The Voice & The Constitution | Professor Nicholas Aroney

but what I find really striking is in Australia we had an open debate we had delegates elected directly by the voters in the second Convention held in 1897-98 in each of the states um except for Queensland that didn't go and and the convention was held publicly there was a Hansard record of the debates but the Statesmen who led the process of federating recognized we need to take the full picture to the people and convince the people on the merits of the case that this was the appropriate model to Federate [Music] thank you my guest today Nicholas arone is Professor of constitutional law at the University of Queensland he's held visiting positions at Oxford Cambridge Paris Edinburgh and Sydney Professor Irani has published over 150 Journal articles book chapters and books in the field of constitutional law comparative constitutional law and legal Theory in 2017 he was appointed by then prime minister Malcolm Turnbull who had declared that important as he believed same-sex marriage was religious freedom was even more important and critical to the nation to an expert panel to advise on whether Australian law adequately protects the human right to freedom of religion or to put it another way conscience and belief but of late he's been researching the much discussed proposal for an indigenous voice to Parliament we'll be talking about that today but more in the context of trying to unpack what is a constitution how did we get ours how important is it what's involved in changing it so that hopefully this will be educative regardless of where people might sit on this particular issue on a day-to-day basis so Nick I've known you a long time it's great to be here in Queensland with you and thank you very much indeed for joining us real pleasure to be here John can we get into it the idea of a voice to Parliament but before we come to that more generally our Constitution and the effect it has on Australia I think if you said to people in the street what is the Constitution the the typical answer would be something along the lines of well it's a rule it's the Playbook by which we uh have our rights defined and limited uh and what have you but they wouldn't know too much about the detail I don't think it's taught very much you teach it I suspect it's not taught much at all now Australia is one of the world's oldest most stable and for that matter most prosperous democracies not a bad place to live in even though we seem to want to knock it a fair bit these days what role there's a lot of factors but what role has the Constitution including the build up to putting it together by our forebears played in Australia being the society and the country that it is today yeah big question but it is a big question and it's a really important one because one of the first things I say to my students is to put the Constitution into perspective that in a very real sense Constitutions are only as successful as the culture in which they're embedded enables them to be because you can have the finest constitution in the world with all of the right words in it but if the people operating under it and the political culture in which it operates doesn't have respect for the rule of law doesn't have respect for following proper procedures then people will manipulate the document to achieve their own ends and it won't have much effect on controlling government and keeping it under the rule of law so I think our Constitution's been very effective because it has operated by and large in a society and in a culture that does have respect for the rule of law I think members of parliament and our and our governments and our courts generally see the value in having an established system of government and following the rules and accepting the verdict of the people at election time and following the proper procedures we're making laws and even deliberating about government policy and it's because of that into relationship between culture as it were in character even and the Constitution that it's been a success one of the things I always point out to my students is that our constitution requires all of our members of parliament all of our Ministers of government all of our judges to take an oath to take a nose to uphold the law and that underscores the importance that each individual that holds office under the Constitution needs to be personally committed to following the rules of the Constitution and it's only when people do follow through with that commitment because of that oath that they've taken that did you get that relationship between the people and the Constitution as it were and so the Constitution our Constitution doesn't try and do too much either it sets out fundamental rules about how parliaments are formed and how governments have formed and the courts and so on and some people are critical of our Constitution and say it's just procedural and it's just Technical and formal but it's those procedural and Technical and formal features of the Constitution that enable the system to work well given the proper culture in which it operates I think a lot of thought was put into the making of the Constitution a lot of people don't appreciate just how much thought went into it the framers of the Constitution when they were deliberating about it in the 1890s read all of the books that were there to be read at least in the English speaking World on what good governments looks like and what good constitutions look like and they they looked really closely at the way other constitutions operate in other countries the United States Canada the United Kingdom they also had all of their experiences at a colonial level because they were representatives of the six self-governing colonies in Australia and so they had a lot of experience of what it meant to have constitutional government and representative democracy and they brought all of this learning into the process of constitution making and so I think a lot of because I suppose many students at school are not taught this background we don't really have an appreciation for the thought that went into it and so a lot of people will tell you more about say George Washington or James Madison or Alexander Hamilton um as Architects of the US Constitution and not really know about Samuel Griffin right or Edmund Barton or other other important figures who drafted the Australian Constitution just as intelligent just as capable and just as thoughtful as well can you fill us in a bit on what might be called their world view how they saw if you like the citizens of Australia at the time and into the future and the reason I ask that question is that one of my guests shortly a little while ago said to me very interesting to see that the Western and successful democracies have been utterly realistic about human nature whereas the Revolutionary doctrines the French Revolution the Marxist Revolutions in Russia and China and otherwise very utopian you know if we just get the structures right everybody will behave perfectly and will have free societies well Russia had a brilliant Constitution nobody really notice of it the framers of the British and American approaches and I think probably the Australian ones much more realistic because one American put it we're so good we had to give ourselves a vote was so bad we had to give ourselves a vote there's this sort of tension that recognizes everyone should have a say or we need a peaceful means for altering course and you break power up you're limited no one can have it for too long that's right that's right the framers of the Constitution were very aware of what had been said about the American Constitution because the Americans had the three of the very important figures particularly James Madison and Alexander Hamilton wrote a series of papers that we know now as the Federalist patriotism and they set out a very sophisticated account of what a constitution is what can it achieve what should it do and the Australians read those documents and they thought really deeply about the same sorts of questions a recognition that you need to create institutions that will enable governments to occur efficiently and effectively but at the same time designed the institution so that there are checks and balances between them so that there's a degree of separation of power and a division of power so that it doesn't become too Consolidated one of the South Australian delegates expressed concern that over centralization creates he put it a Vortex into which power gets concentrated and when that happens people lose Liberty because they the government becomes very distant from them and once it becomes distant and becomes centralized and concentrated the capacity of the people to influence the government and even resist when it's overreaching becomes weaker and so the federal system is really important in our in our system because it it enable it diversifies power do you think he was right yeah I think I think he was correct about that you do need to strike the right balance between creating institutions that can be effective but ensuring that they don't become so effective that they become too powerful and therefore start to trample on people's rights and Liberties this is the concept of subsidiarity yeah it is it is so the principle of subsidiarity is the idea that in terms of making decisions or in terms of organizing oneself and achieving things in life it's usually best that the smallest institutions do it themselves so it sort of suggests that families should be free to be families in the best way that they can and larger institutions shouldn't try and supplant them but just support them to be what they are and the same thing can apply to local governments state governments and federal governments that the federal government is there to do what the states can't and you could even push it and say that the states are there to do what localities can't and local governments