The Role of Definition and Legal Language

In law, words give power.
​Nowhere is this more important than in Constitutional Law

The words of the proposed constitutional amendment and the interpretation of them has significant consequences for the power that they would give the body of The Voice. Throughout this website, a number of different legal terms and definitions are used. Some of these terms (such as the correct terms to use to refer to the first Australians) are more about respect and recognition. Other terms (such as the term 'representations') have profound legal and constitutional impact upon the meaning and role of the proposed amendment. 

The discussion amongst legal experts regarding the proposed amendment has often focused on the precise words used in the bill and the proposed amendments and their likely impact on government and legal institutions. These words have particular significance to lawyers - but to the normal population those differences may appear meaningless. 

This page will include discussion about key terms and debates. It will be updated as the significance of a particular term become more important in the course of public debate. 

'FIRST NATIONS' OR   'ABORIGINAL AND TORRES STRAIT ISLANDER'   OR 'INDIGENOUS AUSTRALIANS'

There is some debate as to the right term to use to describe first Australians - it is common to see a number of different terms:
  • First Nations People
  • ​Aboriginal and Torres Strait Islander People; or
  • Indigenous Australians 
The use of these various terms is contested, with some people preferring one term or the other, often for a variety of different reasons.

For example, Ms Teela Reid in her submission to the Parliamentary inquiry addresses the use of the term Aboriginal and Torres Strait Islander Voice in the proposed amendment. She emphasises that the Uluru Statement from the Heart uses a range of terms for Aboriginal and Torres Strait Islander people:
The omission of the term “First Nations” from the current Constitutional amendment is driven by politics, not law. It is a compromise that is both unnecessary and inconsistent with the mandate to enshrine a “First Nations Voice” in the Constitution. 
...
The term “First Nations” is inclusive of how Aboriginal and Torres Strait Islander peoples broadly define ourselves according to our traditional nations; such as Wiradjuri, Noongar, Yolngu, Yamatji, Gomeroi, Bundjalung etc. It is consistent with the fact that the Australian Constitution is a document of principle, not detail.
For the purposes of this website, we use these terms interchangeably - adopting the language of the particular context in which we write. We note that there are different opinions as to the most appropriate term to use, but argue that the most important rule is to approach the matter with respect.

WHO IS THE EXECUTIVE GOVERNMENT OF THE COMMONWEALTH?

In the proposed constituional amendment it says: "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;"

What does this mean? The definition of executive government is important as the elected members of the Voice will make representations to the executive government. Lets unpack some basic legal ideas:

  • The Parliament of Australia is made up of the elected representatives chosen by the Australian people. The Parliament will decide on the structure of the Voice to Parliament through passing legislation outlining the details of how people will be elected to the Voice and how it will operate once elected.
  •  Chapter II of the Australian Constitution outlines the powers of the executive part of the government. It discusses the Federal Executive Council and the ministers of state.

​Anne Twomey, a prominent constitutional law academic, in her testimony to the Parliamentary Committee Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum defines executive government in the context of the Voice to Parliament as: "the term extended to ministers and government departments"

In practice this means the ministers of the government of the day. For example Mr Anthony Albanese is the Prime Minister and and Mr Richard Marles is the Deputy Prime Minister.
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  • Ministers are called ministers of the Crown or ministers of state, because the King is Australia's head of state.

The Federal Executive Council is made up of all of the government ministers and the Governor General.

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STATUTORY INTERPRETATION

Constitutional or public law is a specialist area. Prominent academics and members of the legal profession frequently debate how to most accurately interpret the words of the Australian Constitution. To do this they rely on historical documents from the time of the constitutional debates and the decisions of the High Court of Australia since 1903.
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There is frequent disagreement between these experts and, from time to time, the High Court will decide on a particular interpretation of the Constitution. They will clearly state in a judgment that the relevant section of the Constitution will operate in a particular way. This process is called statutory interpretation. It is a very academic and difficult area of law and can be difficult for non legally trained people to understand.
Justice Logan of the Federal Court of Australia said the following in a speech about statutory interpretation.
the task of giving meaning to the text of a statute is shared between the judiciary, via cases which are instituted in court, and the executive, via the general administration of legislation. But the conclusions reached by the judiciary as to the meaning of the text of a statute bind the executive, as they do everyone else in the nation. If parliament considers that meaning should be altered, it is for parliament to amend the statute.
While the context of constitutional interpretation are different is some ways to those of statutory interpretation, there is a very large degree of overlap between the two. Courts give meaning to legal words and text all the time - there is nothing unusual about this, of the litigation it involves.

Further Resources