The legal analysis the Yes camp won’t want you to read
Janet Albrechtsen
13–16 minutes
ndigenous voice to parliament: The legal analysis the Yes camp won’t want you to read
The contents of a 36-page paper by constitutional law professor Nicholas Aroney from the University of Queensland, pictured, and lawyer Peter Congdon from Ashurst Lawyers should have been at the forefront of any discussion about the voice early on, writes Janet Albrechtsen.
12:00AM October 7, 2023
When will Yes moralisers learn how to win an argument fairly? Members of the Yes camp have spent months deriding the No slogan of “If you don’t know, vote No” as the domain of morons.
Or dickheads, as former TV celebrity Ray Martin bellowed at a Yes event in the Prime Minister’s electorate last week. The desperation is palpable and predictable.
“What that slogan is saying is if you’re a dinosaur or dickhead who can’t be bothered reading, then vote No,” he reportedly said in a speech praised by Anthony Albanese.
Get educated, read more, say these elites. Vote Yes, they insist.
Putting to one side, for just a moment, its substantive failings, the Yes camp has many structural flaws, too. One is the oversupply of people with oversized egos – especially people from politics, the media, business and universities too – who cannot fathom that lesser mortals might hold a different view.
Let’s not mince words. These Yes preachers do not want voters to understand this proposed change to the Constitution. They want voters to hear only what the Yes camp has deigned to tell them. Even now, with days until October 14, they are swamping Australians with vibey talk, emotional claims and outright lies. Apparently, voting Yes will feel as good as winning the America’s Cup did in October 1983.
The Yes camp is threatened by the slogan “If you don’t know, vote No” because it is the perfect fit for the profound flaws of the Yes campaign. It is a reminder of the serious questions not considered by the Yes side before its insistence that we vote Yes; it encapsulates the answers the PM and others have not given to our own questions.
Questions such as: How will the voice change disadvantage on the ground? Will the prominent Yes activists, those influential in Indigenous policies for decades, entrench the same failed polices? Why are we cementing inequality based on race in our Constitution? What will the High Court and especially activist judges do with this new chapter creating a collective right for one race? Why create a permanent body premised on separatism and victimhood – shouldn’t we aim to end these things?
What will this body mean for farmers and miners – people a world away from those who have put Yes signs on multimillion-dollar houses and draped Yes banners on their dogs? How will this new constitutional chapter affect our Federation? These last two questions deserve particular focus.
The Yes camp won’t want Australians reading what follows: a new, explosive analysis of what the voice means for our Federation, released this week by a leading constitutional professor and prominent lawyer.
The contents of this 36-page paper by constitutional law professor Nicholas Aroney from the University of Queensland and lawyer Peter Congdon from Ashurst Lawyers should have been at the forefront of any discussion about the voice early on. It should have been thrashed out at constitutional conventions, debated by the lawyers, including by those in the Constitutional Expert Group, and others who have added their two bob’s worth to the constitutional consequences of the proposal to insert a new chapter into the Constitution establishing the Indigenous-only voice.
Except there have been no constitutional conventions, no robust public debates for voters. And that was no accident. There have been only deliberate gatherings of like-minded people committed to a voice. And that fundamental flaw in the process has had lasting and dire consequences for the Yes side. By intentionally rejecting an honest and vigorous debate, by excluding lawyers who had different views, the Yes side settled on a radical model. In short, no one kicked the tyres of this model, let alone lifted the bonnet.
With a week to go until referendum day, Aroney and Congdon have revealed the legal equivalent of an improvised explosive device in the wording of the proposed amendment to the Constitution.
They argue, in careful detail, that the Albanese government’s proposed new chapter establishing a body called the voice could fundamentally alter the division of powers between the commonwealth and the states. This alteration to the Constitution could allow the commonwealth to expand its powers over areas currently the domain of state government responsibility.
This is nothing short of groundbreaking legal research. As Aroney and Congdon point out, this potential alteration to the balance of powers has not been the focus of the referendum debate or extrinsic materials, including the two official Yes and No cases. The authors are too polite to say this failure is extraordinary.
Aroney and Congdon make a compelling case that this proposed change to the Constitution will trigger “a readjustment to the popular foundations of the Australian federal system at the most fundamental level”.
That is a legal way of saying the voice will up-end the division of power between the commonwealth and the states. And where it lands is, at this stage, any one’s guess.