and state governments are there to do what families or local communities can't do it's a question of just understanding a sense of priority because when things are done at a local level people can engage in their own self-government and when people engage in their own self-government they usually do it better it's better for them and it trains them to be able to perform perhaps the harder tasks of governing at a larger scale so our constitution is very much about scale it's no coincidence that of all of the large countries in the world both territorially and by population are federations the United States Canada you have to even say Russia um India as well and Australia and the one exception notably is China and one of the things about totalitarian governments or authoritarian governments is they don't like federalism because it breaks up power one of the very interesting observations is the one of the first things that Adolf Hitler did when he came to power in Germany was he effectively abolished the power of the German states the lender so that he could concentrate power into his his hands so federalism diversifies power and like for a continent like Australia you can't really just govern everything from Canberra you need local state governments to respond to the particular situations that people find themselves across such a vast continent interesting you know I run into a lot of people when we need an Explorer No say we're over governed we should play with one level that was a whip them argument which is interesting in itself but let's let's have another go at this this is really interesting to my way of thinking I recently talked to Oz Guinness and he in one of these programs and he referred to something that I remember being taught at school and at University you know Lincoln talking about democracy being government of the People by the people for the people neat little summary hangs together drives the point Oz Guinness made the point that he was actually indirectly quoting John Wycliffe at Oxford yeah in the 14th century and Wycliffe was a theologian as I understand it and he's pointless that we need to be good citizens who can govern our own lives and our own small platoon yeah family positive role in the local community will then be citizens who are able to feed a sensible attitude into government and keep it Downstream I.E I think you used the word about the Constitution under control yeah but that's been lost this idea that a democracy sets up rules I'm not trying to put word in your mouth I'm testing out what I yeah because I understand to be the case the Constitution is designed to ensure that a good and Noble citizenry exercising responsibility will be equipped and empowered to ensure government responds to them they're not required to respond to government I think that's true and it it reflects also another thing that we could be concerned about and that is when we start to see ourselves as Citizens as merely electors that decide on a government once every three or four years and then we just expect the government to run itself and to deliver what we want and then we you know three or four years later decide whether we're happy with it or not as opposed to a much more participatory view about what the role is to be a citizen and it seems to me that you can only really participate effectively goes back to the local level because it's very hard for anybody to launch into being an effective citizen or engaged in civic affairs at a national level very few of us have got that capacity or the time or opportunity but all of us have an opportunity to try and work and make our family better our neighborhood better our local community better the place where we work a better place to work and it's that sort of an attitude and an Outlook that builds the foundation for good citizenship at those the those wider levels well to feed then from that into the current debate there is a proposal that there ought to be and I'm not trying to be cute here something called a voice it hasn't been well enough to find for people to really know what it is that's one of the problems to the Parliament and the idea is that um Aboriginal people and a certain proportion and we need to be careful here because of many Aboriginal people many Aboriginal Australians are doing very well you know they've gone out got an education created their family environment and they like so many other Australians I suspect just happy with their law we need to remember that but there are horror stories out there and they are really distressing and every you know Australians rightly have good will they want to do something about it but the idea of the voice the first thing I would say about it is you've just hit on something that I think is very important subsidiarity the idea that is responsibility starts with you're taking control of yourself accepting responsibility for your own actions then seeking to do so in your family yeah School context sporting team complex local government and so forth outwards a sort of ripple effect and and one of the things that strikes me because I represented a lot of Aboriginal people over a lot of time and visited quite a few remote communities is that in fact the idea of of small clusters of people taking responsibility for their own future is a very important one because in fact I've always said there are about 300 Aboriginal nations in fact Aboriginal people say it was about 600 and I look at the area that I used to represent I can think of one town quite small three thousand people and there are three very distinct Nations or subnations there I think of another with four they're quite small communities and I would have thought we've got to find a Grassroots up way rather than a tops down way to empower them to exercise that sort of authority over their own lives yeah yeah I would hope so too I I tend to see it that way too I think one of the interesting things and it's a broader point but it relates to this is that because we've forgotten our own history we don't appreciate that what we know is modern European nations freely were birthed in our older historical context where you had very similar local communities operating across Continental Europe you had many tribes you had many families you had many Clans and it was only over the process of many hundreds of years that this more tribal if you like way of organizing yourself which was characteristic of you know most humans everywhere including in Europe gradually evolved into what we know as Modern Nation States in Europe and I think sometimes when we think of I'm not only thinking of Australia but any country in the world we we ask we say that we might be able to give a constitution to a society and say Here's a modern Constitution run yourself according to this and it should work we don't really appreciate that the modern constitutions that the European nations developed is a consequence of of many hundreds of years of evolution and cultural development and it's just unrealistic to expect that you can just make a constitution and change a society in that way I did I did a study with a colleague on the constitution of Fiji and you know the fascinating thing about a country like that is the way in which you have a constitution overlaid on top of a culture a culture that's much more traditional and the the gap between the Constitution and the underlying culture always makes the country susceptible to the coups and revolutions that they've suffered so many times and we interviewed a lot of indigenous and Indian fijians and they were all really concerned about their country and they could see this sense of gap between the Constitution and the culture and I think it's the same with politics as well um in the sense that for I would say for any group of people in Australia indigenous or recent migrants I come from recent migrant stock myself it all does depend on what we do internally as a community about how we build ourselves as a community and one can only you know hope that each Community can build itself into you know healthy relationships healthy economic activity bringing up families in a healthy sort of way for the benefit of the community a particular Community but also all of the people in in the hot wider Society of which they were apart as well recognizing this really important point that you've just raised Western cultures developed constitutions over a long period of time they're based essentially on the idea of the selection and removal of people to lead at the point of a pencil a vote whereas many Aboriginal communities are much more traditionally based the power structures are based around kinship and so maybe that reinforces your point that you can't ask them to immediately pick up the idea of constitutional recognition via the vote you know as one Aboriginal in the Inland made the comment um you don't vote for the queen and he was actually referring to himself not as a queen but he was saying my position's hereditary it might people respect my position I'm not going to put my hand up to be a for an elected position and when you ask my people to do that they'll often choose you know the used car salesman right rather than the real leaders because the real leaders won't participate and maybe the voice to be fair is an attempt for people to try and come to grips with that those differences can you what is the voice as you understand and perceive it to be I shouldn't Prejudice it too much by saying I'm frustrated because I don't know exactly what it is from what we've been told yeah yeah and I do think it's trying to the proposals are trying to negotiate this issue uh because what's being proposed in the voice as far as the referenda proposal that the Prime Minister has presented to the Australian people is to establish a body of in that is representative of Australia's indigenous peoples that will make representations to the Parliament and to the executive government to make representations