The Voice

Why the Voice Amendment is Unconstitutional

The referendum presents two draft formulations: first, that which is to go into and be part of the Constitution, and second, the short question that electors will find on their ballot-paper.  

The constitutional formulation has three parts.  The first two parts are: (1) There shall be a body to be called the Aboriginal and Torres Strait Islander Voice, and (2) The Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.  These are the basic referendum propositions and create a simple autonomous and special entry for Aboriginal and Torres Strait Islander peoples into Australian governance.

Unfortunately, the third proposition in the constitutional draft has the potential to wreck the referendum.  This gives Parliament power ‘to make laws with respect to matters relating to the Voice, including the composition, functions, powers and procedures’ of the Voice’, and so destroys the autonomy of the Voice, turning it into a voice made by Parliament.  It also attacks the integrity of the Constitution’s amending power, and because of this is open to a challenge in the High Court.  If, as is likely, it is held to be unconstitutional, the referendum will not be allowed go forward to a vote.  And the odd thing about that is that this third part is entirely unnecessary, for the Constitution already contains sufficient legislative powers to support, and to a point regulate, the basal Voice – most obviously, special laws with respect to the Aboriginal and Islander races under Constitution section 51 (xxvi).

Is the Voice worth having if it is not autonomous?  Surely the self-choice of the Aboriginal and Torres Strait Islander people is the whole point.  But the draft referendum confounds this autonomy in a dangerous ambivalence. The draft says, ‘There shall be a body to be called the Aboriginal and Torres Strait Islander Voice’; but the question arises, is this an assertion of the present (as in ‘there shall right now on the referendum passing, be a Voice’) or is it the future-directed assertion that there shall be a Voice when the Parliament makes laws ‘with respect to … the composition, functions, powers and procedures’ of the Voice’?  The obvious difference is: if Parliament does not act, or its action is repealed, there is no Voice.

I call the simple present voice the Voice to Parliament and the complex Parliamentary one, the Parliamentary Voice to Parliament (each including the Executive).  Were the referendum limited to the Voice to Parliament it would be constitutionally valid and almost certainly successful, and the resultant Voice would be autonomous.  But if it carries the third part of the draft and becomes a Parliamentary Voice to Parliament it will be invalid, casting doubt on the whole referendum.  I now explain this.

Against Delegation

The Final Report of the Referendum Council stated (p 36): ‘No one has suggested there be an attempt to enshrine in the Constitution provisions of the kind more appropriately left to Parliament’.   That is undoubtedly true for matters of detail, which can – indeed, must – be delegated.  But we are talking about the definition of the Voice that ‘shall be’ – an absolutely central question which clearly must be an issue for the referendum itself and must be “enshrined” in the Constitution if passed.  There will be subsidiary legislative provisions (regulations) concerning the Voice once established.  But these do not need to be based in the referendum.  They will be special laws with respect to the Aboriginal and Islander races under section 51 (xxvi). 

The reason for the invalidity of the Parliamentary Voice to Parliament is that it is unconstitutional for Parliament to be given the charge of the definition of the Voice.  The referendum would in effect be delegating its power to Parliament in a way that keeps the terms of the definition of the Voice hidden from perusal in the referendum process.

More than that, it would be asserting an alternative method of constitutional amendment, and a much less exacting one than the current amendment power of section 128.

The High Court can be expected to be scrupulous in its protection of the integrity of the sovereign amending power of the Constitution.  Section 128 reads (in part):

The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and … shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.

To be submitted to the electors the law must be a valid law, and our law cannot be valid because, in breach of the constitutional amendment power, it delegates the substance of the proposed amendment to the Commonwealth Parliament.  This is a matter arising under the Constitution and involving its interpretation (Judiciary Act, section 30).  It is highly likely that the High Court, if asked, would exercise this jurisdiction, and so hold.

The prohibition of a delegate delegating is a fundamental principle of constitutional law – so fundamental that it has a Latin formulation: ‘delegatus non potest delegare’.  Its point is obvious enough.  The founders of the Constitution could have made the Constitution something to be amendable by Parliament.  But they didn’t; they established the somewhat complex process of section 128.  To allow a delegation to Parliament by that latter process would cancel the choice the founders actually made.

The preclusion of a delegate delegating logically supposes two prior elements: a foundational power and a first delegation by that power.  Upon that basis the first delegate cannot delegate further.  Is the referendum process itself a first delegate?  Yes, it is.  And the prior foundational power is: ‘whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania … have agreed to unite in one indissoluble Federal Commonwealth….’; and, my projection adds, have delegated our joint power of amendment to the process described in section 128.

And the process they made was for them a very important one.  They were establishing a federation; but the further delegation of the referendum power removes the protection that section 128 gives to the federation when it requires that a majority of at least four states support a proposal.  No such provision applies to the passing of laws by Parliament, and so when the referendum is delegated to Parliament that fundamental federal protection is by-passed.

Can the process of section 128 be used to amend itself?  This is a difficult question – a version of the liar paradox –  but is beyond the scope of this paper.  The Voice referendum does not propose to amend section 128.

