A Voice at the Back Door

Since it came to power in Canberra in 2022, the government of Athony Albanese has increased the size of Canberra’s public service by 9.2 per cent, adding more than $1 billion to the annual public sector wage bill.[1] The bureaucratisation of Australia is an ongoing political practice because governments want to implement their electoral promises, some of which require the establishment of new layers of bureaucracy or the strengthening of existing ones.

Of course, governments can suffer setbacks, especially if the process of bureaucratisation is dependent upon the electorate’s support of proposed bureaucratic changes. A good example of this is the Voice referendum, which the proponents of the “Yes” vote decisively lost. The final result was 60.06 per cent voting for No and 39.94 per cent Yes, with all states and the Northern Territory voting “No”.

There was one notable exception:  the Australian Capital Territory voted 61.29 per cent in favour. Canberra, a city of public servants, confirms in its response that voters dependent on government for their livelihoods are likely to support any and all projects their benefactor proposes, thereby effectively declaring themselves contented modern-day serfs. Indeed, over time, bureaucrats may and almost always do develop a blind faith in their political masters in the expectation that everything worthwhile comes from a generous government.

A tipping point would be reached, however, if an increase in the number of bureaucrats does not increase the efficacy of government or the delivery of services. In an indigenous context, this tipping point could easily be reached if the federal Labor government were to seek to achieve the goals of the Voice referendum, not by entrenching this bureaucracy in the Constitution – an option, rejected overwhelmingly by the electorate – but by legislatively or administratively creating a vast number of local and regional Voices around the country.

If so, the government would do indirectly what it is prevented from doing directly, thereby effectively forcing on the electorate a bureaucratic labyrinth conclusively rejected in the referendum. Such practice is objectionable from a legal point of view, as indicated in a comment of Justice  Sir William Webb of the High Court in British Medical Association v Commonwealth in which he said that, if Parliament cannot lawfully undertake a particular action, it “cannot lawfully do it indirectly by creating a situation … in which the individual is left no real choice but compliance”^[2] Similarly, commenting on this maxim, legal scholar D. K. Singh noted as long ago as 1966 that “if a legislature is prohibited from doing something, it may not do so even under the ‘guise or pretence’ of doing something that appears to be within its lawful jurisdiction” and that this rule “may broadly be explained as the observance of ‘good faith’ in the exercise of legislative powers”.[3] Moreover, the use of legislative or administrative power to indirectly achieve results which cannot be directly obtained, would also, in all likelihood, increase the number of amorphous bureaucratic institutions, and bureaucrats, to the point where the delivery of services, and its quality, is threatened.

Yet, it has been reported that this is precisely what Minister for Indigenous Australians Linda Burney has suggested: the establishment of local and regional voices. An NITV report recently indicated that “the government is actively exploring other framework options for consulting with Indigenous communities in the wake of the Voice to Parliament rejection.”[4] Burney’s local and regional voices, if established, would add a new bureaucratic layer to an already rich tapestry of Indigenous organisations.

All this comes at a time when shadow minister for indigenous Australians, Jacinta Price, is demanding an audit of the financial resources made available to the Aboriginal Industry to discover whether the money, reported by the Productivity Commission to exceed $33 billion (amounting to 6 per cent of total expenditure), is spent wisely.[5]

The current government’s burning ambition to install advisory councils everywhere in Australia surely is an example of persistence and determination. In politics, persistence is an admirable trait, possession of which might occasionally lead to the adoption of sensible reforms. Indeed, when faced with adversity, a politician’s ability to believe in, sustain and endeavour to achieve their cause, even if faced with seemingly insurmountable hurdles, is a valuable trait. But this trait can easily become a destructive obsession when members of the political class, through their persistence, seek to achieve goals decisively rejected by the electorate voting in an election or referendum.

When the tipping point is reached, and an increase in bureaucrats no longer results in a corresponding improvement, bureaucratisation is not much more than a passing-the-buck exercise. But common sense reveals, and experience confirms, that such a practice ensures nothing will change if politicians, business leaders, academics, and journalists remain hostage to an ideological agenda relentlessly pursued by a bloated bureaucracy.

The bureaucratisation of indigenous relations in Australia would also suffer from the same problem that sank the government’s ambitious, but deeply flawed, Voice gambit. Indeed, if Labor were to accomplish indirectly what it cannot achieve directly, the principle of political equality would be fatally violated, thereby creating a society permanently hamstrung by decisions made on the basis of race. The bureaucracy would have added another layer of complexity, making decision-making a nightmare.

Ominously and in direct contradiction of the referendum result’s expressed will of the Australian people, it would also involve the allocation of special rights for people on the basis of their race.

[1] ‘Labor’s great inflation of ACT bubble’, The Australian, 10 November 2023.

[2] (1949) 79 CLR 201, at 293 (Webb J).

[3] D. K. Singh, ‘“What cannot be done directly cannot be done indirectly”: its meaning and logical status in constitutionalism’, Vol. 29(3), 1966, The Modern Law Review, 278.

[4]NITV, ‘’Very live discussion’: Linda Burney says local and regional voices on the table after the failed referendum’ at https://www.sbs.com.au/nitv/article/huge-agenda-going-forward-linda-burney-talks-about-the-future-of-mob-post-referendum/8z062mq85; Ellen Ransley, ‘Linda Burney says she’s going forward after Voice defeat, remains committed to truth-telling’, News.com.au at https://www.news.com.au/national/politics/linda-burney-says-shes-going-forward-after-voice-defeat-remains-committed-to-truthtelling/news-story/89b4c91859469bab651d0d07c2996353.

[5] David Crowe and Paul Sakkal, ‘Dutton, Price want Indigenous spending audited’, The Sydney Morning Herald, 3 October 2023, at https://www.smh.com.au/politics/federal/dutton-price-want-indigenous-spending-audited-20231003-p5e9fb.html. See Productivity Commission, ‘2017 Indigenous Expenditure Report, October 2017, 9 at https://www.pc.gov.au/ongoing/indigenous-expenditure-report/2017/ier-2017-indigenous-expenditure-report.pdf#page=18.