on matters that relate to laws or policies that affect indigenous people look at and in principle that's a very worthy thing because laws and and policies that affect people should have input from the people whom they affect isn't that what the Constitution is meant to mean for every Australian name precisely it truly is um and and so the interesting thing about that is that what is being proposed in the Constitution just speaks of a voice but um and a lot of people say look there's not enough detail that's been provided around that Professor Langton and Tom calmer have written a report and it's quite a lengthy report goes into a lot of detail about what the voice would mean and they propose that there really should be three layers of the voice there should be a national voice there should be 35 Regional voices and many many local voices to give those local communities of which you were speaking an opportunity to make representations themselves and at a certain level that makes sort of make sense in our in our country given the localities that we have the regions and the states that we have and the national government that we have and um it seems to me that the the strongest argument for the voice is really thinking of those local communities the question is whether it's going to be an effective method by which truly local opinion and truly local communities are really going to be able to have some sort of effective say on the policies that affect them or not now that's a question that I mean the Australian people are going to have to debate and discuss and I I have to say up front I think they're entitled to a lot more detail they ought to know exactly what this is especially before they're invited to embed it but let's make the point first that every Australian is entitled to a voice and every Australian's entitled a club to others with together with others to magnify their voice that's right that's what the national Farmers Federation does I'm a farmer you know it's good that we can come together magnify our voice put a position to Parliament you could say the same of a country women's Association which has done an admirable job in so many ways for such a long time every professional association you could think of expects to have a say that's not at issue it's worth exploring the history of this a bit though the reality is that we have many have had quite a few Aboriginal conferences if you like where they've tried to come together to present a view in fact you could argue there have been six or seven of them they've not been guaranteed to be locked into place forever and the Constitution far from it the last one was the Aboriginal Torres Strait Islander commission that was disbanded by the government that I was part of with the support of the labor party because it was an abysmal founder and was being led by people who were behaving very very badly so I think the question out of that is that surely it's important that we see precisely what is proposed here and actually pilot it before we were to think about guaranteeing its survival in perpetuity yeah yeah it could certainly be introduced by legislation I mean I think when we think about it in a systematic way there are three ways this can happen one can come about through self-organization and I think that's what you're alluding to at the beginning that you know the farmers Federation or Trade union or any other group of Australian citizens who have a certain Identity or common set of interests can organize and self-organize to represent themselves and make representations and I think an argument could be made that they are the most effective because it's not like it it involves the initiative of the people involved they put the work into organizing they put their effort into having an impact and it's a very different thing to set up by legislation or by the Constitution a set of bodies to enable a certain group to have a say in the governance of the country it it has a different effect on the Wayne which that group will operate um and so I think one of the questions that really needs to be asked is is it better to be self-organized or to have government organize you I think that's a very important question here and then even if it is to be a government sort of organization you're saying and I agree that there are two different ways you can approach it you can set up legislation and as it were pilot the system and see how it operates and see whether it's successful and Tinker at it and then the third alternative is that you could try to put it into the Constitution which is being proposed um I I tend to think that the reason why it's being proposed constitutionally is due to a path dependency and not simply a reflection on what would be the best way to achieve these objectives because for the last three decades or so there's been debate about how to recognize indigenous people in the Constitution it's been proposed that they've been recognized in the Preamble there was a referendum to introduce a new Preamble in 1999 but that failed and then some people said understandably indigenous people said look a preamble would be merely symbolic it wouldn't change things and that's not really adequate a second sort of proposal was to change the way the Constitution empowers the federal Parliament to legislate because it does have a power in the Constitution to make special laws for the people of any particular race it's deemed necessary to make laws for including indigenous people and there's a lot of federal legislation that relies on that head of legislative power to make those laws and so there were proposals about whether that should be changed to make sure that it could only be used for the benefit of the people of a particular race and not to repress them or to suppress them or oppress them and alternatively it was it was thought perhaps something Constitution needs to be changed to put in a right that would prevent the parliament from making a law that was discriminatory on the basis of race but the concern that was expressed about that is that it would enable the judges unelected to make judgments about legislation passed by a democratically elected legislature about whether this really was beneficial and discriminate or discriminatory or not and so that in a sense lost way and people thought that's not the appropriate way to recognize indigenous people and so the question is well how should they be recognized a sort of sense that they should be but how and this is where the voice idea came up that this would be an another way to recognize indigenous people by giving them as it said a voice but I think it's because of that path dependency that that question we want to recognize indigenous people we need to find some way to do it that the voice is being proposed for the Constitution whereas I think if we had resolved the question of in recognition in the Constitution say we had put something in the Preamble and say people had been become settled about that that was an appropriate thing to do then the debate about the voice might not have been so constitutional and it might have been more about asking how can indigenous people have a say in their own self-governance and it would go back to those first two ways of approaching it rather than the Constitutional one well it's very interesting set of insights there let's uh just park for a moment a further question or two about the Constitution and talk about the the euleru statement from the heart yes what's the relationship between the proposed voice and the eulerary statement from the heart what is it and keep in mind that the Prime Minister says he committed to it in full yeah so the the ulery statement from the heart is the document that expresses this desire for an indigenous voice to be recognized in the Constitution and established by the Constitution but it's a more complex document that that it it is a document prepared by a large group of people representing indigenous peoples of Australia and it expresses a desire to have recognized not just a voice but the indigenous Nations themselves and their traditional connection with the land of Australia and even speaks in the language of sovereignty the sovereignty of those indigenous peoples over these lands and speaks of the calls for um are coming together of indigenous and non-indigenous Australians and a process but whereby a treaty or treaties would be negotiated between indigenous Nations and the Australian governments which is it one treaty or is it 600 treaties or somewhere in between it's a very good question because there are as you say so many different indigenous communities each of them in one sense a separate nation and so many different governments in Australia as well so it's an open question around exactly how many treaties that would that idea would would lead to um and so in the Uluru statement the indigenous voice is seen as the first step towards establishing those treaties as well so if the proposal were to be carried at a referendum and we don't know the answer to that it might not be if it was and if legislation was enacted to establish the voice one would expect that there would be many indigenous people that would be pressing that the first item on the agenda would be a treaty the Prime Minister has said he commits in full yeah so we need to be absolutely clear the prime minister's intent is that we should move to a treaty all treaties plural and it's another area where with respect I just have to say we do not know what the proposal might look like we don't know whether it would lead to endless disagreements between Aboriginal people because I've seen so much of that yeah I've seen so much of it and it's a tragedy because it holds them back it doesn't Advance anybody we don't know whether it would lead to calls for reparations because it has in other parts of the world um and one aspect of it is that they've never seeded uh the other statement from the heart says