A classic case of whether doing something is worth doing anything, or at least this specific something.
I have thought for 20 years that this should be basically our biggest national priority (even better if it distracted politicians from everything else) but I admit that I still don't have the answers.
So on balance I support this.
As for judicial review of the executive, Australia has long been blessed with a very (judicially) conservative judiciary, long may that last, in which case this should be a rather theoretical risk indeed.
The justification for a constitutional change rather than a legislative one, is that it can't be reversed (as easily). But under the proposed text, can parliament effectively put the voice to sleep, so make it dormant and non-functioning? I have seen references to the Interstate commission floating around, so if it is in the constitution, does it mean it actually will exist in a meaningful way?
And a second (politically completely unrealistic) option, could parliament decide that the minister for aboriginal affairs is the Voice?
Re the first question, you’re correct to say that entrenching a body within the Constitution does not guarantee that it won’t become dormant, if there’s no will to maintain it. Sections 101 - 104 of the Constitution provide for the establishment of an Inter-State Commission, to adjudicate and administer interstate trade. It was established in 1912, became dormant in 1920, was then abolished in 1950, re-established in 1983, and then absorbed into the Industry Commission in 1989.
Re the second question: possible, but I think it’s very politically unlikely. It is true, however, that the section doesn’t outline exactly how the Voice works (although there has been a detailed report on how it might work by Marcia Langton and Tom Calma, which I think I refer to in the footnotes). There are good reasons to leave the structure very open; we don’t want it to be rigid. But that has downsides too.
So although not de iure, but de facto this pretty much invalidates central arguments on both sides, for Yes, the Voice can still be shut up (though not abolished) and for No, parliament can effectively neuter it so much that it won't annoy executive in any meaningful way.
There are three arms of government: the Parliament (which makes legislation, yes, it’s the House of Reps and the Senate), the courts (which make legal decisions) and the Executive (the Federal bureaucracy which runs all the procedures which put government laws into practice - each area headed by a Minister, with civil servants underneath). It was not initially proposed to make the Executive subject to the Voice. To be honest, I’d prefer that they hadn’t included the Executive. The difficulty is - if the Voice makes a representation to the executive, and the executive decides not to take the representation into account, prima facie, it’s subject to judicial review - the Voice person who made the representation can challenge the government decision in the courts. There are ways to limit the right to judicial review, as public lawyers have pointed out - Parliament could legislatively curtail right to challenge representations by the Voice, but I haven’t really heard whether (if the Voice gets up) Parliament is going to do this. There are advantages to allowing challenge of executive acts - a friend pointed out that these decisions can really adversely affect vulnerable people. On the other hand, if there are multiple challenges, it will be expensive and there will be numerous court cases. And the courts are already struggling and overloaded from COVID times… Pros and cons, as always. If anything I said doesn’t make sense, please seek clarification - that’s why I have posted this. It struck me that I could help.
Lobby groups are supposed to lobby parliamentarians as representatives of the people, and not the executive directly. But as you correctly intuit, the line is blurry. If you are lobbying a Minister, that person is simultaneously (1) a parliamentarian and (2) a member of the executive in their capacity as Minister. Which one is being lobbied? So I think it’s right to say that there can be pressure from lobby groups upon the executive.
One distinction between ordinary lobby groups and the Voice is that lobby groups don’t have any official legal status, so if the Minister ignores them, nothing happens, legally speaking, because they’re just recommendations and the government is entitled not to take account of them. The Voice, however, will have a legal status, which is why (at least theoretically) judicial review might be possible if its representations are not taken account of, unless that’s closed off.
So I gather… Interesting facet of the Westminster system, which involves a much more fluid relationship between Parliament and the Executive. If you can’t get to the Minister as representative of the people - obviously you lobby their Secretaries in lieu of them! Hence - pressure on the executive.
I should note here - while I have worked in government, it’s only as part of judicial wing (as a staff member for various judges) and that was TOTALLY different. We were very cut off from everyone else, and operated in a totally different way, as it should be. So I welcome insights from people who’ve actually worked in that capacity - it may be that my theoretical legal insights on how it’s *supposed* to work don’t reflect actual practice. 🤣 (Fancy that?)
In other words, there is a solution to the potential problem of legally-enshrined presentations to the executive. The focus in Voice discussions is commonly on the potential problems, sometimes with the solutions tacked on. The very real problem is that First Nations people need to be heard. The Voice is the solution we’ve been invited to support.
Absolutely, there is a solution to the issue of the Executive decisions and potential judicial review. Public law academics have talked in detail about the solution. I honestly don’t understand why the government hasn’t articulated this, and reassured the public that the necessary legislation will be enacted to deal with this issue. If they have, I missed it, and they need to signal it much more clearly.
If the Voice fails - as recent opinion polls suggest it might - how can the situation be salvaged? This has been presented as the one and only chance, but even if this fails, I hope that we keep seeking solutions to the issue of consultation. My sense is that there is considerable goodwill towards Indigenous people, but that people aren’t sure what they are being asked to agree to, and worried about unexpected consequences of the amendment. Of course, I am a former litigator specialising in remedies which arise when things go wrong, so I tend to focus on what happens if things don’t work out…
This is very helpful. Thank-you.
No, thank you!
Thanks Katy, I'd forgotten about Hindmarsh and hadn't realised ATSIC had gone the way of the doddo. Too long in Blighty...
A classic case of whether doing something is worth doing anything, or at least this specific something.
I have thought for 20 years that this should be basically our biggest national priority (even better if it distracted politicians from everything else) but I admit that I still don't have the answers.