It is well-known that the colonial parliaments could in their latter years delegate. This is because they were approaching independence, which would make them first delegators.  Everything changed in 1901: the people became the foundation of the nation (called Commonwealth) and its Constitution, and they first-delegated to the section 128 process.

Why have the persons who devised the Prime Minister’s draft not seen the obvious?  There are lawyers who seeing the (true) fact that there are no precedents on the issue therefore conclude that there is no law governing the process.  But the mistake of more serious lawyers seems to have been to think that since the referendum process is the ultimate constitutional power it can do anything at all (and so no questions can be asked about the validity of delegating to a later Parliament the essence of the question – the definition of the Voice).  The amending power is ultimate, but the one thing it cannot do is abuse its own process.

The best way of avoiding invalidity and the collapse of the Voice referendum, is to remove entirely the power of Parliament in the referendum process. There will be some subsidiary legislative provisions (regulations) concerning the Voice that will be required once the Voice is established.  But, as I have said these do not need to be based in the referendum.  They will be special laws with respect to the Aboriginal and Islander races under section 51 (xxvi).  With Parliament removed an untrammelled ‘there shall be a Voice’ will with its history carry the day – a mighty Voice, full of the autonomous power and beauty of the Aboriginal and Islander peoples.

And so, the meaning of the Voice in the Constitution is ‘there shall right now on the referendum passing, be a Voice’, not the future-directed delegation that there shall be a Voice when the Parliament makes laws ‘with respect to … the composition, functions, powers and procedures’ of the Voice’.

The latter, the Parliamentary Voice to Parliament, is easy to explain, notwithstanding its unconstitutionality. The Voice to Parliament is different, but what is it – what is this body that right now might be?  Surely such a state of being requires further explanation?  No, it doesn’t, and it’s a pity anyone ever thought it did.  Its history is the point, not an explanatory description.  The Voice has with determined clarity made its way from Uluru to the Constitution.  There shall be a Voice in the Constitution means simply that the Constitution hears the Voice, and this means its powers, legislative and executive must hear the Voice, too.

In this way, it makes no sense not to include the executive power.

And so does the judicial power hear the Voice.  The judicial power heard the Voice in Mabo.  And heard it again in Love, where the High Court held that the first peoples could not be deported – not separated from their land.  They are in the land, inseparable from it, and the next question is, can they be heard?

The Historical Voice

In Gulliver’s Travels Jonathan Swift described several imaginary peoples. They did not exist and therefore were designated merely by description. However, when we refer to a real country/people — Fiji, say — we designate it by the proper name, Fiji.  This is not just a point of grammar, or of lists for the naming of children: it is the most fundamental distinction in any language – the distinction between description and reality.  Of any description, and ‘unicorn’ is the usual example here, it might or might not exist; but something proper-named must exist, for any statement about it to be true.  This analysis is also the essence of love, which is never love of a description, but always of this one rather than that.  In fact, the pronouns ‘this’ and ‘that’ are themselves proper names, as Russell said.

Power in our Constitution is usually defined by description  – lighthouses, marriage, trade, courts, elections, taxation, interstate commission, etc – wherever you like to look you see  descriptive names coming into the Constitution. And once in the Constitution these items of power develop proper names – the lighthouse power, the Federal Court, the Interstate Commission, and so-on. But the Voice is a different entity entirely – a remarkable constitutional invention – it comes into the Constitution as a proper name, not a description.  This gives it a membership of the Constitution and a loving intimacy with those other members designated by historical proper name.  I refer to: ‘Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania … have agreed to unite in one indissoluble Federal Commonwealth….’  All the states (specifically, the people of the states) are historical proper names. The rest of the Constitution isn’t.  The Voice as proper name is an equivalent.  It is the entry of the first peoples of Australia into the Constitution, having made their way from Uluru to join the white and other immigrant peoples.

This is an entry that some would say is two centuries late; but it is an entry, voluntary on both sides, to a better relationship for all.

The wording of the proposal ‘there shall be a Voice’ uses the indefinite article which normally indicates a description. However, what the referendum is saying is: as well as the proper-named Voice of Uluru there will be a constitutional voice recognising it.  And when this joinder is effected the two Voices will be represented in one definite article.  For us the history is clear and understood, and no more necessary to be set out than it would be for, say, the words ‘New South Wales, Victoria, …’ in the Constitution’s preamble to be explained.  And nothing could be so effective in carrying the autonomy of the first peoples. The meaning of ‘there shall be a Voice’ is historical rather than lexical.

The Parliamentary Voice to Parliament – anything Parliament can say about the Voice – will be racially discriminatory, as many critics have said, because it picks out a certain race.  But when we look beyond Parliament to the first peoples’ Voice as a proper name, there is no racial discrimination.  Race is a description; the Voice is not.  A proper name always carries a set of (secondary) descriptions.  Then is the Voice black?  Yes.  But that is the Voice that found itself at Uluru: it might have been a different one but wasn’t.  All history is fundamentally proper-named.

I have in the discussion so far left the body out of the Voice (‘there shall be a body to be called the … Voice’).  What I think I have shown, however, is the prior historical embodiment of the Voice.  We may welcome ‘body’ back.

