In a parliamentary democracy, when a valid law is passed, the people submit to that law. But on the prior question of how a law comes to be valid the relation is reversed: the parliamentary government submits to the people. The Australian Constitution is founded in the people: “Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania … have agreed to unite in one indissoluble Federal Commonwealth …” These peoples then go on to state the conditions for the validity of laws (making the Constitution). And they remain in charge: if the Constitution is to be changed, the Parliament must submit the proposed change to the people for their approval.
Section 128 of the Constitution provides the lawful way of amending the people’s Constitution, but the understanding of this section is made difficult, even to lawyers, by the mixing of its essential thrust with long auxiliary provisions (such as the relation between the two houses of Parliament). These obscure a very clear essence. But when in our reading we excise them, the following simple and now obvious central structure comes into focus:
The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors.
When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes.
And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the King’s assent.
The key to understanding this Voice referendum process is submission. It is perfectly clear from these provisions that a law that is not submitted to the electors (the people) cannot be approved by them and therefore cannot be presented to amend the Constitution.
The short question in the Voice referendum process—the one to be submitted to us in the ballot box—reads as follows: “A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?”
The Parliamentary Bill that establishes the referendum sets out this short question and then goes on to state a longer draft of the “proposed law”; this is the actual text that would be inserted into the Constitution were the referendum carried. This longer statement (the long draft, I shall call it) adds two things of substance to the short question: first the Voice’s function (of making “representations to the Parliament and the Executive Government of the Commonwealth …”) and second, the Voice’s structure (Parliament’s “power to make laws with respect to matters relating to the Voice, including its composition, functions, powers and procedures”).
These two substantive provisions (making representation and structure) could certainly be inserted into the Constitution if they were “submitted in each State and Territory to the electors” and were carried in the terms of section 128. But the simple fact is that they are not being submitted by the present referendum and therefore cannot possibly be validly inserted into the Constitution.
What is to be submitted to us is the short question; but it is not planned to insert that into the Constitution.
The Parliament has tried to hide anything about what the Voice is to be doing—the question that has occupied the whole debate so far. Most people want Australia’s first peoples to be recognised in the Constitution; and the government is trying to get them to vote on that alone—a vote that would carry the hidden matters with it, a veritable constitutional fraud.
And it has done more. As well as removing the function and structure of the Voice from the electors in the ballot box, the Voice referendum makes a second kind of information removal. It delegates to Parliament the power to define the Voice (“its composition, functions, powers and procedures”), so that the Parliament becomes the amender of the Constitution rather than the electors in the ballot box. The people (of New South Wales, Victoria …) have by their sovereign creation of the Constitution delegated their power of amendment to the section 128 process—to themselves, as it happens, in a federal arrangement. A sub-delegation by that process contradicts the people’s provision for amendment, and since they are sovereign it is invalid.
The prohibition of sub-delegation has always been a principle of the common law (ancient enough to have a Latin formulation: delegatus non potest delegare). It is also a principle of classic liberalism. John Locke (of whom Pollock said, Locke is “the common law’s philosopher”) wrote (in Second Treatise 141): “The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they, who have it, cannot pass it over to others.”
The Australian case is actually stronger. Locke’s “legislative” was, of course, the English Parliament, with his “people” more implied than express. In our case the legislative is the constitutional power of section 128, and the people are expressed (“Whereas the people of New South Wales, Victoria …”).
The principle is against sub-delegation, not delegation; it is sub-delegation from a delegate of the people that infringes their freedom to govern themselves in the way that they have chosen. Locke’s passage goes on:
The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other, than what the positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.
In our case the proposition is: the section 128 process can have no power to transfer its authority of amending the Constitution and place it in the hands of Parliament. Locke’s pungent phrase was “not to make legislators”. Our case is: not to make amenders.
The Final Report of the Referendum Council stated (on page 36): “No one has suggested there be an attempt to enshrine in the Constitution provisions of the kind more appropriately left to Parliament.” Well, that is undoubtedly true for matters of detail, which can—indeed, must—be delegated. But we are talking about the definition of the Voice—the absolutely central question which clearly must be an issue for the referendum itself. For Parliament to be given the charge of the definition of the Voice would be asserting—against the people’s choice—an alternative method of constitutional amendment, and a much less exacting one than the current amendment power of section 128.
