The Voice

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 11th 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.

17 thoughts on “Incoherent French Deciphered

  • Paul W says:

    “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.”

    We can, but should we? How and to what extent? I feel no sense of pride arising from it. An occasional interest, but not pride.
    But I love how modern man with his academic reconstructions is more ‘aware’ of things than the people who documented them from the beginning of recorded history. The Drafters could certainly not have imagined such arrogant self-congratulating.

  • Blair says:

    “the history of the First Peoples, their dispossession and the multi-generational damage,”
    Torres Strait Islanders are considered First Peoples. They were never dispossessed and suffered no multi-generational damage (and no “Stolen” children). Prior to the 1870s their “powerful living culture comprised sorcery, black magic and inter-island head-hunting raids. Vestiges of the first two still remain.

  • IainC says:

    Reading Mr French’s article recently, no wonder the Yes case has been in such strife. The article makes a great case for Constitutional recognition, which has 95% support and would waltz through a referendum without a dollar being spent, and an absolutely terrible justification for a race-based…oops, date-of-arrival-based…parliamentary advisory committee. The argument for the second is larded with logical howlers, special pleading, strange definitions and non-sequiturs. If you can’t come up with a decent case after 12 months and with a week to go, the case was never there to begin with.

  • ianl says:

    Enjoyed the headline to this article.

  • Daffy says:

    Recognition? Here’s what recognition of Aborigines would be in the constitution, as I advised the great Greasy Elbow (Greasy Albanese, Albo the Elbow)…he didn’t take my advice needless to say: Whereas the people of Australia variously have ancestors who where on this continent for many generations, and others whose were not, including some who arrived recently from other places, all are equal in every respect before the law made pursuant to this Constitution and the law shall apply equally to all.

  • talldad says:

    How do we know that this particular racial/ethnic group (or all the various sub-tribes which comprise “it”) actually were the first?

    How do we know that their culture, if it could be so labelled as a unified collection for so many language groups, was “worth preserving”?

    How come this/these supposedly laudable culture/s did not even advance to the wheel on land or the sail on water, as did the cultures north of the equator? Forget white supremacy – what about Asian supremacy of culture?

  • Brian Boru says:

    French says, “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.”
    Well aside from the legally correctness of that statement and I am inclined to agree with Peter, there is another consideration. The whole point of the Voice is that of special representations, (not that I agree with it).
    French is speaking to promote the Voice and then he says executive government would not be required to consider its representations? Wow, what a case of doublespeak.

  • Peter Marriott says:

    Good piece Peter. How do we end up with people like this French in senior positions, in any field of endeavour….I ask myself.
    It seems to me that he’d be very dangerous handling common sense, reason and dare I say a bit of patriotism as a solicitor or magistrate, let alone Chief Justice of our High Court.
    But then Shakespeares’ great words, put into the mouth of Cardinal Wolsey in his play King Henry V111, remind me of how dangerous a thing ‘ambition’can be.

  • Doubting Thomas says:

    We would be closer to solving these numerous conundrums if we could define terms and agree to avoid, in public discourse, such Orwellian nonsense as “First Nations/Peoples”.
    People cannot avoid the reality that the main cause of Aboriginal disadvantage where it exists is their adherence to primitive cultures, as has been so clearly explained by Gary Johns in his book “The Burden of Culture”. Until Whitlam and Coombs effectively destroyed the Mission system, and sparked the egregious “Stolen Generation” hysteria, tribal Aboriginal people had incentives to seek to educate themselves, and many did.
    Nothing, not any conceivable Voice, nor even the proverbial rockets up their fundaments, will achieve any noticeable improvements until the individuals concerned “get off their bellies and walk”.

    • DougD says:

      “Nothing, not any conceivable Voice, nor even the proverbial rockets up their fundaments, will achieve any noticeable improvements until the individuals concerned “get off their bellies and walk”. It was ever thus. So long as welfare moneys keep flowing, the culture will keep them down. From “Queensland 1900, a narrative of her past” , Alcazar Press, Brisbane, WH Wendt & Co, 1900, p89. “Like most barbarians, as Dr. Lang and others have pointed out, the natives were remarkably indolent, seldom exerting themselves in any way unless when forced to do so from the pressure of hunger”.

  • EJP says:

    Just one caveat, Peter, it is frequently reported that Andrew Bolt was convicted, but the fact is that he wasn’t even tried. The charges against him were withdrawn. Only the charges against the publisher proceeded. Nevertheless the court somehow found it appropriate to make an order against him constraining his freedom of speech.

  • Searcher says:

    Judicial activism is vigorous and pernicious.

  • norsaint says:

    Is it allowable to call French a blockhead?
    Jurists love ambiguous laws as it enables them to interpret them whichever way they like.
    Is it just me or do other people harbour an intense dislike of these pompous buffoons?

  • john.singer says:

    Excellent paper Peter.

    We as a people hesitate to criticise a High Court Judge, let alone a Chief Justice. But criticise we must as there is no longer a Privy Council to rein in adventurism.

    I have always agreed with Chief Justice Barwick the role of a High Court Judge is that of a “Black Letter Judge. In this regard I would not have used your Gilbert and Sullivan allusion to “Pirates of Penzance”, rather I would allude to “Iolanthe” as I perceive a sprinkling of fairy-dust over the Court and its function.

    Even black letter judges interpreting written documents require the intervention of Evidence from Government on behalf of its citizens. When this is not forthcoming, the Judges resort to their own beliefs and often narrow education and you get activist decisions such as Mabo (No2), Love and Thoms.

    If the referendum is carried the wording would give an educated “Black Letter Judge” severe conniptions. “To recognise the First People of Australia by establishing an Aboriginal and Torres Strait Islander Voice”. It does not say the First People of the Commonwealth of Australia so it cannot be the British Subjects resident in the Six States of Australia on the 1st January 1901. So it must refer to the landmass currently known as Australia. When you couple First Peoples with the claim of continuing culture with about 65,000 years of occupation you need to refer to Archaeologists, Geographers and Geologists. Then you find a much larger landmass called the continent of Sahul which became submerged beneath the seas at the end of the ice age.

    We have very little knowledge of the movements of these stone-age Hunter Gatherers over that long period so it would be wrong under the circumstances to separate their ancestry from those who inhabited the Landmass now known as Papua New Guinea when the lands separated about 9,000 years ago. Then when the little bits of land and coral between them became inhabited we said they are not a race of Aboriginals but a Race of Torres Strait Islanders.

    Now we have a conundrum as the Torres Strait Islanders are also likely to be descended from the inhabitants of North Sahul and if so under the Judgment in Love the current population of Papua New Guinea may also have a right to Australian Citizenship, based on race. Based on race, in the eyes of an activist judge even though their Government rejected a previous opportunity. Imagine also the rumblings in the Law Reform Commission if led by a judge prone to activism.

    Australia cannot afford loose or imprecise wording in the Constitution.

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