The Voice referendum in its delegated form creates a haze of suspicion – is something we don’t like being held back?  Further, what the delegated Parliament does in relation to the Voice gets an aura of respectability by virtue of its being attached to the constitutional Voice that ‘shall be’.  And this works out well.  The Parliament already has the power – by laws under the races power 51 (xxvi) – to legislate every possible thing about the Voice.  The delegation was not needed to empower the Parliament; but it was needed to put a constitutional colour on invasion politics, with its penchant for the white cultural insult and cancellation.

Australian Sovereignty

The Voice, let us say, is established in the Constitution.  Can it be changed or abolished?  No, except by another referendum.  Can it be added to?  No, except by special laws with respect to the Aboriginal and Islander races under the Constitution’s section 51 (xxvi) – laws which must be consistent with the single constitutional Voice and the cession of sovereignty implicit in it.

The elevation of the Voice to constitutional status and the entry of its people into the Constitution must be seen as the termination of any claim to first peoples’ present sovereignty and therefore also to the pursuit of a treaty.  There is one sovereignty, the Constitution and its power of amendment; and in ‘there shall be a Voice’ the Constitution is inviting the first peoples into that sovereignty – a beautiful idea overcoming the tired and expired idea of a treaty.  That there is one sovereignty means that the first peoples’ accession to the constitutional Voice is their cession of any original sovereignty.  The Voice section of the Australian Constitution will be an important part of Australian constitutional sovereignty.  But this will be a merged and therefore unified sovereignty.  Any treaty between A and B when A is part of B – a treaty within a constitution – is a logical nonsense.  Treaties are between sovereign, that is independent, nations.  This does not mean that first people lose by the Voice the possibility of authentic lives: it is the point of a sovereign nation to guarantee that authenticity for all.  As Hobbes said, the loss of sovereignty is a descent into the war of all, where no-one’s authenticity survives.

If it is part of Australian sovereignty how can the Voice be regulated?  By laws under the races power 51 (xxvi) that are incidental to the existence of the Voice or incidental to the regulation of its two functions: a Voice to Parliament and to the Executive.  However, this regulation by Parliament would have to be true to the constitutional status of the Voice and not detract from it – neither take from it nor load it with the foolish “invasion” politics.  This does not mean that Parliament’s legislation cannot control deleterious consequences of Voice activity.  In fact, Voice activity would very much be something as to which it might be in the terms of section 51 (xxvvii) ‘deemed necessary to make special laws.’  The Voice is part of the single (merged) Australian sovereignty; it is not the whole of it and has duties of moderation to the rest of the sovereignty (just as the Australian states have duties to each other).  If the referendum is passed it will be because the existing sovereignty invited the Voice in: this was not an invitation to take the whole of the sovereignty.

There are other grounds that suggest the High Court would invalidate the referendum’s delegation to Parliament.  But I must now explain ‘invalid’.  The High Court invalidates nothing.  If it finds that the delegation to Parliament is unlawful then (a) it is of no valid constitutional effect and (b) there is no valid decision by the referendum process in place.

Another ground of invalidity turns on the fact that proposals must have meaning if they are validly to get into the Constitution; and so a proposal ‘X and not-X’ would not be allowed to advance by the High Court.  Now, suppose a (per contra delegated) Parliament declined to exercise the referendum’s delegated power, or a later Parliament repealed a former’s legislation, there would be no Voice.  Yet the Constitution would continue to say: ‘there shall be a Voice’.

This contradiction would destroy the integrity of the referendum: electors should not be required vote for something that entails a contradiction.  And the High Court might well hold invalid such a legislative proposal.  There would be two grounds for this: the loss of integrity of the referendum and the incoherence of installing a contradiction into the text of the Constitution.

Related to this is the problem of sovereignty. The elevation of the Voice to constitutional status and the entry of its people into the Constitution should be seen as the cession of original sovereignty into a merged and unified Australian sovereignty.  This sovereignty is a function of the Constitution and its amendment power.  It is not a function of Parliament, which is is answerable to the sovereignty, not part of it. This fundamental fact is completely muddled in the contradictory situation just described, where the Constitution says ‘there shall be a Voice’ but the delegated Parliament denies it.  The Parliament, not itself being sovereign, has neither power to give sovereignty nor deny it.  This is another reason why the delegation of the Voice amendment to the Parliament is unconstitutional.

Including the Executive Power

The Prime Minister has insisted on the inclusion of the Executive power in the Voice’s remit despite leading members of his government worrying that it might, by virtue of its constitutional status, be immune from parliamentary regulation of its activity, particularly in the Executive power. This worry is unfounded. It is normal to think that the constitutional sovereignty is hierarchically superior to legislation.  The Voice is part of this constitutional sovereignty, so will it not therefore override the legislation (passed, say, under the races power) that might be needed to deal with deleterious consequences of Voice activity?  No. This misunderstands our constitutional hierarchies.

If the referendum is passed, the Voice (the newly merged sovereignty) and the races power (part of the original sovereignty) will be hierarchical equals; and this means that legislation passed (as ‘special laws’) under the races power and the Voice will also be hierarchical equals.  This is because if legislation passed under a constitutional power is systemically invalid the power itself cannot exist.  The races power does exist, therefore its legislation and the Voice are constitutional equals.