It was a federal constitution that the people created; and the fact is that the sub-delegation of the referendum power’s definition of the Voice contradicts the people’s federal arrangements. It removes the protection that section 128 gives to the federation when it requires that a majority of at least four states support a proposal (protecting the smaller states from the larger). No such provision applies to the passing of laws by Parliament, and so when the referendum issue is sub-delegated to Parliament that fundamental federal protection is by-passed. This makes it unlikely in the extreme that the creation of the section 128 power contemplated a sub-delegation to Parliament.
The two arguments against hiding the substance of the referendum’s proposal stand independently. The principle against sub-delegation is sometimes misunderstood—particularly in the United States—but even if it were approved, the referendum would be invalid on my first ground: removing the Voice’s function and structure from the short question submitted to the electors in the ballot box.
A law not submitted to the electors cannot be approved by them and therefore cannot amend the Constitution. The formal submission by Parliament under section 128 is in its short question to the electors. But could there not be another form of submission constituted by the whole activity of the referendum, including particularly the Yes/No cases mailed out to electors? The Parliament would in this way, by its extrinsic establishment of the complex referendum process, be submitting it to the approval or not of the electors. There are several reasons that preclude this interpretation.
First, it would be difficult to tell what was a satisfactory extrinsic process and what was not (readers will remember that the Prime Minister was for a long time against allowing the Yes/No cases). Second, it would still be necessary to look at the actual question in the ballot box which might by its precision be taken to limit an elector’s understanding of the referendum issue. It would not be unlikely for there to be electors who were worried, say, about the function of the Voice in the executive power, to think in the ballot box, oh they’ve decided not to go ahead with that. There is no way the effect of the short question can be ignored here. Third, the process of the referendum is intrinsically formal, involving the creation of a proposed law starting in the form of a Bill and ending if approved in an Act of Parliament. This fits the quiet formality of the ballot box, but not the convulsion and noise of the extrinsic politics of the referendum. Submit is a sober word.
In 1906 the first Australian referendum to amend the Constitution was held, and the short question to be addressed in the ballot box was: “Do you approve of the proposed law for the alteration of the Constitution entitled ‘Constitution Alteration (Senate Elections) 1906’?” If you didn’t know what this Bill (“proposed law”) was going to do in respect of Senate elections, too bad—you didn’t matter. The same form was adopted for the next thirty or so constitutional referendums: it was a substantial disfranchisement of many Australian electors each time.
The perfunctory practice of submitting simply the title of the law makes no sense at all. By the time “a proposed law is submitted to the electors” (the wording of section 128) the Parliament has done its work and the issue moves to the sovereign people. There is no justification for expressing the people’s issue in terms of a parliamentary enactment that most people will not even know where to find. It’s not as though Parliament’s work in creating the referendum would drop away if not asserted—if the electors approve, it goes straight into the Constitution without question. For a valid referendum there must be a submission by Parliament and an act of approval (or not) by the electors; but the perfunctory form is neither a submission (information is held back, not submitted) nor the ground of a possible approval (approval requires knowledge of the thing approved). And so these early referendums were obviously invalid on the ground of inconsistency with section 128.
The title is a mere distraction—completely irrelevant to the constitutionality of the vote. The proposed law might be titled “Albo and the Vibe”, and it would be judged not as a title, but as a guide to approval or not of the long draft. (And would fail.) A real (indisputable) title—say, Bill No. xy of 2023—raises a different issue. This is a proper name, not a description; it refers precisely to what is to be inserted into the Constitution, but as an issue for approval or not, is completely meaningless to an elector who knows nothing of that Bill.
Gradually the Australian referendum practice changed. In the four referendums of 1977, instead of referring to the title of the amending statute the amendment itself was described, for example (the Territorial Voting referendum):
It is proposed to alter the Constitution so as to allow electors in the territories, as well as electors in the states, to vote at referendums on laws proposed to alter the Constitution. Do you approve of the proposed law?
This was a perfectly fair submission by Parliament for the electorate’s approval. But unfortunately, in 1984 the Referendum (Machinery Provisions) Act (48,793 words!) reinstated title, requiring the short question to “set out the title of the proposed law”. This opens the issue again to abuse. Who gives the Bill its title? The Parliament does. So Parliament may in its choice of title hide what it thinks may be unpalatable proposals from the people.
And this is just what the Voice referendum attempts to do. But this absurdly long statute is just a statute and must be tested for validity: it cannot validly subtract from the people’s right to have proposals to amend their Constitution clearly submitted to them for their approval (or not).