um sovereignty meaning it was never recognized because it wasn't I think that's fair to say and they feel they've never seated it but what in their mind do they mean by sovereignty yeah it it's not fully defined in the Uluru statement there are words to this effect that it's it's a spiritual notion what does that mean I think it's a reflection or an illusion too indigenous understandings of the relationship between those indigenous Nations and the land itself which I'm really not competent to explain or even understand in at any length myself and it's interesting the use of the word sovereignty because in in Western and European and even International context the word sovereignty is a term that's used to designate the authority of a nation-state and those nation states are the only entities that international law that can enter into treaties so there's a very close relationship with international law between sovereignty and treaty um however when one speaks of say indigenous sovereignty as a concept or an indigenous treaty as a concept the question is are you talking about treaty and sovereignty in the same sense or are you talking about it in what might be called a more domestic sense and what is the relationship then between that it's that sovereignty in that treaty to the Constitution itself and I suspect that that's what drives some debate within indigenous people among indigenous peoples it's about whether the voice should come first and then a treaty or whether a treaty should come first and then the voice because if you put the voice into the Constitution it is a recognition that it has to be put into the Constitution it's not the other way around that the treaty is the framework within which The Constitution's understood and then the voice is understood it's rather that the constitution is the context in which the voice is understood and I I I suspect that that is one of the driving reasons for that debate amongst indigenous people about whether to support the voice or not and whether a treaty should be the pathway or whether the voice should be the pathway see my great fear is that the idea of a treaty would be driven by Elites purporting to represent Aboriginal people whereas in reality they are this is not to denigrate Aboriginal people in their communities at all though a very diverse and in some ways to not respect that diverse a will lead to Strife but B could be very disrespectful to a lot of smaller communities so in a practical sense I'm deeply worried by that that problem uh and it seems to me too that depending on the nature of a treaty what you'd be doing what many people would be doing would be signing something that said we're an autonomous people at the same time is in fact to be utterly realistic about it now we can't live as Islands in in this country Australia we are Australians together so a new the Aboriginal community that is heavily dependent upon the support of the broader Australian taxpayer how does it work for them to have an independent treaty and establish their own National sovereignty does it indicate a desire to withdraw all together and have their own lifestyle and substitute for the normal systems of governments and commerce that we have these things are not being explained or explored in any way that's meaningful to the Australian people yeah yeah one of the things that I often observe I'm very attentive to in constitutional law is when the singular is used and when the plural is used uh because it makes a big difference to say that say the United States United plural states that would be an example and it's interesting that our Parliament the first house of our parliam is called the House of Representatives in the plural which underscores this idea that it's a singular house but it consists of a plurality of representation of many localities and doesn't imply that it has a singularity of will right in terms of its underlying composition certainly there are voting systems the voting system within then concentrates that towards a position that the majority support by way of legislation whereas and and so it is it is interesting to me that the expression to be proposed to put in the constitution is the indigenous force in the singular although the reports are suggesting that there would be many voices in the plural but one has always to reflect on the fact that such is human nature in any organization that there are always many voices and always many opinions at stake and so the question will always be as a matter of politics like politics Will inhabit The Voice absolutely and there will be differences of opinion and and so if it is established there would be differences of opinion you might say healthy differences of opinion um but one shouldn't then make the mistake of thinking of it as being in the singular other than as a result of voting within the decision-making processes and so that's a point of detail that's very relevant is for any organization any institution that makes decisions what are its decision-making rules because those decision-making rules shape the Dynamics of the of the institution so if it if the system requires a simple majority vote on the house in the house then you know that it's that 50 plus one that putting aside the speakers casting vote will determine the outcome but in some decisions we say there must be an absolute majority which is a majority of all the people entitled about not just everybody who happens to turn up and then on some issues we say we want even higher proportions of votes because we think we need a larger consensus at least some constitutions do that and why do they do that because on some issues they feel like you need wider consensus in decision making is that just to interrupt for a moment yeah surely that's reflected in the fact that in Australia to win it changes the Constitution you have to have a majority of people in a majority of States that's right so it's not just a simple majority of Australian people that's right you need a higher test yeah for fear of upsetting National Harmony because that's the thinking yeah and to recognize that each of the states entered the Federation as an independent self-governing community and so is respected as such even in the process whereby the Constitution could be changed and it effectively means that you need majorities in four of the Australian States in order to change the Constitution which will apply to the referendum proposal as well and so the question would be how will decisions be made in the Indigenous voice noticing that there are many voices and many representatives both at a national level Regional and even a local level and that picks up the point that you were making that because we're speaking of a degree to which it's giving voice to indigenous people who live by indigenous Traditions those Traditions themselves which could vary from one locality to another to an extent are going to shape the way the voice will operate and so some thought needs to be given to understanding that so that Australian voters know what that might mean in practice and I don't know that that's fully has been discussed in the in the report by Professor Langton and Tom calmer there is some discussion of uh the idea that the composition of the local uh voices would be based on communal sort of ideas and not necessarily simply on voting in the way that I suppose we're accustomed to in terms of the Australian political system and electoral system where each individual has a vote and we count the votes and the majority determines who gets elected to the parliament so there'll be questions a lot of questions of detail about exactly how that works and whether each Small Voice decides for itself but that always there was a chicken and an egg question there about you know you say okay this organization will decide for itself how it will make its decisions but you have to make a decision about how you're going to make the decision in the first place and so this is where another type of path dependency always kicks in the decisions that are made right at the beginning of the establishment of an institution really lay down The rules that will shape the way it can develop in the future if you say that we're going to make decisions by consensus right from the beginning then you sort of lock in that expectation and requirement of consensus for decision making going forward whereas if you set the bar Lower and say we're just going to have a simple majority make decisions it makes the organization much easier much easier for the organization to make the decision but then what it means is that 50 plus one can always get their way and the 49 percent will always lose or at large large minorities can sometimes just get worked out of the process and not genuinely represented in the in the process and we sense that you need both in some sense in a good operating system you need majorities to make decisive decisions but then you need wider consensus to maintain that wider support in the community and not have large minorities excluded from the decision-making process or effectively not getting their way and that applies politically to the system as a whole in Australia but it will apply to the voice at all of these levels that sort of sorting out of human decision making is going to have to occur but for me everything you've just said I understand but it raises the reality we haven't been told enough to have an informed debate about how to work and I just noticed the other day a quite fascinating remark from former prime minister Malcolm Turnbull who was when prime minister strongly opposed said this will be a third chamber in the parliament is now one census reluctantly saying he'd support it but he said this only a couple of weeks ago so I think the government is sort of stuck with the position they're in and there's a very sincere calculated intelligent informed view among the yes campaign that the more detail you have the more likely it is