The High Court’s function in relation to such legislation would be one of impartiality between all Australians.  The idea pressed from many quarters that it would find ways of augmenting the powers of the Voice is misconceived: the High Court does not make things up.  On the passing of the referendum the Voice would achieve a high constitutional power, why would the Court want to make it higher?  It must find a balance, and it might err, but this error can rub either way.

The High Court

It is a curious fact that much of the discussion of the Voice in recent months has centred on the High Court as some sort of ogre that will cause government to be clogged by decisions expanding the constitutional status of the Voice.  People saying this are against the Voice.  Yet they have failed to notice the fact that the High Court holding the referendum to be invalid is the best chance they have of saving them from that fate.  The High Court as saviour!

But my hope is: the High Court as saviour of the true Voice.  The principle against constitutional delegation is an old, very strong, and important legal conception, which when allied with the principle of Federation (as I have shown) is seemingly unanswerable.  However, when the Court holds a law to be constitutionally invalid it looks to see whether any part of it can be saved.  This depends on the saved part having no logical reliance on the excised unconstitutional part (the delegation).  In our case, the question would be whether the first two parts of the constitutional formulation (the Voice to Parliament) logically need the delegated third part (the Parliamentary Voice to Parliament).  The severance of the third part requires that the remainder constitutes a complete constitutional Voice in it own right.  And they do (there shall be …), and don’t need a Parliamentary construction; the consequence of which would be that the Parliamentary Voice to Parliament is struck out, leaving the Voice to Parliament as the simple, true, and sovereign Voice.

However, the independence of the first peoples is a function of the Voice.  And if this is unravelled and the peoples of the Voice do not come into the Australian sovereignty ceding their own sovereignty, they will be left with their current dependent status and must rely on Parliament for their constitutional place.  In the current dependent status, their independent sovereignty is for their real lives largely meaningless: that is precisely why the Voice is asked for and offered.  By rejecting the offer of the Voice and the entailed Australian sovereignty, the three parts of the constitutional formulation will be interdependent, and severance will be impossible: they will lose the whole referendum.

State Voices

Too many cooks spoil the broth.  Seven voices is six too many.  The current spate of state voices created by state Parliaments will trivialise the Australian sovereign Voice to Parliament; and at some point be inconsistent with it and their voices therefore invalid. The state voices are a nonsense – silly playthings, threatening to be worse.  They are not sovereign Voices: there is only one way for the Voice to enter Australian sovereignty; and that is by the referendum process of section 128. A state would have to secede from the Commonwealth to gain an independent sovereignty if it is to be the host of a sovereign Voice.

The Australian sovereign Voice to Parliament is a single Voice of the single Australian sovereignty; voices growing as if on trees affront the dignity, quietness and focus of the single Voice, as well as its constitutionality.

Now, it’s obviously important that the single Voice of Australian sovereignty have access to state Parliaments and Executives as well as Commonwealth.  This should be done by including them in the coming referendum.  The Voice to the Commonwealth Parliament and Executive is not a merely a Commonwealth Voice, it is an Australian sovereign Voice and binds the states.

Objections by state Parliaments have no status.  I know that some readers of this paper will think that a state rights battle will doom the Voice.  But there is no substance in any states rights battle: the states think anyway to institute a voice – they just want it (vacuously) to be their own!  This contradicts the Australian sovereignty of the single Voice, which is owned by neither states, nor Commonwealth.

Constituting an Autonomous Voice

A Parliamentary Voice to Parliament is an unconstitutional delegation of the amendment power.  And this unconstitutionality must include any de facto delegation.  The constitution of the Voice must in fact be outside Parliament – and not set out in a statute – if there is to be a true respect for the amendment power.

But can this autonomous Voice organise and formally constitute itself, free of Parliamentary control?  Why not?  It might begin at Uluru.  Those who ‘gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky [to make a] statement from the heart’ might meet again and make a Voice constitution.

Two things from the Parliaments and Executives would assist (if wanted). First, the Voice will be a constitutional entity and so must be funded by the Commonwealth: the administrative and financial cost of organising the structure and working of the Voice would be an ordinary item in the Commonwealth budget.  The Voice as a working Voice would present a budget, and in that budget it would have the autonomy to make all the decisions as to how it would work.  And second, the Parliaments and Executives might lend their various administrative arrangements to facilitate Voice organisation.

Exercised with care and restraint (within a budget) there could be a Voice of real, autonomous power.

The Short Question

Call the three-pointed constitutional formulation of the Parliamentary Voice to Parliament the long result.  Were it put to the people and carried, the long result would be inserted into the text of the Constitution with no changes.  But a huge problem lurks.  What is to be put to the people is not this long result; it is a short question as to whether we approve of ‘a proposed law: to alter the constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice?’

If this latter is put to the people it will achieve (if it is passed) what I shall call the short result.  What happens then?  Clearly, it is not the short result that is intended to be written into the constitution.  But how can the long result be taken as the decision of the sovereign people when only the short question has been put to them?  The long result is not what has been passed.

