Whenever mention is made of a proposed referendum for constitutional change the first thing most people think of is the requirement for a double majority in the popular vote, and the consequent high incidence of failure. There is, however, an anterior requirement. Only the federal parliament can initiate a referendum. Parliament has shown little appetite for proposals to limit its own power; and rightly so. Parliamentary supremacy (not sovereignty — there is no such thing in Australia as a sovereign parliament, and there never has been) is one of the essential safeguards of our liberal democracy. It is unlikely that parliament will propose a change to the Constitution in aid of Indigenous recognition if the effect of the change will be to curtail its own legislative power.
That appears to have been well understood by the supporters of the First Nations Voice. What is proposed is a voice to parliament, not a voice in parliament. The recommendation of the Referendum Council deliberately left it to the parliament to establish the contemplated representative body. The proposals for legislation and constitutional amendment examined in detail in a series of papers, “Upholding the Big Ideas: Options for Discussion,” produced in June 2018 by Uphold and Recognise and the PM Glynn Institute, treat the preservation of parliament’s legal supremacy as fundamental, as do most of the other proposals put to the parliamentary committee. It was Professor Anne Twomey who drafted what I understand to be the original proposed form of amendment. Her proposal demonstrated that a constitutionally entrenched Voice can be achieved without legal derogation from parliamentary supremacy.
The structure, composition and functions of the proposed representative body would be determined, and susceptible to change, by legislation of federal parliament. What would appear in the Constitution would be the minimum requirements necessary to guarantee its continued existence and its essential characteristics.
There is nothing new about the idea of a body to represent Indigenous people. In its final report, the parliamentary committee on the constitutional recognition of Aboriginal and Torres Strait Islander peoples said that it had considered twenty-one examples of past, current or proposed advisory or representative structures, which could inform the design of the Voice. It is difficult to see any objection in principle to the creation of a body to advise parliament about proposed laws relating to Indigenous affairs, and specifically about special laws enacted under the race power which, in its practical operation, is now a power to make laws about Indigenous people. If such a body can be designed to the satisfaction both of parliament and of Indigenous people then, logically, the question is whether such a body should be given constitutional status, as an appropriate form of Indigenous recognition.
A related issue that has been debated is whether any referendum should precede, or follow, the creation of the proposed representative body. I do not wish to intrude upon the various arguments and submissions canvassed by the parliamentary committee. However, I think it very likely that Australians, and parliament itself, would want to see what the body looks like, and hear what the Voice sounds like, before they vote on it.
I accept that there is nothing inherently impossible about providing in the Constitution for an institution before its form is determined. Although the High Court of Australia was provided for in the Constitution, two years later people were still arguing about what form it should take, and it was not established until 1903, with the first prime minister as one of its members. Preceding the Constitution, there was tension about the High Court’s proposed relationship with the Privy Council. What was ultimately provided about that (in section 74) was one of the few respects in which the British government intervened to override the proposals that came from the colonies. Nevertheless, I doubt this is an issue that can be resolved satisfactorily at a purely conceptual level.
As a practical matter, the process of design proposed by the parliamentary committee will produce an outcome only if the Indigenous people who contribute to the process have already achieved, and demonstrated to the Australian public, a substantial level of representational competence. The process itself will display Indigenous representation and decision-making in action. Australians are unlikely to support constitutional change unless there is a substantial degree of Indigenous consensus in favour of the proposed change. Establishing and demonstrating that consensus, to parliament and to the general public, will itself provide a preview of the representative body that will follow. Establishing the legitimacy of the proposed representative body to speak for Indigenous people will be an essential part of the design process.
A point that has been fairly made is that, if the proposed body is to have representative legitimacy, then its make-up will give rise to political issues and contest within the Indigenous community. Why that is a bad thing is not clear to me. Political action is the mechanism by which our own representative bodies are normally constituted, and through which they function.
Nobody underestimates the complexities of designing a body that fairly represents Aboriginal and Torres Strait Islander people, but I am not sure anybody suggests it is not worth trying, and there are now a number of specific proposals on the table.
An objection that has been made to the proposal is that to make special constitutional provision for the establishment of a body to advise parliament about the needs and concerns of one particular group of Australians, namely Indigenous people, would be divisive and inconsistent with the value of equality that informs our democracy.
Equality is a word with two different connotations.
The authors of the American Declaration of Independence said it was self-evident that men were created equal, and that they were endowed by their Creator with inalienable rights, one of which was liberty. Some of the signatories to that Declaration owned slaves. Their proposition about equality was obviously a moral proposition, rather than a factual observation. As a moral proposition most of us would agree with it, although nowadays some people would be made to feel uncomfortable by the identification of the will of the Creator as its source.
