Constitution?
Section 116 provides that ‘[t]he Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth’.
The relevance of section 116 to the Voice may not be readily apparent. The issue becomes clearer after considering the tests for whether a person is an Aboriginal or Torres Strait Islander person according to Australian law.
This article does not offer a reason to vote ‘no’ on a referendum implementing the Voice. I will be voting ‘yes’. The purpose of this post is to explore post-referendum questions for implementation of the Voice.
Legal tests for ‘Aboriginality’
Whether a person is Aboriginal or a Torres Strait Islander person or otherwise is a complex question, which can be approached from a variety of perspectives: Love; Thoms, [367] (Gordon J).
I am a white person. I do not speak for Aboriginal people or their experiences. I am not qualified to speak on how they identify in their day-to-day lives. But I am qualified to speak on the law. My focus is on the criteria by which a person is judged to be an Aboriginal or Torres Strait Islander person according to Australian common law and statute.
‘Aboriginality’ is the subject of various legislation. Some statutes have addressed the issue with somewhat circular definitions. In the repealed Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) s 4, for example, an ‘Aboriginal person’ was defined as ‘a person of the Aboriginal race of Australia’. Many definitions, especially earlier ones, have focused on descent alone. Over time, ‘Aboriginality’ would often turn on more than biology.
Recently, in Love, the majority of the High Court expressed the view that whether a person is an ‘Aboriginal Australian’ may turn on what is often described as ‘the tripartite test in Mabo [No 2]’: [81] (Bell J). The tripartite test was articulated by Brennan J in Mabo v Queensland [No 2], CLR 70, in the following terms: ‘[m]embership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people’.
In Mabo [No 2], the tripartite test was described with respect to native title rights. In Love, it was used in relation to a question of whether an Aboriginal Australian could also be an ‘alien’ for the purposes of the aliens power in s 51(xix) of the Constitution. A very similar test was used by Deane J in Commonwealth v Tasmania, to determine the scope of the power in s 51(xxvi) of the Constitution. But in Attorney-General (Cth) v Queensland, French J held that descent alone was enough to determine whether a person was an Aboriginal or Torres Strait Islander person for the purposes of ascertaining the scope of the Royal Commission into deaths in custody.
In the Montgomery case, the High Court was poised to determine whether a person who identified as Aboriginal and was accepted as such by the relevant community was ‘aboriginal’ despite not being biologically descendent from Indigenous people. Like in Love, the question was to be determined with respect to the aliens power. However, with a change of government, the Commonwealth discontinued its case.
The cases show that there is not a single legal test that determines whether a person is an Aboriginal or Torres Strait Islander, and that some questions remain unresolved. However, the tripartite test remains a dominant criterion in various contexts, whose application yields various important legal consequences. The following section presumes that the tripartite test will be used to determine whether a person is an Aboriginal or Torres Strait Islander person for the purposes of understanding whose voices will contribute to the Voice.
The second and third limbs of the tripartite test
The relevance of religion to whether a person is Aboriginal depends on the second and third limbs of the tripartite test; that is, ‘on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people’. As Gordon J explained in Love, the third limb ‘entails not just community acceptance, but recognition by the elders or other persons enjoying traditional authority’: [371].
What makes a person an ‘elder’ or someone enjoying ‘traditional authority’, as understood by Australian law? Mortimer J considered the terms’ treatment in the authorities in Helmbright, [137]–[141], and concluded that such people are those ‘who are seen, by their own community, as having authority under the laws and customs of that community as passed down through the generations, to make decisions for and about the community’.
Whether a person is an Aboriginal or a Torres Strait Islander person turns on the ‘traditional laws and customs’ of that person’s particular community. These traditional laws and customs provide ‘the norms handed down from generation to generation, since prior to European settlement’ (see Hobson, [29]), by which authority to decide membership is determined.