All that can be entered into the Constitution is that which has been passed by the sovereign people.  Suppose, the short result having been passed, that the Government directed the printing office to trash all its copies of the (old) Constitution and print a new set with the long result as section 129.  Writs would fly.  Neither Government nor Parliament has the discretion to interpret the short result as the long result.  That the short result has no immediate means of transition into the Constitution is quite obvious – as the High Court dealing with the writs would see.

The short result question is headed ‘a proposed law’.  But what has ‘law’ got to do with the issue?  In the Constitution’s section 128 the word ‘law’ refers to the proposal agreed by both Houses of Parliament to be put to the people in the referendum.  But this is not a law.  It binds no-one and when it does bind it is part of the Constitution, not a law – at most it is an administrative direction.  Still, we can see what is meant: a proposed law is a proposal in the form of a law (a lawed proposal one might better say). 

The question in the High Court would be: what is it possible to say the electors voted for?  Electors expect when they come to vote to find a proposal, but not the proposal of a law.  Still. They might run with that.   But for them to be taken to approve it, this proposed law must have the long proposal in it; otherwise, there is no way of moving from the short result to the long result.  The question becomes (on a yes vote): have they voted for a law that contains the long result?

Now, those familiar with section 128’s strange usage would expect a law with a proposal in it.  But the question refers to a proposed law, which is by no means the same thing as a law with a proposal in it.  Perhaps it is possible to take the phrase ‘to alter the Constitution to establish an Aboriginal and Torres Strait Islander Voice’ as identifying a law (statute) by its name – its long title.  That may be its long title, but it gives no clue to what is contained in the statute except what the short description/long title points to. Even if it said: ‘a proposed law (statute no xy of 2023)’ these voters could find nothing about content except the short result. (I am assuming that: ‘do you approve of a proposed law (statute) no xy of 2023’ and no information at all as to what it’s about, whilst it would overcome the logical problems with getting its content into the Constitution, would not be seriously considered.  Electors would be justified in rioting if it were adopted.)

Sophisticated or ordinary, voters can find nothing beyond the short result.  And in a yes vote, that is what has been passed and only that can be put into the Constitution.

But that would actually be a good result, albeit unintended.  ‘To alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice’ would turn into the formulation:

129: There shall be a body to be called the Aboriginal and Torres Strait Islander Voice.

What was intended for the Constitution was the long form of the Parliamentary Voice to Parliament.  The proponents of the short statement are often simply frightened they might lose on the real and more complex issues.  And they feel justified in this position by a notorious and unconstitutional notion that the difficulty of amendment of the Australian Constitution is a kind of enemy to overcome.  It isn’t: that there have been few successful referendums in Australia is a sign of a good Constitution, not a bad one.

My formulation of section 129 would exclude the third part of the constitutional formulation as to the powers of Parliament.  But it would also exclude the second part: ‘The Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples’.  But this hardly matters.  The Voice is a proper name, but its name points to a description: it is a speaking.  The Constitution concerns the governance of Australia; so the Voice would be seen as a speaking to the governance of Australia – the same thing effectively as speaking to Parliament and the Executive. 

However, for clarity’s sake it is probably a good idea for the Constitution to be explicit as to representations, and, as I’ve argued, this should include state Parliaments and Executives.  So

129: There shall be a body to be called the Aboriginal and Torres Strait Islander Voice which may make representations to Parliaments and Executive Governments on matters relating to Aboriginal and Torres Strait Islander peoples.

Shorter than the Republic referendum’s short question, just that should be put to the people on their ballot papers.  The distinction between the long and short formulations is abolished.  On a yes-vote this short statement goes into the Constitution with nothing else.

I have described two moments in the referendum process that raise the possibility of High Court intervention.  First, prior to the actual referendum and immediately after the Houses of Parliament have created the law to get the process moving; and second, the moment after a successful referendum looking to the changes required in the Constitution.  Any citizen has the clear right to challenge at either point a referendum process to change the Constitution they own.  Suppose there is a challenge to this one at the prior moment.  Courts often correctly reject litigation on the ground that it might become moot.  And this one will certainly be moot if the referendum is lost.  But for the High Court to reject the challenge on the ground of its mootness would leave the question to hang over the running of the referendum and this might influence the outcome.  This is something I think it would abjure.

The Prime Minister has often said that he wants the referendum decided by the vibe of support for the original peoples.  This was a stroke of genius.  All along it was the true and simple Voice – if only his legal advisors had seen it.  The issue is between the simple Voice to Parliaments (in which I include the Executives) and the complex and politicised Parliamentary Voice to Parliaments.  Only the simple Voice gives (a) a valid institution of the Voice, (b) a valid referendum result, (c) a valid insertion of the Voice into the Constitution, (d) a place for the Aboriginal and Torres Strait Peoples in the Australian sovereignty, (e) a black sovereign entity at peace with the white (and other immigrant) sovereign entity, (f) the end of invasion politics and the elite moral vanity that supports it, and (g) freedom from the necessity of the High Court to assert the rule of law over divisive referendum politics.