That there be following a successful referendum a precise statement of what is to be inserted into the Constitution is obviously necessary (the referendum itself cannot be the place for argument about detailed wording), but the issue in the Voice referendum is not one of detailed wording: the function and constitution of the Voice are a major part of the very essence of the referendum. To submit these essential elements to the electors is not hard to do. The Republic referendum was much more complex than the current one, but its short question (a proposed law: remove the Queen and install a parliamentary-elected President) caught the substance with accuracy and so its being submitted to the electors could count as a fair submission of the longer draft.
It was not the difficulty of stating the substance that has moved the present government: it was its wish to remove two issues of real contention from its submission to the people.
In Boland v Hughes 83 ALR 673, Chief Justice Mason said “it is for Parliament to decide what shall be the content of the proposed law to be submitted to the electors”. He was referring both to the short question and to the long draft in the whole Bill. Parliament has a significant discretion as to both formulations. But there is a big difference between them. The discretion as to the long draft is unbounded (any proposal at all may be offered by Parliament to amend the Constitution), whereas the discretion as to the short question is a discretion bounded by the necessary requirement that it count as a submission of the long draft (whatever it is) to the electors (the people).
Section 128 also requires the Parliament to choose the manner in which a vote shall be taken, but that, too, is on the assumption that the long draft is being submitted to the electors.
For complex referendums there must be a question short of the whole proposed text. The short question (call it X), is the only formulation of the Bill that is actually submitted to the electors, and so the question after it is: how does the long draft of the proposed law (Y) get to be submitted to the electors so that it can be inserted into the Constitution? X is to be submitted to the people, but Y is to be put into the Constitution. There must be a valid connection. And the only possible connection is this: X must be a short and fair description of Y (as it was in the Republic referendum). Only then is it the case that, by submitting X to the electors, Y also has been validly submitted to them.
There is a wide discretion in the Parliament as to this connection; but, still, it is the issue. Of the Voice referendum, we must be able to say that:
Recognising the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice
is a short description of:
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
(i) there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
(ii) the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
(iii) the Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.
No matter how wide the discretion of Parliament, it is not even faintly arguable that this X is a short description of this Y. It follows that the Voice referendum fails on the issue of its submission to the people and is invalid.
It’s not as though there is difficulty in drafting an X that is a short statement of Y. The current Y is itself short and would do.
The Australian Constitution is the foundation of Australia’s constitutional law. How is it that so many Australian lawyers (and even bar councils) have not in the matter of the Voice referendum seen the Constitution as their first allegiance? This is by no means to say that they should not as individual citizens support the Voice, only that their professional integrity should attach to the Constitution before it contemplates a particular sectional interest. But are they not supporting the Constitution when they advocate its amendment in the Voice referendum? This is a spurious claim. On the question of amendment, their professional integrity must attach to the lawful way of amending the Constitution, not (except personally) to a particular sectional amendment. And here, the many lawyers advising the government have overlooked two crucial constitutional issues: the failure of the referendum to submit the true questions to the electors, and the rule against sub-delegation. Is this because their attachment to the cause of the Voice has clouded their professional integrity? This, regrettably, is the case with the larger bar associations, whose principal function is the professional integrity of lawyers.
Many lawyers do practise that integrity, but when senior barristers and judges call them racist for doing so, it is their accusers’ professional integrity that is trashed.
And there are simple mistakes. Some lawyers have missed the invalidity of the current referendum because they have been misled by the absoluteness of the amending power. They (correctly) see that section 128 is unlimited in the kind of amendment that can be proposed by Parliament (the absolute power of the Parliament to define the long draft) and because of this absoluteness ask no questions. These lawyers overlook the fact that the absoluteness itself is conditional on Parliament’s submission to the people through the ballot box’s short question. They misunderstand the people’s absolute sovereignty to which the Parliament must submit.
The referendum process that Parliament has established for the Voice is a “matter arising under the Constitution and involving its interpretation”. This means that the High Court clearly has jurisdiction to strike down an unconstitutional referendum result after the event (as Chief Justice Mason said in Boland v Hughes at 675). However, judgments of public law sometimes conclude that government action whilst legally wrong is nevertheless valid. It would be a big thing for the High Court to invalidate a people’s positive vote; and so might it not say that the short question put to the electors in the Voice referendum was legally wrong, but nevertheless the referendum result is valid? No, it might not.
As I have said, the process of the referendum is intrinsically formal, involving the creation of a proposed law starting in the form of a Bill and ending if approved in an Act of Parliament. And Acts of Parliament are never legally right or wrong; they are either valid or invalid. The question in the High Court would be: is the Act of Parliament constituting the Voice referendum, and therefore the Voice referendum itself, valid or invalid? It is invalid. Should the High Court be approached on this, we could expect it so to rule.