“If the Voice is not satisfied with the way it has been consulted, or a decision that is made, it could appeal to the courts. How long would this take?”
The genius of the No case is in its deceptive simplicity. Each debating point is crisp, clear and disturbing, designed to steer the unengaged majority towards the too-hard basket. This particular line of argument, that the Voice will cause a deluge of unproductive litigation, is getting a lot of traction.
The longer form of the argument follows this logic: if the referendum passes, the constitution will entrench the legal right of a new body, the Voice, to have a say on every law Parliament wants to make and every action the executive government wants to carry out. If the Voice doesn’t like any of that, it can go to the courts and challenge the validity of what’s been done. Result: as the No case says, a “risk of dysfunctional government. That is not good for Australia.”
The sleight of hand at play here is in the exploitation of a common misunderstanding about the role of the courts and their interaction with government decision-making. Compounding that is a smooth elision between executive action and parliamentary law-making, as if they’re the same thing and equally impacted by the Voice.
It’s worth a careful unpacking.
First, there is no prospect of litigation challenging the validity of laws made by Parliament on the basis that the Voice hasn’t been listened to. That kind of case wouldn’t get past first base.
The constitutional scheme (which provides the outer limits of the statutory design of the Voice) is unambiguous: the Voice’s function and power will be to “make representations” to Parliament (or the executive) about matters relating to Aboriginal and Torres Strait Islander peoples. That’s all.
If the Voice makes a representation about a law Parliament is considering, and Parliament ignores it, there will be no basis for a legal challenge. It would not be constitutionally invalid just because the Voice’s representations were not heard. The Voice will not be part of the parliamentary framework; it will be entirely external. It can make representations, and they can be discarded.
The real question is what happens when the Voice makes a representation to the executive arm of government, in relation to a decision of policy or administration. Say the Defence Department was contemplating building a military base on a site that is sacred to Aboriginal peoples. The Voice would have the power to say to the department “Please don’t do that — it would be an act of desecration.” And say the department went ahead anyway.
The decision to lay a runway over a sacred site would be one of policy. That is not a matter in which the courts will get involved, as it is not part of their function (assuming the statutory power to do the act exists). If the decision-makers received the Voice’s representations and considered them, but rejected them, the Voice would have no legal standing to challenge the decision.
The courts do have power to look at decisions of the executive, in a process called judicial review of administrative action. The executive’s powers are limited to what the law gives it, and its exercise of those powers is governed by a set of principles including procedural fairness and natural justice. The courts apply those principles when engaging in judicial review.
Critically, the courts can decide only whether or not the decision-making process was valid or flawed; they do not get to replace the executive’s decision with one of their preference. This is quite different from what happens in an appeal from one court’s judgment to a higher court. Judicial review is not about merit; it’s about process.
So if the Voice went to a court and said “They ignored our view and made the wrong decision,” the court would reply “That’s too bad.” The Voice would have exhausted its constitutional power, and the executive had no obligation to do what the Voice wanted.
If the department had thrown the letter it received from the Voice in the bin, unopened, there would then be a basis for challenge. That is because the executive’s action would subvert or undermine the constitutional scheme which provides that Voice should have a genuine say, in the sense that when it speaks it will be listened to. A refusal to do that would infect the validity of executive action because a critical step had been missed.
This isn’t all that hard to understand. The scheme of the Voice is that it will have substantive meaning, in that the Voice is empowered to speak, and government must listen. That is the whole journey; nothing comes after. What the Voice has said can be discarded, and there will be no recourse.
The claims of a tsunami of government-strangling litigation are not just exaggerated; they are false. As the former High Court chief justice Robert French said: “There is little or no scope for constitutional litigation.” Or Bret Walker SC, asked if there will be litigation to force anyone to accept what the Voice has said: “Nonsense. That will never happen.”
Stripped bare, that is the essence of the No case: nonsense.
I would like to see an article like this in the mainstream media and on the ABC, which seems terrified of it’s own shadow.
Inarguable………………
………..but it won’t make a blind bit of difference to the “NO” camp, because it won’t sell papers for He Who Must Not Be Named.
(Who should at least be named as an agent of foreign influence)
It’s partly about selling papers, or subscriptions, but it’s more about influence and bashing anyone or any cause that’s vaguely Left. There’s a speech given by the Australian-born Galapagos tortoise impersonator (we know who I mean) where he rails against the forces of ‘woke’ and the environmentalists, and the Left, and… You get the picture. It’s not so much about profits, it’s more a pathological hatred for an evolving society that complains about page three tits.
Did Moloch rags here have Page 3 skin?
Before he sullied the scene, ‘glamour’ pics were almost coy, certainly no nipples.
In the UK it was a race between the Mirror (a Labour supporting workers’ comic) & Sun to the (front) bottom as to which would first show pubic hair.
No prizes for guessing which ‘won’.
> it’s worth a careful unpacking
Only if you want to preach to the converted. The dumb people will just turn off the more you exercise your logical mind.
As you say:
> The arguments made by the No campaign are nonsense — but in their malevolent and deceptive simplicity they’re gaining traction.
Yes. They are gaining traction because half the people prefer simple convenient arguments that don’t require thought.
If you can think of some of those that point in the direction of a Yes vote, you might win. And wouldn’t that be sweet?
I’m not saying this is ideal, but it really is how these things work.
More simply, using pollster Crosby’s adage, ‘go for the heart not the head’…… follow your gut instincts and beliefs, but ignore or avoid facts, science and analysis.
Every time a #30 or a Johnson or a Trump opens their mouth to spout utter nonsense they widen the tolerance ambit for dishonesty and stupidity. And … in their malevolent and deceptive simplicity they’re gaining traction.
An awful lot of people can be deceived an awful lot of the time.
This is excellent. Is there any way it could be boiled down into a series of visually attractive TikToks?