The Voice and the High Court challenge: analysis of a misrepresented legal debate

^{By Sonam Thomas}

Online, some people have expressed concern about the proposed Indigenous Voice to Parliament, in particular, around whether the Voice could assume primacy over the authority of the Parliament.

Recently, these concerns have coalesced around the question of whether decisions of government could be struck down by the High Court if it had made decisions contrary to the advice of the Voice.

But as legal experts have noted, the separation of powers prevents the High Court from forcing Parliament to enact its advice.

While parts of this debate represent genuine concerns expressed in good faith, others have sought to weaponise the ambiguity surrounding this important yet complex legal argument by propagating false and misleading information online.

Tracing the claim: from the ‘third’ chamber to a ‘lawyer's picnic’

In analysing debate about the Voice, it’s impossible to ignore the long and sometimes fraught history of the Voice proposal.

Modern advocacy for constitutional recognition of Aboriginal and Torres Strait Islander peoples dates back to the 1990s, but the current proposal for a constitutionally enshrined Voice to Parliament originates from the 2017 Uluru Statement from the Heart.

The Uluru Statement was the outcome of a historic meeting of more than 250 Aboriginal and Torres Strait Islander leaders from across the country. The majority of the group resolved to call for the Voice to Parliament, a “Makarrata” or truth-telling process and treaty.

But the proposal to constitutionally recognise the voice of Aboriginal and Torres Strait Islander peoples was soon after rejected by then prime minister Malcolm Turnbull, who argued the proposal would create a “third chamber of Parliament” threatening the equality of civic rights in Australia.

This notion has since been roundly denounced by constitutional experts. Mr Turnbull himself would later express “regret” for using the term, conceding it was misleading.

But more than five years later, the question of whether the Voice can pose a challenge to the primacy of Parliament remains. The focus, however, appears to have shifted towards whether decisions of government could be subject to High Court challenges, filed by the Voice.

On Facebook, a meme claims “[Aboriginal and Torres Strait Islander peoples] will have the power to challenge any and all decisions made through the high court if it doesn't suit them”.

No veto power for the Voice

Despite online narratives to the contrary, the Voice – as it is currently proposed – could not make binding demands of the government, nor would it have the power to veto legislation.

Those were the unanimous findings of the Constitutional Expert Group appointed by the government to provide advice on questions of constitutional law.

As member of the group and Professor of Constitutional Law at the University of New South Wales (UNSW) Anne Twomey said: “The power and function of the Voice is to make representations. It cannot dictate, demand or veto”.

Independent of the experts appointed by the government, the Australian Law Council and other constitutional law academics have reached the same conclusion.

Writing in The Conversation, Professor Twomey added the role of the High Court is not to challenge the decisions of the government, but rather to rule on their validity and procedural fairness.

“Due to the separation of powers, the courts cannot instruct parliament to give effect to representations by the Voice,” she said. 

“The courts are only concerned with the fairness of the process – that the decision is made properly, taking into account all relevant considerations – not the content of the decision.”

Claims on social media that the Voice could use the High Court to force policy outcomes, alter the content of laws or change a government decision – such as land grabs or forced reparations payments – therefore have no legal basis.

It’s important, however, to disentangle these claims from a more nuanced debate amongst legal experts over whether the recently proposed wording of the constitutional amendment  –  specifically the inclusion of the “Executive Government” – could present an opportunity for exploitation.

The right to make representations to executive government

Last year, speaking at the Garma Festival, Prime Minister Anthony Albanese revealed the draft wording of the constitutional amendment that would be put to the Australian people and ultimately establish the Voice, if successful. 

Importantly, Mr Albanese suggested the proposal would grant remit for the Voice to make “representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples”.

The inclusion of “executive government” is not found in the Uluru Statement from the Heart but has dominated legal debate about the implications of the Voice. 

So why does it matter – and where did it come from?

In simple terms, the executive generally refers to government ministers and the departments they oversee: the public service.

That includes the Cabinet – made up of ministers who oversee respective portfolios (e.g. health or defence) and led by the prime minister – where the core of government decision-making occurs. 