that it'll go down I have an immense problem with that that is to effectively say that you should not allow the punters to have too much information about this because it's not what they think it is yeah and they'll vote against it yeah yeah I I think it's memories of what happened with the Republic referendum that may even be affecting Mr Turnbull but or anybody asking you know how do you get a constitutional referendum up I think there's this few that could be taken that the Republic referendum failed because there was so much detail and because people knew exactly what was being proposed and could see how it would work and you had a divided electorate between three groups you had the monarchists on one hand who just didn't want a republic you had those who wanted a republic where you would directly elect the president and you had a more minimal Republic that would maintain our parliamentary system and just really have some sort of a head of state who wasn't the queen but was an Australian operating and but that split the vote three ways but part of the issue lay in the fact that these were very well worked out models people could understand very specifically what they meant and enough people didn't like the model that was being proposed in all of its detail and so people reflecting on that said you know going forward if they were Republican if they wanted to see a republic come up they were proposing that the first question should be asked do you want a republic without details try to establish the principle that a majority want to Republic and then debate the detail about what sort of Republic now I think there's a similar line of reasoning occurring with the voice the idea being get in principal support for divorce from a majority and then debate the details now you can understand why people who want the voice will think that that is going to be an effective means to achieve the goal but what I find really striking is having studied really closely the making of the Australian Constitution was the detail to which the framers of the Constitution went like we often talk about the American making the American Constitution as a wonderful example but the convention at Philadelphia was held behind closed doors and the delegates were sworn to secrecy and the public didn't know what they were debating or arguing it was only later that it was all revealed what they were saying amongst themselves whereas in Australia we had an open debate we had delegates elected directly by the voters in the second Convention held in 1897-98 in each of the states except for Queensland that didn't go and and the convention was held publicly there was a Hansard record of the debates and the Australian Community had this opportunity and the people in the different colonies to know exactly what's being proposed but the Statesmen who led the process of federating recognized we need to take the full picture to the people and convince the people on the merits of the case that this was the appropriate model to Federate on now they could have taken the approach of no we won't take the detail to the people we'll just give them a more vague idea about a sort of federation and say we'll sort out the details they didn't take that approach and it's actually one of the reasons why I think our constitution has been so successful is that it has profoundly deep roots of consensus across the country because it was such an open process and voters in each of the colonies had a say and yes there were some points on which they couldn't agree and they left things open I mean inevitably it's a question of degree about how much detail and how much not but they were prepared to put forward a very detailed model the entire Constitution Act see in Canada when they made their constitution really what the people got a chance to vote on was a set of General resolutions that described the general principles now there were 72 resolutions I think if I recall correctly so quite a lot of detail but still resolutions the Australians had the actual act that was going to be enacted by the British Parliament with all of its detail and so when Australians voted on whether they wanted to Federate they looked at the act and said yes or no we want to Federate on that basis and that deep consensus that was the foundation of the Constitution going back to your initial question is one of the deep reasons why I think we've been such a stable democracy and that's a contrast with what's being proposed here with the voice it has to be said uh and and I should State very I mean I think people many will know that my position is that we should be extraordinarily reluctant to change the Constitution it should be totally blind to where you live in Australia your gender your age your wealth your position in the land or the color of your skin so to put it there that's that's I have a real problem there and in as much as there are a couple of very modest race post Provisions in the Constitution now I personally would rather we had perhaps even a new Constitutional Convention of some sort and sought to remove them because I just think critical to the principle of a really flourishing democracy is that we are obliged to fully recognize the equal equality of all Australians no one's Above the Law no one's below it no one's left behind in the Constitution no one has a privileged position so I'm not against recognition but that's where I come from constitutionally tell us what in your view would be the Machinery of changing the Constitution here because that's sounding incredibly complicated that even if you got approval from Australian people to change the Constitution you've got the exhaustive business then of Designing the model and then making it work can you work us through the Machinery of how that might happen yeah well I mean to begin with in terms of amending the car I could separate it into the making amending the Constitution and then the legislative framework which I think was the more focus of your question but you know just to underscore any proposal to change the Constitution has to be passed by the parliament in the first place and then it has to be put to the people in a referendum and you need to get the support of a majority of Voters across Australia as well as a majority of Voters in a majority of states and if you get that success at the referendum then by force of that process it will enter into it'll be put into the Constitution but then the second part of your question is well what would be the legislative process and all I can say is that it would be the ordinary process of law making so that means that parliamentary Council or perhaps a special committee or perhaps even an external committee could be formed to come up with draft ideas about exactly what it would look like you wonder what processes of consultation would go on through that process um in terms of the detail the legislative detail for establishing the voices because it is a probably is going to be a plurality for voices and then that has to go back to the Parliament and has to be passed by both houses of the parliament and so it itself will be subject to the normal vicitudes of parliamentary debate and we know that you know the House of Representatives has a very different political complexion to the Senate and you know a law ordinarily has to be passed by both houses unless there's a prolonged deadlock between them and there are processes or procedures rarely used to try and break the deadlock so which locked the country up in gridlock can do time to time can do that's right and that the the framers of the Constitution did put in a deadlock breaking mechanism but it's only very rarely used and uh is very I suppose you can say it's cumbersome it's quite time consuming and it takes the cycle of more than one Parliament to achieve you have to have a effectively an election in between to get the people to Express their view about about the policy or the proposed law so yeah it seems to me that just in in a very sketchy sort of way the process would involve all of those steps to introduce a new voice or voices and then once the legislation is enacted then you have a whole lot of administrative work that would have to be done to to to to actually make it happen in practice um you would you would probably need a government agency or Department to oversee it you would probably need to like there's a whole budgetary side to all of this of course too because to what extent will The Voice or the voices be received Public Funding how much will that Public Funding will be how will it will be determined will it be guaranteed or will it be subject to constant renewal or reassessment those sorts of things so there's a lot of a lot of detail to be worked out it's going to be uh if it if it is proposed it's going to take a long time to actually put it into practice can I ask you some of the detail as you perceive it to be that's not settled one of the biggest issues has emerged would the voice be to the parliament or to the executive and the yes Camp is giving conflicting answers on that it seems to be quite apparent that there are those in the yes Camp who are saying yes it should be able to speak of the executive government they're saying others saying no that's too far in the the subplot seems to be the subtext is that will get rejected by the Australian people yeah yeah what's the difference in in your language as a constitutional lawyer and why does it matter it's a really important distinction so what the Prime Minister has proposed in the language that he's presented to the Australian people is that the voice will make representations to both the Parliament and the executive government so that's what is literally on the table at the moment and there's a lot of debate about that that very question as you've pointed out so the idea of making representations to the parliament as such uh would would involve the idea that The Voice or the voices would make