As a proposition of fact, based on observation of the human condition, an assertion that all people are equal is manifestly untrue. To use the language of George Orwell, all people are equal, but some people are more equal than others.
If the proposition is inverted, to treat people as grammatical objects rather than subjects, it is a valid principle that all people should be treated equally. There is, however, a difference between a general principle and an inflexible rule. In 1942, when Sir Owen Dixon was a member of the High Court of Australia, he was also an Australian diplomat based in Washington. This seems hard to reconcile with the general principle of the separation of executive and judicial powers of which he was a leading exponent. What was going on? The answer is: war. The general principle was not an inflexible rule, and it yielded to the exigencies of the time. There are many situations in which we regard it as proper to treat some people differently from others, especially if it is necessary to do so in order to remedy some injustice.
Equality can be an elusive concept. To say that the Constitution treats all Australians equally sounds reassuring, but is it true? Consider the example of representation in parliament. Under the Constitution, about half a million Tasmanians are represented by the same number of senators as about seven and a half million people of New South Wales. Is that equality? Or is it inequality? It is both, but, more to the point, it is federalism. Under the Constitution, the parliament may make special laws concerning the people of any race which, in practice, means Indigenous people. Does the Constitution treat Indigenous people in the same way as everyone else? Hardly.
The race power, by its very existence, calls into question the assumption of equality. At present, by virtue of a widely applauded amendment made last century, the Constitution empowers the federal parliament to make special laws about Indigenous people. That is an important power that has been exercised on several occasions, sometimes controversially. One reason the power is important is that federal law overrides inconsistent state law. How does it offend some principle of equality now to provide that, in recognition of the unique position of Indigenous people in the nation’s history, parliament shall establish a representative body that has a particular function of giving advice about such laws?
It has been suggested that it is divisive to treat Indigenous people in a special way. The division between Indigenous people and others in this land was made in 1788. It was not made by the Indigenous people. The race power in the Constitution is now used in practice to make special laws for them. The object of the proposal is to provide a response to the consequences of that division.
For many, government should concern itself with material and economic matters, not contestable ethical issues. On that level, the case for special treatment of Indigenous people can be summarised in a sentence from the judgement of Justice Brennan in Mabo v Queensland (No. 2): “Their dispossession underwrote the development of the nation.”
If it were fair to regard Indigenous people as merely one of the many minority groups that can be identified in the complex pattern of our social structure — and a very small group at that — then it would be reasonable to leave them to make their own way as contesting participants in the ordinary democratic process. But that would take dispossession to its logical, and unattractive, conclusion.
The history of the twentieth century demonstrated the evil of racism, and race itself is a concept based on insecure conceptual foundations. It does not follow, however, that the term is unmentionable, or that any governmental action predicated upon race must be wrong. It has a firm footing in the Constitution.
There are federal laws which are generally accepted as beneficial to Indigenous people that have been based on the race power, and very few people want to see them undone. There are others whose benefits have been doubted. That is a political issue. For the reasons given above, I would not accept that the Constitution’s references to race are morally objectionable.
In whatever country is under consideration, being Indigenous could be regarded as a matter of history, or geography, or ethnicity. This may be unlikely to matter to the Indigenous people themselves. If, as our leaders often say, we have among us a group of people who have a special place in our history, and we are satisfied they deserve a certain form of recognition on that account, it would be driving ideology to an extreme to decline them that recognition because they form what could be regarded, and is regarded by the Constitution itself, as a racial group.
A substantial issue concerns the design of a representative body that will be suitable both to the parliament and to Indigenous people. If this can be achieved it will serve an important national objective and would form the basis of appropriate substantive recognition of Indigenous people.
Representation cuts both ways. When a lawyer represents a client in court, the client receives the benefit of the lawyer’s advocacy, but the court also is meant to receive a corresponding benefit. That benefit lies not only in the enhancement of the court’s capacity to make a just decision but also in the efficiency of the decision-making process. The client is bound by the conduct of the advocate, and it is only on this basis that the court can go about its business effectively. A body that has the capacity to speak to the parliament on behalf of Indigenous people should be of advantage to parliament and, through it, the nation. But it will also, in a practical way, bind Indigenous people.
I have already referred to the diversity of Indigenous people. There will be a relationship between the breadth of the remit of the proposed body and its acceptability to Indigenous people, and to parliament, as truly representative. That is commonplace in any arrangement of agency. Balancing the desire for a strong Voice with the need for that Voice to be representative will be a major part of the design process. •
The former chief justice’s full speech can be read here.