‘Clear and Specific’? No, Dangerously Undefined

Prime Minister Anthony Albanese said in Wellington on July 26 that the referendum question is “clear and specific” — not a bad standard for a constitutional amendment. But the proposed referendum question fails it.

The function of the Voice in making representations to the Parliament and the executive government is clear. But the referendum question says nothing about how the Voice would be constituted or who would choose its members – that’s opaque and silent, not clear and specific.

Does that matter? Of course. We’re being asked to embark on a constitutional experiment to establish and keep a Voice – but what the Voice will be and how its members will be chosen is not even mentioned.

My book on the deep origins of the American Constitution —  describes why and how the American Framers wrote the first and most important constitution for a modern federation. The American Framers, and the Australians who drafted our Constitution, did innovate – momentously. But they innovated with care. They knew that framing a constitution is a risky activity. They saw their work as setting out the machinery of a system of government, not as stating principles or aspirations, which were left to preambles, declarations, essays and other documents, and to political rhetoric. Both sets of Framers debated and drew on historical examples and analogies to ensure their great work would achieve its objectives. They adapted existing structures rather than inventing entirely new ones.

The machinery for a Voice could be implemented by legislation without a referendum. It could later be entrenched in our Constitution, by which stage Australians would have had the opportunity to know what the Voice is and what it does, not just what different people say they hope it will be and do. Australians could then judge whether the Voice was helping to improve the lives of disadvantaged Aboriginal and Torres Strait Island (ATSI) people. Details about the Voice and how its members were to be chosen could be included in the Constitution, as with the chapters which established the parliament, executive government and judiciary.

Instead, Australians will soon be asked at a referendum to insert into their Constitution a principle – that a body be established and never abolished, and that the body may make representations to the Parliament and the executive government of the Commonwealth on matters relating to ATSI peoples.

The Prime Minister has referred many times to the Calma/Langton Report ‘s blueprint for a Voice, and the Commonwealth government has issued a set of principles that are consistent with that report. The provisions of that report and those principles may influence how Parliament would initially design the Voice. The report recommends a two-tier Voice structure, with 35 local and regional voices and a National Voice of 24 members. Local and Regional Voices would be community-led, community-designed and community-run. Members of the “local and regional voices” within each state and territory would collectively determine national Voice members.

Should we vote with this model of the Voice in mind? The Prime Minster seems to want us to do so. But there is nothing that ties the proposed constitutional requirement to that model – or any other model.

If the referendum question is approved, Parliament could, over time, change the size and structure of the Voice and how its members would be chosen or appointed. Should there be a dispute about whether legislation on these matters met the requirements of the Constitution, the courts would determine the parameters within which Parliament could legislate to reform the Voice.

After the referendum, our amended Constitution would require that the Voice’s representations to Parliament and the executive government are about matters relating to ATSI peoples. The ordinary meaning of ATSI “peoples” is ATSI communities, tribes, or “nations”. But the general view is that “peoples” in the proposed amendment means “people”; so, ATSI people both individually and collectively. That the general view departs from the proposed amendment’s ordinary meaning is a reminder that courts will have a role in interpreting the amendment. And a reminder that the proposed amendment is not clear or specific enough.

The general interpretation of “peoples” and the absence of any limitation on the scope of the matters on which the Voice can make representations mean the Voice would be able to make representations on all matters relating to ATSI people as Australians. Minister Burney, the Prime Minister and others who state that the Voice will focus on areas where some ATSI people suffer disadvantage seem to be expressing nothing more concrete than a hope or preference. There is nothing in the proposed Constitutional amendment that supports their assertions. And we know that some activists have a far wider plan for the Voice. In some cases (such as the need for economic development in disadvantaged communities) the activists’ agenda will likely be inconsistent with the wishes of those communities.

A subject-matter limitation could easily have been included in the proposed amendment. For example, a law firm submitted to Calma and Langton that representations about laws and policies that applied to all Australians should be able to be made where the laws or policies “particularly affect, or … have a disproportionate or substantial impact on Aboriginal and Torres Strait Islander peoples.” Absent such an express limitation, voters should assume that the Voice’s power to make representations would be unrestricted. This means that much will depend on whether the Voice leans to a general political activist agenda or to trying to help end the despair and disadvantage in some remote and regional communities. The referendum materials provide no basis for reaching an informed view on which is likely.

So, Australians must assess a proposed change to the document which defines our system of government by including some general principles about an unknown and experimental body. Our Constitution is too important to amend in such an uncertain way. We need our Constitution to meet the Prime Minister’s test and be clear and specific.

James Philips is a lawyer and the author of the book Two Revolutions and the Constitution: How the English and American Revolutions Produced the American Constitution, reviewed in Quadrant ‘s July 2021 edition