In a candid and anguished op-ed in Saturday’s Australian, emeritus professor Greg Craven, one of the constitutional experts advising the Albanese government on the Indigenous Voice constitutional amendment, predicted the referendum’s failure. The three-sentence amendment prime minister Anthony Albanese announced on Thursday, he wrote, “almost certainly dooms an already sick referendum unless the vibe can rescue it.”
What upset Craven was not the new words in the third sentence:
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.
This sentence makes it absolutely clear that parliament can design the Indigenous Voice as it wishes. It can specify not only its “composition, functions, powers and procedures” but also anything else about the Voice, including its dealings with Commonwealth public servants.
No — what worries Craven is that the Voice will have any entitlement to talk to public servants. In common with the draft constitutional amendment announced at Garma last July, the second of the three sentences issued last week by the prime minister mentions “Executive government,” which takes in ministers and the public service:
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.
Flanked by his Indigenous advisers, the prime minister thus rejected the advice of those who think it would be “constitutionally unsound” (Craven’s phrase) for an Indigenous Voice to speak to the executive. The “sound” option preferred by constitutional conservatives would have an Indigenous Voice making representations only to parliament.
Rather than being technical, the distinction between “sound” and “unsound” rests on one’s tolerance for risk. If the Voice is empowered to speak to the executive, there is a risk (acknowledged by attorney-general Mark Dreyfus on yesterday’s ABC Insiders) that interactions between Voice and executive will be subject to litigation in the High Court. The government accepts that risk.
Once the Voice is up and running, someone might conceivably bring an action in the High Court alleging that the executive failed to pay due attention to the Voice’s advice when it made a particular decision. The High Court might respond by setting out protocols obliging the executive to demonstrate that it really has taken account of the Voice’s advice. It could say, for example, that the executive is constitutionally obliged to publish reasons for not following the Voice’s published advice.
Some commentators see this as an appalling possibility, and it certainly provides a theme for those writing the official No case. They will present as an intolerable risk the possibility that a government will be obliged to demonstrate that it has really listened to the Voice’s advice. As Tony Abbott wrote recently, the possibility that such a Voice “would have to be listened to” is a reason to vote against the amendment. Craven has speculated that many voters are constitutional conservatives, fearful that future governments will be crippled by a new line of accountability.
Because the High Court declines to hear litigation about how parliament does its business, the conservatives believe a “constitutionally sound” option — a Voice speaking to Parliament only — would keep the High Court at bay.
It is a striking feature of Australia’s political culture that so many politicians and commentators see the High Court of Australia — one of the three branches of the Commonwealth — as a threat to the process of government. They condemn as “judicial activism” any judgements they disagree with. For these observers, the Mabo and Wik judgements left a wound that will never heal.
The critics who apprehend a future of hog-tied governments have characterised the prime minister’s announcement last Thursday as a victory for radical advisers over those who have counselled the more cautious option: an Indigenous Voice authorised to speak only to parliament. True, it was a victory for these ascendant “radicals,” but they still face a political task that will arrive only after the referendum: persuading the Indigenous public that the Voice is worth having.
It is all too easy to forget that this referendum is different, in one fundamental respect, from any other that has been presented to the Australian people. It proposes an act of recognition for a segment of Australian society that has emerged, in the last fifty years, as an Indigenous public. For an act of recognition to be effective, it must be expressed in terms agreeable to those who are to be recognised. To recognise someone in terms they find repugnant or trivial is to misrecognise them, making the relationship worse rather than better. What the Indigenous public thinks therefore matters.
The Indigenous public has already shown it can matter. Encouraged by the Referendum Council (a body established by Tony Abbott and Bill Shorten in 2015) and enacted as a series of assemblies, it produced the Uluru Statement from the Heart, a document of undoubted political consequence. (Craven thinks it “sublime.”) The Indigenous public will start to matter even more if the Yes vote triumphs at the referendum, for Indigenous Australians will then say yes or no to the details — so far undetermined — of the Voice’s design.
How will this Indigenous public speak if it is not yet “the Voice”? After the referendum — if it succeeds — the government will have voters’ mandate to formulate a Voice bill, but this mandate is not enough to give it a free hand. It has promised to consult Indigenous Australians about the detailed design of the Voice.
How will we know if those to be recognised in the Constitution wish to be recognised in a particular way? Consultation on the post-referendum bill must augment the work of parliament.
Last September, UNSW lawyers Gabrielle Appleby, Sean Brennan and Megan Davis recommended that the post-referendum consultation process itself be the subject of legislation to be passed (but not “commenced”) before the referendum. This legislation would provide for a Voice Design Council, guided by an Indigenous steering committee, to come into existence if the referendum is passed.
The council would do something similar to the work performed by the Referendum Council: it would conduct regional dialogues. First Nations delegates would deliberate on the Voice’s design, and the dialogues would culminate in a national convention to write drafting instructions for the bill. The Indigenous steering committee would then work with the Office of Parliamentary Counsel to draft the bill. A joint parliamentary committee would consider public submissions and then recommend to parliament that it pass the final bill.
Why go to all this trouble after the referendum? Isn’t the referendum the decisive moment? For the Indigenous leaders of the constitutional recognition campaign, the referendum is but one (vital) step in a recognition process. What they must then do is engage with the Indigenous public on the question of what is acceptable as a form of recognition. An ongoing intra-Indigenous political process is clearly already under way; this will continue after the referendum.
If the referendum attracts a Yes majority among all voters and among the six states, the Indigenous leaders who have been advising Albanese will have the wind in their sails. But we shouldn’t underestimate their task. It has become clear that Indigenous Australia abounds in sceptics poised (for a variety of reasons) to say the Voice is not an acceptable form of recognition. These leaders will need to be able to say to the sceptics that the Voice is worth legislating because its design, after the referendum, has been determined by Indigenous wishes.
By accepting the risk of what Craven calls a constitutionally unsound amendment — a Voice speaking not only to parliament but also to the executive — Albanese has given elbow room to those who, in this consultative process, will draft the Voice legislation. The advisory Voice minimally described in the constitutional amendment will have a purchase on government attention not only via parliament but also via the executive, and the High Court may be asked to prescribe the executive’s listening procedures.
By accepting the risk of Indigenous empowerment (via a justiciable right to be listened to), the government has reduced the risk that the Indigenous public will say, after the referendum, “The recognition you offer is not worth having.” A Voice that could advise only through parliament would attract no shortage of Indigenous scorn. The decision to continue to include the executive in the amending words gives Albanese’s Indigenous advisers a stronger platform from which to say to the Indigenous public, after the referendum, that this Voice has been worth the fight. •