representations probably in writing but there's also the question about whether sometimes represent representations can be made orally as well in meetings or in presentations but one way or another and you know ordinarily probably in writing to the Parliament and you could imagine that representation would be tabled in Parliament and that way become part of the official record of the parliament and every Member of Parliament would read it and have an opportunity to reflect on it and if it was a submission about you know a particular proposed legislation or whether it was about a treaty it would have an impact on that process of deliberation about making laws and even about the exercise of executive power a representation to the executive government is a different thing the cop it's very interesting I was very struck The Moment I Saw the word executive government in the prime minister's proposal because that's the phrase that's used to designate the second chapter of the Constitution our constitution consists of several chapters in chapters one two and three deal with the parliament the executive government and the Judiciary so the second chapter is about the executive government and so therefore the term executive government is a very large concept technically it includes everything from the King to the governor general and the Prime Minister and the cabinet and the ministers and the government departments and all of the civil servants that collectively is the executive government one of the interesting and open questions is whether it's ordered backbenches who have no actual role not not as such as a cabinet minister or a minister that's right the distinction that that some people might not be aware of yes that is an important distinction that's exactly right and but then the interesting question is whether it includes government agencies um statutory agencies statutory corporations because in a sense they are arms of the executive in a in a looser or more diffuse sense but they're established by legislation one of the ways in which and this is to get a little technical is chapter two is about the executive government and about executive power and executive power is a technical concept like legislative power it's the power to administer the law it's the power to like run a department or administer a policy it's even the power that the police exercise in their daily duties it's the it's a power that any civil servant is exercising when they make a decision about whether you're entitled to an unemployment benefit or not or all of those sorts of decisions so the interesting question would be how deep does it go in terms of these agencies because there are many many quasi-government agencies that are established by Statute that perform governmental functions or quasi-government functions like the Australian law Reform Commission the Australian Human Rights Commission the Australian Museum the war memorial the the ABC now I'm not saying that they would necessarily be seen as part of the executive government as ordinarily understood but they're borderline questions about which I can just foresee um questions being raised isn't this where there's concern about the law interfering you know these things being justiciable justiceable um so for example uh Greg Craven on the yes committee has said if this isn't properly designed and they have the right to advise say the cabinet or the National Security Committee of cabinets plainly part of the executive government and given that they have a right that cabinet or the National Security committee would have an obligation to seek the views I think that's right yeah so it could be said it could be tested at law and it would be yeah let's face it it would be tested yeah and he Paints the example of a a of a National Emergency a war and the need to suddenly declare that such and such an area in the Northern Territory was going to be laid down for an airport to land bombers on or war players but the emergency is such that the voice is not consulted yes the voice goes to the high court yes an injunction is granted when the rest of the country might be screaming we're in grave danger and just get on with it in the way that they can now nobody else has them the ability to stop NSC yeah the Australian electors can throw out the government get rid of the NSC at an election but nobody else would have the right I wouldn't have thought or have any real chance of going to the high court saying in a National Emergency the NSC has been overruled yeah and and and and should be pulled back into line yeah is this where this this Hub of deep concern about it having a voice to the executive government could almost be limited in terms of the things that yeah Unlimited in terms of the things that could be taken to the courts and that doesn't fit with the reassurances that this is only a modest proposal that will not change the way we're governed look I think there's a probably three or four points to make to try and answer that question because quite complex to unpack so one of them is that Professor Langton and Tom calmer have proposed in their report that the the indigenous voice would effectively have the not only the right to make representations but that governments would have a duty to consult with it yes particularly when the matter just overwhelmingly and clearly involved indigenous peoples so depending on the language of the legislation or depending on the way the high court interprets even the Constitution there could be the proposition that there is a duty to consult now what that Duty would then involve is an interesting question because there are overseas precedents not in an indigenous context but where governments have duties to consult about what real and proper consultation entails because there's cases that have suggested from South Africa and Canada and in the UK that that the necessary consultation involves giving the body all of the information it needs in order to make a representation in an informed Manner and one of the cases has gone so far as to say that you need to present to the body what you're proposing to do when the reasons for it the Alternatives that you considered and why you haven't chosen them so that the body can read those and be fully informed when making its representations on those matters so a duty to consult if it was legislated or inferred from the Constitutional language to be implied that would be a longer bow but either way then could have those implications separate from that is a well-established principle of Australian administrative law and that is that when an administrative decision maker that's the executive government makes a decision they are under law obliged to take everything that's relevant into consideration whatever is relevant to that decision and they're also under an obligation not to take into into consideration things that are irrelevant strictly so and a person affected by that decision can initiate legal proceedings when they believe that relevant matters have not been considered or irrelevant matters have been considered and if they can convince the court that that's the case the court will order the decision maker to go back and make the decision again and take into consideration what they should have and it does seem to me quite likely that a constitutional provision that said that the voice has this function of making representations in itself would lead to that inference and legislation enacting that and put into effect would further create that inference and so I think that's why Professor Craven is saying what he's saying is that once you have that principle in play it would be possible for a say a member of The Voice or someone representing the voice as it were to bring an action in the courts if they believed that government had proceeded without consultating consulting Consulting them or a representation had been made but it hadn't been properly considered and there's like hundreds thousands of ordinary decisions of of our courts putting into practice to practice and I think there's Beyond doubt that that sort of principle would apply to the voice now whether it would happen in the way that Professor Craven is specifically I'm outlining there Perhaps Perhaps not you know I could imagine the court taking the view that um the the very emergency nature of the situation particularly exercising powers under the defense power might be seen as exceptional but the general principle of this capacity to require decision makers to go back and make the decision again is a well-established principle that I think is clearly going to apply if the voice is carried so to go back to my proposition I made the comment that I I really struggled with the idea of inserting anything into the Constitution that provide special benefits to any individual grouping of Australians to be fair we need to ask a question Marcy Langdon has said that the constitution is a racist document what would be the basis of that claim because I've always thought of it as a dry and Dusty document that that is not racist despite making a couple of modest Provisions for the looking after by the Commonwealth making laws by the Commonwealth for Aboriginal people on what basis might it be seen as a cons as a racist document yeah I mean it's partly a complex question but in another sense it's a simple answer to it I think on the face of the document it's not racist because it doesn't on the whole draw distinctions between people on the basis of race and Accord special rights to some because of their race at all or place special detriments on people because of their race it doesn't work that way it it presupposes that we all are citizens and that we're equal citizens and therefore we all have an equal opportunity to be involved in politics and become members of part will nominate for election to Parliament or voting in elections and all of those things so in that sense it's it I don't think it is at all