Section 129: The Making of a Constitutional Farce

Humphrey’s system for stalling. According to Tom, it’s in five stages … Stage Four: … the policy has run into difficulties—technical, political and/or legal. (Legal difficulties are best because they can be made totally incomprehensible and can go on for ever.) —The Complete Yes Minister

Section 129 is the new section that the referendum, if successful, would add to the Constitution. It says:

129 Aboriginal and Torres Strait Islander Voice

In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

(i) there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;

(ii) 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;

(iii) 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.

It was apparently drafted by a committee of academics and activists, rather than by professional and experienced parliamentary counsel. Here are a few of the legal problems with it.

 

Just what does section 129 establish?

Nothing, according to former High Court Chief Justice Robert French:

The voice will not spring into existence on the passage of the amendment. As with the High Court, which is provided for but not created by the Constitution, it will be for the parliament to enact a law to establish the voice.

The words in section 129(i) surely were intended to bring some kind of body into existence. They’re not a command to someone (who?) to go off and create a body and call it the Voice.

It’s the same language used in section 101 of the Constitution to create an Inter-State Commission:

There shall be an Inter‑State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.

It took until 1913 (the Inter-State Commission Act 1912) to set up the Commission, and it collapsed in 1920. An attempt to revive it in the 1930s failed and the 1912 Act was repealed in 1950. The Whitlam government tried to revive it in 1975, but the attempt sputtered out and the Hawke government finally buried it in the Industry Commission.

Sections 101 and 103 provide considerable detail about the Inter-State Commission: its functions, the terms of office (including dismissal) of its commissioners and making provision for their remuneration. If you look at the 1912 and 1975 Acts, there’s nothing in them that “establishes” the Inter-State Commission. Both Acts proceed on the (correct) assumption that section 101 established the Commission.

And, incidentally, Mr French is wrong when he says that the High Court “is provided for but not created by the Constitution”. Professor Megan Davis, one of the architects of the Voice and the Balnaves Chair in Constitutional Law at UNSW, also holds this view.

But the Parliament has never passed a law to create the High Court. The Judiciary Act 1903, as originally enacted, doesn’t, although it provides for the number of Justices, court procedures and so on. It just assumes (correctly) that the High Court was created by the Constitution. The High Court itself (well before Mr French became Chief Justice) confirmed this in 1923: “[The High Court] is the tribunal specially created by the united will of the Australian people, as a Federal Court and as a national Court.” On the other hand, the Federal Court Act 1976 section 5(1) expressly says: “A federal court, to be known as the Federal Court of Australia, is created by this Act.”

So section 129(i) is drafted on the basis that it’s intended to create something. But what? The “body” that it “creates” can’t be described. It’s a constitutional blob, without form or substance.

The Voice could be anything. And anything could be the Voice.

There is a real risk that section 129(i) is of no effect at all: while the words appear to be intended to create a body, in fact, they fail and nothing is created, because there’s no form or substance to it. There are no requirements for the body that are identified by section 129 other than its mere existence. Once it exists, it may make representations, but existence is its only necessary characteristic. I can’t point to any particular body and say: that body and that body alone meets the constitutional requirements for being the Voice. The requirement of “existence” is satisfied by all Commonwealth bodies—there are more than a thousand of them—and by every other company and incorporated association in the land.

Making representations about matters relating to Aboriginal and Torres Strait Islander peoples is something almost every company can do (say, Qantas). If I set up a company as a charity, called the Aboriginal and Torres Strait Islander Voice, is section 129(i) implemented? Section 101 doesn’t say that the Parliament must create the body. It just says, “there shall be …”

Section 129 doesn’t set any requirements for the Voice. It doesn’t require the Voice to be independent. It doesn’t require the Voice to be representative of Aborigines and Torres Strait Islanders. It doesn’t require the Voice to have any Aboriginal or Torres Strait Islander members. It doesn’t require the members to be elected by Aborigines or Torres Strait Islanders. In fact, it doesn’t even require the members to be elected.

The Voice need not even be a corporate body. It could be an unincorporated body, such as the Agriculture Consultative Committee (established by the Australian Competition and Consumer Commission)—just a mob sitting around a table (or, no doubt these days, meeting on Teams). It could be a corporation sole—a body corporate that consists of one member only, who could be an Eskimo, appointed by the minister. It could be composed entirely of assimilationists—One Nation, rather than First Nations. The legislation could exclude from membership anyone born in Borroloola, or could give the minister—or anyone else, for that matter—the power to disqualify any candidate on any ground.

