The Direct Consequences of an Indigenous Voice to Parliament

Introduction

Sadly, the Murdoch Press and the coalition parties have decided to use the forthcoming referendum on an Indigenous Voice to Parliament to run a scare campaign in an attempt to radicalize Australia towards the right wing of politics.  In that context, it is important to look carefully at the Referendum question, to see what it means.  The proposed alteration to the Constitution will consist in inserting the following text:

"Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples
129 Aboriginal and Torres Strait Islander Voice
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

1. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice; 
2. The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
3. The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.”

A New Body

 The first provision of the proposed amendment will establish a new body, called the Aboriginal and Torres Strait Islander Voice.  That is all it does.  The composition, and role of that body is left entirely to Parliament to decide.  That is important, and I will discuss what it means later; but for now it is sufficient to note that because the new body will be enshrined in the Constitution, it would not be possible to disband it without a further Constitutional Amendment.  One problem with this provision is that by specifying what the body will be named, but not what it will do; it leaves it open for the body to not in fact represent the views of Aboriginal and Torres Strait Islander Australians, ie, to be their voice in name only.

Making Representations

The second provision of the proposed amendment gives a single power to the body called the Aboriginal and Torres Strait Islander Voice; ie, the power to make representations the Parliament and the Executive Government.  Oddly enough, this grants almost no power at all.  As it stands every Australian citizen and resident has the right to make representations to Parliament.  We can do it by the use of petitions.  A 'representation' is defined as 'The action of placing a fact, etc, before another or others', or 'A formal, and serious statement of facts, reasons or arguments made with the view of effecting some change.' (Both definitions from the Shorter Oxford Dictionary).  If we write to a minister, or to a member of parliament, stating a grievance or arguing for some particular policy, we are making a representation to that minister or MP.  More importantly, if we sign a petition and send it to the House of Representatives, there is a formal process that will be followed resulting the petition being considered by the Petitions Committee; and from their being presented to the House of Representatives (and published in Hansard).  Alternatively, we can send the petition to a particular member of Parliament who may then choose to present it.  This is the case, even if the petition has only a single signature.  I personally have made about five representations to Ministers (by sending them letters, or visiting their electorate offices); and along with others, made many representations to Parliament (by signing petitions).  The idea that the ability to make representations to Parliament and the Executive through the Voice to Parliament gives them rights other Australian's lack fundamentally misunderstands the nature of democracy.

It is reasonable, if it gives no additional rights to Indigenous Australians, what does it give?  Well, partly it is a symbolic gesture.  The existence of a Voice to Parliament will serve as a reminder that we should be listening to the Indigenous peoples of Australia when framing policies that directly effect them.  More importantly, it should give the representations to parliament and the executive from the Voice more formal weight than is typical of petitions.  Likely it will mean that every such representation will be Tabled in both the Senate and the House (ie, formally placed on the table at the center of each House, and then published and retained in records by the Parliamentary Records Office).  Similarly, for representations to the Executive, it will mean the relevant Minister receives a copy of the representation; and would likely need to reference it in any related decision (either referencing it and agreeing with it; referencing it and agreeing with it, but stating why its considerations are overruled by other considerations; or referencing it, and disagreeing with it, stating why).  But nothing in this Constitutional Amendment will compel either Parliament to vote in a particular way because of the Representation, or a Minister to make the decision desired by the Representation.

Amorphous Form

I say that is likely, or course, because the exact composition and powers of the Voice to Parliament will be determined by Parliament, according to the third clause of the proposed amendment.  This is both a safeguard and a problem.  It is a safeguard because, if the initial legislation constituting the body should be flawed, or become outdated; it can be revised by the same or later parliaments.  Unfortunately, it also means that the body could be sabotaged by a hostile parliament with great ease.  Should some future Prime Minister decide that the Voice to Parliament should consist of six representatives, all personally appointed by themselves - and could steer the relevant legislation through parliament, the the Voice to Parliament could become merely the PM's echo chamber rather than the voice of, and for the Indigenous Peoples of Australia.  Similarly, if that future PM should decide that the representations to Parliament should neither be Tabled in parliament, nor published; with the agreement of the both houses, they could do that also.  What they won't be able to do, however, is to allow the representations of the Voice to Parliament to determine the outcomes of voting on legislation except by persuasion. 

A New Chapter

The last thing to note about the proposed amendment is that it will incorporate a new chapter in our Constitution.  Certainly Peter Dutton noted it, saying in his speech to Parliament:

"If the Referendum is successful, amendments will not be made to existing chapters of the Constitution.  Rather, a new chapter will be inserted.  That should set off alarm bells in the mind of every Australian."

Peter Dutton does not say why it should set of alarm bells.  I believe that is because he cannot state the reason.  

Chapters, in legislation and Constitutions serve to divide the law by subject matter.  Chapter 1 of the Australian Constitution, for example, is "The Parliament", and contains provisions dealing with the number of houses, there membership and how that membership is elected (among other matters).  The total information supplied by the chapter heading (ie, that this section deals with Parliament) is also provided by the first section of the Chapter (and of the Constitution), which reads, "The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth."  In similar manner the entire information given by the proposed Chapter heading for the forthcoming referendum is given also by the first clause of the amendment.  The Chapter tells use the included subject matter shall be regarding the recognition of Aboriginal and Torres Strait Islander Peoples, and the first clause tells us that the further provisions of the proposed amendment are "In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia".

