Albanese government abandons referendum to use s51(xxvi), also known as 'the race power', to create Voice in Parliament

South Australia University of Winpega Lecturer Professor Paul Jackson has been paid $30 million for saving Australia from having a referendum on The Voice to Parliament.

Prof. Jackson provided advice to Prime Minister Anthony Albanese that seems to have been missing from constitutional law experts from around Australia.

Here's what we know.

The power for the Australian Government to legislate for 'The Voice' already exists in the Australian Constitution s 51(xxvi).

'It was low hanging fruit' said Professor Jackson. "My 3rd year constitutional law students saw this immediately when the idea of 'The Voice' was first raised. They all said 'Professor Jackson, why don't they just use s 51(xxvi)". And you know what, they are right!" 

Section 51(xxvi) reads: 

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to ...... the people of any race for whom it is deemed necessary to make special laws.

Known as the 'race power' this already constitutionally enshrined right for the Federal Government to make laws for the benefit of Indigenous Australians is so clear even the South Australians can see it (see below).

This 'race power' was the result of the 1967 referendum which altered the Australian Constitution s 51(xxvi) to remove the power of the Australian States to legislate for Indigenous People, and give that power to legislate for Indigenous people to the Australian Government. (Note that the 1967 referendum did not give Indigenous people of Australia the vote, that was 5 years earlier in the Commonwealth Electoral Act 1962).

This 'race power' is the same power already used by John Howard in the Northern Territory intervention.

The race power was discussed by Justice Kirby in the Kartinyeri v Commonwealth (Hindmarsh Island Bridge Case) (1998) 195 CLR 337. In this case Kirby J got right down to the meaning of the word 'for' in section s51. Kirby J painstakingly observed, with his usual written dexterity, that s51 intoned a largely beneficial meaning to the word 'for'.

This means the Constitution allows the Commonwealth to legislate for the benefit of Indigenous people in Australia. The Albanese government could remove the Howard era stain of the NT intervention and use the existing head of power under s51(xxvi) to actually benefit Indigenous Australians by passing legislation for their benefit by granting a Voice in Parliament. It is that simple.

Summary

The power for the Australian Government to legislate for 'The Voice' already exists in the Australian Constitution s 51(xxvi).There appears no constitutional impediment stopping Canberra from enacting legislation that would establish an Indigenous 'voice'. Prof. Jackson welcomes academics and constitutional law experts in Australia to prove him wrong, or at least start talking about existing constitutional authority for 'The Voice'. The South Australian Parliament has already created a voice using the same constitutional framework available at a state level.

About the Author

Prof. Jackson retires from the University of Winpega Great Ideas Department at the end of 2023 and intends to become an online pain in the ass for local Governments around Australia. "Tackling the low level bureaucrats in local councils around Australia is the real issue for all Australians, and one that touches everyone's life everyday. This constitutional 'voice stuff' is simple", said the Professor, "local council bureaucrats with delegated legislation in their pockets is where the real challenges are to be found". 

Pexels photo credit link: George Milton - thanks George!