First, the proposed section 129 is a stand-alone new chapter. This, say the lawyers, “would accord the voice a structural prominence and constitutional status comparable to the parliament, the executive and the judicature”.
Second, the High Court is likely to lean to a broad interpretation of both section 129 (ii), the provision that vests power in the voice, and section 129(iii), the provision that vests power in the commonwealth.
Taking the commonwealth power first, the proposed section 129(iii) says “parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice”.
Aroney and Congdon point out that, as drafted, this new power is not limited to making laws about the institutional aspects of the voice, its composition and functions. Neither does the proposed wording in section 129(iii) limit parliament to making laws arising from voice representations in areas enumerated in the commonwealth’s existing powers as set out in section 51 and section 52 of the Constitution.
The proposed wording of section 129(ii) – which gives the voice power to “make representations to the parliament and the executive government of the commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples” – is equally broad.
As the authors say, “The proposed text does not require that the representations must be on matters specific to Indigenous peoples or general laws or measures that affect (them) differently.” It means the voice may make a representation about any matter that affects Indigenous peoples.
Also, nothing in the proposed section 129 (ii) limits the voice to making representations to areas over which the commonwealth has power in section 51 and 52. As Aroney and Congdon conclude, the wording of section 129 (ii) “is likely to encompass a very broad range of matters, including topics that are beyond the parliament’s existing legislative competence”.
Third, the introductory words to the new section 129 – “in recognition of Aboriginal and Torres Strait Islander People” – would make it more likely that the High Court would lean to a wider interpretation of the voice’s power in section 129(ii) and the commonwealth’s powers in 129 (iii).
And fourth, the explanatory memorandum to these changes says 129 (iii) would permit parliament to legislate “about the voice’s representations”. Add to that the fact the Albanese government attached the Uluru Statement from the Heart to the EM.
In simple words, the proposed new section 129 creates a broad new head of commonwealth power not explicitly limited by specific areas of commonwealth responsibility set out in section 51 or 52.
This changes our federation. Let’s take an example where this could lead. The Uluru statement says “proportionally, Indigenous people are the most incarcerated people on the planet”. If the voice makes representations to executive government or federal parliament to raise the criminal age of responsibility to reduce rates of Indigenous incarceration, does this new head of commonwealth power in the proposed section 129 give the commonwealth power to encroach in an area currently the responsibility of states? This, the authors say, is merely one example where the proposed new voice chapter would potentially alter the division of commonwealth and state powers, with more power being centralised at the federal level.
What if the voice suggests, and federal parliament one day agrees, to a higher age of criminal responsibility for Indigenous people only due the consequences of colonisation?
If the voice makes representations about land management issues affecting farmers and Indigenous people, could the commonwealth use this new head of power in section 129 to legislate a version of Western Australia’s cultural heritage laws? What about voice representations concerning health and education that are currently the domain of state? What other areas could be used to justify a commonwealth takeover once there are representations by the voice? As one lawyer raised with me this week, this could be the Woodside entanglement on steroids.
Aroney and Congdon do not, and cannot, tell us the outer limits of the new commonwealth powers as the High Court will determine those parameters, but they do say the proposed model that voters are being asked to vote on next Saturday “represents a material increase in the commonwealth’s existing powers”. They say “these are matters that should be considered as the Australian people exercise their responsibility to determine whether to approve the proposed amendment”.
Did the Albanese government consider these issues? Is this potential federal power grab in the wording of section 129 deliberate? Or down to sloppy drafting?
Did any of the esteemed lawyers on the Constitutional Expert Group advising the Albanese government and the Referendum Working Group explore the implications of the broad wording on federal and state powers? Did premiers get advice about this potential centralisation of powers before they said Yes to the voice?
Further obvious points emerge from this explosive legal work. First, there is an excruciating level of uncertainty surrounding the consequences of this proposed change to the Constitution. Second, the seductive nature of power means it is inevitable that a federal government will try to amass more power. Third, the High Court will become heavily involved in this question.
And finally, in a healthy democracy where government respects voters, these serious legal questions should have been explored and explained months ago, indeed years ago, by a series of constitutional conventions, and more recently by the Albanese government before a proposal was put to the people.
It beggars belief that anyone, let alone respectable lawyers or a prime minister, would assert this is a modest change. And fancy calling Australians “dickheads” for not fully understanding this proposal.
This unexploded Pandora’s box of potentially permanent changes to our federation explains why Yes supporters such as Martin resort to insults when confronted with the slogan “If you don’t know, vote No”.
