The First Nations Voice: An Informed and Aspirational Constitutional Innovation

Gabrielle Appleby & John Williams

25.03.2021

All constitutional settlements are a product of their time, place and history, and of the values, knowledge and aspirations of their drafters. In navigating the reality and ambitions of the settlement, drafters will, of course, draw on what they know. A sensible attempt at a new constitutional settlement should be anchored in deep reflection of what has gone before. But often a new settlement will also require forays into the constitutional unknown: into constitutional innovation. This requires building solid foundations, but looking forward with a large measure of intergenerational generosity and fairness, and not second guessing all of the possible ways the settlement might have to adapt into its future.

In this post, we explore where the drafters of the Australian Constitution engaged in constitutional experimentation at Federation. We consider in particular responsible government and how the framers navigated the powers of an elected Senate; and the proposal of an Inter-State Commission. We will explain how each of these innovations has fared against the ambitions of the framers, and why they might have been achieved and adapted constructively, or failed in their objectives. We then consider what lessons these historic innovations deliver for the proposal for a new, innovative constitutional settlement through the enshrinement of a First Nations Voice.

Federation

In many respects, when it was drafted at the end of the 19th century, the Australian constitutional document and system drew heavily on pre-existing constitutional institutions and well-established constitutional relationships. At the time of Federation the Australian colonies were well rehearsed in the relationship between legislature and the executive under responsible government. Through texts such as James Bryce’s The American Commonwealth, they were also informed, if not practised, about the system of government they were about to embark upon called “federation”. Constitutional judicial review was also known to the framers, and had been preceded by judicial review of colonial legislation, for instance, under the Colonial Laws Validity Act 1865 and the principle that colonial laws could be struck down if “repugnant” to existing and applicable British law.

Responsible government & the role of an elected Senate 

But there were innovative new institutions and relationships that were introduced. One, for instance, was the representative Senate, based on a system of state-electorates. The introduction of an elected Senate would then become the fulcrum of debate around the interaction between responsible government and federalism. Famously, John Winthrop Hackett, the Western Australian delegate, cautioned the 1891 Sydney Convention that:

the responsible government which it is proposed to graft upon our new federation, there will be one of two alternatives – either responsible government will kill federation, or federation in the form in which we shall, I hope, be prepared to accept it, will kill responsible government.

Despite Hackett’s dramatic intervention he could not prompt his fellow delegates to clarify the relationship between the two constitutional precepts. In particular, section 53 of the Constitution sets out the relationship between the Houses as to the introduction and amendment of money Bills, but left its enforcement to be determined by the Houses themselves. The Constitution remained silent as to the Senate’s powers to reject money bills.  

This lack of clarity around the resolution of this issue provided the constitutional framework in which the 1975 Whitlam dismissal would play out. However, with this exception, by and large issues that arise are resolved through political engagement between the House of Representatives and the Senate. While their respective roles are largely non-justiciable, there is a constitutional necessity that sits behind this engagement: both institutions have a constitutionally protected role in the passage of legislation, including the budget. Further, as Professor Geoffrey Lindell has written on this Blog:

[I]t needs to be remembered that the constitutional provisions mentioned presuppose a relationship where both Houses have a mostly equal relationship which gives them the ability to bargain with each other. 

While the relationship between the Houses might at times be strained over the interpretation of these provisions, it is a productive constitutional tension that the institutions must negotiate through for the system to function.

The Rise and Demise of the Inter-State Commission

Not all of the Constitution’s innovations were successful. The rise and demise of the Inter-State Commission being the leading case. Notwithstanding that section 101 of the Constitution seemingly commands that ‘There shall be an Inter-State Commission’, the longevity of the Commission was nasty, brutish and short.

Stephen Gageler, writing extra-judicially, has explained that the framer’s initial imagination had included ‘an independent economic regulator’, which ‘would constitute a fourth arm of government.’ This was the ill-fated Inter-State commission, and although it was modelled loosely on statutory precedents in the US and the UK, it was a constitutional experiment. Ultimately, after losing its ability to adjudicate disputes on separation of powers grounds, the Inter-State Commission was abandoned in what was, by then, an emasculated form (although note its brief re-creation in the 1980s). There was no constitutional imperative to maintain it by any particular constituency after adjudicative issues that might arise in trade and commence in relation to Chapter IV of the Constitution became the province of the judiciary.  

