The Yes camp won’t want Australians reading what follows: a new, explosive analysis of what the voice means for our Federation, released this week by a leading constitutional professor and prominent lawyer.
The contents of this 36-page paper by constitutional law professor Nicholas Aroney from the University of Queensland and lawyer Peter Congdon from Ashurst Lawyers should have been at the forefront of any discussion about the voice early on. It should have been thrashed out at constitutional conventions, debated by the lawyers, including by those in the Constitutional Expert Group, and others who have added their two bob’s worth to the constitutional consequences of the proposal to insert a new chapter into the Constitution establishing the Indigenous-only voice. …
With a week to go until referendum day, Aroney and Congdon have revealed the legal equivalent of an improvised explosive device in the wording of the proposed amendment to the Constitution.
Power grab by Canberra:
They argue, in careful detail, that the Albanese government’s proposed new chapter establishing a body called the voice could fundamentally alter the division of powers between the commonwealth and the states. This alteration to the Constitution could allow the commonwealth to expand its powers over areas currently the domain of state government responsibility. …
First, the proposed section 129 is a stand-alone new chapter. This, say the lawyers, “would accord the voice a structural prominence and constitutional status comparable to the parliament, the executive and the judicature”.
Second, the High Court is likely to lean to a broad interpretation of both section 129 (ii), the provision that vests power in the voice, and section 129(iii), the provision that vests power in the commonwealth. …
Nothing in the proposed section 129 (ii) limits the voice to making representations to areas over which the commonwealth has power in section 51 and 52. As Aroney and Congdon conclude, the wording of section 129 (ii) “is likely to encompass a very broad range of matters, including topics that are beyond the parliament’s existing legislative competence”.
In simple words, the proposed new section 129 creates a broad new head of commonwealth power not explicitly limited by specific areas of commonwealth responsibility set out in section 51 or 52.
This changes our federation. …
Examples of where Canberra could take over from the states include crime and land management:
The Uluru statement says “proportionally, Indigenous people are the most incarcerated people on the planet”. If the voice makes representations to executive government or federal parliament to raise the criminal age of responsibility to reduce rates of Indigenous incarceration, does this new head of commonwealth power in the proposed section 129 give the commonwealth power to encroach in an area currently the responsibility of states? … What if the voice suggests, and federal parliament one day agrees, to a higher age of criminal responsibility for Indigenous people only due the consequences of colonisation?
If the voice makes representations about land management issues affecting farmers and Indigenous people, could the commonwealth use this new head of power in section 129 to legislate a version of Western Australia’s cultural heritage laws?
What about voice representations concerning health and education that are currently the domain of state? What other areas could be used to justify a commonwealth takeover once there are representations by the voice? As one lawyer raised with me this week, this could be the Woodside entanglement on steroids.
Sections 51 and 52 of the Constitution enumerate Federal powers, thereby limiting Canberra’s reach. The Voice would appear to bypass those restrictions.