Australians have a tendency to protect their Constitution by voting down attempts to amend it in referendums held in accordance with Section 128 of that document. However, as argued in the following article, the attempt to amend The Constitution by inserting an indigenous Voice to Parliament might lead to a radical overhaul the Constitution. Therefore, it will be argued that the constitutional legal ramifications of approving The Voice as it is currently formulated should be analysed instead of focusing on the nature of Australian race relations.
For years Social Action Australia (SAA) has warned about the threat of Regionalisation being introduced so as to usurp the role of Australian states. This threat will become critical should the so-called Voice constitutional referendum pass in the latter part of 2023. Indeed, the recent release of the official wording of the referendum question confirms the suspicion that the proposed Indigenous Voice to Parliament has nothing to do with helping Australian Aboriginals but is a cynical constitutional ploy to massively expand the federal parliament’s constitutional power so that a new executive tier of government is created.
Indeed, the proposed Indigenous Voice effectively creates a new constitutional head of power which bypasses Section 51 of the Constitution which deals with the legislative powers of the Federal Parliament. Paragraph (ii) of the proposed constitutional amendment is fine in that it states that The Voice “may make representations to Parliament … on matters relating to Aboriginal and Torres Strait Islander peoples”.
However, paragraph (iii) of the referendum question says that “Parliament shall, subject to this Constitution, have the power to make laws with respect to the Aboriginal and Torres Strait Islander Voice, including its composition, functions powers and procedures”. This power under paragraph (iii) of the referendum proposal means that the federal Parliament could massively expand the legislature’s power to on issues it is currently prohibited from doing so, should an appropriate representation be made by The Voice.
For example, The Voice could make a representation to the federal Parliament that regional councils should be established based upon traditional Aboriginal land boundaries. The Commonwealth Parliament would therefore potentially have the power to endow these regional councils with powers and functions which fatally erode the role of the states based upon successive representations made by The Voice.
There would, of course, be legal challenges to the High Court of Australia (HCA) opposing the Commonwealth Parliament so massively expanding its power based upon The Voice’s representations to the federal legislature. However, such legal challenges are likely to fail because there are insufficient legal safeguards contained within paragraph (iii) of The Voice referendum proposal to prevent such an extraordinary expansion of legislative power. Consequently, a new tier of regional government could be created.
There is the caveat in paragraph (iii) of the proposed constitutional amendment that the power of The Voice is “subject to this Constitution”. This caveat will provide inadequate legal protection because federal law could still be passed by Commonwealth legislation to recognise local government if the HCA holds that this is based upon a valid representation made by The Voice to the federal Parliament.
Putting the Horse before the Cart: The Need for Constitutional Clarity
Indeed, the “composition, functions, powers and procedures” of the proposed Voice are insufficiently detailed in the referendum question. This creates the constitutional scope for the federal Parliament via any successive enabling legislation to massively expand the power of The Voice. Consequently, The Voice could become a vehicle to empower the federal Parliament to make laws in areas which it currently lacks the power to do so. As previously stated, the proposed Indigenous Voice to federal Parliament effectively creates a new constitutional head of power similar to Section 51 of The Constitution which limits the legislative power of the federal Parliament.
These limits allow the states to have their own areas of legislative power which creates the balance between federal and state governments in our current federal system. Removing these limits would centralise power even further with the federal government at the expense of the state governments. This separation of powers between the state and federal governments is meant to protect individual rights and the rule of law by preventing too power being placed in the hands of one government.
There may be attempts by the Albanese government to claim that there are legal limits which will check the power of The Voice. Currently, the federal government is citing statutory memoranda such as the Second Reading Speech to allay fears regarding the potential to confer massive legal powers with regard to The Voice. However, courts can only look to extrinsic materials such as the Second Reading Speeches only where there is some uncertainty or ambiguity in the wording of the relevant law. There is no such ambiguity in the wording of paragraph (iii) of the referendum question. Accordingly, a court will not be able to consider the contents of the Second Reading Speech.
The Albanese government is trying to raise issues of statutory interpretation at the time of the passage of the legislation to re-assure the public that The Voice will not become a means by which to prohibitively expand the power of the federal Parliament indicates a disingenuous approach not only with regard to the Aboriginal people of Australia but to all Australians. Prime Minister Albanese may shed tears to convey his supposed passion for The Voice but these tears are crocodile tears. For what the Prime Minister really wants is to massively enhance the constitutional power that The Voice will confer upon the Commonwealth Parliament.
An Overview of an Anti-States Agenda
This attempt to insert The Voice into the Australian Constitution can be seen as part of an ultimate agenda to abolish Australian states on the part of elements within both of the major parties which goes back to the Howard government’s demise in November 2007. As was argued by SAA following the 2007 federal election elements within the coalition were complicit in ensuring that the Howard government was defeated so that the succeeding Labor Rudd government could commence the process of dismembering Australian states via the Regionalization process.
Indeed, there was an attempt by anti-state elements within the Liberal Party to entice the then federal Treasurer Peter Costello to depose John Howard as prime minister so that the Treasurer could be subsequently politically knocked off by leading the coalition into a pre-arranged electoral defeat. Fortunately for Peter Costello, he avoided this trap by allowing John Howard to lead the coalition to defeat in the November 2007 federal election.
Prime Minster Kevin Rudd did try to resist the anti-states agenda which he had been put in place to facilitate. Alas, Prime Minister Rudd was unable to stand up to the then Opposition Leader Tony Abbott to effectively undermine states as evidenced by the so-called Hospitals Agreement of May 2010 by which the Labor governed states handed responsibility for public hospitals over to the Commonwealth. Tony Abbott had previously deposed Malcolm Turnbull as federal Opposition Leader in late 2009 to help ensure that the Rudd government steered an anti-states course.
