The Voice: imagined legal problems distract from the substance
10.05.2023
In this post, I give a brief explanation of the constitutional and administrative law issues that arise (or rather, in my view, do not arise) from the proposed addition of Chapter IX, section 129, in the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (‘the Bill’). To be clear, I do not propose to enter into the substantive merits of the constitutional change proposed by the Bill – my personal view is that the substantive arguments in favour of that proposed change are compelling; others plainly disagree. It seems to me that those issues of substance are where the current national debate should be focussed.
What I rather wish to address is the suggestion that the proposal upends the current constitutional landscape, or will create some sort of legal minefield to be extensively litigated in the High Court.
As a public law practitioner, it is my view that those suggestions are considerably overstated. They are a distraction that should be put to one side.
The proposed section 129 and the system of representative government
The proposed s 129 is not concerned with the creation of legally enforceable rights or duties. It is better understood as being directed to what Professor Harrison Moore identified in 1902 as the ‘great underlying principle’ of the Constitution, being that the rights of individuals were ‘sufficiently secured by ensuring each an equal share in political power’ (p 329). It is that exercise of political power, rather than a bill of rights, which is the principal constitutional constraint on excesses of legislative and executive power in our Constitution (McCloy v New South Wales at [111] (Gageler J)).
In the context of the implied freedom of political communication, the High Court has understood that notion as requiring that the people of the Commonwealth enjoy ‘equality of opportunity to participate in the exercise of political sovereignty’, that being ‘an aspect of the representative democracy guaranteed by the Constitution’ (McCloy at [45] (French CJ, Kiefel, Bell and Keane JJ)). The nature of that ‘equal participation’ is not merely formal: it requires attention to the potential for some voices to be marginalised or overwhelmed by those with louder voices (e.g. those with deeper pockets for political advertising). For that reason, in dealing with the potential risk to that equal participation posed by the uncontrolled use of wealth in the form of political donations, the High Court has accepted that it may be legitimate for Parliament to enact various measures, including legislation to cap donations or (relevantly here) to ‘provide a voice to those who might otherwise not be heard’ (McCloy at [44]-[45]. Notably, the opportunity to be heard in that context extends to communications directed to or concerning the conduct of the executive branch of government in addition to discussion of the political process (Cunliffe v Commonwealth at 298-299 (Mason CJ), 340 (Deane J), 380 (Toohey J), 387 (Gaudron J); Lange v Australian Broadcasting Corporation at 561).
That is what the proposed amendment is concerned with.
In that regard, it is notorious, and probably at least one aspect of common ground in the current debate, that our existing constitutional arrangements have fundamentally failed to ensure that First Nations People have meaningful input into the legislative and policy decisions that affect their lives. The alteration proposed by the Bill really goes no further than ensuring that that important contribution to policy and law-making processes is no longer vulnerable to political vicissitudes. In that way, as noted in the Explanatory Memorandum, it provides a meaningful and practical (as opposed to purely symbolic) form of constitutional recognition of First Nations People (p 3).
Further, for reasons I will explain further below, the proposal does not require anything of the Parliament or the Executive Government that would impede their functioning. And as the Commonwealth Solicitor-General has noted (at [17]), it does not otherwise alter the existing distribution of Commonwealth governmental power.
So understood, there is nothing in the proposal that radically alters the system of government for which the Constitution provides. It is quite correctly described as a ‘modest’ change. It fits neatly within that system and coheres with Professor Moore’s ‘great underlying principle’ – ensuring that First Nations People share in the political power that is the bedrock constraint upon executive and legislative power. In that way it buttresses the existing system so as to better ensure its proper working, but none of that involves some sort of large or disruptive change.
Areas of supposed legal uncertainty or with litigious potential
I turn then to the asserted legal problems with the proposal in the Bill. Those criticisms seem to involve two related points. First, there is said to be some form of uncertainty as to the meaning of the text. Secondly, and because of that, it is feared there will be long running litigation in the High Court seeking to exploit that uncertainty.
