In debating the words that would recognise First Nations Australians in the constitution, someone is likely to ask, at some point, ‘is it ‘constitutionally sound?’.
Those who describe themselves – without apology or false modesty – as ‘constitutional conservatives’ are likely to say that to add ‘justiciable’ words to the constitution is to be ‘constitutionally unsound’. In doing so, they are tapping into a theme of Australian political culture: apprehension about the High Court of Australia and concerns about ‘judicial activism’.
As any school child ought to know, the Australian State has three parts: a judiciary, a legislature and an executive (made up of legislators sworn as Ministers and commanding a bureaucracy).
Those fearing ‘judicial activism’ worry that (unelected) senior judges – whose decisions make law – are apt to usurp the elected legislators’ powers. This fear is recurrent on all sides of Australian politics and has dogged the constitutional recognition debate since 1966.
The beginning of the debate for constitutional recognition
In 1966, William Charles Wentworth (Liberal Member of the House of Representatives), proposed two constitutional amendments.
In the first, he proposed deleting the words in Section 51(xxvi) of the constitution that exclude ‘the aboriginal race’ from Commonwealth powers and replacing them with wording that allowed the Commonwealth to make laws for the ‘advancement of the aboriginal natives of the Commonwealth of Australia.’
Wentworth’s second proposal was to add a new section 117A that would make racial discrimination by the Commonwealth or States unlawful unless it was “for the special benefit of the aboriginal natives of the Commonwealth of Australia.”
To require governments to “advance … aboriginal natives” and to prohibit racial discrimination would limit government action but not constrain racist individuals, said Holt.
Whitlam added that to use these new constitutional words as a basis for litigation would probably result in “greater benefits to lawyers than to litigants.” Whitlam was here being consistent with a warning he had issued as far back as 1955. That senior courts can constrain parliaments and government worried him. In 1967, he pointed to the Supreme Court of the United States of America (the ‘liberal’ Warren Court) as a sorry example.
Reigniting the debate: the Gillard government
In 2011, the Gillard government appointed an Expert Panel to recommend ‘technically and legally sound’ ways to recognise First Nations Australians in the constitution.
The Panel took seriously its obligation to avoid recommending any proposal that was not ‘technically and legally sound’. So, it is significant that the Panel’s recommended amendments included two that were similar to those Holt and Whitlam had squashed.
One was to replace the ‘race power’ (s.51(xxvi)) with a new ‘head of power’ whose purpose would be “the advancement of Aboriginal and Torres Strait Islander peoples.”
The other was a new section prohibiting laws or government actions in which ”the real, supposed or imputed race, colour or ethnic or national origin of any person is a criterion for different treatment.”
Like Wentworth, the Panel qualified this ban on racial discrimination by recommending additional words that allowed ”different treatment” if its purpose was ”overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.”
Between the Expert Panel’s publication in January 2012 and the eclipse of its recommendations by the Uluru Statement from the Heart (May 2017) and the Report of the Referendum Council (July 2017), these two ideas suffered a torrid critique – much louder than their almost inaudible and rarely remembered suppression in 1966-67.
The criticisms echoed Whitlam’s scenario of litigation that enabled lawyers to assert rights and judges to confirm them. These amendments were said to be, in effect, a ‘bill of rights’ for Indigenous Australians, empowering one branch of government (unelected judges) to set standards for the other two branches of government in their dealings with Indigenous Australians.
Warren Mundine’s December 2011 statement that the Panel’s recommendations were the work of ”lawyers and intellectuals and academics” attests to widespread apprehension about the law-making role of the judiciary in Australian politics.
Just before quitting the Labor Party, he said:
”I prefer laws to be made by elected parliamentarians, not members of the judiciary.”
Shadow Attorney-General George Brandis urged Australians to heed Mundine, “one of Indigenous Australia’s most intelligent and respected figures.”
In the same month Bob Carr – a senior Labor figure soon to fill a casual vacancy in the Senate – argued that for the constitution to prohibit racial discrimination would be an “invitation to activist judges.”
A bipartisan deal: setting the sunset date for a referendum
The Gillard government did not endorse the Panel’s embattled recommendation when it introduced the Aboriginal and Torres Strait Islander Peoples Recognition Bill late in 2012. This short statute set a ‘sunset’ date for a referendum and affirmed terms of Indigenous recognition on which both Government and Opposition could agree.
The bipartisan deal required omitting the words of recognition that the Panel recommended be put into the constitution: words about ‘advancement’ being the purpose of laws about Aboriginal and Torres Strait Islander peoples. To refer to ‘advancement’ as if it could one day be a constitutional right was not something Labor was prepared to fight for in 2013 – not even when framing a law that a future Parliament could repeal.
An Indigenous Voice to Parliament
It was a relief to both major parties that the advocates of constitutional recognition dumped the Panel’s ‘rights’ agenda and, from the end of 2014, began to advocate something that at first seemed easier to agree on: an advisory Indigenous Voice to Parliament.
However, in two steps the hope of bipartisanship died.
First, in December 2021, the Morrison government released a possible design for a legislated Voice (the report by Professors Tom Calma FASSA and Marcia Langton FASSA). In this model, the Voice would speak both to Parliament and the Executive.
Second, the Labor Party won government on a promise that it would hold a referendum on putting a Voice to Parliament in the constitution, and the Calma-Langton model was the only one extant.
Fears of High Court ‘activism’ returned, for there is no doubt that the relationship between an Indigenous Voice and the Executive Branch of government is justiciable in the High Court.
Constitutional conservatives now fear that the Albanese government’s proposed amendment would create something unprecedented: an enforceable Indigenous right to have their opinions listened to.
Last week’s announcement by the Prime Minister showed that he can resist such fears. Labor is prepared to risk creating a justiciable right for Indigenous Australians to be listened to. It is a small departure from a tradition – nurtured by both Labor and non-Labor – that holds ‘rights’ and judges in suspicion, and I will be voting for it.