Incoherent French Deciphered

‘They shall grow not old as we that are left grow old, age shall not weary them, nor the years condemn …’, we say on ANZAC Day.  But that is in this world.  Does it apply on the other side, I wonder?  Has the spirit of, for example, David Hume atrophied to the extent that, confronted by some of the more asinine pronouncements of our modern-day luminaries, he is no longer up to ‘spinning’ or even ‘turning’ in his grave, and now just rolls over, pulls up the covers and says, ‘What the hell’?

I suspect that Sir Samuel Griffith, our first Chief Justice – not that long departed in the grand scheme of things – would still be in the spinning phase.  At least as regards the recent utterances of his 11^th successor, former chief justice Robert French (above), as enunciated in his National Press Club address on October 6. Sir Samuel in the afterlife may still be seriously invested in the Constitution he did so much to formulate. He might well have begun to rotate at French’s opening remarks:

The Australian continent is covered with the intricate lacework of the age-old stories of the Dreaming. They explain the shaping of the landscape and the relationship of First Peoples to it and to each other.

The stories told orally, in ceremony and in art provide a picture of a powerful, living culture existing over many millennia. When the Constitution was drafted the bearers of that culture were thought to be a dying race. The Constitution was drawn for a white Australia.

That is not a jurist’s viewpoint.  That is an anthropologist’s viewpoint.  So, from the word go we can consign French’s eminent legal qualifications to a supporting role in his discourse.  Aboriginal culture might still be living – just – but it could by no means be described as powerful.  If it were, parts might have found their way into our system of governance – the Westminster system – and our Constitution, which is the practical rule book by which we implement that Westminster system.  Some people of the time might have thought the Aborigines were a dying race (a terminology French criticizes later in his speech) but many didn’t, and many colonial government initiatives were designed to preserve the distinct Aboriginal race.   But I think most people would have believed the Aboriginal culture was dying and that it had no place, in a governance sense, in our Constitution. The Constitution was drawn up for all people, which included Aborigines.

French goes on to say:

Its drafters did a good job of establishing the legal infrastructure for a durable representative democracy in which we can take pride. But it was effectively silent on what had gone before – the history of the First Peoples, their dispossession and the multi-generational damage, which continues today.

For a former Chief Justice, French displays a lamentable, even frightening, misunderstanding of what our Constitution is and what it is not.  It is not a history of any peoples.  History is the province of academia, not the law.  And rectifying injustices, so much as they can be rectified, is the province of legislation.  Our Constitution puts no obstacles in the way of either a complete study and expression of our history – good and bad – or any remedy for past wrongs, given that remedies can only be achieved through legislation, even if they were – perish the thought – to be enunciated in the Constitution. 

French compounds his error with this statement:

This generation of Australians is aware of the culture and history of our First Peoples in a way the drafters of the Constitution would not have imagined. This generation can take pride in that culture and history.

Considering that the drafters of the Constitution made no mention of the history and culture of any peoples, it is hard to imagine that Sir Samuel Griffiths would accept this as an oversight.

What our Constitution is, essentially, is a power-sharing agreement between the Commonwealth and the States, and an operating manual for our Parliament.  It is a very prosaic document, but it is built on some enduring fundamental principles – the rule of law, equality before the law, the separation of powers, free speech, and so on.  But it does not specifically mention any of these things.  Why should it then make an exception in the case of Aboriginal tradition and culture?  Surely that would elevate them to a higher constitutional status – place a higher value on Aborigines – than those democratic traditions that have made us a drawcard for people from all over the World.

Also, the Voice is supposedly an advisory body.  In other words, it is essentially a lobby group.  Most sectors of the community have lobby groups, with access to the Executive Government.  As indeed does the Aboriginal community – myriads of them, in fact. But they are not entrenched in the Constitution.  You might say that Aboriginal welfare is a special case that imposes a particular duty on government, so it should be in the Constitution.  Well, you could also say the same about Treasury, or defence, or health, or education, or foreign affairs, or immigration etc.  But none of these appears in the Constitution.  The Constitution does not guarantee that we have Department of Defence, any more than it guarantees that we should have a Department of the Arts.  Why should Aboriginal affairs be any different?  This Voice, by virtue of being a third chamber, will give one section of the community a disproportionate influence in almost any matter.