Those asserted problems frequently appear to involve the imagination of extreme examples, without regard to the position of an advocate who actually has to present such imagined arguments in a court. We are not here entering into some large unknown legal universe – the issues said to arise have fairly obvious answers, supplied by existing authority and legal principle. And my colleagues at the bar, endlessly creative as they are, are bound by ethical obligations which affect and limit the kinds of arguments they can present.
The idea that the Voice is going to lead to some sort of frivolous or unnecessary litigation, endlessly tying government administration in knots, seems to me to overlook those matters.
Scope of representations
The subject matter on which representations that may be made by the Voice is expressed broadly – it may make representations on ‘matters relating to Aboriginal and Torres Strait Islander Peoples’. The words ‘relating to’ are familiar words of connection, which are designedly broad. As is noted in the explanatory memorandum, the matters on which representations could be made would include both ‘matters specific to Aboriginal and Torres Strait Islander peoples’ and ‘matters relevant to the Australian community, including general laws or measures, but which affect Aboriginal and Torres Strait Islander peoples differently to other members of the Australian community’.
There are obvious reasons for that approach.
First, many of the matters that most acutely affect First Nations People fall within the latter category (for example, the over-representation of First Nations People in the criminal justice system or their access to the health system).
Secondly, as Professor Davis and Professor Appleby have noted, that approach will (appropriately) allow the role of the Voice to evolve and adapt to changing circumstances. As they point out, COVID has dramatically illustrated what that might entail. A capacity to meet such changing circumstances is a vitally important characteristic for a constitutional provision, which can be expected to be with us for some time. As Justice Gageler observed in Burns v Corbett, the Constitution was not framed ‘for the moment of its creation’, but as an ‘enduring instrument of government’ (at [116]). That same approach should guide the drafting approach in any proposed amendment to that instrument.
As applied to the scope of permitted representations, that (appropriate) drafting approach is unlikely to lead to litigation inducing uncertainty. Indeed, the opposite is true. The scope is clearly and unambiguously broad, a design feature that serves the objects I have noted above. And that very design feature means that there will be little room for argument as to whether any particular representation is within the terms of s 129(ii). That does not mean that the Voice is unconstrained. But the principal constraints will be common sense practical constraints inherent in the need for the body to preserve its political capital and the fact that it will be accountable to its constituency.
Representations to Parliament
By and large, critics of the current proposal have not suggested that that aspect of clause (ii) dealing with ‘representations to the Parliament’ is likely to lead to much in the way of litigation or legal uncertainty. For a number of reasons, that (implicit) concession is well made. The text of the amendment says nothing as to what Parliament or individual parliamentarians are to do with any representations, leaving that to be determined by the Parliament itself. A suggestion that one should draw some sort of implication that Parliament’s powers are fettered by a requirement to have regard to representations would be in tension with the vesting of legislative power in Ch I, which is subject only to the expressly stated procedural requirements in that Chapter. Moreover, any such requirement relating to the internal deliberations of Parliament would be unlikely to be justiciable (see eg the approach taken by the High Court to ss 53 and 54 of the Constitution).
Representations to the Executive
Critics of the current proposal have suggested that a richer area of uncertainty or litigious potential lies in that aspect of clause (ii) which deals with representations to the executive government. That uncertainty is claimed to operate at a number of levels.
Executive government
First, there is said to be some uncertainty as to what is actually meant by the term ‘Executive Government of the Commonwealth’. That is a term that is used in a number of other provisions in the Constitution (for example, sections 52(ii), 67, 70, 81, 84 and 86) and the Explanatory Memorandum says that it is to have that same meaning in s 129.
