President's Welcome

Welcome esteemed readers to The Brief’s highly anticipated second edition, where we embark on an intellectual journey through the intricate realm of law and policy. In this edition, we plunge into the depths of critical issues and their profound implications that shape our collective destiny.

Through insightful articles, thought-provoking discussions, and expert interviews, we aim to unravel the complexities of proposed constitutional amendments for the Indigenous Voice to Parliament, explore the risks and possibilities of artificial intelligence, showcase groundbreaking initiatives like the Willow Project, delve into student debt concerns, and engage in a compelling interview with Dr Holly Doel-Mackaway on her remarkable work in Indigenous communities. Hence, this edition cultivates a deep understanding of how the decisions made in law and policy reverberate through time, leaving an indelible mark on the world we are poised to inherit.

I extend my heartfelt appreciation to the brilliant minds comprising our dedicated team of editors, writers, and contributors. Special recognition goes to the exceptional Publications Director, Mikaela, and the accomplished Edition-In-Chief, Brad, whose vision and meticulous efforts have breathed life into every publication page.

To all MULS members, I implore you to actively engage with this edition of The Brief, to lend your voice, share your insights, and contribute to the ongoing dialogue surrounding these pressing discussions. Your participation is integral to fostering an intellectual environment where ideas flourish and shape the contours of our future.

Brendan Piech President, Macquarie University Law Society

muls.org

Edition 2, July 2023 (Volume 29)

EDITOR-IN-CHIEF Bradley Cagauan

DEPUTY EDITOR Simeon Levine

DIRECTOR OF PUBLICATIONS Mikaela Mariano

DESIGNER Nathan Li

WRITERS (IN ALPHABETICAL ORDER)

Amelia McCann, Bradley Cagauan, Bruce Zhang, Daniel Bowtell, Grace Drinan, Leo Chang, Rachel Justic, Sarah Dawson, Simeon Levine, Sujal Chadha and Zoe Gleeson

SUB-EDITORS

Anna Queja, Caitlin Greaves, Claire Cottrell-Dormer, Elinor BickerstaffWestbrook, Emma Horgan, Isabelle Jenkins, Jasmine Saluja, Joshua Brereton and Rachel Justic

Editorial Review

Bradley Cagauan, Brendan Piech, Mikaela Mariano and Simeon Levine

IMAGES

Shuttershock, unless otherwise stated.

The Brief’s print edition is published three times a year by the Macquarie University Law Society, Sydney Australia. Visit our website at muls.org/publications-the-brief

Disclaimer

All views expressed herein are those of the individual authors and do not reflect, in any way, the attitude of the Macquarie University Law Society. The Macquarie University Law Society does not accept any responsibility for the losses flowing from the publication of material in The Brief

WITH SPECIAL THANKS TO Dr

Holly Doel-Mackaway

Acknowledgement Of People And Country

The Brief acknowledges and pays respect to the Wattamattagal people of the Darug nation, the traditional custodians of the land where the campus of Macquarie University is located.

Proposed Constitutional Amendment: Indigenous Voice to Parliament

The proposed Indigenous Voice to Parliament is based on the 440-word Uluru Statement from the Heart, which was constructed at the First Nations National Constitutional Convention in 2017. It has been a key point of discussion in Australian constitutional law for years and a topical political issue after Prime Minister Anthony Albanese pledged his support for the Uluru Statement during the 2022 election.

The Uluru Statement has three key objectives: Voice to Parliament, Treaty, and Truth-telling. If the referendum on the Voice is successful, it would insert section 129 — ‘Aboriginal and Torres Strait Islander Voice’ — into the Constitution. The amendment would establish an advisory body representing First Nations people from across Australia and would allow them to provide their input into federal government decisions, policies and laws that affect them. Should the

Referendum details – latest developments:

referendum succeed, laws relating to the composition, functions, powers and procedures of the Voice will be determined by Parliament.

As a constitutional amendment, the Voice to Parliament can only be passed through a referendum. Under section 128 of the Constitution, a referendum requires a double majority; that is, a majority of the population must vote ‘yes’ and a majority of voters in a majority of the states must also vote ‘yes’ for a referendum to succeed.

The 2023 referendum will be Australia’s first referendum since 1999 when the question of whether to ‘alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and GovernorGeneral being replaced by a President’ was ultimately decided in the negative: 54.87% of Australians voted ‘No’ on becoming a republic while 45.13% voted ‘Yes’.