Now, I think that Mr French is wrong about the intent of section 129. But there must be real doubt whether section 129(i) creates any identifiable thing at all. And if it doesn’t itself create anything, is not the whole section ineffective—with no operation at all?

It’s not unknown for a constitutional provision to fail. Section 101, which I quoted above, was held by the High Court in 1915 to be ineffective to give the Inter-State Commission adjudication powers, despite section 101 clearly saying that it was to have them. Adjudication powers are reserved to federal courts and the Commission did not meet the requirements in Chapter III of the Constitution to be a federal court.

If section 129 doesn’t itself create the Voice, just what does it do? One thing it does not do is give the Parliament power to create the Voice. First, nothing in section 129 suggests that it gives a power to create a Voice. Section 129(iii) gives a power to make laws “with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures”.

The “Aboriginal and Torres Strait Islander Voice” in this section clearly means the one referred to in section 129(i). (I’m guessing that the drafters thought that section 129(i) created the Voice.)

By analogy with the reasoning used in the Incorporation Case I discuss below, it’s pretty clear that “matters relating to the Aboriginal and Torres Strait Islander Voice” assumes that the Voice already exists. And matters relating to the “composition” of the Voice relate to its membership, not its creation or establishment.

Now, what is the effect of the races power in section 51(xxvi)?

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xxvi) the people of any race for whom it is deemed necessary to make special laws;

Ordinarily, that would be enough to support the establishment of an Aboriginal and Torres Strait Islander Voice, even without section 129.

But section 51 is “subject to this Constitution”. And the Constitution does not repeat itself. In accordance with the usual approach to interpreting legislation, a later provision prevails over an earlier one. So, if I am wrong and section 129(i) is valid and effective to be a source of legislative power to create the Voice, the authority to make laws creating the Voice must be in section 129, not section 51. It will have been carved out of section 51 by section 129.

If Mr French and Professor Davis are right, and section 129 doesn’t create the Voice, some other constitutional authority will be needed to support a law creating the Voice. If that’s the case, section 51(xxvi), the races power, would be one power. Section 122 (the Territories power) would be another, but it would be limited to the territories. The external affairs power (section 51(xxix)) may be another:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xxix) External affairs;

—on the basis that the Voice is intended to give effect to Australia’s international obligations in respect of Aborigines and Torres Strait Islanders. I discuss the issues with this below.

But, overall, the point is this.

There’s real doubt that section 129(i) will actually create a Voice. Mr French and Professor Davis think it doesn’t and isn’t intended to. I think it doesn’t, not because it isn’t intended to, but because you can’t describe with any clarity what the Voice that it tries to create is.

Therefore, sections 129(ii) and (iii) won’t have any effect, because they are all about the Voice that section 129(i) is supposed to create. In particular, section 129(iii) does not authorise the Parliament to make a law creating the Voice; a section 129(iii) law can only deal with a Voice that’s been effectively created by section 129(i).

So, based either on Mr French’s and Professor Davis’s analysis or my own, this whole attempt to constitutionalise the Voice fails. If you want a Voice, you’ll have to pass ordinary legislation based on the races power (and, perhaps, some other powers). Or you’ll have to start the referendum process again, but get it right this time.

 

The Voice can only make representations about “peoples”

Putting all that to one side, and assuming that there will be a valid Voice …

Section 129(ii) has significant limitations. It gives the Voice power to make representations on “matters relating to Aboriginal and Torres Strait Islander peoples”. Because “and” is used, the power to make representations is limited to representations about both Aboriginal and Torres Strait Islander peoples.

And “peoples” means populations, not individuals or even groups, so the power to make representations is limited to representations about matters that affect all Aborigines and Torres Strait Islanders, considered as a single population.

This is reinforced by the opening words of section 129, which refer to the Voice as the means of recognising “Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia”. It’s all about peoples—populations—the mob.

So, section 129 doesn’t give power to make representations just about Aborigines, or just about Torres Strait Islanders. It doesn’t give power to make representations about sub-groups of Aborigines or Torres Strait Islanders (say, Aborigines in Alice Springs, or in Lane Cove). It doesn’t give power to make representations about Juukan Gorge, or West Australian heritage. It can only speak about heritage matters generally as they affect Aboriginal and Torres Strait Islander peoples as a whole throughout Australia and the Torres Strait.

This is a major limitation. It will prevent the Voice from engaging with and speaking up on local issues (something that Minister Burney has given as a prime example of how the Voice can help “close the gap”).