Peter Dutton is, of course, and experienced parliamentarian; and prior to that career, he was a police officer.  He knows how to read legislation, and he knows that no fundamental point of law turns on the inclusion of more or less chapters.  Had the Australian Constitution had separate chapters for the Governor General, the House of Representatives, the Senate, and so on - instead of including the provisions relating to them into one chapter on The Parliament, it would make no difference to our Constitution beyond the cosmetic.   Equally, he knows that had the proposed amendment been merely included in the preexisting 'Miscellaneous' Chapter, it would make no difference to the interpretation of the amendment, nor to the functioning of the Voice to Parliament.  Similarly he knows that 'making a representation' is not a novel power but a right available to all Australian citizens and residents; and that it does not in any way constitute a legislative power, or a legislative veto.  He also knows that the proposed amendment grants Parliament all the power to determine the "composition, functions, powers and procedures" of the Voice to Parliament.   Sadly, he also knows that most Australians are not well informed on this issue, something he is determined to exploit with empty rhetoric in his scare campaign.  

 

 

A Question of Legitimacy: Australian Government and British Possession

 On the 22nd of August, 1770, Lieutenant James Cook wrote in his Journal:

"Notwithstand[ing] I had in the Name of his Majesty taken posession of several places upon this coast I now once more hoisted English Coulers and in the Name of His Majesty King George the Third took po session of the whole Eastern Coast from … Latitude [38° South] down to this place by the Name of New South Wales together with all the Bays, Harbours Rivers and Islands situate upon the said coast after which we fired three Volleys of small Arms which were Answerd by the like number from the Ship."
(Quoted from https://www.nma.gov.au/defining-moments/resources/cook-claims-australia)

This is arguably (along with other claims of possession by Cook and later Arthur Phillip) the most racist act in Australia's history.  It is racist because it purported that European law and custom automatically overruled the laws and customs of the native people of the land simply because it was the law agreed to among Europeans; and on that basis Europeans could claim possession of any terra nullius (or 'uninhabited land') on the basis of that law, regardless of the fact that the law had not been agreed to by other civilized peoples (such as those of the Middle East, India and China).  It was further racist because in a land clearly inhabited, and in which Cook had met (and shot, and killed) several of the inhabitants, it made the assumption that the land was uninhabited for legal purposes because the inhabitants did not farm in the manner of Europeans.

The claim of possession was not the last racist act directed towards indigenous Australians in Australia's history; and certainly not the most directly vicious.  It was, however, the most consequential.  The founding of English colonies in Australia, and later the Federation of Australia by an Act of the English Parliament derive their legitimacy from the legitimacy of that original claim of possession.  If that claim had no legal force in Australia; then neither did any Act of the English Parliament have legal force in Australia - and if they did not have legal force, neither could they establish legitimate government in Australia.  And if we assert the legitimacy of the Australian government in law; then by that act we logically also assert the legitimacy of that original act of dispossession and with it the racism entailed by it.

I am certain that many will claim that the legitimacy of the Australian government rests on some other foundation than the initial racist act of claiming possession of Australia for the English Crown.  An obvious candidate for an alternative principle is the Jeffersonian claim that "... governments deriv[e] their just powers from the consent of the governed ...".  The problem with such a claim' is that it is not the basis of Australian law.  Rather, Australian law cannot come into effect unless it receives the 'Royal Assent'; ie, the signature of the Queen's representative at State or Federal level.  There was an attempt to correct that flaw in our Constitution in referendum on becoming a Republic in 1999 - but the Australian people rejected it; and it remains the case in Australian law that Australian governments can make laws they have never proposed to the people, and which the majority of the people disagree with - provided they have royal consent.

An alternative ground for legitimacy might be found in Realpolitik - whatever the merits of the initial dispossession, Australia now exists as a functioning society, and that fact alone grants its government and its laws legitimacy.  In practical terms, we are more or less forced to this position.  Whatever the merits, Australians are simply not going to abandon this continent as a whole; and if they did, it would not help the indigenous people - for some other power would immediately seize so wealthy (and effectively empty, in this scenario) a land.  However, that is a constraint only on how we proceed.  If we make it the founding principle of the 'legitimacy' of our government - we have thereby declared that our government is based on the principle of might makes right.  In doing so, we also declare that if some foreign power were to conquer Australia, and make good their possession; then by that fact alone they would have justified their aggression.  We would be declaring, in fact, that not just power, but morality comes from the barrel of a gun.

A third, and more reasonable, suggestion would be to accept the illegitimacy (and immorality) of the original act of dispossession - but argue that it is now history and cannot be altered.  Consequently we must accept the legitimacy of the English Parliament granting Australia a Constitution as a legal fiction; and do our best to ensure our laws are moral and principled going forward.  The problem with this position is its narrow view.  While as a practical matter, we must currently accept the legal fiction of the legitimacy of the act of dispossession; it is not the only legal fiction we have available to use in grounding our society.  While we cannot go back in time and establish a Treaty with the indigenous peoples of Australia; we can establish now a legal framework such as the indigenous peoples would have accepted in a Treaty has a treaty been signed with them; and, with the consent of their descendants, establish that framework in the Constitution - making it the basis of legitimacy of Australian society.  Too me, this is far superior.  If we must have a legal fiction at as the foundation of our law and governance - let it at least be a just legal fiction rather than one that appeals to ultimately immoral principles.

This is an approach I find very desirable.  I want there to be a Treaty with the indigenous peoples of Australia, adopted as a Constitutional Amendment, and made part of our Constitution.  Ideally, it would include a clause making it only possible to alter the language of the Treaty by the consent of the majority of Australian indigenous people in Australia; and ideally, also, it would include a bill of rights.  At this time, however, that is not a practical aspiration.  However, we can alter the laws of Australia (and where necessary, the Constitution) to give the indigenous peoples of Australia the protection for them and their descendants against the tyranny of the majority that a genuine treaty process in the past would have provided.  Which is, of course, the purpose of the Voice to Parliament and Makarrata Process.