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.