One of the key claims made in favour of changing Australia’s Commonwealth Constitution to include an Aboriginal and Torres Strait Islander Voice to Parliament is that it will only be an advisory body. However, the wording of the proposed constitutional change is not clear cut in respect to what the powers of the Voice will be. This constitutional uncertainty makes it likely that the Voice will be more substantive, divisive, and powerful than many proponents claim.
Based on the New Zealand experience of race based constitutional governance, the history of Australian judicial activism, and the way in which the proposed Aboriginal and Torres Strait Islander Voice to Parliament is being designed, IPA’s analysis finds that:
- The Voice will become a vehicle for allocating critical social and economic resources such as health, education, and job opportunities on the basis of race not need;
- The Voice will not be merely advisory but will wield a veto over important parliamentary debate and government decisions;
- The Voice will be impossible to repeal, defund or effectively reform if it proves ineffective or is acting contrary to what was intended.
In New Zealand, a body intended to have purely non-binding advisory functions in respect to redressing grievances by Māori people, the Waitangi Tribunal, has become in effect a binding quasi-judicial body. This has been brought about by virtue of an expansive interpretation of the Treaty of Waitangi by New Zealand’s courts. Since the seminal decision of the New Zealand Court of Appeal, the 1987 Lands Case, and decades of subsequent judicial activism, Māori activism, and more recently political activism at the highest levels of New Zealand’s government, New Zealand’s governing institutions have become divided along racial lines. The racial characteristics of each New Zealander influences who gets what say in managing national resources, making laws, and how laws should be applied. New Zealand’s current constitutional arrangements are unfair, undemocratic, and politically divisive.
If the Voice to Parliament is implemented in its current proposed form, it too will be susceptible to judicial activism that will greatly broaden its scope. This will grant special privileges to some Australians based on their race, contrary to the rule of law. Further, the way the Voice is being designed will make it especially susceptible to political activism.
Australians should be cautious of introducing into their constitutional system a body whose powers will be legally uncertain and for which there is international precedent suggesting it will be used as a tool for promoting divisive racial politics.