That term undoubtedly extends to the Ministers of State referred to in s 64 (upon whose advice the Governor-General acts – ss 62 and 63) and the ‘other officers of the Executive government of the Commonwealth’ referred to in s 67 (which includes, but is not limited to, the public servants working within the Departments of State referred to in s 64 of the Constitution – see Comcare v Banerji at [63]). But, although broad, it may not extend to all Commonwealth entities. In particular, there are authorities indicating that at least some agencies and instrumentalities created by Commonwealth statute which have their own legal personalities (ie statutory corporations) are not part of the Executive Government of the Commonwealth in other contexts (see eg Airservices Australia v Canadian Airlines at [373] (Gummow J); Austral Pacific v Airservices Australia at [14] (Gleeson CJ, Gummow and Hayne JJ); Macleod v Australian Securities and Investments Commission at [7] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Hocking v Director-General of the National Archives of Australia at [75] and [76] (Kiefel CJ, Bell, Gageler and Keane JJ). See also Darrell Barnett, ‘Statutory Corporations and the Crown’ at 191-194.) It can be noted in that regard that the Reserve Bank (the subject of considerable recent discussion) is a statutory corporation. Although less clear, there is also some authority which may suggest that the holders of independent statutory offices established in the exercise of legislative power under Ch I of the Constitution might not be included (see R v Hughes; Plaintiff M68/2015 v Minister for Immigration and Border Protection at [127] (Gageler J); Hocking at [75], [76] (Kiefel CJ, Bell, Gageler and Keane JJ) and see also G Hill “Will the High Court ‘Wakim’ Ch II of the Constitition” at 454-455).
To the extent any issue arises about those matters, the Court will be guided by that existing body of authority. No additional uncertainty is introduced into the Constitution by the use of that same term in s 129(ii).
But such issues are unlikely to cause any particular difficulty, for at least four reasons.
First, on any view, the term ‘Executive Government of the Commonwealth’ includes the majority of Commonwealth entities (the majority of which are not incorporated).
Secondly, ultimately, all statutory agencies and independent office holders are accountable to a Minister of State. That may be expressly provided for in the terms of the relevant statute, including by power of direction. On the hot topic of the Reserve Bank, under s 13 of the Reserve Bank Act 1959 (Cth) ‘[t]he Governor and the Secretary to the Department of the Treasury shall establish a close liaison with each other and shall keep each other fully informed on all matters which jointly concern the Bank and the Department of the Treasury’. The Secretary of the Treasury is part of the Executive Government of the Commonwealth, and accountable to the Minister of State that administers that Department. And, in any event, under the Administrative Arrangements Order, all Commonwealth legislation is administered by a Minister of State. She or he would undoubtedly be a member of the executive government of the Commonwealth and an appropriate recipient of representations concerning a particular agency if there is any doubt about whether they also fall within s 129(ii). One would also naturally expect that the Minister would then draw that representation to the attention of the relevant entity.
Thirdly, as Professor Twomey has noted, this entire area can be, and almost certainly will be, dealt with via a law made under s 129(iii) providing a mechanism (or mechanisms) for the making of such representations. Section 129(ii) would not permit a law to be made under s 129(iii) that denied the Voice the power to make representations to the Executive Government of the Commonwealth. But s 129(ii) would not prevent a law being enacted in reliance on s 129(iii) to manage — in a practical way — how those representations are to be made. Such a law might, for example, require (as Mr French and Professor Lindell have suggested) that all representations be directed to the relevant minister. There would likewise be no constitutional problem with such a law requiring representations from the Voice to be channelled to any statutory agencies that fall outside the term ‘executive government of the Commonwealth’ (relying on s 129(iii) in combination with other heads of legislative power, to the extent necessary).
Finally, any dispute about this issue would involve a question as to the remit of the Voice. The person or entity most likely to have standing to agitate such an issue would be the recipient of a representation (the Commonwealth entity). It is unlikely that the recipient of a non-binding representation from the Voice would expend public money on such court proceedings, to no apparent end (the representation will have been made; it will require nothing further if the recipient chooses to ignore it). Suggestions to the contrary ignore reality.
