The Voice: An Overlooked Constitutional Conundrum

The Referendum Bill to amend the Constitution to provide for the Voice is finally available, and it raises an issue that does not yet seem to have attracted any or much attention amongst its supporters. Or, if it has, they have kept quiet about it — which is not surprising.

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.

The question to be posed is this: if section 129 (iii) becomes law, which head of power in the event of a conflict prevails — section 129(iii) or section 51?  Each one is “subject to” the other.  There is no reason to say in advance the Voice power prevails or the section 51 head of power prevails or the other way round. Under section 129(iii) the Parliament cannot ignore limitations on powers in section 51 but if section 129(iii) prevails those limitation 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. My comments in this need to be seen in the context of Minister Linda Burney’s July 5 remarks 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 or who do not identify as Aboriginal? Could most of us end up being aliens in our own land? 

This is a recipe for disaster and conflict which could be going on for decades. And how might the High Court resolve any disputes between the two legislative sources.? There is absolutely nothing to say the Voice provision should prevail or that the provision in section 51 should prevail. This is a serious problem which has attracted no –or exceedingly little –comment. No surprises there. As usual, the activists are at work demonising anyone who dares question the initiative.

That problem is a very good reason on its own to vote No in the Referendum.

Adjunct Professor Dr Damien Cremean, of Australian Catholic University, has taught constitutional law for half a century

My comments in this need to be seen in the context of Minister Linda Burney saying the Voice is ‘constitutionally sound and legally safe’. Plainly that is not true