And if you think that the High Court won’t be looking at section 129 with this detailed level of grammatical analysis, just read the Incorporation Case of 1990, where the High Court held that the grant of power in section 51(xx) to make laws with respect to “trading or financial corporations formed within the limits of the Commonwealth” did not permit the Commonwealth to make laws for the formation or incorporation of corporations:

The word “formed” is a past participle used adjectivally, and the participial phrase “formed within the limits of the Commonwealth” is used to describe corporations which have been or shall have been created in Australia … The subject of a valid law is restricted by that phrase to corporations which have undergone or shall have undergone the process of formation in the past, present or future. That is to say, the power is one with respect to “formed corporations”. That being so, the words “formed within the limits of the Commonwealth” exclude the process of incorporation itself.

Grammar matters.

 

“Representations” or negotiations?

Still assuming that there will be a valid Voice …

Noel Pearson declares that “The voice at the end of the day is a table, a partnership table where we conduct negotiations with the government. And let’s make a real deal.” Wrong.

While it’s an interesting insight into the intentions of the activists, the Voice’s power to make representations is just that. It’s not a power to conduct negotiations, or engage in public debate. Remember that the power is a power to make representations about Aboriginal and Torres Strait Islander peoples, not a power to make representations for them (which is what’s involved in a negotiation).

I suppose that Voice members would have to appear before Commonwealth parliamentary committees if summoned, but it’s outside the Voice’s power to do anything other than make representations. They say their piece to the Parliament or the executive and that’s the end of it.

 

You can’t add new functions

Still assuming that there will be a valid Voice …

The Explanatory Memorandum for the Bill says:

[Section 129(iii)] would allow the Parliament to make laws both about the Voice’s constitutionally-enshrined function of making representations to the Parliament and the Executive Government, and to confer other functions on the Voice, such as to make representations to state or territory parliaments or governments.

Wrong. There’s no suggestion in section 129(iii) that it is a grant of power to expand the Voice’s functions beyond the limited representation function expressly conferred by section 129(ii).

It’s a power to make laws with respect to matters relating to the Voice, “including its … functions”. A power to make law with respect to functions, where those functions are clearly specified, and within the same section, is not, on any analysis, a power to add extra functions. It’s a power to make laws with respect to those specified functions. To try to add new functions would be a futile attempt to alter section 129(i) without going through the referendum process. Remember, I noted earlier that, if section 129 is effective, it is the provision of the Constitution that confers power to make laws about the Voice.

True, there’s power under section 51(xxxix) to make laws incidental to the execution of the power to make laws about the Voice’s specified functions. But speaking to state parliaments is not incidental to speaking to the Commonwealth.

The Explanatory Memorandum (even if it were accurate) could not be called in aid in interpreting section 129(iii) to expand it. Under the Acts Interpretation Act 1901 section 15AB, an Explanatory Memorandum can be used only

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b) to determine the meaning of the provision when:

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

The ordinary meaning of section 129(iii) is quite clear, so a contrary reading in the Explanatory Memorandum can’t be used. And a restriction of the Voice’s power to its constitutionally-specified roles is hardly manifestly absurd or unreasonable.

If you had wanted the Voice to have a function of speaking to the states, you should have said so, expressly, in section 129.

 

Parliament could “gut” the Voice

The theory is, if we’re in the Constitution, we can’t be knocked off like the Aboriginal and Torres Strait Islander Commission was. Professor Gabrielle Appleby said in January 2021:

Constitutional protection is needed to prevent the parliament from abolishing the Voice. Constitutional protection prevents chilling of its performance because it faces the ongoing possibility of abolition.

It’s surprising that she considers that Voice members would be cowed into acquiescence merely by the (unexpressed) threat of losing their positions. That seems to indicate a lack of character that we should not readily attribute to Voice members.

Unfortunately, being enshrined in the Constitution doesn’t mean you won’t be knocked off. Section 101 commands that there shall be an Inter-State Commission. There isn’t.

And there are fates worse than death. The government has been very clear that the Voice will be subject to the Parliament at all times. In fact, it trumpets this as a virtue.

All that’s required constitutionally is that there be a body called the Voice. The Parliament could make a law removing all Voice members from office (they have no security of tenure) but not abolishing the Voice: there’d be a body, but it’d be an empty shell. Because, as I noted above, the Constitution does not require anything other than mere existence for the Voice, an empty shell satisfies the constitutional command that there shall be a Voice.

Something like this has happened before. The jurisdiction of the Australian Industrial Court was transferred to the Federal Court when the Federal Court was created in 1976. But the Australian Industrial Court was not abolished. A couple of judges of the court had declined to resign (in those days they held office for life). The Parliament waited until 2004 before it abolished the court. So from 1976 to 2004 there was a court with nothing to do.

