The Voice Referendum and the Federal Division of Powers: A New Head of Commonwealth Legislative Power to Implement the Voice’s Representations?

Abstract

On Saturday October 14, 2023, the Australian people will vote in a referendum to amend the Australian Constitution to recognise Australia's Indigenous peoples and to establish an Aboriginal and Torres Strait Islander Voice to make representations to the Parliament and the Executive Government. The referendum has prompted widespread discussion. However, scant attention has been devoted to the potential ramifications of the proposed constitutional amendment on the distribution of powers between the Commonwealth and the States. Instead, focus has centred on the extent to which the Parliament will be able to regulate the Indigenous Voice’s functioning as a means of ensuring its democratic accountability. Notably absent is a close examination of whether the proposed constitutional amendment will confer a new and distinct power on the Parliament to make laws implementing representations made by the Voice. The Commonwealth presently has power to make laws with respect to ‘[t]he people of any race for whom it is deemed necessary to make special laws’ under s 51(xxvi), but this is not the same as a power to make laws with respect to ‘matters relating to the Aboriginal and Torres Strait Islander Voice’ under the proposed s 129(iii). Would this latter provision, if inserted into the Constitution, confer power to make laws implementing a representation made by the Voice, particularly if the representation was that the Parliament enact a law of a particular description or to achieve a certain legislative purpose in a specific way?

Part I of this paper considers the scope of the Voice’s representation-making function under the proposed s 129(ii) as a necessary reference point for the consideration of this question. Part II then develops and analyses potential arguments concerning the scope, nature and limits of the legislative power under s 129(iii). We find that it is reasonably arguable that the ‘double use of wide connecting language’ would confer a new power on the Commonwealth to enact legislation implementing representations of the Voice on matters relating to Indigenous peoples, irrespective of whether the legislation would otherwise fall within one of the Commonwealth’s existing heads of power. Part II also discusses whether the implied intergovernmental immunity doctrine protecting the States from undue Commonwealth interference would operate differently in relation to laws enacted by the Commonwealth under s 129(iii), particularly due to the absence of the qualifying phrase ‘for the peace, order, and good government of the Commonwealth’, which is used in ss 51 and 52 but is absent from the proposed s 129(iii). Finally, Part III compares the prospective legislative power that would be granted by s 129(iii) with the most relevant existing head of power, the 'race' power in s 51(xxvi) of the Constitution. We conclude that the power to legislate under s 129(iii) would not be limited to the enactment of ‘special laws’ as is required by the existing s 51(xxvi). Despite our reservations about this conclusion, we find that the proposed constitutional alteration has real potential to expand the Commonwealth’s legislative powers vis-à-vis the States.

Keywords: Constitutional referendum, Indigenous Voice, federal legislative power, federal balance, federalism