‘Constitutionally sound’? Plainly Untrue

From our online August special edition, two correspondents raise further reasons to fear the Voice

SIR: The Referendum Bill to amend the Constitution to provide for the Voice raises an issue that does not yet seem to have attracted any attention amongst its supporters. Or, if it has, they have kept quiet about it.

Proposed section 129(iii) of the Constitution will give the Parliament power “subject to” the Constitution to make laws with respect to the Voice, including its composition, functions, powers and procedures. Being subject to the Constitution, it is subject also to section 51 of the Constitution. That provision gives the Parliament its various legislative heads of power. But section 51 is also expressed as “subject to” the Constitution.

This essay appears in our Voice online-only edition.
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The question is this: if section 129(iii) becomes law, which head of power prevails in the event of a conflict—section 129(iii) or section 51? Each is “subject to” the other. There is no reason to say in advance which power prevails. Under section 129(iii) the Parliament cannot ignore limitations on powers in section 51, but if section 129(iii) prevails those limitations can be ignored by Parliament. For example, if section 129(iii) prevails, the requirement to provide just terms upon acquisitions of land in exercise of the power in section 51(xxxi) can be ignored. So much, in that event, for security of land tenure in Australia. Vast tracts of land and territory could be at risk.

Minister Linda Burney assured us on July 5 that the Voice is “constitutionally sound and legally safe”. Plainly that is not true.

And if section 129(iii) prevails, what might happen under the aliens power in section 51(xxvi)? Could the Voice determine in exercise of its (presently unspecified) powers that some of the Australian population are aliens? Could the “aliens” be all those who are not Aboriginal? Could most of us end up being aliens in our own land? 

This is a recipe for disaster and conflict which could go on for decades. And how might the High Court resolve disputes between the two sources? This is a serious problem which has attracted no—or exceedingly little—comment. As usual, the activists are demonising anyone who dares question the initiative. That problem is a very good reason on its own to vote No.

Damien Cremean

A Legal Ruse

SIR: “A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?”

The above is the proposed referendum text. We are invited to answer by writing YES or NO. The motion is flawed for the following reasons.

First, no new law is required to amend the Constitution though, as we have recently seen, Parliamentary approval is required to hold a referendum. If a proposed constitutional amendment is put to the people and accepted, the amended Constitution binds the Parliament. Thus the leading phrase—“A Proposed Law”—is meaningless.

Second, the text asks whether the voter approves “this proposed alteration” but as the proposed alteration to the Constitution will not be on the ballot paper, a question of principle (of amending the Constitution) is confused with an actual amendment. The amendment is present online but it is not likely that many voters will read it. In effect, then, citizens are being invited to vote on a vital constitutional matter without knowing the wording of the amendment.

Third, the amendment text uniquely links recognition of First Peoples with establishment of a Voice (in both the ballot papers and proposed amendment, but using different wording), and this creates several issues. The linkage means that the only vector for recognition is creation of the Voice. At no point does the amendment state explicitly that the existence of the First Peoples is hereby recognised, but conversely the Voice is given functions other than recognition. Thus the relationship between recognition and the Voice is uncertain, but it seems to be an attempt to kill two birds with one stone. The amendment wording augments the already solid difficulty of winding up a constitutional Voice by a possible second future referendum, because it will leave recognition isolated from its anchor or deleted.

If some other recognition wording was used, could the Voice proposal be dispensed with? Logically it could, but such an outcome is likely to be unacceptable because simple recognition provides no consequential rights or privileges of the sort assigned to the Voice.

The proposed amendment would be greatly improved if it assigned recognition and created the Voice separately and independently. Given recognition of the Aboriginal peoples in various High Court decisions such as Mabo, and knowing that a legislated Voice could have been created by the Parliament, constitutional recognition has the appearance of a ruse to justify elevation of the Voice into the Constitution, whereas most Australians are likely to be in agreement with recognition but legitimately cautious about a constitutional Voice, creating another reason for a No vote.

Changing a country’s constitution is not a simple matter. But the proposed question being put to the Australian people and the related amendment are incompetent by any standards and demand a No vote, even without regard to the other currently unexplained matters affecting one’s vote, such as exactly how the Voice would operate, what it would cost and what limitations (if any) would apply to its functions.

Alasdair Millar