An innovative design idea for the Indigenous Voice to Parliament

 

                                We know what we are, but know not what we may be.

Hamlet Act 3, scene 4.

 

I have previously posted a number of times on aspects of the proposed Voice first outlined in the 2017 Uluru Statement from the Heart (indirectly link here and more directly link here). I recommend readers scan both those posts as they provide very useful background and I have not sought to traverse the ground they cover here.

 

A constitutionally enshrined Voice requires both a successful referendum and legislation to establish the Voice’s operations. A successful referendum to require a voice be established and operate can only be reversed by a future referendum. Legislation to establish such a Voice can be amended to either fine tune the initial design, or potentially to radically overhaul that initial design. The proposal below is directed to the design of the legislation and not to what would be included in the referendum question.

 

Nicholas Gruen has argued that there is a potential democratic dividend in making greater use of secret ballots within Parliament. In particular, he has argued (link here) that a panel of randomly chosen citizens should have the power to require a parliamentary vote to be retaken as a secret ballot. I recommend readers have a look at Gruen’s proposal. I find his argument persuasive and the idea attractive.

 

Thinking about it further, it struck me that the proposed Voice, and in particular the legislation establishing the design and operations of the Voice provides an ideal opportunity for the Gruen proposal to be road tested in the current parliamentary term in relation to just one of the numerous issues that Parliament deals with, namely, legislation which focusses substantially on Indigenous issues. More importantly, it would potentially provide a means by which Indigenous interests could be assured that their views have been considered and their voices heard by the whole Parliament.

 

In particular, the proposal advocated here is that the legislation establishing the Voice should include provision establishing a secret ballot mechanism that would require the Parliament to vote secretly (or revote secretly) on any proposal where a substantial majority of the Voice membership (themselves voting secretly) required such an action.

 

While I would hope and expect that the Voice will express views on mainstream legislation that impacts Indigenous citizens adversely, I would limit the operation of the secret ballot mechanism (at least initially) to Indigenous specific legislation such as the Native Title Act, the CATSI Act, the Northern Territory Aboriginal Land Rights Act, and any new legislation aimed directly at addressing Indigenous specific issues. Past examples would include the Howard Government’s 2007 legislation to impose the NT Intervention which passed with Labor support in the lead up to an election (a classic wedge strategy). Had that legislation been subject to a secret ballot, and bearing in mind that it included explicit provisions over-riding the operation of the Racial Discrimination Act, the possibility emerges that a majority of the then Parliament may well have refused to go along with the proposals emanating from the Howard Cabinet, and which were arguably not in the public interest.

 

One of the original objectives of the proponents of constitutional recognition was to address he potential for the so called races power in section 51(xxvi) of the Constitution to be used in ways which were not beneficial, and were adverse to the interests of Indigenous citizens (link here). Midway through the last decade, the Indigenous leadership on constitutional recognition were convinced by Liberal moderates that the likelihood of crafting a proposal to limit the operation of the race power to beneficial uses only would elicit opposition across the conservative political spectrum and make a successful referendum almost impossible. They went back to the drawing board and what emerged was the proposal for a Voice. In other words, the Voice is already a compromise proposal, and has been explicitly articulated as not amounting to a third chamber, and not seeking to threaten Parliamentary sovereignty.

 

The existence of a secret vote mechanism as part of the Voice would provide a means to allow individual parliamentarians to follow their conscience in the event that any attempt was made in the future to enact laws targeted negatively at Indigenous citizens. Such a mechanism would maintain the sovereignty of the Parliament. As Gruen points out, it is already used to elect the Speaker and President of the House and Senate. What it would constrain, but not necessarily veto, are the ‘sovereignty’ of political parties, their more extreme ideological views, and the influence of their unaccountable donors.

 

A Voice enshrined in the Constitution, with a legislative design that incorporates a mechanism to allow the Voice to require a secret ballot on Indigenous specific legislation (and regulations) would go a long way to signalling to distrustful First Nations that their concerns and aspirations will be considered by not just the political party or parties that control a majority in the Parliament, but by the whole Parliament. If the secret vote mechanism led to unintended consequences, it could be fine-tuned or even removed. 

It would comprise both a social justice breakthrough, lead to better policy focussed on the public interest (and not private interests or narrow political advantage) and strengthen our democratic system overall. It would also signal to the substantial and growing numbers of non-Indigenous Australians who are dissatisfied with the culture of politics today that our political leaders are seeking to respond and address the wider trust deficit which is undermining our democratic norms and culture.