Justice Harrison Inadvertently Highlights A Key Concern On The Voice

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1 June 2023
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In this article, Scott Hargreaves contextualises and disseminates 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.

The perils of abandoning the separation of powers

Opponents of the Voice to Parliament owe a profound debt to Justice Ian Harrison of the New South Wales Supreme Court, for sending an email in May to Pat Conaghan MP in which he described the latter’s comments in Parliament regarding the Voice as ‘disgusting’, paternalistic, and racist.

It is now abundantly clear that if the Voice is inserted into the constitution in the form proposed, it will have equal standing in our nation’s rulebook with the three existing branches of government: the parliament, the executive and the judiciary. The separation of powers, which has now become the subject of popular debate thanks to Justice Harrison, will become so muddied as to become incoherent.

The separation of powers is a thread connecting history’s most successful liberal democracies. The American Founding Fathers were profoundly influenced by the analysis conducted by Montesquieu in The Spirit of Laws (1749), who was in turn greatly inspired by what he saw in Great Britain at that time. The clear and deliberate delineation of powers was a feature of these systems of government.

To this day, the separation of powers is a constant feature of those constitutions that take a democratic form. Poles, Israelis and many others are invoking the principle right now in disputes with their governments.

Great Britain does not have a written constitution, but Australia does. It was designed to be the rulebook for our nation’s governance, and this is reflected in its very practical nature. But the guiding principle is there for all to see: it is organised into chapters, and we have Chapter I: The Parliament, Chapter II: The Executive Government, and Chapter III: The Judicature.

Justice Isaac Isaacs, one of our greatest High Court judges, made it very clear in the landmark Wheat case of 1915 that the court’s primary consideration should be ‘the general frame of the Constitution’ and that the fundamental principle was the ‘separation of powers’. Isaacs said, ‘… (in the Constitution) we find delimited with scrupulous care, the great branches of Government. To use the words of Marshall C.J. in Wayman v. Southard: “the difference between the departments undoubtedly is that the legislature makes, the executive executes and the judiciary construes the law.” That describes the primary function of each department.’

Justice Isaacs was held in such esteem that he would later become chief justice and our first ever native-born governor-general.

In considering whether Justice Harrison breached the principle of the separation of powers, let us look at an instance where the situation was reversed. In 2017, three ministers in the then Coalition government, Greg Hunt, Michael Sukkar and Alan Tudge, complained of ‘weak’ sentencing by the courts in terrorism cases.

The Victorian Court of Appeal threatened them with prosecution for contempt of court and said, amongst other things, that the ministers had ‘failed to respect the doctrine of separation of powers’. There are sound arguments in favour of our elected representatives being allowed to speak their minds but, given the way the separation of powers had been construed by the court, the ministers decided they had no choice but to offer a complete apology.

By contrast, the Chief Justice of the NSW Supreme Court in his statement last week about the Harrison matter merely noted that judges should avoid public commentary, and further moderated this very gentle criticism by saying, ‘Justice Harrison’s email to Mr Conaghan was not a public statement nor intended for public consumption.’ To which I would respond, as another judge said in another context, ‘The question is not so much as who it was aimed at as who was hit.’ Was Conaghan supposed to pretend he had never read the email? And never to show it to anyone?

Justice Harrison also declared his hand on the legal issues concerning the Voice, telling Conaghan, ‘There are no sleeping constitutional issues here,’ even though that is a key and very much disputed question, as former High Court Justice, Ian Callinan, amongst others, has pointed out.

Justice Harrison’s assertion notwithstanding, the insertion of the Voice to Parliament into the constitution as ‘Chapter IX: Recognition of Aboriginal and Torres Strait Islander Peoples’, will indeed act as a wrecking ball on our settled constitutional order. By definition, it can only play out in ways unforeseen because there is nothing like it anywhere in Western legal systems (the so-called precedents from Finland, the USA, Canada, etc, are nothing of the sort). It is actively in conflict with the settled principles by which democracies have governed themselves for three hundred years. Stare decisis (precedent) is no guide.

The first three chapters of our constitution delineate the three branches of government in a manner that unquestionably reflects the doctrine of the separation of powers. In the words of John Finnis, paraphrasing Justice Isaacs in Wheat, ‘the linchpin of his argument was precisely that there could be no “fourth branch” of the Constitution; that every institution must conform itself to one or other of the three exhaustive categories of power, but never to more than one.’

The official line peddled by the Prime Minister and others involved in the Yes case is that the Voice to Parliament would only be advisory, and its relationship to the Executive and the Parliament could not be subject to review by the courts.

But any matter involving the constitution must necessarily be subject to review by the High Court. And what would the High Court find when it looked at the constitution? That there are nine chapters, one of which is wholly devoted to the Voice to Parliament, co-equal in standing with the chapters for the three current branches of government. What would emerge as we throw away three centuries of doctrine is anyone’s guess, but it could never achieve the clarity captured by Justice Isaacs. We risk becoming ungovernable, stuck with a rulebook no players can interpret.

As of today, those of us opposed to the Voice are being ‘fact-checked’ and smeared whenever it is pointed out that: the Voice to Parliament is an exercise in radical constitutional adventurism; its standing means its advice would have real force akin to a ‘third chamber’ (or indeed a ‘fourth branch’, to borrow the phrase of Justice Isaacs); we should not entrust it to the vagaries of the High Court and; it would forever condemn Australians to an institutionalised dynamic whereby the second-class citizens of Australia (everyone else) are fearful of criticising those appointed to the Voice to Parliament because of the likelihood of being smeared as racist.

But it is the very proponents of the Voice who, by their words and by their deeds, are proving our points, every day.

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