Michael Detmold is the author of The Australian Commonwealth (1985), whose argument foreshadowed Mabo. He is Professor of Law (emeritus), University of Adelaide

27 thoughts on “Why the Voice Amendment is Unconstitutional

  • Greg Jeffs says:

    Perhaps the writer, as a retired lawyer, could dust off his best Lawrence Hammill wig and pop down to his local High Court registry as soon as the referendum date is set. He suggests that they would strike it down.

    Good luck with that.

    He further suggests that the Court could rewrite it so it could be “saved”. That sounds much more like a desired outcome for the lawyers.

  • rosross says:

    Since all legislation affects all Australians, with or without some Aboriginal ancestry, in some way, then these powers are broad enough to give such a Voice the ability to dictate on any and every bit of legislation, should they so choose.

    How in a democracy can a tiny minority of Australians have the right to dictate to the rest?

    • john mac says:

      As always rosross , you get to the heart of the matter , last sentence hitting the nail on the head . Just another Trojan horse of totalitarianism is “The Voice” along with “Climate Change” and covert 19 with the footsoldiers inside being antifa/blm and the oh so tolerant alphabet community all inside the gates and creating havoc with vindictive glee .

  • rosross says:

    Such a pity that Mabo was a disaster.

  • padraic says:

    To my mind the article makes a good case for getting rid of s.51 (xxvi) out of the Constitution. The “Voice” if passed, constitutes “recognition” of ASTI “sovereignty” as a separate group, like the Maori, which then leads to a “treaty” and political power over the rest of us, as is happening in New Zealand. This is the aim of the activists. Why else would they go to all this trouble if it was just a “feel good” exercise?

  • rosross says:

    Quote: The Prime Minister has often said that he wants the referendum decided by the vibe of support for the original peoples. This was a stroke of genius. All along it was the true and simple Voice – if only his legal advisors had seen it.

    Firstly, we have no idea if any of the clans/tribal groups here in 1788 were descended from the first Homo Sapiens to arrive – the original peoples. To claim such is pure assumption so let us put that label aside.

    The rest of the statement makes a case that ancestral longevity creates superior status which deserves superior rights. How is that democratic or constitutional? Such a view establishes a system where the longer one can trace back some family ancestry, no matter how small, the superior is their status and rights as citizens. Surely such primitive tribalism has no place in modern Australia?

    And how would it work? Can we categorically establish that citizen a. with 100% Aboriginal ancestry for one tribal ancestor from the 350-500 groups here in 1788, ranks as ‘top dog’ in the ancestry stakes and therefore sits at the top of the ladder? Do we then rank all those with the same ancestral connections down to less than 1% of such ancestry?

    Moving on, we must then ascertain with the 500 different ancestral groups who came next and apply the ladder of citizenship superiority to them. Last on the list would be those without Aboriginal ancestry who would then have to be ranked on their ancestral longevity, again, depending upon the ancestral percentage they can prove.

    Those who became citizens last week would be the most inferior, and ranked below those who gained citizenship last year and beyond, etc. etc. etc.

    How can anyone of sound mind support any kind of voice for any kind of reason when this is what it brings to the table?

    No Voice, No extra rights, No First and Second Nations, No ancestral superiority, just NO, NO and NO again.

    • john mac says:

      Well , a team must be tasked with poring over all the historic aboriginal records , texts and folklore from their 60,000 years (and counting) of existence here … Oh wait …

    • michael.detmold says:

      Dear rosross and others, I understand the enormous set of problems in thinking of Aboriginal and TS people in any sort of corporate or unified way such that there could be THE Voice. That’s one of the reasons why I argue for an autonomous Voice – it’s their problem. If they can’t solve it, well, there’s an end to it. What I hate about the current proposal is that a lot of politically correct people in Parliament will have no difficulty in dreaming up some corporate structure which they impose on all of us including the people they seek to help. (I could dream up ten such structures in half an hour.). This really is a great trick that they’re imposing on us. Michael Detmold

  • padraic says:

    Pardon should be ATSI

  • brandee says:

    It could well be Michael that there is much heavy legalise to ponder after your 3rd paragraph. However my opposition was raised in you 3rd para with: “Unfortunately, ————— the constitutional draft has the potential to wreck the referendum”. Here many would disagree – we want the referendum to fail or better still, be cancelled for the sake of an unbroken Australia.
    There is enough to ponder in the alternate NIAA that was formed in 2019 and is now costing $4.5bn pa. This National Indigenous Aboriginal Agency does all that the Voice is supposed to do without the power trip of constitutional enshrinement. Albanese plans to keep the NIAA with its 1200 staff in 39 offices and add the Voice with its bureaucracy and its Aboriginal elites.
    Enough legalise, please, or receive the public rebuke, ‘the law is an ass’.

    • rosross says:

      If the billions in dollars, hours, papers, attention have achieved nothing then no voice could ever make a change. That is the reality.

      We know that the key factor in function and dysfunction in Australians with Aboriginal ancestry is assimilation. The majority who are fully assimilated into the modern world and mostly have been for generations, which is from where out elites come, are doing absolutely fine, as well and sometimes better than the average and they have the same sorts of lives, experiences and outcomes as any other Australian.

