The Voice will not lead to constitutional chaos

The ABC’s Q+A program decided this week it’d be a neat idea to put this out into the world:

Critics have raised questions about whether the Voice to Parliament will mean a logjam of cases in the High Court.

For this week’s Q+A audience poll, we want to know: should the High Court be able to rule on matters of the Voice to Parliament?

Cool! Let’s put the High Court’s constitutional powers to a popular vote! Nice one, ABC. Unsurprisingly, the audience was completely confused, voting 43% yes, 41% no, and 16% unsure.

We should be used to the ABC falling headfirst into the traps laid by the reactionary forces in what passes for public debate in Australia. The stupidity of the question merely reflected one of the key pseudo-arguments being tested by opponents of the Voice: that it will inevitably lead to constitutional chaos, tie up the High Court in litigation, and strangle the ability of Parliament and the executive government to function.

The wording of the proposed constitutional amendment, which the government will take to a referendum later this year, includes this provision:

The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander Peoples.

The rhetorical objection to this comes from former High Court justice Ian Callinan, writing in the Weekend Australian:

Stretching my imagination only a little, I would foresee a decade or more of constitutional and administrative law litigation arising out of a Voice.

In legal terms, Callinan’s concern, particularly that the Voice will be able to make representations to the executive, is one of overreach. While the High Court will not interfere in Parliament’s exercise of its legislative powers, other than ensuring the laws it makes are constitutionally valid, the courts will and constantly do judicially review decisions of the executive arm of government. This is in accordance with entrenched principles of administrative law.

Callinan’s point is that the Voice introduces a new mandatory element into the functioning of both arms of government — that they hear representations from the Voice before acting — and that this will inevitably lead to litigation challenging the validity of the decisions made.

Callinan has been backed by some other legal voices, mainly Greg Craven and Frank Brennan.

On the other side are a lot more voices, including former High Court chief justice Robert French, former justice Kenneth Hayne and a range of constitutional experts such as professor Anne Twomey, Bret Walker SC and the members of the expert panel that drafted the referendum wording. It has also been signed off on by Commonwealth Solicitor-General Stephen Donaghue KC.

Hayne is blunt in his rejection of Callinan’s objection, saying, “I think that the prospect of ‘a decade of litigation’ is not right. It does create fear. I think the fear is misplaced.”

On the specific argument of the executive government being tied up by litigation, Hayne explains the position clearly: “The word ‘representations’ has been very carefully chosen … what the Voice has said in its representation does not dictate the outcome of [the executive’s] considerations”.

The point here is that requiring decision-makers in government, including ministers, to take into account representations made to them by the Voice, on matters affecting First Nations peoples, is the whole reason we’re doing this. It is a “common-or-garden application of rule of law”, Hayne notes.

If the decision-maker does not consider the Voice’s representations, then their decision may be open to judicial review in the courts. However, as with any other failure to take a relevant consideration into account, the courts can only force the decision-maker to go back and do their job properly. It’s not novel, and definitely shouldn’t be alarming.

Stepping this out clearly, here is what the consequence of the referendum succeeding would be:

1. The Voice, once established, would have the power to go to Parliament — or to ministers, departments and other decision-makers in the executive — and put to it representations, i.e. arguments, about things that it wants those decision-makers to consider before making their decisions on matters relating to Aboriginal and Torres Strait Islander peoples.
2. Parliament can ignore those representations, without consequence, and go ahead with whatever laws it wants to make. Those laws will remain open to constitutional challenge, on the bases that have always existed.
3. The executive will be obliged to take the Voice’s representations into account in making its decisions. For example, if the government is considering establishing a new welfare program, or altering an existing one, that affects First Nations peoples, then the Voice may have something to say about that, and the government must take what it says into account.
4. Ultimately, the executive will retain its freedom to not accept the Voice’s representations and act contrary to them. The representations will be just one of the relevant considerations that the executive had to weigh in the balance of decision-making.
5. If the executive flat-out ignores the Voice’s representations, i.e. it doesn’t consider them at all or only pretends to, then its decision will be flawed and vulnerable to judicial review. There’s nothing unusual about that.

As Hayne says, there’s no realistic “likelihood of frequent or difficult litigation” coming out of this.

As he also says, “permitting Aboriginal and Torres Strait Islander peoples to make representations to the government is a marked step forward in the way in which public policy affecting those peoples will be formed and implemented”.

In other words, ignore the misdirections. This is a good thing to do, the right thing to do, and now is the time to do it.