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Dr Shireen Morris seems to have secured a gig as one of The Australian’s constitutional experts promoting the Voice. She is part of a rapidly diminishing cohort. She first came to my notice when she claimed on the Kenny Report that the 1901 Constitution ‘explicitly excluded Aboriginal people’. A patent nonsense. So, I have followed her specious musings with interest since then. Here is an excerpt from her latest:
The government’s recent drafting change has perfected the voice amendment. There is now neat reciprocity in the change to clause three, strengthening parliament’s power and answering concerns about High Court uncertainty.
The voice has broad discretion to advise on matters relating to Indigenous people, and parliament has broad discretion to legislate on matters relating to the voice. This is balanced. Such reciprocity can underpin mutual responsibility, creating a new partnership to achieve better practical outcomes.
This presupposes that the Voice architects are disposed to co-operate with government, seeking only to ensure that their concerns are properly considered. That flies in the face of everything activists such as Marcia Langton and Megan Davis say, and it is given the lie by the uncompromising way in which the Referendum Working group flat out rejected amendments to the referendum question advised by the Attorney-General and the Solicitor-General.
Yet debate about the drafting is being debased by shallow tribalism.
That is mere abuse.
Let’s be clear on the facts.
Oh dear, now she’s borrowing Daniel Andrews’ favourite line, the one that serves as a prefix to his every next lie.
The constitutional amendment does not require the voice to be consulted. It provides only that the voice “may make representations” on matters relating to Indigenous people. The amendment does not require the Reserve Bank to consult the voice on interest rates, a question opposition legal affairs spokesman Julian Leeser posed during question time. There is no constitutional obligation for anyone to consult the voice.
If the Constitution says the Voice ‘may make representations’, the High Court will determine that there is an obligation on the part of government to consider those representations. That establishes a ‘right to be consulted’. Otherwise, why put it in the Constitution? Any organisation right now, eg the National Farmers Federation, ACOSS etc may make representations to government, but the government is not obliged to consider them. It may be politically unwise to ignore them, but it would not be unconstitutional.
Certainly, there is no obligation for the Reserve Bank to pro-actively consult the Voice but, by the same token, there is no impediment upon the Voice proactively making representations to it. Once the representation has been made the obligation to consider it is triggered. The government may specifically legislate against such representations, but all the Voice would have to do to convince the High Court that this restriction was unconstitutional would be to establish to the Court’s satisfaction that whatever the Reserve Bank was proposing would have a particular impact on Aborigines. Given the Love and Thoms cases, that a bar would seem to be set pretty low.
That gives Aborigines a right other Australians do not have.
But even if the Albanese government had no intention for the Voice to intrude on any and all matters and legislated accordingly, what is to stop a future government increasing its scope? Why would any future government wish to unnecessarily hamstring itself, you might ask? Well, you might also ask, why would any government go out of its way to destroy our energy and manufacturing base and put us even more at the mercy of China, in the absence of any evidence this will help the climate? If you cannot image a future (or even this current) virtue-seeking Labor/Greens government conceding more power to Aborigines by, for example, putting a ‘First Nations spiritual connection to their land’ cloak on anti-development activism, then you have very little imagination. The Greens are already talking about incorporating Article 19 of the UN Declaration on the Rights of Indigenous Peoples – the requirement to obtain the ‘free, prior and informed consent’ – into consideration of any development proposal on native title land.
Anyone who relies on the good sense of Australian parliaments not to abandon the national interest, or even pragmatic self-interest, in favour of virtue signalling, has only to recall the Rudd/Gillard years, the Turnbull years and the Morrison years. Oh, and the Andrews years, of course. Don’t think that because it’s a dumb idea, handing power to an unelected and unrepresentative coterie of Aboriginal activists, it won’t have enormous appeal to many MPs.
Which brings me to Professor Greg Craven, whom Morris excoriates in the remainder of her article. Craven, recently defending his criticism of the referendum question, said this in relation to a counter-attack by Noel Pearson:
We [Craven, Freeman and Leeser] would never accept any model that involved conferring power on the judges.
This is a basic principle of Australian constitutional conservatism. Unelected judges must never meddle in political or policy matters. These are for the democratically elected parliament alone.
I have spent 40 years as a constitutional lawyer defending this principle against judges, academics and the odd politician.