racist it's it's in that sense it's people sometimes say it's colorblind um there are some I mean there is the Race's power so there's a power to make laws for the people of any particular race um but it it ha the high quarters come very close to deciding hasn't actually finally decided that that can only be used for the benefit of indigenous people um or the people of any particular race I mean it could be argued that even having that clause in the constitution is inappropriate because it's it's not quite consistent of common citizenship yeah and my position that we ought to have a look at those things explicitly say this is a completely colorblind that's right completely totally so there's another provision in the Constitution that says that um in situations where people of a particular race um are excluded from voting they aren't counted for working out the populations of the different states when working out some of the more mechanical decisions that have to be made about representation and the referendum process under Section I'm 128. and that seems racist in a sense but actually what it does is it creates an incentive not to exclude people from voting because if the state of New South Wales was to exclude the people of a particular race from voting then its numbers would be reduced by that amount and therefore its representation in the parliament would be reduced by that amount which would weaken its voice in in the federal Parliament and so even though that on its face looks like it has a racial sword and it is racial it has that incentive effect of trying to of undermining racially discriminatory laws by the states yeah now my height could be cleaned up now too I think that could definitely be cleaned up yeah and I think it should be because I don't think it's necessary and I don't think in principle it's a good thing for the Constitution to be drawing distinctions on the basis of race and at the high court it's been very clear about this and increasingly clear about it that the constitution is premised on an idea about Universal citizenship for all Australians without distinctions on the basis of sex or race for example um to move on a little from this then there are countries that have established treaties as we know particularly Canada and New Zealand there's a couple of questions that arise out of that firstly to observe that in the case of New Zealand you had a much more recognizable form of government the treaty that was signed there was not actually with all of the people of New Zealand that's often overlooked and it was only possible after the missionaries had set up schools right across New Zealand and a language emerged an understanding language and writing emerged so you can actually write out a constitution a a a treaty so there are particular circumstances that did not pertain here that needs to be remembered it's not an argument against the treaty so much as to say try and understand why there wasn't one struck initially there were all sorts of there were very good reasons why it couldn't be done even if they look unfortunate now in the context of the times we need to be careful about judging those who went before us but more generally what what constitutional Arrangements have been put in place in Canada well firstly has it amounted to drift towards co-governance and secondly how's it been allowed for constitutionally in those two countries I think you'd have to ask some Specialists about those sorts of questions I'm not on top of that in a lot of detail but I think it does tend to move towards co-governance because it provides Foundation upon which indigenous peoples have in the terms of the treaty or the implications of the treaty establishedly they're recognized as such as as governing partner Partners in government and in fact some of the Australian reports have proposed that the voice itself would involve a sort of model of co-governance in a certain sort of sense of the word when it when the when the subject matter of government policy was the indigenous Affairs in some way or another what's actually interesting is I I've argued that the reason one of the reasons why New Zealand never joined the Australian Federation was that treaty because when the Australian colonies were looking at federating New Zealand was really a real possible um yes party today they participated in one of the earlier that's right official conventions that's right and a lot of people say oh well it was distance but Perth was just as far away from the Eastern Seaport as as Auckland was um and one of the thought things that really occurs to me when you look really closely at the debates is that New Zealand had actually developed more rapidly than the Australian colonies because it wasn't just the significance of the uh the treaty wasn't just that the indigenous or the Maori um entered the treaty but was that the um the New Zealand Governor itself through the crown was able to itself enter into a treaty none of the Australian colonies had ever entered into any treaties either they weren't able to do it so it sort of was about it the immaturity or immaturity of both the colonies as well as the place of the indigenous people that sort of shapes these these sorts of things which underscores the extent to which we have to understand these our constitution in evolutionary terms and since we've got to understand that the Constitution evolves very gradually on the basis of the principles that are already established within it and that creates as I've said too many times probably to you a certain path dependency of of the way the steps that you take then have knock-on effects going forward um so I mean I would even go so far as to say that where the voice is inserted into the Constitution will make a difference because if it's put into a chapter on its own it structurally gives it a significance that it wouldn't otherwise have because at the moment we have another institution called the interstate commission referred to in section 101 of the Constitution but not in its own chapter and in quite emphatic terms is meant to be an interstate commission doesn't exist has existed but it's not in its own chapter because when the when you look at the chapters of the Constitution they reflect the important institutions of the Constitution that's why chapter one is about the parliament chapter two is about the executive government and chapter three is about the courts and then we have a separate chapter about the states because they are the four important institutions as it were and so when you put an institution into its own chapter you're elevating it to a status that's similar to those other institutions even if its functions are different so and once it's going back to a comments you made earlier you know would the voice be a fourth chamber or sorry a third chamber of the parliament now I don't think it would be a third chamber in the strict sense of the word because the Malcolm Turnbull said that yeah that's right and I I don't think it would be a third chamber in the strict sense of the word because you have the two houses of Parliament that have to legislate and the voice is not given legislative power per se what it's given though is an authority to make representations and that has its own special Dynamic it's a unique capacity but it's a capacity and it's capacity different to making laws it's a capacity different to executing the laws it's a capacity different to what judges do when they decide disputes but it still is a function in and of itself that's very significant that's designed to if it's approved by the people shape legislation and shape executive government policy insofar as it relates to indigenous peoples so I think that's the best way to try to understand it and it will be significant if it's proposed that it goes into its own chapter as opposed to a section on its own because the structure of the Constitution is also part of its meaning and the high court has said that that's a very interesting observation you make about a body that's mentioned in the Constitution and simply doesn't exist anymore it's just been allowed to fade out gently and I don't think anybody's going to go to the high court and say bring back the commission not likely to happen it roses though for me something in my mind that when I was a minister from time to time you'd set bodies up and you'd put Sunset Clauses in or you'd time limit them surely the whole objective of the voice is to ensure that all Aboriginal people enjoy the same opportunities the same Privileges and so forth and I think that's what the Constitution essentially provides for and should provide for no more no less but if it's trying to address disadvantage surely the idea is to address the disadvantage until it's gone in which case the voice is no longer needed and one of the worries I have is you see activists everywhere who will use every lever available and particularly in a victimhood culture where they will try and keep people in victim or they've almost got an incentive to keep them victims or identified as victims so they can weaponize them in the pursuit of power and I have a worry that the whole idea of the voice should be that it should in effect achieve its purposes when it's no longer and then it's no longer needed it would no longer be needed yeah yeah and that that it's a very interesting contrast to the interstate Commission on couple of counts I mean one of the interesting things about the interstate commission Provisions is they have more detail than is being proposed for The Voice so if you have a look at section 101 it actually stipulates much more clearly what its composition will be and its powers and its functions in more detail and doesn't leave it to Parliament as much as what is being proposed and as you say I don't think anybody has wanted to bring an action to sort of force the government's hand to have an interstate commission although it'd be a very interesting thing if anybody