As John Quick and Robert Garran had observed (at 895-6), the Parliament could not be compelled to constitute (or one should add continue) the Commission ‘except by its constituents.’ This public support had never been forthcoming, and neither did it have parliamentary or special interest support. Writing on the Inter-State Commission, as Andrew Bell has observed, because of its initially over-broad mandate in 1912:

… the Inter-State Commission was never able to establish an identity and thus assert its value in protecting the public interest. It was over burdened with a veritable miscellany of tasks, most of which were unrelated to the central role which the federation delegates had envisaged … Parliament’s unappreciative and, at times, hostile reception of various commission reports, notably the monumental tariff inquiry, reveals a resentment at the apparent erosion of a staple parliamentary function, and the vested interests of business did nothing to encourage the existence and survival of a nascent regulator.

Lessons from historical innovations

What do these historical innovations tell us about the proposal for a new constitutional institution in the Voice, with its concomitant new constitutional relationships and obligations?

 Both examples – the role of the elected Senate and the Inter-State Commission –  indicate that there has to be an imperative driving engagement with a new institutional actor: whether that be a constitutional obligation or practical imperative (such as passage of legislation through the Senate). Where there is no, or a weak imperative, and a sense that the functions of the body can be fulfilled through other constitutional institutions, such as the adjudicative functions of the Inter-State Commission, the constitutional longevity of new innovations is more difficult.

In the Inter-State Commission we saw this compounded where, unlike the Senate, for instance, there was no public constituency supporting the institution. What these two contrasting examples indicate is that there will also be an evolution of the role of new constitutional institutions, as practice and convention emerges and the new relationship is negotiated across different social and political eras. 

None of this gives us particularly exact predictive capacity about the success and nature of the constitutional relationships that will develop around the Voice. But a few important points can be observed.

First is that the establishment of the Voice would, if the call in the Uluru Statement for constitutional enshrinement if faithfully followed, occur after a referendum in which a majority of the Australian people will have had to express support for the Voice. The referendum will represent public support for a structural change to renegotiate the Indigenous-state political relationship. While that may not create any constitutionally binding obligation on the Parliament to enact the Voice or to engage with it in a particular manner, as Quick and Garran foreshadowed, and as the recent political power of the Brexit referendum has demonstrated, the public support of the proposal will drive responses of the political branches. Anything that falls below expectations good faith engagement with the new institution will come at a high political cost, at least in the first few years following the referendum.

Second is that the Voice, once established, will have a further constituency that, as Bell pointed out, would be able to encourage its ‘existence and survival’: namely, the First Nations that it will represent. This reinforces the importance of the selection and accountability of the Voice membership, who will advocate for its existence and survival only if they see it as legitimacy representing their interests.

The third is the careful thought that has been given to the constitutional congruency between the Voice proposal and established constitutional institutions and principles, most notably the principle of parliamentary sovereignty and its position within the legislative process (see, eg, former Chief Justice of the High Court, Murray Gleeson’s argument to this effect). This means that the inconsistency that was found between the Inter-State Commission and Chapter III of the Constitution that ultimately hamstrung much of its intended operation is unlikely to emerge.

Finally, the role of the Voice in advising the Parliament must be informed by the experience of the Inter-State Commission. As Bell indicates, the Commission’s first reports on the highly politically charged issue of tariffs in the 1920s led to a quick hostility developing with Parliament. The Commission, with no independent constituency base, little public support and no constitutional imperative, was seen as a threat to the position and authority of the Parliament that needed to be removed. Similarly it was seen as undermining the judicial function exercised by the High Court. With these impediments its fate was seemingly inevitable. As already seen above, the Voice will differ from the Commission with respect to its constituency and public support, if established after a referendum.

But how will it be perceived by the Parliament? Will it be considered a threat to its position and authority? Or, as has been widely argued, will it be treated as a valuable, if not always welcomed, source of advice to achieve better policy making by the government and parliament: something in perhaps an idealistic world should be welcomed by these institutions? This will largely turn on the relationship that is established at a constitutional, legislative and lived level between the institutions. Constitutional enshrinement, and careful design of the Voice’s membership will give it the strongest possible foundations to achieve its ambitions, based on what we know from previous experiences. From here, we need courage to act on those ambitions, and a good dose of intergenerational generosity, knowing we’ve done our best.

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Gabrielle Appleby is a Professor at the Law Faculty of University of New South Wales.

John Williams is Acting Provost and Executive Dean of the Profession, University of Adelaide. The University of Adelaide is situated on the traditional lands of the Kaurna Peoples.