The pretext for the successful Abbott leadership challenge in late 2009 was ostensibly over the then Opposition Leader Malcolm Turnbull’s support for Emissions Trading Scheme (ETS) legislation. It should be pointed out at this juncture that for all the criticism that the Rudd government was subjected to over its failure to introduce an ETS that it was the Greens who used their balance of power in the Senate to vote down this mechanism in early 2010. Due to extensive media bias the Greens have never been held to account for this action.
The real agenda of the Greens’ national leadership has always been to dismember Australian states by supporting the introduction of Regionalization. This was apparent when the Greens supported the introduction of a Carbon Tax in early 2012. The passage of this legislation politically doomed Prime Minister Julia Gillard who had assumed power in June 2010 in order to help shake-off Tony Abbott’s political influence over the then Rudd Labor government.
Due to previous political collusion between the two major political parties, Prime Minister Gillard knew that unless she made a political pronouncement during the August 2010 federal election campaign that a government she led would never introduce a carbon tax (if the Labor Party won that election) that she would lose that election. Julia Gillard subsequently narrowly won the August 2010 federal election to form a minority government because of this inter-party collusion.
Tony Abbott was prepared to wait it out in opposition due to the landslide that he anticipated would come his way at the next federal election by invoking the mantra that the carbon tax was ‘a bad tax based on a lie’. It was the Greens in the Senate who voted for a Carbon Tax in early 2012 in the knowledge that this would mean that Tony Abbott would win the next federal election. The reason why the Greens covertly supported the election of an Abbott federal government was so that Regionalisation would be consequently introduced.
To keep the rent-seeking wolves at the door, a now politically doomed Prime Minister Gillard announced in January 2013 that there would be a federal election on September 14th that year. For good measure the then prime minister announced in early June 2013 that a referendum on local government recognition would also be held on September 14th that year with the federal election. This initiative to hold a constitutional referendum was at the behest of the then federal minister of Local Government, Anthony Albanese!
The hard left of the ALP and the Greens were prepared to destroy a centre-left Labor government so that a hard right coalition government could subsequently introduce Regionalization! Fortunately, Prime Minster Gillard made way for Kevin Rudd in June 2013 in a probably pre-arranged leadership challenge.
Although it is supposition, it is still a highly plausible scenario that Julia Gillard arranged with Kevin Rudd that he would hold the federal election seven days earlier so that the constitutional referendum question would not be held. Not only did this help Australian states avoid their day of reckoning but the Rudd return to power also helped the ALP to ‘save some of the furniture’ so that Labor did not lose to the coalition in an election landside defeat in September 2013.
The Abbott Government (2013 to 2015) was anti-states rights so that it drew up a white paper on ‘federation reform’ (sic). One of the first actions of Malcolm Turnbull on assuming office as prime minister in September 2015 after deposing Tony Abbott was to scrap this white paper so that Australian states were again safe for the time being.
Alas, the deposition of Malcolm Turnbull in August 2018 has had the repercussion of moving the Australian electorate toward the Left. Yes, Malcolm Turnbull’s successor Scott Morrison ‘miraculously’ won the May 2019 federal election but this was primarily due to the voters’ hostility toward the then federal Labor leader, Bill Shorten. The post-2019 whirlwind of public hostility toward Scott Morrison and his Treasurer Josh Frydenberg which was manifested in them losing the May 2022 federal election was primarily due to the opaque manner in which Malcolm Turnbull was deposed in 2018.
Reviving ATSIC so that Real Reconciliation can be Achieved
Unfortunately, if not counter-productively, the current focus on Australia’s indigenous peoples has not led to a corresponding improvement in their lives as too many of them still live in poverty and are subject to incarceration. Should The Voice ‘get up’ then the lot of Australia’s indigenous peoples will probably not improve because the federal government’s real agenda is actually to expand its constitutional powers in ways which have been outlined in this article.
This is because the primary aim of this constitutional amendment is really to greatly expand the powers of the federal Parliament so that this legislature can pass laws in areas previously denied to it in areas such as States’ rights. Peter Dutton as Opposition Leader will have to point out when conducting the ‘No’ case the constitutional dangers inherent in sub-section (iii) of the referendum question.
Hopefully, Peter Dutton will publicly commit to re-establishing the Aboriginal and Torres Strait Islander Commission (ATSIC, which was abolished by the Howard Government in 2005) or an equivalent statutory organisation. Let a future Dutton government re-establish ATSIC after undertaking extensive consultation with indigenous Australians. Such consultation for a revived ATSIC (or its equivalent) will be necessary if this initial statutory authority is to have the support and participation of Aboriginal Australians. (24)
After three years of operation of a revived ATSIC let there be another referendum to institutionalize this authority within the Constitution so that in accordance with sub-section (ii) of the current referendum proposal representations can be made to the federal Parliament by a revived ATSIC. This alternate approach stands a better chance of gaining bi-partisan support because the bona fide interests of Aboriginal Australians will be pursued instead of underhandedly trying to massively expand the federal Parliament’s constitutional power as contained in sub-paragraph (iii) of the current referendum proposal.
SAA supports the eventual introduction of an indigenous Voice to Parliament, but not in its current form for the reasons which have already been outlined in this article. Therefore, caution should be taken when advocates for the ‘No’ case raise questions of race relations because this obscures the potential for paragraph (iii) of the current referendum proposal to radically alter the Australian Constitution.
The paradox therefore exists for advocates of ‘No’ vote, such as former Prime Minister, Tony Abbott, not to be too distressed should the ‘Yes’ case prevail in this instance because the viability of Australian states could be fatally undermined. Therefore, let the focus of this referendum campaign be on the constitutional issues at stake rather than on race relations in Australia.