On 19 June 2023, the bill to set up the referendum passed the Senate. In the coming months, Australians around the country will receive official referendum pamphlets, including persuasive essays from committees of politicians who voted yes or no in Parliament.

The referendum must occur between two to six months from now, at which time all Australians of eligible voting age and capacity will bear responsibility for deciding whether to enshrine this Indigenous Voice to Parliament in the Australian Constitution

The ‘YES’ argument:

One of the core arguments for the Indigenous Voice to Parliament is that it provides a permanent means for Indigenous Australians to provide input into parliamentary decisions. The Referendum Council has specifically noted that the role of the First Nations advisory body should involve legislated functions including ‘monitoring the use of the heads of power in section 51 (xxvi) and section 122’ of the Australian Constitution. According to Dr Shireen Morris, section 51(xxvi), also known as the ‘race power’, allows Parliament to make both ‘positive and adverse laws’ about the rights of Indigenous peoples. In the case of Kartinyeri v The Commonwealth, the High Court majority held that Parliament can validly repeal sections of a prior heritage protection statute under section 51(xxvi). This is because the Court found that the ‘plenary power conferred under section 51(xxvi) included the power to repeal laws enacted.’ Kartinyeri demonstrates how the race power can be used in ways that undermine the interests of Aboriginal and Torres Strait Islander communities. A constitutionally enshrined Indigenous Voice would require Parliament to consider the Voice’s advice relating to any exercises of the ‘race power’.

Section 122 contains Parliament’s plenary power to legislate for Commonwealth Territories. Given the high Indigenous population of the Northern Territory, this ‘territories power’ has had particular racial significance exemplified by the Northern Territory Emergency Response, better known as The Intervention. This policy was criticised for its paternalistic and discriminatory intervention into the lives and spending decisions of Indigenous persons, and was, in the words of Justice Kirby in Wurridjal v Commonwealth, ‘likely reliant on section 122 of the Constitution.’ It has been argued that through the legislative enforcement of a constitutional First Nations Voice, Parliament can be advised on their use of the ‘territories power’ and thus, Indigenous communities will have more input over policies affecting them

Another key argument for the Voice is that it establishes positive guiding principles for the recognition of First Nations perspectives in Parliament. These principles (as outlined by working group member Tony McAvoy) include an emphasis on ‘representative, gender-based’ perspectives, ‘community-led, inclusive, respectful’ communication, and ‘accountable, transparent’ collaboration between ATSI advisors and traditional parliamentary entities.

The ‘NO’ argument:

One major argument raised against the Indigenous Voice to Parliament is that it is potentially unnecessary, with Indigenous people already having ‘a voice to parliament’ in their individual ability to vote for local MPs and senators. It is also argued that a singular ‘Indigenous Voice to Parliament’ runs the risk of treating Indigenous Australians as a monolith, rather than a community with a wide range of differing perspectives and beliefs.

That the Uluru Statement originated from the Referendum Council, an organisation whose purpose was to progress ‘towards a successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution’, is reflective of this. The Uluru Statement was always intended to set up a referendum, and not all Indigenous communities necessarily want this. A prominent example is the First Nations-led ‘No’ campaigns seen at the Aboriginal Tent Embassy in Canberra, with banners bearing the words ‘Vote No To Referendum – We Deserve More Than A Voice.’ Framing the ‘Yes’ and ‘No’ sides as being fundamentally proand anti-Indigenous advancement respectively is not only simplistic to the point of inaccuracy but unhelpful.

Another related criticism is that, by needing to fulfil the previously discussed requirements regarding constitutional principles, the Voice may constitute action that is merely symbolic. The long-standing concern is that whilst having a voice provides an opportunity to speak and be listened to, it may not provide any practical changes. Some argue that it would be a mistake to emphasise a referendum and constitutional amendment over more direct ways of addressing issues faced by Indigenous communities.

Concerns about the current referendum proposal and the possibility of it undermining constitutional democratic principles are also key arguments against the proposed Voice. Key concerns raised by the Rule of Law Education Centre about the current proposed constitutional amendment have concerned the potentially ‘unlimited scope of the subject matter with which it can involve itself’, the ‘fact that it will be empowered to make representations that reach into the executive branch of government and not just the parliament’, and ‘the fact that the High Court, and not parliament, will have the final say on whether any limits can be imposed on the scope of its subject matter, and its reach into the executive.’ These are concerns about the proposed how the Voice in its current form may potentially compromise the principle of parliamentary sovereignty and thus potentially undermine core values of Australia’s democratic constitutional system.