ever did if they had standing to to bring the action the question might be standing whereas with an indigenous voice it's pretty clear that an indigenous person probably would have standing to force the hand of the government to introduce legislation to enact a law to maintain the voice so that once you put it into the Constitution it probably will have a permanency to it for those reasons and then the question is yeah you're doing it permanently the only way to remove it is another constitutional referendum and so the question the Australian people have to ask is well what is the purpose of The Voice and for those who take the view that its purpose is to redress the issues that indigenous people face to try to ensure that government policy helps indigenous people to overcome their problems the problems that exist amongst some indigenous communities then the purpose if that is achieved that you know the purpose has come to an end and so but then the question would be whether other people have other purposes for it um and I suppose your observation just picks up something that I that I said before and that is um about pluralities and singularities you know that the expression The Voice implies one voice but real politics is always about many contested voices and many different representatives and so the very nature of the voice is just like the parliament it's not a you know it's this is a knock down criticism of the voice it's just an observation about the nature of the parliament as well as the voice it will be political like will political parties um seek to influence the voice and will the voice say to it well it obviously it will obviously do that but what will happen within the internal politics of the voice as well to what extent will parties develop or factions or sections the Constitution does not provide for political parties no it doesn't they have Arisen that's right there are there's something of a natural consequence of democratic politics there's a lot of science political science literature about discussing that very fascinating thing but that also goes back to decisions you make about how you design an institution because the party system in Australia is very different from in America it was very different from in Germany why largely because of the Electoral systems and the political system so that the American system drives towards just two parties that simply dominate the German system say for example drives to many many parties that have to form coalitions the Australian system is somewhere in between where we have a tendency for two parties to dominate but not quite the same as the American where we will have other minor parties that are significant in the mix so we're somewhere in between the two systems so one would have to in terms of the way in which any voice would operate at any of these levels it would be a function of partly the decision-making processes that they adopt at each level and partly about the underlying culture Traditions Customs that then shape the behavior within those institutions and I mean that that's an open question of about exactly how it will work but my point is how you set up an institution has a large effect on actually how it will operate and that you can see systemic effects of certain sorts of decision-making rules have shaped the way the politics Works within an institution finally something else that's troubling me presumably the references in the Constitution to The Voice work to succeed would not actually specify in the way that the constitution does a lot of other things who was entitled to be part of the mechanism of the voice yeah yeah that would be in the legislation yeah but I think it's incredibly important to say for Aboriginal people as much as for non-aboriginal people yeah who is represented by the voice yeah yeah because depending on how it unfolds you may very well have a lot of people who feel they don't want to be represented by the voice you might have a lot of people who shouldn't be represented by the voice but think there might be advantages in being represented by it these are all very important questions I mean we have very detailed answers to the question who has the right to vote in Australia like we we have clear rules so that we know who has the right to vote and who doesn't because the Integrity of the Electoral role and the Integrity of the electoral system depends on that Clarity and when you have breaches of those principles in one way or another through electoral fraud it is not good for the system at all and the same thing has to apply to any indigenous voice that it has to have very clear and crisp rules about who the who the voice represents and how it comes about that they represent indigenous peoples at a national or a regional or a local level because if you don't have Clarity around that then the rules are not clear and the Integrity of the institution will be undermined so a lot of thought has to be given to precisely that question I'm not sure that it's been fully articulated there are many people in fact broadly speaking I'm one of them who says the Aboriginal people have asked for recognition of their long history in this country and who are good you know good-naturedly sort of considering that it just seems to me it's a whole new ball game now to propose something that's unknown be instituted in the OR uncertainty of the Constitution but the preamble is a different matter if you had a formal words there that recognized their history their occupation of the lands for many years then went on to say somehow or other that we now all come together as one people with the formal part of the Constitution any comments from your perspective on that line of thinking yeah well the first observation is that several of the state constitutions have done that in their preambles I recognized Australia's indigenous history yes they have uh and I mean I suppose it's a reflection of the the extent to which we don't pay attention to the states in a way that maybe we should sometimes because the state constantly plead guilty um well it's it's it's something that I suppose any constitutional lawyer like me needs to know about but it's very significant yeah because um our state governments are very powerful and significant as we saw in the middle of covert didn't we so there's no doubt about no doubt about that I think the other thing is important to say is that preambles are very different from the main body of a constitution because the main body of a Constitution contains Provisions that create institutions establish them which confer powers on those institutions or place limits on those powers and protect freedoms and Liberties or rights and so those sorts of provisions are the effective material of the Constitution and it's those Provisions that governments and parliaments and judges as well must abide by and if they fail to you can take proceedings to a court the high court ultimately to ensure that those rules are followed a preamble is very different from that it doesn't contain Powers institutions rights controls on power or anything like that it contains usually a recitation of relevant history a recitation sometimes of relevant principles and that's about what it does and so for that reason a preamble is not something directly enforced by the courts you can't say well government you or Parliament you have failed to abide by the Preamble I'm taking action in the court to force you to follow what the Preamble says preambles do have an effect on interpretation though because the Constitution as a document has to be understood by reference to its history and by reference to its underlying principles and so the courts do take cognizance of what's set in a preamble to to um to shape the interpretation of the Constitution but only in a very general sense one has to be careful about what one puts into a preamble uh the preambles of the Constitutions of the world are of a great variety and some of them probably go too far in all of the detail they put in but the Australian Constitution is like the preamble to the Australian Constitution like the Constitution as a whole is careful about what it says and clear about the principles that it's articulating and it would be possible to insert in principle some recognition of Australia's indigenous history as part of the story of the nation which would be due recognition of that history I think that would be a good thing that happened but it wouldn't have the same sort of effect of inserting something into the working document which would be enforceable by the courts it's very big difference between the two it's my genuine belief then I have to say this that the Australian people are entitled to know exactly what this is I would also say they have a responsibility to involve themselves in the debate before they vote because it could have enormous ramifications for the country and there are a lot of Aboriginal people including five outstanding Aboriginal people on the recognizable way panel that I am serving with as well who do not support it so I just make that point to to people this is a serious issue in the sense that we do have to Grapple with those Aboriginal communities that are not doing it well uh and it's would be inhumane and unaustralian if I can use that term not to take it seriously but I do think when you start to play with the Constitution there is an absolute responsibility of on the part of those who propose change and those who have to consider it for the future of their country to know exactly what's involved yeah yeah thank you very much for your time pleasure really nice to be here thank you Joe [Music] [Music]

Channel: John Anderson

Views: 94,550

Keywords: John Anderson, John Anderson Conversation, Interview, John Anderson Interview, Policy debate, public policy, public debate, John Anderson Direct, Direct, Conversations

Id: cs4TMsSQnOI

Length: 85min 19sec (5119 seconds)

Published: Fri Mar 17 2023