Traditional laws and customs are spiritual in character
‘Traditional laws and customs’ is an ambiguous term: ALRC, Recognition of Customary Laws (Report 31) [98]. The content of traditional laws and customs may vary between indigenous societies, and between different groups of Aboriginal and Torres Strait Islander persons. The premise advanced here is that in the Australian context, these laws and customs have a spiritual dimension—or at least, they do according to Australian law.
The difficulty with accepting this premise is that many of the judicial statements on point concern findings of fact, given that the nature and incidents of native title turn on traditional laws and customs, which may be amenable to proof by evidence; see, eg, Commonwealth v Yarmirr, [112], [301], [327]; Starkey v South Australia, [49]. For example, in Western Australia v Willis, [49], the following pleaded fact was accepted with respect to the Pilki People of the Western Desert region: ‘laws and customs [of the Pilki People] are normative by reason of a … fear of social and spiritual consequences of a breach of the laws and customs’. This passage is illuminating but not binding.
There is a wealth of dicta that describe Aboriginal persons’ connections to land, as determined by application of traditional laws and customs, as spiritual in character: see, eg, Northern Territory v Griffiths, [23], [44]; Fortescue Metals Group v Warrie, [168]; Western Australia v Ward, [14].
For example, in Love, Kiefel CJ explained that the incidents of native title are ascertain with reference to traditional laws and customs: ‘[t]he nature of the connection to land and waters ascertained by reference to traditional laws and customs has been further explained in cases subsequent to Mabo [No 2]. It has been described as being not only material or physical, but also spiritual and cultural’ (emphasis added): [28]. (See also Bell J and Nettle J: [70], [73], [242], [276]). Gordon J quoted Milirrpum v Nabalco Pty Ltd in describing Indigenous peoples’ connection to country as ‘spiritual’, where Blackburn J said, ‘[t]here is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole’: [290].
More recently, the majority position in Love was applied in Webster, [43], where Rares J held:
‘The essence of the second and third limbs of the [tripartite] test is that the person must be seen as incorporated as a member into a society (or people) because he or she is descended from its common forebears. That concept derives from the legal conception of common law native title in Australia. That conception has a fundamental precept that the common law native title holders have a spiritual connection to, and relationship with, the relevant land and waters that derives from, or is reflected in, their traditional laws and customs.’
It may be that the spiritual quality of traditional laws and customs is contingent; that only those laws and customs concerning connection to land are spiritual. But Rares J’s dictum suggests more: the tripartite test has spirituality as a foundational premise.
A syllogism in a single case is a shaky foundation on which to ground an argument about a subject matter as significant as the Voice. Yet the premise it produces has appeal, and support in authority. As part of the majority in Love, Edelman J reasoned that ‘Aboriginal identity is shaped by belonging to country’: [392]. If that is right, then Aboriginal identity—like the identity of many Australians—is shaped by spirituality. The focus here is not on the many, but those whose voices will fulfil the Voice.
The third limb of the tripartite test depends upon the status of elders and those possessing traditional authority within a relevant group of Aboriginal or Torres Strait Islander persons. That status depends on law which is spiritual in character. The second limb of the tripartite test depends upon self-identification, which in the Australian context ought to embrace a self-identified belonging to country of a spiritual character. The application of the tripartite test to determine whether a particular person is Aboriginal therefore depends upon spirituality, among other things.
This argument has support in the Explanatory Memorandum to the Bill that will produce the referendum, which refers to the Uluru Statement from the Heart, and describes the referendum that as ‘the form of recognition sought in the 2017 Uluru Statement from the Heart’: 2. The Uluru Statement is attached to and within the EM, and provides in part:
Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.
This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.
How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?
With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.
This indicates that a purpose of the Voice is to achieve ‘sovereignty’, understood in the spiritual sense described in the Uluru Statement from the Heart. (On ‘sovereignty’, see further Robert French ‘The Voice - A step forward for Australian Nationhood’ on AUSPUBLAW (20 February 2023)). The Voice will achieve an objective which is spiritual in character, at least in part.
