In this article, John Storey contextualises and disseminates the findings of the IPA’s research into the similarities between the Waitangi Tribunal and the proposed Voice to Parliament, conducted as part of the IPA’s analysis of the Voice to Parliament. The IPA has been researching the consequences a potential Voice to Parliament would have to the political freedom, liberty, and equality of Australians since the Uluru Statement of the Heart was first being drafted.
There were two important announcements on Thursday March 16, concerning the question that will be asked at the Voice to Parliament referendum later this year. They serve as a glaring example of what Australians can expect if the referendum is successful.
The first announcement was made by the 21-person Referendum Working Group. They had not quite finished their work on the proposed wording of the constitutional change but, they assured us, ‘We look forward to finalising our advice next week.’
The second announcement, made by the federal government, was that it ‘will introduce the Constitutional Alteration Bill to Parliament in the last sitting fortnight in March 2023’. This legislation, if passed, will allow the referendum to proceed and will contain the precise wording of the proposed constitutional amendment. In fact, on Thursday March 23, the Prime Minister announced the final wording for the constitutional change and that the legislation will likely be introduced next week on schedule.
You could be forgiven for finding this order of events a little awry. How could the government so confidently confirm the referendum bill would be introduced next week before it had even received the final advice on the constitutional amendment’s proposed wording? After all, it is the government that is elected by, and accountable to, the voters of Australia. It could have been expected that they would receive the final advice of the Working Group, carefully consider it, and make the final decision on what the wording should be. The Working Group, on the other hand, is an advisory body, a collection of unelected academics and activists. Yet, it is already clear that they had the final say on the wording of the proposed changes to Australia’s 122-year-old constitution.
If it were apparent from prior consultation with the Working Group that a form of words had already been agreed upon, then perhaps the government could be forgiven for jumping the gun and locking in a date to introduce the necessary legislation. But it was abundantly clear from media reports that the Working Group had not released its preferred wording because this had not been agreed upon.
Much of the recent debate around the Voice has centred on the issue of representations being made to ‘Executive Government’. There are fears that this would open up the possibility of constant litigation, a possibility recently confirmed by some former High Court justices and actually welcomed by Working Group member Marcia Langton. Professor Langton thinks the courts should be able to review government decisions that defy the wishes of the Voice, and those that disagree are displaying ‘subconscious racism’.
The more tactically inclined were not so sure, recognising that the danger of litigation gumming up the gears of government might undermine popular support for the referendum. Attorney-General Mark Dreyfus, for example, proposed adding some words that would make clear Parliament’s right to determine the legal effect of representations made by the Voice, forestalling involvement by the courts. Significantly, the Working Group rejected this. Now that we know the final wording, we also know the Working Group got its way.
This is what Australians should get used to. An unelected advisory body of Indigenous academics and activists telling the federal government what to do. The potential for the Voice to run to the courts when it does not get its way all but guarantees it will have the last say on a limitless range of crucial decisions. Given the courts are also unelected, the vast majority of Australians will be effectively excluded from this stage of the proposed decision-making process. They will, rather ironically, be rendered voiceless.
New Zealand has already gone down this path, with their so-called advisory, now binding, Māori Voice to Parliament, the Waitangi Tribunal. Several judgments of the Tribunal have made it clear that only Māori are permitted to change some legislation. In one decision concerning the process of reforming laws of importance to Maori, the Tribunal decreed: ‘It is therefore for Māori to propose and government to respond.’ That about says it all.
The Indigenous Working Group, soon to be the Voice, have proposed how our constitution is to be changed and our laws made. The government’s job was to acquiesce.