There are two main arguments about the Voice.  Firstly, that it divides us by race.  And secondly that it represents a powerful new Constitutional entity which will upend our Westminster system.  Let me deal with the latter issue.

Jurists are entitled to their opinions, and they are entitled to disagree with the laws they are sworn to uphold.  In theory, personal prejudices should not intrude into judgments.

Following his Press Club address, French contemptuously dismissed a question about activist judges by saying ‘activist judges are ones who make rulings you don’t agree with’.   That went over well with the largely left-leaning press gallery.   But it is just glib clickbait. Here French is saying there is no such thing as an activist judge and therefore there is no danger, in this Voice, from their machinations.

Tell that to former Chief Justice Susan Keifel and current Chief Justice Stephen Gageler, who found themselves on the wrong side of a High Court ruling that redefined the previously well understood term ‘alien’, as it applied to immigration, in the Love and Thoms cases.  They also created a new type of ersatz citizenship – the belonger.

The legal profession recognises the existence of black letter judges.  That is, those who interpret the law as literally as possible.  Therefore, there must exist a class of judges who do not – activist judges.  These are jurists who will exploit ambiguity and vague wording to favour of their ideological positions.  Justice Mordecai Bromberg – who read between the lines of what Andrew Bolt had written to convict him of things he never said – also comes to mind.

Judges should deplore ambiguous laws. In theory  they make their job harder. By the same token, High Court judges, one of whose roles is to interpret the Constitution, should deplore ambiguous Constitutional provisions.  And the new Section 129, detailed in a new Chapter IX, is as ambiguous as it can get. French says:

The constitutional voice is not an act of apology or reparation. It is an act of recognition and celebration. It is also the establishment of an Australia-wide instrument to better respond to the social and economic challenges facing Aboriginal and Torres Strait Islander people in many different but intersecting areas – health, education, employment, housing and the criminal justice system.

To begin with, a single amendment that conflates two different issues – constitutional recognition and Aboriginal disadvantage – is inherently ambiguous.  It is also disingenuous.  It seduces voters disinclined to entrench in our Constitution a vaguely defined entity (which, in any case, could be legislated tomorrow, and for which of evidence whatsoever of its purported efficacy is forthcoming) with the shiny bauble of recognition.

French goes on to say:

The second proposition is that the core function of the voice is to make representations to the parliament and the executive government. It cannot bind them. It cannot require legislative or executive action. Because of its constituency it will be heard for the benefit of all Australians who want improved outcomes for First Peoples and better uses of resources in getting them. Existing arrangements are not delivering the results we need.

As to whether or not the Voice’s representations will, or may, bind the government, that is not clear because the provision itself does not include such a caveat.  It is included in the Explanatory Memorandum, which poses the question as to why it was not made explicit in the provision itself.  My belief, which I have covered in depth on numerous occasions, is that this Voice is not intended to be advisory.

And in this passage, French is saying, ‘nothing else has worked, so let’s entrench a vaguely defined concept into the Constitution in the hope it might work.’  That doesn’t sound very judicial to me.  I have an idea.  Why not establish a Royal Commission (yes, I know we do too many of them) to, inter alia, re-visit the policies of the Hasluck era, as a first step?

And there is is from French:

Thirdly, the composition, functions, powers and procedures of the voice will be determined by parliament. The government has set out essential design principles that it would propose to the parliament. They include membership of the voice to be chosen by Aboriginal and Torres Strait Islander peoples from every state and territory, including remote community representatives.

The following is a passage from my book The Indigenous Voice to Parliament – the No Case.  Ideally, a provision in the Constitution should not be over-prescriptive – it should offer room for reasonable interpretation in the face of evolving social and political imperatives. But neither should it provide carte blanche to the Parliament. Such a provision relating to the Voice should, as a bare minimum, specify its basic functions, how its members are to be selected and constraints on its powers. It would then be up to Parliament to prescribe the procedures – certainly not the functions and powers – under which it will operate i.e., to come up with a working model.

When putting together the final wording for this proposal, the Referendum Working Group was advised by the Attorney-General and the Solicitor-General to limit the scope to making representations to Parliament only.  They ignored that advice. In the face of criticism of the proposal, Albanese says, ‘this is what the Aboriginal and Torres Strait Islander people have asked for’.  Does anyone imagine he will be any less accommodating when it comes to the design of the Voice?  Admittedly, Albanese may not be around when the Voice is finally legislated, but his attitude shows the folly, in a general sense, of giving too much power to the Parliament.  The Constitution is part of our system of checks and balances.