Spirituality of Aboriginal and Torres Strait Islander persons as a form of religion
The spirituality of Aboriginal and Torres Strait Islander persons is equivalent to, for present purposes, the imported religions which may be amenable to section 116 issues. There are plenty of dicta in support of this view. Blackburn J described the ‘religious beliefs’ of ‘aboriginals’ in Milirrpum, 153. In Church of the New Faith v Commissioner of Pay-roll Tax (Vict), CLR 151, Murphy J considered that ‘the Aboriginal religion of Australia… must be included’. In the same case, Mason ACJ and Brennan J described two criteria of religion (CLR 136): belief in a supernatural being, thing or principle; and the acceptance of canons of conduct to give effect to that belief. That test would encompass the spiritual connection to country which underpins the traditional laws and customs of Aboriginal and Torres Strait Islander persons. Kirby J appeared to support to this view in Ward, [586].
More recently, in Cheedy v Western Australia, [95], the Full Court of the Federal Court appeared to consider that ceremonial practices of the Yindjibarndi people concerning ochre and sacred stones (gandi) could be within the scope of ‘religion’ for the purposes of section 116.
Assuming that the spirituality and belief systems of Aboriginal and Torres Strait Islander persons are caught by the term ‘religion’ in section 116, the question remains: what might section 116 mean for the Voice?
The Voice and ‘any office … under the Commonwealth’ under section 116
Section 116 contains four separate guarantees. This article considers the fourth: ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth’. It considers whether the Voice may give rise to an ‘office … under the Commonwealth’.
What is an ‘office … under the Commonwealth’ in the context of section 116? The issue has not been resolved, but it was considered in Williams v Commonwealth (No 1). Gummow and Bell JJ considered that the meaning turns on the context in which ‘office’ is found, and that the term ‘under’ indicates a closer connection than merely funded by the Commonwealth: [110].
Their Honours cited Sykes v Cleary, a case concerning section 44 of the Constitution, which relevantly provides that any person who ‘[h]olds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth’ is incapable of being elected to Parliament. Mason CJ, Toohey and McHugh JJ cited authority which considered that ‘office’ usually connotes a position of defined authority in an organisation (eg, a director), and others where ‘office’ ‘signifies a subsisting permanent substantive position which exists independently of the person who fills it from time to time’. They emphasised that construction should focus on the context of the term, and the mischief to which the relevant provision was directed: CLR 96–7.
In Re Lambie, [9], the majority described ‘office of profit’ in section 44(iv) as meaning a ‘position of a public character constituted under governmental authority to which duties and emoluments are attached’.
More recently, in Hocking v Director-General of the National Archives of Australia, the High Court considered the meaning of ‘authority of the Commonwealth’ in the Archives Act 1983 (Cth) s 3(1), which means inter alia ‘the holder of a prescribed office under the Commonwealth’. Edelman J appealed to Sykes v Cleary and Re Lambie in holding that ‘office under the Commonwealth’ means ‘appointed by the Commonwealth or employed by the Commonwealth’.
The case law does not conclusively determine whether the Voice—or some component of it, once implemented through legislation—should be considered an ‘office under the Commonwealth’ for the purposes of section 116. But I consider that it should, for the following reasons.
First, proposed section 129(1) describes the Voice as ‘a body’ in the context of an instrument describing the core institutions of the Australian system of government. It would be a body of a public character, following Re Lambie.
Second, proposed section 129(2) provides that the body ‘may make representations to the Parliament and Executive Government’. This representation-making role may indicate the degree of closeness necessary to mean that it is under the Commonwealth, following the dicta in Williams (No 1). The role entails public duties that favour the same characterisation, following Re Lambie.
Third, the meaning of ‘office’ in section 116 should be derived with reference to the mischief to which the provision was directed. On that point, Quick and Garran reveals that inspiration for section 116 included the original version of Article VI section 3 of the Constitution of the United States, which also referred to ‘office or public trust’: [462]. As regards the American provision, ‘[t]he prohibition of religious tests was a denial of power—a denial which was necessary, because otherwise there would have been nothing to prevent the Federal legislature, in defining the qualification for federal office, to impose such tests’: [462].