If that is so, why would he not question other aspects of the proposed amendment? The one that particularly concerns me is this:
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia: There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
This goes beyond recognising that Aboriginal people occupied this continent before 1788. The capitalisation of ‘First Peoples of Australia’ suggests to me that this is a defined entity. If that is the case, what is its definition? On the face of it, it doesn’t make sense. The first peoples of the constitutional entity known as Australia were all those who lived here in 1901. But the phrasing clearly contemplates that Aboriginal and Torres Strait Islander people comprise their own distinct polity within the nation. If this is to be included in the Constitution, it will be subject to consideration by the High Court. It is not hard to imagine the Justices linking this vague wording and Article 19 of the UN Declaration on the Rights of Indigenous Peoples to discover a separate Aboriginal sovereignty in the nation. Therefore, the wording should, at the very least, be amended to read:
In recognition that Aboriginal and Torres Strait Islander peoples were the original inhabitants of the continent now known as Australia: There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
That is not something I personally would support, but I wonder what a ‘constitutional conservative’ like Greg Craven would think of wording as imprecise as that proposed above. Any provision in the Constitution should be couched in language as unambiguous as possible, as Love and Thoms attest.
What could the High Court, that redefined the previously well understood term ‘alien’ to exclude those with a ’spiritual connection to the land’, not do with ‘First Peoples of Australia’?
What is to say that the recent pronouncements from prominent ‘experts’ that The Voice will now be justiciable are not some sort of the old ‘door-in-the-face’ ploy?
Dad, can I have $100? NO! Awww… how about $20. Yeah, OK.
If the government slightly changes the question by, say, modifying the advice to the Executive bit or nullifying Michael Detmold’s (Quadrant, 29Mar2023) delegation issue, then the experts can all say: – “Well, they fixed that so it is all perfectly OK now.” Thereby giving an immense boost to the Yes case.
The Labor Party, and maybe politicians in general, are very good at that sort of game.
Just heard Marcia Langton speaking about the death of Yunupingu. She said something like, “we are all one people, we all have red blood”. I had to agree, pity she and others are doing their best in contradiction of that.
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Another good article Peter. Thanks
The referendum question itself is gibberish wrapped in a motherhood statement and conveys nothing about the real consequences of voting either way. A new arrival from another country would have no clear idea of what they are being asked to approve. Looking back at past referendum questions they are all far more explanatory. At the very least Dutton should be insisting on a question that makes sense.
It seems even Julian Leeser agrees with me:
“I think that clause and the symbolic statement at the beginning are those things which provide the greatest risk of judicial interpretation that we haven’t properly considered.”
Don’t know where he’s been, though, sine last June when the proposed amendment including advice to the Executive government was released.
I wrote the the Oz about nt his very point. Didn’t make the cut.
Whenever I hear or in this case read, of a politician, lobbyist or spokesman utter the words “let’s be clear”, I know I’m about to be snowed and that what follows is anything but clear and designed to bamboozle and throw me off track.
And so it was with Shireen Morris (Drafting debate fuelled by shallow tribalism and fear, 30/3) In a slick and tricky sleight of hand, she writes “Let’s be clear on the facts. The constitutional amendment does not require the voice to be consulted. It provides only that the voice “may make representations” on matters relating to Indigenous people”
But then what?
Out of sheer professional courtesy, the government would be obliged to respond to the overtures and representations of the voice and allow for its concerns to be ventilated. By the mere act of engaging, the consultation process has begun regardless of who initiates it.
“Dr Shireen Morris seems to have secured a gig as one of The Australian’s constitutional experts promoting the Voice….
‘The voice has broad discretion to advise on matters relating to Indigenous people, and parliament has broad discretion to legislate on matters relating to the voice. This is balanced. Such reciprocity can underpin mutual responsibility, creating a new partnership to achieve better practical outcomes.'”
IF The Voice should pronounce/advise on some matter relating to indigenous people, and that pronouncement/advice be rejected, THEN that rejection automatically becomes the issue for those wishing to work it up further in a political bunfight. Thus there is a built-in incentive for a government of any persuasion to accept the advice of the said Voice, in turn incentivising its numerous lobbyists, advisors, consultants, and finders-of-ways-round-obstacles to up the ante for the next time around.
In weather systems, an analogous process causes cyclones to form; or if one should prefer, human-induced climate change would thus have a political analogue. (My apologies for any offence or upset experienced by any of this liberal online journal’s resident coal shills over that previous sentence; particularly to those from round Grafton, NSW. 😉
The last point is very important – Australia can be the Commonwealth or the continent. The conflation of the two is a result of Australian nationalism, but everything would be easier if the commonwealth had a different name.
Quote: “In recognition that Aboriginal and Torres Strait Islander peoples were the original inhabitants of the continent now known as Australia”
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I’d put it:
“In recognition that Aboriginal and Torres Strait Islander peoples inhabited the continent now known as Australia prior to 1788”
And Leeser again today:
“In the Constitution, every word, comma, and even capitals matter.”
Thanks Julian.