Mandatory relevant considerations
Perhaps the key legal difficulty identified by critics of the Bill is the suggestion that the High Court might imply a form of ‘reciprocal’ requirement on the part of the executive government to have regard to the representations made by the Voice as a condition of a valid exercise of power. That seemingly has in mind that the representations made by the Voice referred to in s129(ii) could be a ‘mandatory relevant consideration’ in the context of particular decisions made under specific legislation (or perhaps even in the exercise of non-statutory executive power).
This objection is, in my view, simply misconceived.
The likely approach that the High Court would take in the context of s 129 is illustrated by Banerji at [43]-[45] (Kiefel CJ, Bell, Keane and Nettle JJ). There it was argued that the implied freedom of political communication was a mandatory consideration for the purposes of a discretionary power under the Public Service Act 1999 (Cth). The High Court rejected that argument but accepted that the implied freedom could be a mandatory relevant consideration in a particular statutory context. Whether it was or was not would depend upon the terms of the legislation conferring the power or discretion upon the executive and the nature and scope of the particular power or discretion (ie a matter for Parliament to determine).
Here, the terms of s 129(ii) make no express mention of any requirement for the executive government to do anything in respect of representations made by the Voice. And an implied constitutional requirement for the executive to respond to representations in a particular way would be unlikely to meet the accepted requirement that the implication be logically or practically necessary to give effect to any textual or structural features which support it (see Lange at 560, Re Gallagher at [24] (Kiefel CJ, Bell, Keane Nettle and Gordon JJ; Gageler J agreeing) and Burns v Corbett at [94] (Gageler J) and [175] (Gordon J) There are at least four reasons for that.
First, as French and Lindell (at [54]) have noted, the nature of the requirement sought to be implied is one that requires an exquisitely drawn delineation – eg to cater for the fact that the Voice may make representations on policy or political decisions that could not be subject to judicial review. The actual terms of s 129(ii) supply arid ground for drawing those lines – merely providing what the Voice may do, and then at the very highest level of generality. As a consequence, the suggested implication would be largely free-floating and a-textual, which flies in the face of the orthodox notion that what the Constitution implies depends upon what its terms and structure prohibit, authorise or require (Gerner v Victoria at [14]).
Secondly, and by way of contrast, s 129(iii) is a textual feature which clearly points the other way – indicating that it is for Parliament to deal with such matters. Like other grants of legislative power, s 129(iii) will be construed with all the generality that the words permit (Grain Pool of WA Ltd v Commonwealth at [16]). Indeed, as the Commonwealth Solicitor-General has noted (at [25]), it involves a ‘double use of wide connecting language’ – see the words ‘relating to’ in addition to the words ‘with respect to’. It plainly extends to a law ‘specifying whether or not an Executive Government decision-maker has a legal obligation to consider the Voice’s representations’ (p 11, [28]). Those aspects of the text, design and constitutional context leave no gap to be filled by implication, let alone give rise to a logical or practical necessity for such an implication (see for example, MZXOT v Minister for Immigration and Citizenship at [40] and [41] (Gleeson CJ, Gummow and Hayne JJ) and Burns v Corbett at [95], [99] (Gageler J); [137] (Nettle J); [176] (Gordon J); [238] (Edelman J) (cf Kiefel CJ Bell and Keane JJ at [4]).
Thirdly, the function of making representations to the executive is collocated with the function of making representations to the Parliament in s 129(ii). As noted above, there could be no suggestion that some sort of reciprocal obligation to consider representations applies to representations made to Parliament. That contextual feature is a matter that points to the constitutional design underlying the Voice. It strongly suggests that its efficacy is in both cases purely dependent upon the persuasive powers of the Voice (subject to any further requirement validly imposed under s129(iii)).
Fourthly, related to that, those features of the text and context are explicable by reference to the notion that the Voice is a particular manifestation of Professor Moore’s ‘great underlying principle’. That is, as a mechanism that is (like other features of the constitutionally prescribed system of representative and responsible government) primarily concerned with the exercise of persuasive political power as a constraint upon legislative and executive power.
