EE 5: federalism and a First Nations VoiceStephen McDonald SC (Hanson Chambers)
The following Expert Explainer looks at the implications from Australia's federal nature for the Voice and its operation, as explained by a leading constitutional law expert.
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Implications of Federalism for the Voice
.Australia is a federal nation, comprising six state governments as well as two internal self-governing territories and several other relatively minor territories. The Australian nation and the Australian Constitution were formed by the union of the six self-governing colonies that became the States. The States are preserved as autonomous units of government, each with its own legislature, executive and judiciary.
Much of the Australian Constitution can only be understood against this historical and structural backdrop. For example, we have a Westminster system of government, and the national Parliament comprises a Senate which is organised along State lines – with each State electing the same number of senators, despite vast differences in population.
The proposed First Nations Voice at the Commonwealth level intersects with Australian federalism in various different ways.
First, the primary function of the Voice, as envisaged, is to make representations to the federal Parliament and the federal executive government. As such, it would be a “federal” institution in the sense of being a part of the central government in a dual system of government.
Much of the Australian Constitution can only be understood against this historical and structural backdrop. For example, we have a Westminster system of government, and the national Parliament comprises a Senate which is organised along State lines – with each State electing the same number of senators, despite vast differences in population.
The proposed First Nations Voice at the Commonwealth level intersects with Australian federalism in various different ways.
First, the primary function of the Voice, as envisaged, is to make representations to the federal Parliament and the federal executive government. As such, it would be a “federal” institution in the sense of being a part of the central government in a dual system of government.
National Voice to State parliaments and governments
Beyond its primary function, the Voice could be given other functions by Commonwealth legislation. That could potentially include empowering the Voice to make representations to State (as well as Territory) parliaments and governments – at least where a State Parliament is receptive to the national Voice having such a role.
There are many matters of common policy concern extending across all States, on which the Voice may well have valuable contributions. Of course each State may be expected to consult with Indigenous People living within that State on matters that affect them, but it can readily be seen that there are issues on which it may be valuable for States to have the benefit of a national First Nations perspective. An example might be the recent debate about the appropriate age of criminal responsibility, an issue that disproportionately affects Aboriginal children and communities.
Another reason it would be desirable for the Voice to be able to make representations to State or Territory parliaments and governments, as well as the Parliament and government of the Commonwealth, is that the regulation of Aboriginal and Torres Strait Islander affairs often requires the interaction or coordination of government action at both levels. A recent illustration that highlights overlapping Commonwealth and State regulatory responsibility (and the shortcomings of existing regulatory frameworks) is seen in the tragic destruction of 46,000-year-old rock shelters at Juukan Gorge in the Pilbara region of Western Australia – Aboriginal heritage sites constituting a vital part of the living culture of the traditional owners – by a mining company, Rio Tinto, in 2020.
There are many matters of common policy concern extending across all States, on which the Voice may well have valuable contributions. Of course each State may be expected to consult with Indigenous People living within that State on matters that affect them, but it can readily be seen that there are issues on which it may be valuable for States to have the benefit of a national First Nations perspective. An example might be the recent debate about the appropriate age of criminal responsibility, an issue that disproportionately affects Aboriginal children and communities.
Another reason it would be desirable for the Voice to be able to make representations to State or Territory parliaments and governments, as well as the Parliament and government of the Commonwealth, is that the regulation of Aboriginal and Torres Strait Islander affairs often requires the interaction or coordination of government action at both levels. A recent illustration that highlights overlapping Commonwealth and State regulatory responsibility (and the shortcomings of existing regulatory frameworks) is seen in the tragic destruction of 46,000-year-old rock shelters at Juukan Gorge in the Pilbara region of Western Australia – Aboriginal heritage sites constituting a vital part of the living culture of the traditional owners – by a mining company, Rio Tinto, in 2020.
Organisation and election along State lines?
Moving to a different topic, the organisation and selection of the national First Nations Voice would not be addressed directly by the proposed Constitutional provisions but would be left to Commonwealth legislation.
That legislation could, though it need not, provide for a Voice organised, or selected, along State lines.
For example, the Voice might be comprised of representatives chosen as representatives of the Aboriginal and Torres Strait Islander people in each State and Territory. Or, like the single-member geographical electorates in the House of Representatives, the Voice could be comprised of representatives of smaller groups, each of which is wholly comprised of people residing within one State or Territory.
One possible advantage of a Voice organised wholly or partly on either of those bases is that it would provide, within the Voice as a whole, an identifiable group of chosen Aboriginal and Torres Strait Islander representatives with special responsibility for a particular State or Territory (or for groups or geographical areas wholly within a particular State or Territory).
Of course, there may be other ways to provide for representation of Aboriginal and Torres Strait Islander Australians within the Voice that may be more meaningful from the perspective of those people. Aboriginal societal and cultural groups and ties do not necessarily observe State and Territory borders.
That legislation could, though it need not, provide for a Voice organised, or selected, along State lines.
For example, the Voice might be comprised of representatives chosen as representatives of the Aboriginal and Torres Strait Islander people in each State and Territory. Or, like the single-member geographical electorates in the House of Representatives, the Voice could be comprised of representatives of smaller groups, each of which is wholly comprised of people residing within one State or Territory.
One possible advantage of a Voice organised wholly or partly on either of those bases is that it would provide, within the Voice as a whole, an identifiable group of chosen Aboriginal and Torres Strait Islander representatives with special responsibility for a particular State or Territory (or for groups or geographical areas wholly within a particular State or Territory).
Of course, there may be other ways to provide for representation of Aboriginal and Torres Strait Islander Australians within the Voice that may be more meaningful from the perspective of those people. Aboriginal societal and cultural groups and ties do not necessarily observe State and Territory borders.
The Significance of CONSTITUTIONAL Entrenchment
.The referendum process in Australia is itself a unique “federal” process – requiring not only an overall majority in favour of a constitutional amendment, but also a majority of electors in a majority of States (though not, notably in the territories, whose residents’ votes count only toward the national total). So a successful referendum would provide not only a democratic mandate but a federally legitimate one.
A strong argument in favour of constitutional entrenchment is that, precisely because of the need for popular support, it would likely result in greater and more immediate acceptance of the political legitimacy and importance of the Voice, which in turn will be pivotal for its success. An example of a recent measure that was put to a popular vote in Australia – though not involving a constitutional amendment – was the establishment of same-sex marriage. The approval of that proposal by the people has been important in effectively settling the issue and providing a clear democratic mandate for the enactment and wide acceptance of the legislation
A strong argument in favour of constitutional entrenchment is that, precisely because of the need for popular support, it would likely result in greater and more immediate acceptance of the political legitimacy and importance of the Voice, which in turn will be pivotal for its success. An example of a recent measure that was put to a popular vote in Australia – though not involving a constitutional amendment – was the establishment of same-sex marriage. The approval of that proposal by the people has been important in effectively settling the issue and providing a clear democratic mandate for the enactment and wide acceptance of the legislation
Acknowledgment
- This contribution has been drawn from a presentation given to the International Society of Public Law (ICON-S) conference in Wellington, New Zealand on 4 July 2023
Further Resources