Very good Peter. You’ve covered all rebuttals & points made, clearly, simply and factually to the extent that I don’t think any of those on the left pushing this whole thing would get to within a bulls roar of finishing reading it.
It would be akin to throwing a crucifix down into the middle of a whole bunch of satanists & I think It’d be too much for’em, in the absence of any way of attacking it….at least any rational common sense way & they’d probably be reduced to screaming insults and abuse at the roof.
I still want to know who an aboriginal is. And I’m tolerably sure that if this abomination gets up, an overwhelming majority of Voice representatives will be paler than me.
They already are. I saw a white boy with blond hair and blue eyes playing a didgeridoo at some function. The local industry were happy to boost their self esteem by declaring that they were First Nations people. The new definition of nationhood is any family group who travels a patchwork of hunting grounds and who know where the waterholes are. Based on the North American Indian model of several really large tribes generally living in the same geographical area and speaking a common language the Aboriginal equivalent is quite laughable. To be considered a Native American those tribes have set limits which is commonly one grandparent must be a full blood. If we were to use that guide the only Aborigines would be found in the NT and Northern WA.
I’m pretty confident the People’s Republic of Viktoria will vote “yes”, so it’s up to the rest of Australia to vote the voice down. If we do end up shooting ourselves in the foot by voting “yes” (a painful outcome I’m leaning to) I’d love to have a time machine to be able to jump forward 100 years to say we told you so.
The Voice is to include people from the Torres Strait. They are not among the original inhabitants of Australia. They voted to be Australians rather than be New Guineans. No doubt they recognised the superior benefits of belonging to a rich country rather than a poor country. They never made it the mainland just as the 1788 Aborigines had driven those before them to Tasmania. Migration and war have always been part of human history and I am afraid to say that Aborigines were a very backward people who did very little to keep their land. They were very lucky that it was the British who settled here and not the Dutch or French let alone the Russians and more latterly the Japanese all of whom would have treated the locals far more harshly.. English settlement gave a stone age people a chance to join the modern world and it should be celebrated as such. All those part Aborigines sitting on the voice committee can thank the 97% of Australians for keeping them healthy and educating them but of course won’t as those 97% are racist scum sitting on Aboriginal land. Division is the name of the game and if the referendum passes then division is what you will get. Some people call it apartheid.
One last thought. The Constitution is forever; well as long as the Nation survives. In 100 years it is highly unlikely there will be any real Aborigines. They have been so diluted in the past 250 years that in another century people with less than one percent Aboriginal blood will be demanding to run the country. That will be farcical to say the least. The problem with the left is that they never, never work a bright idea through to a logical conclusion. They do not understand consequences because they are not that bright.
Before we engage in all these arguments about who should be able to say what and to whom, and who should bother listening, and/or acting upon it, there’s a far more fundamental issue in all this: the actual need for a voice. The average punter could be forgiven for assuming that Australia’s indigenous people were currently voiceless, having no way of communicating their needs to the national government. It’s patently obvious that this could not be further from the truth, as anyone with access to the internet can readily discover for themselves. Hundreds of indigenous organisations, with elaborate websites, already exist for this purpose, outstanding among which are NIAA (National Indigenous Australians Agency) and NACCHO (National Aboriginal Community Controlled Health Organisation). In fact, to streamline and presumably coordinate their function, a super-organisation was set up recently, the Coalition of Peaks, “a representative body of over 80 Aboriginal and Torres Strait Islander community controlled PEAK ORGANISATIONS [my emphasis] and members [who] came together as an act of self-determination to be formal partners with Australian governments on Closing the Gap”. In addition to these, of course, are the 11 elected indigenous members of federal parliament, including the Minister for Indigenous Australians, Linda Burney.
Have these government-funded organisations, and salaried individuals, not been doing their jobs? What additional purpose could an elected “Voice” possibly serve? I’d guess that our political representatives and leaders are already snowed under with information, advice and requests; any additional input would not only be superfluous, but simply add to the already loud “background noise”, making their job even more difficult, if not impossible. And, should the “Voice” get up, what will happen to those representative organisations – will they be made redundant? Or will they become voices to the “Voice” itself? It would be good for “job creation”, if nothing else.
We’re forever being advised to always read the fine print before signing any contract, yet with this monumental proposal, Prime Minister Albanese reassures us simply to trust him, a career politician, not to worry about the details, and to just enjoy how good, unified and reconciled it will make us all feel afterwards. Do the hidden (and still intentionally secret) risks justify tampering with our precious, national “instruction manual”, at the cost and disruption of a potentially divisive referendum, when a “Voice” could readily be legislated into existence by parliament tomorrow? After all, if the structure and function of the voice are going to be defined by parliament, why bring the Constitution into it at all? Albo is hiding something sinister from us — unless he’s a complete fool.