According to co-chair of Uluru Dialogues Pat Anderson, who is also a member of one of the First Nation’s advisory groups for the Voice, the inclusion of executive government is important because it allows for enduring advice and representation that would outlive any one government.

“They are the real decision-makers. The bureaucrats of the day decide how things are going to work and who they'll talk to and who they won't talk to,” she said in April.

Similarly, co-chair and Professor of Law at the University of New South Wales Megan Davis said the inclusion reflected calls from within communities during consultations to have a say at the level of policy formulation in government departments.

Constitutional conservatives and ‘activist judges’

The inclusion of “executive government” has also attracted criticism from the opposition and some legal experts, who cautioned it could increase the risk of litigation in the High Court.

As political analyst Brett Worthington points out, some of these opinions represent political opportunism and the weaponisation of the complexity of legal arguments.

However, Mr Worthington also identified a genuine fear amongst some Coalition MPs and constitutional conservatives – even those broadly supportive of the Voice – that so-called “activist judges” in the High Court would interfere with the work of government.

As Professor Twomey explained, the apprehension was centred around whether the High Court could rule that any decision of the executive government required prior consultation of the Voice, thereby resulting in delays to decision-making as the result of litigation.

These arguments played out during a public Senate Inquiry in April, revealing divisions in the views of members of the Constitutional Expert Group and the broader legal community over the extent of this risk.

Constitutional lawyer, former vice-chancellor and president at the Australian Catholic University Professor Greg Craven, for example, voiced “significant” concerns that decisions of government would be held up by litigation.

Professor Craven, who is also a member of the Expert Group, argued the term “executive government” could also be widely interpreted to include independent statutory bodies such as the Reserve Bank.

“Realistically, it goes down from the Cabinet down to the lighthouse keepers,” he said.

But this claim was firmly rebuked by other constitutional law experts.

Professor Twomey pointed to past High Court rulings that had interpreted “executive government” to relate to ministers and departments – not statutory bodies with “separate legal personalities”.

She also argued the High Court would take into account the intent of the Voice, which had been clearly articulated in legislation as to being limited to giving advice.

Likewise, Expert Group member, Deputy Vice-Chancellor and Professor at the UNSW George Williams described the risk of this kind of litigation as “very low”. 

Meanwhile, High Court barrister Brett Walker was more strident in his critique, labelling the suggestion that the courts would be jammed with litigation over decisions large and small as “too silly for words”.

So, where does that leave us?

Ultimately legal arguments are exactly that – arguments. How the High Court might rule in the future cannot be conclusively determined by anyone.

However, despite some legal experts expressing concerns about the wording of the proposed constitutional amendment, the Senate Inquiry’s final report noted the “significant majority” of submissions spoke of “strong support” for the alteration.

It’s also worth noting that some critics such as Professor Craven have said they will still support the yes case, despite their concerns.

More broadly, CrossCheck’s research found that the tenor of debate and misleading claims circulating online illustrate the willingness of certain groups and actors to make mileage out of the politics of division.

The last say

In March, Mr Albanese ended months of speculation by confirming the government’s proposed constitutional amendment intended to include an ability to make representations to the executive.

He also announced the strengthening of legal safeguards within the amendment designed to alleviate concerns of litigation.

“The Parliament shall … have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures,” it reads.

In its final advice to the government, the Expert Group reiterated its unanimous view that Voice would not create a legal obligation for the government to act on advice, nor would it result in the invalidation of legislation.

It also noted that if the government opted to legislate that certain decisions required prior consultation of the Voice, those decisions could be ruled invalid if consultation was not appropriately sought.

In the absence of such legislation, the advice noted “differing views” on whether decisions could be struck down by the High Court had they not consulted the Voice.  

It suggested a number of changes that could be made – including the removal of the words “executive government” but noted the “majority of the Expert Group did not believe that such changes were necessary or desirable”. 

Finally, the advice made an important observation: in making decisions, governments ordinarily must consider a range of representations and matters. This is the ordinary business of government.

Their decisions – rightly so – are subject to the rule of law and failure to comply can attract High Court litigation on a range of matters.

In the end, with experts of all stripes having had their say, the decision will ultimately rest with the Australian public.