So on balance I support this.
As for judicial review of the executive, Australia has long been blessed with a very (judicially) conservative judiciary, long may that last, in which case this should be a rather theoretical risk indeed.
Thanks for the great summary.
Two legal / practical questions:
The justification for a constitutional change rather than a legislative one, is that it can't be reversed (as easily). But under the proposed text, can parliament effectively put the voice to sleep, so make it dormant and non-functioning? I have seen references to the Interstate commission floating around, so if it is in the constitution, does it mean it actually will exist in a meaningful way?
And a second (politically completely unrealistic) option, could parliament decide that the minister for aboriginal affairs is the Voice?
Re the first question, you’re correct to say that entrenching a body within the Constitution does not guarantee that it won’t become dormant, if there’s no will to maintain it. Sections 101 - 104 of the Constitution provide for the establishment of an Inter-State Commission, to adjudicate and administer interstate trade. It was established in 1912, became dormant in 1920, was then abolished in 1950, re-established in 1983, and then absorbed into the Industry Commission in 1989.
Re the second question: possible, but I think it’s very politically unlikely. It is true, however, that the section doesn’t outline exactly how the Voice works (although there has been a detailed report on how it might work by Marcia Langton and Tom Calma, which I think I refer to in the footnotes). There are good reasons to leave the structure very open; we don’t want it to be rigid. But that has downsides too.
Thanks a lot for the reply.
So although not de iure, but de facto this pretty much invalidates central arguments on both sides, for Yes, the Voice can still be shut up (though not abolished) and for No, parliament can effectively neuter it so much that it won't annoy executive in any meaningful way.
Yes. Quite so.
As you well know even the best intentioned consideration of how something _might_ work is low-quality information as to how it _will_ in fact work 😄
thanks indeed! a concise summary.
Thanks! I need this.
Thanks. I will send the url for this page to others. Hopefully this will help their understanding.
Could you please define the Executive? I don’t understand how it’s different from the Parliament (presumably house of reps and senate).
There are three arms of government: the Parliament (which makes legislation, yes, it’s the House of Reps and the Senate), the courts (which make legal decisions) and the Executive (the Federal bureaucracy which runs all the procedures which put government laws into practice - each area headed by a Minister, with civil servants underneath). It was not initially proposed to make the Executive subject to the Voice. To be honest, I’d prefer that they hadn’t included the Executive. The difficulty is - if the Voice makes a representation to the executive, and the executive decides not to take the representation into account, prima facie, it’s subject to judicial review - the Voice person who made the representation can challenge the government decision in the courts. There are ways to limit the right to judicial review, as public lawyers have pointed out - Parliament could legislatively curtail right to challenge representations by the Voice, but I haven’t really heard whether (if the Voice gets up) Parliament is going to do this. There are advantages to allowing challenge of executive acts - a friend pointed out that these decisions can really adversely affect vulnerable people. On the other hand, if there are multiple challenges, it will be expensive and there will be numerous court cases. And the courts are already struggling and overloaded from COVID times… Pros and cons, as always. If anything I said doesn’t make sense, please seek clarification - that’s why I have posted this. It struck me that I could help.
Thanks Katy. That’s much clearer. Lobbyists make representations to the executive all the time though, don’t they?
Lobby groups are supposed to lobby parliamentarians as representatives of the people, and not the executive directly. But as you correctly intuit, the line is blurry. If you are lobbying a Minister, that person is simultaneously (1) a parliamentarian and (2) a member of the executive in their capacity as Minister. Which one is being lobbied? So I think it’s right to say that there can be pressure from lobby groups upon the executive.
One distinction between ordinary lobby groups and the Voice is that lobby groups don’t have any official legal status, so if the Minister ignores them, nothing happens, legally speaking, because they’re just recommendations and the government is entitled not to take account of them. The Voice, however, will have a legal status, which is why (at least theoretically) judicial review might be possible if its representations are not taken account of, unless that’s closed off.
At the very least there is easy access to departmental secretaries and dep secs!
So I gather… Interesting facet of the Westminster system, which involves a much more fluid relationship between Parliament and the Executive. If you can’t get to the Minister as representative of the people - obviously you lobby their Secretaries in lieu of them! Hence - pressure on the executive.
I should note here - while I have worked in government, it’s only as part of judicial wing (as a staff member for various judges) and that was TOTALLY different. We were very cut off from everyone else, and operated in a totally different way, as it should be. So I welcome insights from people who’ve actually worked in that capacity - it may be that my theoretical legal insights on how it’s *supposed* to work don’t reflect actual practice. 🤣 (Fancy that?)
In other words, there is a solution to the potential problem of legally-enshrined presentations to the executive. The focus in Voice discussions is commonly on the potential problems, sometimes with the solutions tacked on. The very real problem is that First Nations people need to be heard. The Voice is the solution we’ve been invited to support.
Absolutely, there is a solution to the issue of the Executive decisions and potential judicial review. Public law academics have talked in detail about the solution. I honestly don’t understand why the government hasn’t articulated this, and reassured the public that the necessary legislation will be enacted to deal with this issue. If they have, I missed it, and they need to signal it much more clearly.
If the Voice fails - as recent opinion polls suggest it might - how can the situation be salvaged? This has been presented as the one and only chance, but even if this fails, I hope that we keep seeking solutions to the issue of consultation. My sense is that there is considerable goodwill towards Indigenous people, but that people aren’t sure what they are being asked to agree to, and worried about unexpected consequences of the amendment. Of course, I am a former litigator specialising in remedies which arise when things go wrong, so I tend to focus on what happens if things don’t work out…