Fourthly, as an advisory body there is little or no scope for successful litigation associated with its work. Neither parliament nor the executive can be legally bound by the constitutional change to do what the voice may suggest. It is also highly unlikely that the Constitution would be interpreted as requiring the executive government to take into account representations from the voice as a condition of the exercise of executive power.

There is always scope for litigation, and the more ambiguous the law is, the more likely litigation will occur.   But aside from that, the claim that it is ‘highly unlikely the Constitution would be interpreted as requiring the executive government to take into account representations’, is laughable.   If that were the case, then why put the Voice into the Constitution?  Even I, if I were a High Court judge (a black letter one, I hasten to add), would find for the Voice in any action in which the Voice could prove that the executive government had not taken adequate account of representations.

Fifthly, parliament can regulate the ways in which the voice can communicate to the executive and the parliament. It may specify the pathways of a standing committee or ministerial tabling of communications with the parliament. It may designate a particular minister as the recipient of representations to any part of the executive government.

There may be some validity in this. It could be argued that this also could be something that could be put into the new section itself.  However, I concede, it might be difficult given the lack of detail on all other aspects of the Voice.  Nonetheless, this is another potential area of litigation.  The letter of the new provision gives the Voice the power to make representations to all parts of government on any matter it chooses, as long as it can demonstrate that the matter relates to Aboriginal people.  If the government did put such roadblocks in the way, the Voice could argue that such restrictions were in breach of its Constitutional right to effectively make representations. 

A Constitutional provision should not include undefined entities. This new provision contains at least five of them.   The first of these is ‘recognition’. Does it mean simply acknowledging that Aboriginal people were here first?  Or does it mean, as the Aboriginal activists want it to mean, that they possess some form of separate sovereignty?  Does it recognise them as a separate Constitutional entity? 

The second is the term ‘First Peoples’.  The capitalization suggests this is some form of defined entity, but we do not have that definition.

The third is ‘Aboriginal and Torres Strait Islander people’.  We do not know who qualifies.

The fourth is ‘representations’.   That is certainly an area in which the High Court might interest itself.  Keep in mind that, in the Love and Thoms cases, one of the justifications for redefining the term ‘alien’ was that Parliament could not define the terms in the Constitution.  Only the High Court could do that.  Imagine what they could do with ‘representations’!

And the fifth is ‘matters relating’.  On the face of it, that extends the remit of the Voice to anything and everything.

Additionally, we do not know how members of the Voice will be elected/selected.  This is an inherently undemocratic provision, in that sense alone.

This new chapter – the most significant change ever proposed for our Constitution – contains a mere 92 words.  By comparison, Section 15, which deals with casual Senate vacancies, contains 845 words.  Presumably it is so verbose in order to preclude litigation.  Justice French’s complacency regarding the potential for Voice litigation should be seen in this light.

That complacency is all the more inexplicable when you look no further than across the Tasman Sea.  Elizabeth Rata is a New Zealand academic who has written a superb essay on the evolution of the Treaty of Waitangi. (Huge thanks to my friend, John Brandon, for alerting me to Ms Rata’s work.)  Her introduction:

There are two versions of the Treaty of Waitangi.  The first is the 1840 Treaty – the ‘Articles Treaty’. The second is what I call the ‘Principles Treaty’. It dates from 1986 when the principles were first included in legislation. Astonishingly the parliamentary representatives who inserted the word ‘principles’ did not know what they meant. To include a word estranged from its meaning into legislation is an egregious political failure. At the very least, a democracy requires words to have an agreed meaning otherwise rational communication is impossible.  Autocracies that use ideologies to control how people think can dispense with accurate meaning. Democracies cannot.

The result of parliament’s failure is two versions, one of Articles – the ‘Articles Treaty’, the other of Principles – the ‘Principles Treaty’ – and the consequences – a racially divided country and a group asserting co-governance rights.

Activist lawyers become judges and take their political opinions with them.  If ambiguous legislation gives them the slightest opening to indulge their inclinations, they will exploit it. 

I wonder if Sir Samuel Griffith was an aficionado of Gilbert and Sullivan.  They would have loved  Robert French.  Despite retirement, he remains the very model of a modern activist judge.