      The group struggling, a small minority of those who register Aboriginal ancestry are dysfunctional because they are not assimilated into the modern world and remain trapped in backward and violent tribal/clan systems which are and which will always be, totally at odds with the modern world.

      This group will never benefit from an extra vote, called a voice and their own chamber in parliament since that will be run by the elites, the fully assimilated Australians with Aboriginal ancestry who have nothing in common with the tribal mobs.

      The fact that so many fall for this undemocratic scam is of concern, particularly when they are educated and experienced enough to know better. The Voice has already divided Australia and, if it gets a Yes vote will divide it even more and create levels of racism and hatred, on both sides, never before seen in this nation. If it gets a No vote, there will be a period of hysterical righteousness from the losers and then they will get over it and make new plans to divide up this country and its people. But the majority will get on with living.

    • pmprociv says:

      Spot on, Brandee. And then there’s the Coalition of Peaks, whose job seems to be exactly the same as NIAA’s. It’s made up of representatives from only the leading 80 or so indigenous organisations, just to streamline things, and its goal is to work with governments to close The Gap (I’d love to know its budget). So, what has it been doing? And will it disappear once The Voice gets up? Not bloody likely! It could become a voice to The Voice . . .

      With all these voices shouting at our politicians, how do they go about deciding which ones to listen to — and then to find the time to do anything useful? Do they have any other matters to deal with, some perhaps more important?

    • leabrae says:

      No, the law is not “an ass”. The Bumble in my ear asks me to remind you that the law is “a ass”. The difference matters.

  • Another Richard Harrison says:

    Responses to just a few of the main arguments in the article:

    1. The proposal “attacks the integrity of” the Constitution’s amending power”. No, it does not. That power (in section 128) requires only that several clear steps be followed. Relevantly, they are: (a) the proposed law is passed by an absolute majority of both Houses of the Parliament; (b) the proposed law is submitted to the electors; and (c) a majority of electors voting in a majority of States, and a majority of electors voting overall, approve the proposed law. Note carefully: there is no requirement relating to the content of the proposed amendment. If the proposal passes the steps prescribed by section 128, it becomes part of the Constitution irrespective of the wording of the proposal.

    2. Delegatus non potest delegare. This assumes that the Constitution has delegated the power to legislate to the Parliament. This is an error. The power of the Parliament is not delegated because the Constitution itself does not have the power to make laws; it gives that power to the Parliament.

    3. Can the process of section 128 be used to amend itself? This is no paradox: it has been done already, in the form of the Constitution Alteration (Referendums) Bill 1977, which amended section 128 under the process prescribed by section 128.

    4. “… a proposal ‘X and not-X’ would not be allowed to advance by the High Court.” It is an everyday function of judges to find the meaning of statute laws that are internally inconsistent, and there are long-established rules for doing so. Even the existing Constitution contains such an inconsistency: section 7 says that “The Senate shall be composed of senators for each State” and makes no provision of Senators from a Territory; yet section 122 gives power to the Parliament to allow representation of Territories in the Senate. In 1975, by the barest of majorities, 4-3, the High Court decided that section 7 had to be read as subject to section 122. And should the Voice be approved, any inconsistency in section 129 will also be dealt with by the courts.

  • DougD says:

    “Unfortunately, the third proposition in the constitutional draft has the potential to wreck the referendum. This gives Parliament power ‘to make laws with respect to matters relating to the Voice, including the composition, functions, powers and procedures’ of the Voice’, and so destroys the autonomy of the Voice, turning it into a voice made by Parliament.” This proposition is expressed to be “subject to the Constitution”, which includes the proposition that promises that the Voice can make representations to parliament and the executive. Even if parliament legislates to make Voice issues non-justiciable [something Voice activists won’t allow Albanese to include in the Constitution itself] how can parliament stop the High Court hearing a claim by the Voice that it has not been given the promise in the Constitution that it can make representations etc. Parliament cannot dictate to the High Court how it must interpret the Constitution. That was demonstrated back in 1908 in the Union Labels case.

    • rosross says:

      The tricky part is that this new chamber called the Voice has the right to be consulted by Government on any legislation which affects Australians with Aboriginal ancestry.

      Since all legislation affects all Australians to varying degrees, this means, the undemocratic Voice for 3% of Australians can dictate to any Government on any issue, and Government cannot act on anything without prior approval from this third Chamber, which has not been elected by all Australians. How can we still be a democracy with a system like that?

  • rosross says:

    (d) a place for the Aboriginal and Torres Strait Peoples in the Australian sovereignty,

    What peoples? Most of those who register Aboriginal ancestry are more Anglo-European than anything else. They are not united and not a people. Would you recommend the British take the same approach to their Celtic, Anglo, Saxon, Viking, Norman ‘peoples’ and if not why not? Those with Aboriginal ancestry are united as Australians with all other Australians and finally they have a common language even if those in backward tribal communities are still at war with each other as they were in 1788.

    (e) a black sovereign entity at peace with the white (and other immigrant) sovereign entity,

    Black and white are racist colour-coding terms. The other problem is that most of those who register Aboriginal ancestry are pale-skinned and in fact there are many other Australians, Turks, Greeks, Spaniards etc., who have darker skin.

