The point of the amendment was to allow for broad political influence, to achieve better laws and policies, and to confine any obligation to the non-justiciable area of the internal deliberations of parliament. By specifying and confining the obligation in this way, it removed any room for the implication of broader obligations, including on the executive.
Fast-forward to 2023 and after various iterations by others of the proposed amendment, the funnel structure was flattened. The specific obligation of consideration, which had been confined to the deliberations of the houses, disappeared. The broad open end of the funnel is still there, with a wide range of matters on which this body, now called the Voice, can make representations. But there is nothing in the proposed amendment about how the executive or parliament deals with those representations.
This has left a void in the proposed amendment. There are no words in it that impose any obligation on the executive government or parliament to respond to the Voice’s representations. Nor, as the government has often said, is there any intention to impose such an obligation. Critics, however, have taken that void and argued that it would be filled by a constitutional implication that the representations of the Voice must be considered by the executive government in all its decision-making.
This is a heroic assumption. It would require the High Court to ignore the text of the Constitution, or see an imaginary ambiguity in it, and then build an implication from it which is contrary to the original intent as expressed by the government. Indeed, the critics, by filling the media with assertions that there is such an intent, are actively building a self-fulfilling prophecy, by seeding evidence of ‘intent’ in the public debate.
In response to these concerns, the government initially proposed to add some words to the amendment making it clear that it is parliament that decides whether the representations made by the Voice must be considered in relation to executive decision-making. This is consistent with the original intent to maintain parliamentary supremacy.
But after further negotiations, this clarification was reformulated in a more subtle way. The power of parliament was expanded, so it can make laws “with respect to matters relating to the Aboriginal and Torres Strait Islander Voice”. Within these apparently innocuous words lies the power for parliament to make laws about when, whether and how the executive responds to the representations of the Voice. This intent will apparently be made clear in the explanatory memorandum and the second reading speech.
Where does this leave us? It takes us back to the beginning – a body that can use political influence to help achieve better laws and policies affecting Aboriginal and Torres Strait Islander peoples, which is precisely what people on all sides say they want.
Anne Twomey is a professor emerita of the University of Sydney, and is a member of the Constitutional Expert Group that advised the Referendum Working Group on the proposed amendment.