A similar fate could easily befall the Voice. The Parliament (read: government) can effectively neuter the Voice at any time.

 

You’ll have to suspend the Racial Discrimination Act

The Voice—even if constitutional—will be racially discriminatory if it’s to be limited to Aborigines and Torres Strait Islanders, and unacceptable to Aborigines and Torres Strait Islanders if it’s not.

Under both the International Convention on the Elimination of All Forms of Racial Discrimination and the Racial Discrimination Act 1975, racial discrimination is

any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life …

Enacting laws to give effect to the Voice, if the Voice is restricted to Aborigines and Torres Strait Islanders, clearly involves exclusions based on race or ethnic origin. They will be restrictions based on race that have the effect of excluding non-Aborigines and non-Torres Strait Islanders from exercising, on an equal footing with Aborigines and Torres Strait Islanders, human rights and fundamental freedoms in the political field. Aborigines and Torres Strait Islanders will have political avenues open to them from which non-Aborigines and non-Torres Strait Islanders are excluded.

The Constitutional Expert Group said that section 129 would not confer “special rights” on anyone. It noted that anyone can make representations to Parliament and the executive. It said that the Voice would not “change or take away any right, power or privilege of anyone who is not Indigenous”.

This misses the point. Aborigines and Torres Strait Islanders, through the Voice, will have a privileged hotline to the Parliament and the executive that is not available to anyone else.

Would the law be a special measure, to help ensure that Aborigines and Torres Strait Islanders have equal enjoyment and exercise of human rights and fundamental freedoms? Special measures don’t fall foul of the Convention or the Racial Discrimination Act. To be a special measure, achieving equality must be the law’s only purpose. And it’s not: the primary purpose of section 129 is to recognise Aboriginal and Torres Strait Islander prior occupation of Australia, as the opening words of the section say.

What about the Declaration on the Rights of Indigenous Peoples? The Declaration doesn’t help. It doesn’t confer rights. It points out that indigenous people, like all people, have human rights and urges nations to respect and implement them. It’s not part of binding international law, as the Convention is. The Commonwealth Attorney-General’s website says, “The Australian Government also supports the United Nations Declaration on the Rights of Indigenous Persons as a non-legally binding document.”

In any event, the Declaration must be interpreted in a way that is consistent with binding conventions, including the Racial Discrimination Convention. It doesn’t—and can’t—override a binding convention. It doesn’t justify acts or practices that are racially discriminatory.

Section 10 of the Racial Discrimination Act:

If, by reason of, or of a provision of, a law of the Commonwealth … persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

This is a bit indigestible, but it gives non-Aborigines and non-Torres Strait Islanders the same rights to participate in the Voice as Aborigines and Torres Strait Islanders. To restrict the Voice to Aborigines and Torres Strait Islanders, you will have to suspend or disapply the Racial Discrimination Act. It has been done before. The “Northern Territory Intervention” legislation excluded the Act from the measures it enacted. Section 132 of the Northern Territory National Emergency Response Act 2007 made that very clear:

132 Racial Discrimination Act

(2) The provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975.

So, to enact the Voice, you’ll have the repeat the Intervention legislation. Given the vociferous complaints raised against the suspension of the Act at the time, the irony won’t be lost on those who oppose the creation of the Voice.

 

The power to make representations to the Parliament

There’s been a lot of debate about the power of the Voice to make representations to the Parliament. Much of the fear about this is misplaced. Does the Parliament have to consider anything the Voice says? And does the Parliament have to give the Voice an opportunity to speak before the Parliament does something?

The answer to both questions is—not because of section 129. Nor, because of an Act. The Parliament can’t fetter its own discretion.

At the most, an Act may prescribe an internal procedure relating to what the Voice says to the Parliament. The Human Rights (Parliamentary Scrutiny) Act 2011 requires a senator or member who introduces a Bill also to prepare a statement of compatibility with the human rights listed in the Act. However, the Act makes it clear that failure to do so doesn’t affect the validity, operation or enforcement of the Act or any Commonwealth law.

 

The power to make representations to the executive

The power to make representations to the Commonwealth executive government has also excited a lot of debate. Much of the fear about this power is also misplaced.

But the power itself is strangely incomplete. Who is the executive?

The Governor-General and ministers, and their departments, certainly—even the Chief of the Defence Force—but there’s High Court authority to the effect that a whole range of governmental bodies aren’t part of the executive government. These include the Australian Securities and Investments Commission and the ACCC (both of which have regulatory responsibilities for the financial services sector, such as banks and loan sharks), the Reserve Bank, the Human Rights Commission, Australia Post, CSIRO, the Director of National Parks, ANU, the Australian Institute of Aboriginal and Torres Strait Islander Studies, the Northern Territory Aboriginal Investment Corporation, the Torres Strait Regional Authority, the Indigenous Land and Sea Corporation and all the Land Councils. (Here’s a puzzle: will the Voice be part of the executive?)