    And if the Europeans are immigrants then why are you ignoring the fact that those who call themselves Aboriginal are also immigrants. Earlier, but immigrants all the same. We all came out of Africa. We all share the same distant ancestors. The many different peoples here in 1788 called first Indians, then Natives and finally Aborigines by the British were also migrants, colonists and invaders and settlers. How is any of that different to the Anglo-Europeans?

    Your position is saying that the further back someone can trace some of their ancestry the superior their status as citizens and the greater their rights. Surely that is unconstitutional as well as being undemocratic?

    And what sovereignty? There were no nations here in 1788 and prior, and few large-ish tribes. The groups were mainly family clans and that does not sovereignty make across this entire country and above all other Australians. Your position is inherently racist, however legally accurate it might be. Sovereignty in traditional aboriginal cultures came from the power of the spear and the waddy. No different to any other stone-age humans, including Europeans at that level of development.

    As ‘to being at peace,’surely the fact that Australians from all lands have been intermarrying with Aboriginal peoples for centuries. Australia has the highest and fastest rate of immigrant intermarriage of any nation, and an even higher rate of Aboriginal intermarriage. Most of those who register Aboriginal ancestry are today in mixed marriages. How much more ‘peace’can a nation have?

  • Brian Boru says:

    I have to say that with my rushed read I found this article hard to follow. I shall have to reread it and try and digest it properly.
    However, the very last thing that I want to happen is for the Voice referendum to be passed and then challenged in the High Court and for that challenge to succeed. That would then give the Government a mandate to either resubmit changed wording as another referendum or for it to directly legislate to achieve the same result. The unrepresentative urban white Aboriginal elites would still get their snouts in the trough whilst their remote community brethren would still be languishing in the zoos that the former have encouraged.
    I want the referendum to go down is screaming heaps so that we can get on with reconciliation. To me that means acknowledgement of our true history by all, then forgiveness and acceptance by (white and black) Aboriginals. It is my hope that then that would lead to a completion of assimilation so that Australia can go forward as a unified, egalitarian country to the betterment of all of us.
    I do not intend to make any concessions to the “Yes” side by arguing that the “Voice” would be unworkable or ineffective. It is simply racist and I cannot countenance it in any form. Vote NO to racism, vote NO to apartheid, vote NO to privilege by birth, vote NO to division of Australia.

    • Ceres says:

      With you on that Brian. Piece was very convoluted, hard to read and jumped around all over the place.
      KISS principle for me – against based on obvious apartheid and demolition of democracy.

  • Adelagado says:

    The key point is that ‘The Question’ itself is nonsensical. Its just a virtue signalling motherhood statement followed by a proposal that could mean almost anything. Surely the vagueness of the question itself is open to a high court challenge before it even gets to the point of a referendum.

  • Peter Marriott says:

    Sounds like the good Professor sees us whites as invaders, I assume him included, and is well and truly for the voice with all it’s accompanying sneaky little tools for dividing the country.
    Well, my position is that our country was not invaded, it was settled, and the aborigines are just as much a part of it already, as I am. The constitution is not ‘broke’ and in keeping with how Peter O’Brien put it in another piece, if it ain’t broke, don’t fix it…..meaning vote NO.

    • Phillip says:

      You’re absolutely correct. An invasion never occurred.
      I can trace my family ancestry back to the first settlers of the Swan River colony, arriving on the Rockingham as free settlers in 1830. The settlement of the Swan River colony, with its industrial age technology, was made welcome by the stone age savages simply for the provisions of food, education and proper clothing. Just like Sydney Cove and other similar colonial postings, the continent of New Holland was settled, never invaded.
      The First Peoples of Australia were born on 1st January 1901.

      Our prime minister, with limited Australian heritage, marketing this Voice hogwash is bent on breaking our Constitutional framework for NIL benefit to any citizen.

      For a small group of Australian citizens whose recent ancestors were brought out of the Stone Age into modern society, with the speed of excessive amounts of welfare funding, they (and albanese) certainly have some panash, to think they’re so special. They can, like the rest of us, just abide by the Constitution without fear nor favour.

      Vote NO.

  • RobyH says:

    On a simpler note, The Voice will create legislation for an elected Blak only level of government or advisory body.

    Any legislation has to comply with the Race Discrimination Act which ensures the right to vote and participate in any level of government.

    The Voice would have to contravene the Act – I just don’t get it. Would it be if to the High Court to decide. Any help appreciated.

    • rosross says:

      Except none of them are black or blak. They are mostly Anglo-Europeans and look and sound it. The whole thing is a joke, but a dangerous one. Sensible people are not laughing.

  • Alec Witham says:

    I would like to know the purpose of the original clause 51. 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, other than the Aboriginal race in any State, for whom it is deemed necessary to make special laws.” I understand that the amendment of 1967 removed the words “other than the Aboriginal race,” but why was “race” mentioned in the first place?

  • Dudley Horscroft says:

    Please see my comment to your question in Peter O’briens’ (?) article on the similar subject. Better yet, buy Keith Windschuttle’s book The Break Up of Australia.

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