The Voice

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

19 thoughts on “The Voice: An Overlooked Constitutional Conundrum

  • Dallas Beaufort says:

    I don’t want to pay more for another level of Government, Full Stop.

  • Daffy says:

    Apartheid is clearly alien to the constitution and its introduction will open up a can of worms as discussed here, in other legal matters inevitably, and socially.

  • Stephen Due says:

    The Voice proposal lacks logical coherence. On the surface it is simply a vehicle for virtue-signalling, with no clear objective. Given that everybody in Australia currently has a voice through their state and federal parliaments, what is the Voice supposed to achieve? Voters should be wary of what the outcome may be if this goes ahead. There may be something in the pipeline we have not been told about. At the very least, this ill-defined proposal may have unintended consequences that are not in Australia’s best interests.

  • Greg Jeffs says:

    Should the government not also rescind the 1975 Racial Discrimination Act? It generally prohibits discrimination on the basis of ‘race, colour, descent or national or ethnic origin’. Some proponents of the Voice argue that the Voice is not based on race but descent. Descent is specifically included in the Racial Discrimination provisions. Would the 1975 Act be unconstitutional under the proposed Sec 129 in that the proposed Sec. 129 must require discrimination by race or descent to exclude most of the citizens of Australia? If the Voice is not discriminatory by race or descent, then it has no purpose at all. If The Constitution validates such discrimination, then an Act of Parliament, like the 1975 Act, should not violate that Constitutional provision.

  • Adelagado says:

    “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?”

    I’ve raised before that when a Government sanctioned ‘Welcome to Country’ is performed on state owned land it is a concession that we are aliens in our own country. So yeah, lets make go all the way and put it in the Constitution. Our grand kids will thank us.

  • padraic says:

    Bingo! Thanks Damien. You have hit the constitutional nail on the head for me. I have been trying to work out why they needed to have it in the Constitution rather than enacted by Parliament. I knew there was some sneaky reason, especially as one of the architects was reported as paying his respects to Communist Party elders (presumably past and present) for helping them to get to this stage. I could not work out how our Foreign Minister was so sure that they could organize an Ambassador to represent “First Nations” interests, but from your analysis it looks like ALL of the Heads of Power outlined in section 51 will be subject to the proposed section 129 (iii) and not just the aliens in s.51(xix). That means they will be basically running the country and have achieved their aim of “taking it back”. Wow! How cunning is that? Adieu democracy. We are already being groomed to not belonging to our country with all the spiteful ownership slogans, “welcome to country”, separate development (aka apartheid), the brainwashing of schoolchildren and smoking ceremonies etc, to say nothing of the activists’ barely disguised racial hatred of those who do not claim to be Aboriginal.

  • STD says:

    Padraic absolutely Brilliant Summary-Someone needs to stick that under Dutton’s nose. Albanese response in Parliament should be an interesting take, with a gallery full of hard working honest Australians that have been played for mugs.
    Maybe Pauline Hanson should get first dig at it in order to show Australia why the Senate does matter and is there to thwart treacherous, treasonous, subversive laws behaviours and intentions.
    Someone needs to start boring this into the journalistic scribes of left think- a senate committee of inquiry perhaps. And I would like to know why hasn’t the likes of Professor Craven et al, had the integrity ,grace and fortitude to go public with this on behalf of Australia – and while where at it maybe Chris Kenny could give an informed Voice as to the proper meaning in law of the indigenous Voice to Parliament.

  • STD says:

    Paul Murray on Sky has an interesting take on this- unlike the left I think he actually put a balanced view forward. The Voice is a campaign to ‘insult and demonise’ ordinary Australian’s.

  • pgang says:

    Received a pamphlet in the mail yesterday from Senator Hollie Hughes for the no case. It is very well presented and I think this old-fashioned method of communication will have cut-through.

  • STD says:

    Now for the main meal. Tony Abbott fronting up at their ABC and being hauled over the coal’s by the 7.30s Marxist anchor Sarah Ferguson. Tony Abbott says the Voice “reinforces the separatism”.
    The brilliant intellect of this man-nothing short of brilliant!

  • rosross says:

    Singling out a group of Australians for special mention in our Constitution is racist, elitist, undemocratic and dangerous. It is as simple as that.

  • Geoff Sherrington says:

    Vague feelings that advice to Parliament to the effect that the High Court has no standing in a matter under dispute must be considered, the way some people imagine the voice should work. Geoff S

  • padraic says:

    Thanks STD for the videos. They basically reinforce what the articles and comments in Quadrant are saying. I

  • SimonBenson says:

    Good point. One possible strategy in answer to this disturbing legal conundrum that Albanese and the ALP have deliberately sought to conceal from “the deplorables” (viz. ordinary working Australians who voted for them) that the white and other leftists in the Aboriginal Industry would avail themselves of when push comes for us all to shove-off is the appeal to “legislative history” – that is, first and second reading speeches and any Explanatory Memoranda tabled in the Parliament preparatory to the Voice becoming law (see ACTS INTERPRETATION ACT 1901 – SECT 15AB – Use of extrinsic material in the interpretation of an Act – subsec. (g) of which is especially worrying in this connection*). Promoters of the Voice will ensure that any such extrinsic material is strategically worded-up to bind the High Court’s interpretive hands when (not “if”), as surely as night follows day, the legal conundrum identified by Dr Cremean is argued before it. A change to our nation’s DNA that’s as safe as houses? I think not. Ordinary Australians who thought they enjoyed citizenship by connection to country via birthright may end up like the pre-Roman ‘Welsh’ – rendered ‘strangers in their own land’ in Old German – who were pushed out of their own ancestral lands. Come to think of it, as I am related to this people group on my mother’s side of the family, as a UK First Nations descendant, and a proud Celtic man, maybe it’s high time I made a claim. In left wing, PC Britain, the time might be ripe for a favourable reception. If we are going to rake over the coals of past conquests, there is no reason in logic or principle to stop at 200 odd years. Mind you, all supporters of the Voice should do what any sporting batsman should do in cricket and ‘walk’. All supporters of the Voice, including its white leftist legal and political architects, should sign all their real estate over to their local Aboriginal Land Council (including PM Albanese’s Marrickville pad) and quit these shores. That is, after all, the logical and moral extension of their argument. As Dr Cremean argues, their tampering with our Constitution may end up coming back to bite them!

    * “any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section”

  • dwilkins says:

    You note that “Could most of us end up being aliens in our own land?” I might add “…or self-proclaimed Aboriginals”.

  • Louis Cook says:

    Just like the ‘republican putsch’ … what are they going to do with the people who will not go along with this agenda to change Australia?

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