The effect of section 129 is that the Voice can’t speak to any of these. So, for example, it won’t be able to tell ASIC or the ACCC about scam funeral scheme operators preying on remote communities. (Not that it could anyway—that’s not a matter that affects all Aborigines and Torres Strait Islanders, considered as a single population.) And it won’t be able to address Land Councils …

It’s hard to see why all these bodies were excluded from the Voice’s coverage.

 

Does the executive have to consider anything the Voice says?

Yes. It’s a principle of administrative law that an official exercising a statutory or executive power must normally (statute aside) take into account all relevant material. If the Voice speaks relevantly, what it says must be considered. If the Voice speaks on a matter outside its remit, say, about a local matter, the official can treat it as if the Voice had not spoken.

The principle can normally be displaced by legislation. However, it’s probable that, because of section 129, Parliament can’t displace the administrative law principle. The Australian people, when they alter the Constitution to establish a Voice to speak to the executive, do not speak in vain. The Parliament could not, on this argument, make a law to tell an official that she need not take into account what the Voice has to say. That would make the constitutionally enshrined Voice futile.

 

Does the executive have to give the Voice an opportunity to speak?

Not because of section 129. A valid Common­wealth law could, however, require prior consultation with the Voice.

So, consultation requirements in legislation—including general consultation requirements—could include requirements (express or implied) to consult the Voice, or to give the Voice an opportunity, along with other interested parties, to make representations if the matter fell within the Voice’s functions, that is, if the matter affected all Aborigines and Torres Strait Islanders, considered as a single people.

A decision-making process that failed to comply with those consultation requirements would be at risk of being declared by a court to be ineffective.

 

What could have been …

So—a Constitution alteration that does not create a Voice, or provides no constitutional guarantees for a Voice, leaving it at the mercy of the government … it can be raised in a night, and wither in a night.

The sad part is, the Bill is a botched opportunity to advance reconciliation and give Aborigines and Torres Strait Islanders some real control over, and responsibility for, their lives. How much better it would have been if the government had had the courage to develop a fully worked-out proposal for a representative Voice for all Aborigines and Torres Strait Islanders. How much better it would have been if the academics and activists who conceived the Voice had had the courage to call for it to have real power to supervise and run programs that actually make a difference and help close the gap. Instead, they seem to have settled for a Voice that, if it gets up, will just criticise from the sidelines: the problems will always be someone else’s fault: they didn’t do what we said; they did what we said but in the wrong way …

 How much better it would have been if the Voice had to take real responsibility for delivering on the advice it gives. How much better it would have been if the government had had the courage and political skills to persuade and lead the electorate (not just some of the Aboriginal and Torres Strait Islander movement) to embrace this kind of Voice.

It would have been hard work, that’s for sure. Compromises may have been necessary. It would have taken time, as all significant changes do.

The Constitution alteration would have been longer and more detailed. It would have been beefed up, to give Aborigines and Torres Strait Islanders explicit constitutional guarantees. The Constitution should have ensured that the Voice was for Aborigines and Torres Strait Islanders, to look after their interests. Section 129 doesn’t do this.

The Constitution should have guaranteed that the Voice would be what Aborigines and Torres Strait Islanders want it to be, and say what they want it to say—that it would speak authoritatively for them (not just about them). Section 129 doesn’t do this.

The Constitution should have guaranteed that the Voice would be clearly under the control of Aborigines and Torres Strait Islanders—not a government, not a parliament. Section 129 does precisely the opposite.

For the Voice to speak with authority, the Constitution should have guaranteed that the Voice would be representative of Aborigines and Torres Strait Islanders throughout Australia—that its members would be Aborigines or Torres Strait Islanders. Section 129 doesn’t do this.

For the Voice to be representative, the Consti­tution should have guaranteed that all Aborigines and Torres Strait Islanders could all participate, on an equal basis, in electing the members of the Voice—direct election on universal adult suffrage. Section 129 doesn’t do this.

As it is, how can this Voice truly be an Aboriginal or Torres Strait Islander voice?

Stephen Mason is a Sydney lawyer. He wrote the article “Creating the Voice: A Shambles of a Process” which appeared in the August 2023 online edition. His website stephenmasonau.com includes his suggested Constitution alteration and accompanying legislation (all blithely ignored by the government).