A right to advance notice, time and resources?
Critics of the proposed amendment have not stopped there: in a (commendable, but misplaced) display of legal inventiveness, it has been suggested that there may be some form of ‘right to be given advance notice of matters within the voice’s remit’ or a ‘right to be given sufficient time and resources to consider the matter’. Again, that involves asserted requirements that are (entirely) lacking from the text.
And the Court would not imply such a requirement for essentially the reasons I have noted above. In addition to those matters, such an implication would not be drawn for the very reason noted by those making those objections: such a far-reaching implication could ‘hogtie’ the system of government for which the Constitution provides, something to which the High Court is very much alive (as seen in pragmatic, functionalist approach taken to the delegation of legislative power to the executive in Victorian Stevedoring and General Contracting Co v Dignan). Not only would those proposed implications fail the test of necessity. They would be in tension with the express terms of the Constitution dealing with the vesting of the executive power of the Commonwealth (s 61), noting that some aspects of that power are (of necessity) exercised expeditiously and without permitting anyone to be heard (see for example, CPCF v Minister for Immigration at [51]-[53] (French CJ); [306] (Kiefel J) and [368] (Gageler J). It is well established that the Court does not draw such implications in those circumstances.
The chapeau
Finally, the constitutional recognition achieved in the chapeau to s 129 has been said to provide some sort of licence for judicial creativity or interpretation. Just what that might be has not been articulated. Presumably, the concern there relates to the construction of one or more of the sub-paragraphs in s 129(i)-(iii). But, as I have said above, those provisions provide arid ground for any form of implication and the chapeau will not bridge that gap.
Three further points should be made. First, what appears in the chapeau is a statement of objective truth. Secondly, it is an objective truth that the High Court has had no difficulty, whatsoever, discerning for itself and applying in constitutional cases (Mabo v Queensland [No 2] at 38-39 (Brennan J); Love v Commonwealth at [70] (Bell J); [268], [269] (Nettle J); [289], [297], [340] (Gordon J); [451] (Edelman J); [115] (Gageler J)). The (overdue) recognition of the special place of First Nations People in the constitutional text is unlikely to make any difference to that approach. Thirdly, it follows that the only effect of those words is to provide the explanation for what follows (the establishment of the Voice with certain functions). Notably, the preamble likewise contains an analogous explanation for the enactment of the Constitution as a whole and that has not resulted in some outbreak of judicial ‘interpretative excess’. The chapeau will operate no differently.
Conclusion
As I said at the outset, my object in writing this post was to address the areas of supposed legal difficulty and litigation risk in the proposed amendment. Those supposed difficulties are, in my view, overstated and pose no real (as opposed to imagined) problem from the perspective of a public law practitioner. That is not to say that no case will ever be brought regarding either s 129 or legislation made under s 129(iii). But that is the obvious consequence of the fact that our system is built upon the rule of law. Constitutional and administrative law cases have been brought in respect of all manner of things, ranging from cigarette packets to barley to on-line gambling. The world has not ended; the Commonwealth has not ground to a halt. The possibility (remote as it is) that litigation might arise from a modest proposal to address issues relating to First Nations People is likewise no cause for anxiety or excitement.
Craig Lenehan SC is a barrister on 5th Floor St James Hall, practising in public law. He is also a fellow of the Gilbert + Tobin Centre of Public Law at UNSW Law & Justice.
The author thanks Professor Gabrielle Appleby, Professor Anne Twomey and Tom Wood for their very helpful comments on this paper.
Suggested citation: Craig Lenehan, ‘The Voice: imagined legal problems distract from the substance’ on AUSPUBLAW (10 May 2023) <https://www.auspublaw.org/blog/2023/5/the-voice-imagined-legal-problems-distract-from-the- substance/>