The question no one has asked is:
Do High Court Judges actually have the power of ancient Kings?
Do Judges have the legal power to extinguish Australian Crown Title and replace it with Native Title?
If Judges do have such imperial power, where exactly is said legal power enshrined in Australian Law?
Any lawyers out there who can advise?
“Do High Court judges have the power of ancient kings”? Yes. The definition of a wrong without a remedy is an incorrect decision by the High Court.
The High Court in one massive over-reach (Mabo cases) created the Native Title monster that is devouring the land base of our Nation. In another over-reach in Love abd Thoms it diluted the meaning of alien and citizen rights.
If the current wording of the Voice proposal stands and is supported, the sky will fall in. If a tribe of a handfull of families constitutes a Nation and if descendancy from early inhabitants constitutes a First People – and if descendancy and being born here are not joint requirements – then as in Love and Thoms many (millions) of people living in other parts of the world will qualify to be “First Australians”.
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Whether their ancestors walked land bridges or travelled by sea their descentents would qualify as First Australians and would therefore have a say and much more. Perhaps villagers in the Maccassers qualify as a Stolen Generation and it will never end..
The question no one has asked is:
Do High Court Judges actually have the power of ancient Kings?
Do Judges have the legal power to extinguish Australian Crown Title and replace it with Native Title?
If Judges do have such imperial power, where exactly is said legal power enshrined in Australian Law?
Any lawyers out there who can advise?
Here is a short answer. I will give a long answer if Keith agrees.
Humans are free. Freedom is found in relation (there is no private mind). The paradigm of judges’ law is the law of contract. And a constitution is a big contract. Who made the law of contract, and the law that founds the constitution? The judges did – adjudication is prior to legislation, and prior to referendums. How do the judges make that law? They have two parties in front of them and they must treat them impartially. If they don’t, they break the freedom of the one they disrespect (and since freedom is relational, they break the freedom of the one they favour, as well). True judges are the institution of human freedom – full stop. Michael Detmold
This is sort of off topic, but I think it’s obliquely relevant. Anyone who wonders about the merits or not of unelected, unaccountable judges in our High Court, need only be watching Fox News’ reports on the latest anti-Trump farce in New York city.
As I understand the American system, all judges are inherently political and, at least early in their judicial careers, must actively campaign on party-political platforms to win judgeships. At higher levels, while they no longer need to stand for election, their appointments will be at the whim of the sitting state Governor or President, and they will be expected to follow the party line, eg Roe v Wade and Dodds (?).
So, something like the current Trump crucifixion campaign was always going to be inevitable as soon as unethical rabble like the modern Democratic Party got into power.
While our own judges all have political opinions and some, no doubt, have strong personal biasses, I think the Pell case demonstrated their political independence.
The mantra “unelected judges” is just sloganeering, and infantile sloganeering at that. The idea is that we can get rid of judges (and public prosecutors) when they aren’t tough enough on crime/do the bidding of the deep state/steer us towards a world government/refuse to find that the election was stolen/are too woke/you name it. There’s just one small problem. What if the elected judges (and prosecutors) don’t do what we think they ought to do? The various state judges who threw out Trump’s preposterous claims of a stolen election were elected. In the US they also elect District Attorneys. How many people who thunder about “unelected judges” think that Alvin Bragg (the DA pursuing Trump, who was elected on his promises to get Trump) is doing a great job? Hmm, I thought so.
The reality is that the election of law-enforcement officer in the US is horribly politicised. Judges and DAs run on overtly political platforms. Our system may not be perfect, but give me our DPPs and appointed judges any day.
Sindri, I suspect DT is referring to the tendency of some judges to indulge in political and judicial activism. Bromberg, for example.
And because they are appointed not elected they can get away with it.
On balance I agree with you that we do not want elected judges (or prosecutors) in this country, so that we means that, before we put anything into the Constitution, we must make must sure it’s as watertight as possible. This current proposal is a constitutional sieve.
Precisely, Peter.
I agree Peter and our terminology must be precise leaving no room for their interpretation. Terms like First Peoples and First Nations are too contestable.
Peter, I agree with what you say about the meaning of ‘unelected judges’. My comment was admittedly a bit off topic anyway and wasn’t directed at DT, who made a good point about the acquittal of Cardinal Pell.
Unfortunate Questions:
The question no one has asked is:
Do High Court Judges actually have the power of ancient Kings?
Do Judges have the legal power to extinguish Australian Crown Title and replace it with Native Title?
If Judges do have such imperial power, where exactly is said legal power enshrined in Australian Law?
Any lawyers out there who can advise?