We support the Voice as an enactment of the Uluru Statement of the Heart, and the proposed amendment to the Constitution of Australia. We submit that the proposed wording is appropriate and should be put to the Australian people in its current form.
Whilst this Inquiry is based on the wording of the proposed amendment, we observe that many submissions provided are more concerned with the concept of the Voice, laced with unfounded fears and scaremongering, akin to those upon the introduction of the Native Title Act 1993.[1] In our submission, we call on the Committee to consider such submissions in that light.
For example, the Hon. Barnaby Joyce MP, as recently as last week, claimed that this wording would require ASIO to '…come and consult [the Voice] about what [ASIO is] up to'.[2] Mr Joyce and proponents of similar arguments fail to recognise that the proposal does not include a proactive obligation on the Executive Government to consult the Voice.[3] Similarly, they fail to appreciate that the Executive cannot be compelled to consult prior to legislating.[4]
Some submissions before this Committee paint this amendment as corrupting the very notion of democracy. One submission argues that the amendment means '…a small group of peoples, who represent about 3% of the population, can influence laws that affect all Australians.'[5] This argument is so flawed!
It is clear that this amendment does no more than to empower the Voice to make representations – formal statements expressing a particular point of view.[6] Parliament retains its legislative function, and can legislate or repeal any enactment it desires.[7] The amendment does not give the Voice any special authority over laws, but it does grant First Nations Peoples a greater influence over laws that affect them – an opportunity which has historically been denied.[8]
The proposed wording places no obligation on Executive Government or Parliament to respond to, or wait for a representation to be made by the Voice prior to passing an enactment. The Voice itself is intended to be non-justiciable and, as mentioned above, neither the Executive Government or Parliament is bound to receive, nor consider, nor act upon any representations made by the Voice. However, Parliament may make provisions for this in the future under section 129(iii), and we implore Parliament to do so.
Read our full submission here.
[1] See, for eg, Mark Harris, 'Australian Update – Jeff Kennett, Mabo, and the Land Titles Validation Bill' (1993) 3(64) Aboriginal Law Bulletin 22 for criticism of ex-Victorian Premier Jeff Kennett who once claimed that the Mabo decision would represent a threat to suburban backyards.
[2] '‘We’re going to have real problems’: Barnaby Joyce slams Voice to executive government', Sky News Australia (online, 14 April 2023) <https://www.skynews.com.au/australia-news/voice-to-parliament/were-going-to-have-real-problems-barnaby-joyce-slams-voice-to-executive-government/video/d103b43e2416778c248f4b08544bcfeb>.
[3] Professor Anne Twomey, Submission no 17 to Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum, Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum (13 April 2023).
[4] Legislation Act 2003 (Cth) ss 17, 19.
[5] David Malouf, Submission No 13 to Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum, Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum (8 April 2023).
[6] Professor Anne Twomey, Submission No 17 to Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum, Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum (13 April 2023).
[7] A V Dicey, An Introduction to the Study of the Law of the Constitution (10th ed, Macmillan, 1959) 39–40; See also Berwick Ltd v Gray (1976) 133 CLR 603, 611 (Jacobs J) quoted in Newcrest Mining (WA) Ltd v BHP Minerals Ltd & Commonwealth (1997) 190 CLR 513, 605 (Gummow J).
[8] Kartinyeri v Commonwealth (1988) 195 CLR 337 where a majority of the High Court refused to recognise secret women’s business as a reason to protect Hindmarsh Island; Australian Securities and Investments Commission v Kobelt (2019) 276 CLR 1 which reinforced pejorative descriptors of Indigenous Australians and construed custom and lore as primitive in the context of statutory unconscionability; TR v Constable Cox [2020] NSWSC 389 where a motion for trial before a female magistrate was rejected on the basis of logistical difficulty, notwithstanding gender sensitive evidence.