The preceding sections of this article considered that, if the tripartite test for whether a person is an Aboriginal or Torres Strait Islander is adopted with respect to the Voice, it would mean the test has a religious character. If that is right, then this may be precisely the kind of mischief to which section 116 was directed. The Voice would be an office under the Commonwealth for the purposes of section 116.
So what?
In my view, the interaction between section 116 and the Voice will have two consequences of significance:
The meaning of ‘Aboriginal and Torres Strait Islander peoples’ in proposed section 129 must adapt to be consistent with section 116. In so doing, proposed section 129 will be devoid of religious content.
Legislation passed pursuant to the power in proposed section 129(3)—like legislation prescribing who may participate as a voice of the Voice—must be consistent with the construction entailed by (1), following Kruger v Commonwealth, CLR 123 (Gaudron J).
The practical effect of these propositions is that whether a person is an Aboriginal or Torres Strait Islander person for the purposes of the Voice must turn on something other than the tripartite test—and most likely, on descent alone.
These conclusions depend on principles of constitutional interpretation.
In an oft-quoted passage in Attorney-General (NSW) v Brewery Employees’ Unions of NSW, CLR 611–2, Higgins J wrote:
‘though we are to interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting—to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be’.
‘The same principles of interpretation’ include that provisions must be read in view of their text, context and purpose. Constitutional purpose is particularly important. The meaning of words is not determined by merely analytical and a priori reasoning: Commonwealth v ACT, [15].
The context of proposed section 129 will be section 116. As Justice Leeming has written, where provisions in an instrument of the same status are in putative conflict when read in context, if a harmonious construction is possible, it should be preferred: pp 46–50.
With respect to the Voice, at least two harmonious constructions are possible. Either ‘religion’ in section 116 does not mean that of the First Australians, or the test for ‘Aboriginality’ in section 129 would have no religious content.
The first construction may give effect to the intent of proposed section 129, which seemingly appeals to spirituality (see the EM). But it also requires an unduly narrow (and racist) view of what is a ‘religion’. It is one which distorts the meaning of both ‘religion’ and whether a person is ‘Aboriginal or Torres Strait islander’, as understood by previous authority. And it would read words into section 116 which are not there: words carving out religions of First Nations persons as beyond the scope of the operation of one of Australia’s only express constitutional rights (cf Western Australia v Commonwealth, CLR 265, Mason J).
The second construction has the attraction that it serves the constitutional purpose of section 116—to avoid religious qualifications for Commonwealth offices, irrespective of the identity of a person’s religion.
A contrary view is that, by giving effect to the Voice, the meaning of section 116 must necessarily change. Support for that view may also be found in Mason J’s reasons in Western Australia v Commonwealth, CLR 270.
I consider that this line of reasoning would impermissibly destroy the substantive operation of the constitutional right to freedom of religion. Assume a proposed ‘Anglican voice to Parliament’ was created by a new provision of the Constitution. Would that take priority over section 116? If so, it would destroy the purpose of section 116 as manifested in the importation of the American Article VI. In England, a Roman Catholic cannot be sovereign, and must join ‘in communion’ with the Church of England: the US Constitution deliberately went in another direction.
Australia did too.
Concluding remarks
A premise of section 116 is the equal dignity of Australians, no matter their religion. We have an equal stake in the work-in-progress that is Australia. Equality is a core Australian value that can be served in numerous ways. Enshrining the Voice in the Constitution is one way, and one worth pursuing. If it leads to greater self-determination for Aboriginal and Torres Strait Islander peoples, and improves peoples’ lives, then it is worth pursuing.
Dr Michael Douglas is a Senior Lecturer at UWA Law School and a litigation lawyer in Perth. Views are his own.
Suggested citation: Michael Douglas, ‘Reconciling the Voice and section 116 of the Constitution’ on AUSPUBLAW (25 July 2023) <https://www.auspublaw.org/blog/2023/7/reconciling-the-voice-and-section-116-of-the-constitution/>