As we move into the last few days of the referendum campaign, the No camp has increasingly focused on how establishing the Voice will divide Australia by race. It is indeed hard to view this as anything other than fundamentally racist, and the No camp as devoid of any real grasp on the reality of Australian public life today. The concern about race is also deeply linked to a certain distrust of legal pluralism. As we embark on the final push before 14 October, however, it is important to remember that pluralism is an inherent aspect of the Australian Constitution and common law. As such, our legal system is ready for the Voice; the only question is whether we are.
The inherent plurality of our common law system is often overlooked. In essence, common law court is a public arena in which the normative chaos of public life comes before the law in order for it to scrutinise the legitimacy and application of state-made rules. In stark contrast to the system of civil law, the judge’s role is not that of a mouthpiece for any statute, but rather that of an interpreter. This is partly due to the fact that throughout the nineteenth century and the imperial project of territorial expansion, English law had to face the task of reconciling its legal system with the norms and systems that existed at the time of invasion and conquest of local populations. But pluralism in the common law pre-dates even this, going back to the mediaeval period, when multiple heads of authority and courts of adjudication coexisted without deferring to a single source of authority. In this era, disputes were often resolved according to customs practised by different merchants, crystallised as lex mercatoria, and through a variety of court forums—that is, manorial, municipal, guild or church courts. Customary social practice was inherent in the workings of such a system, which responded in specific times and places to a variety of interests and adapted to changing circumstances. And following the centralisation of legal authority during the process of constructing the modern nation-state, legal pluralism gained another lease on life in the late twentieth century, during the period known as globalisation and the rise of international law. Today, as the sources of legal authority continue to develop and expand, it is impossible to regard any legal system as being devoid of pluralism.
It is important to note that common law concepts such as ‘traditional’ or ‘customary’ law also developed out of colonial contexts, but their authority is sourced from custom and intergenerational practice of the communities that observe it, which common law system is willing and capable of recognising. As William Blackstone put it: ‘[T]he only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been always the custom to observe it’. In that sense, what we call customary law or Native Title rights, is no more legitimate than the normative practice that underpins it. Noting the authoritative role of Country in Indigenous cosmology and jurisprudence, right-wing is naïve in its concern for the potential that the Voice will privilege minority interests. This argument overlooks the fact that, in Australian territories alone, 70% of land is currently subject to indigenous property rights, which demonstrates that Indigenous peoples do in fact hold (and with full authority) majority interests in some respects within the law. As history shows, the primary task of our legal system is to engage in the process of continuous negotiation and renegotiation of state-made rules and the life that exists outside of parliament’s doors. The Voice, or any other form of Indigenous recognition, will not dismiss the conception of state law as unified and coherent, but will merely situate it within the normative multiplicity that already exists in the Australian community and the Australian legal system.
Further, it is important to remember that the Australian Constitution is structurally, theoretically and historically plural. As an instrument that came into existence by agreement between six dominion states, the document relies on the separation and co-existence of state and federal legislative powers as its key principle. Even though the Voice will not have any decision-making power, it will enrich parliamentary law-making processes by making representations and consulting the government on matters that affect Aboriginal and Torres Strait Islander peoples. The prerogative of the states will remain distinct from federal legislation, and to the extent that the two laws are inconsistent, the federal law will prevail. Even with the proposed constitutional recognition, states will be able to continue to pursue treaties and other avenues for Indigenous self-determination. As such, the text of the Constitution already contends with this tension between monism and pluralism, demonstrating that it can function well. The distinction is never going to be absolute, just as the hope of the right-wing for a monist Australian legal system is fundamentally obsolete.
Finally, international law offers a rival source of authority to state legal systems, which even today governs certain commercial arrangements between private parties and exerts pressure on the territorial conception of state sovereignty. Indigenous peoples are no strangers to the significance of this rival authority, with international law having been invoked during many seminal battles for Aboriginal rights and liberation. And it is clear why: international law offers a space beyond the settler-colonial borders in which to practise Indigenous sovereignty. As such, in 1980 Jim Hagan travelled to Geneva to sit on the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities and voice his opposition to the Noonkanbah dispute in Western Australia. The Aboriginal Tent Embassy and protests against nuclear testing in Maralinga, Woomera and Warburton also demonstrate how the existence of this dual authority resulted in ‘a transnational indigenous movement’ which explicitly connected ‘Aboriginality to the main currents of world politics’.i The Voice will not only situate Australia within a group of coloniser states that recognise their Indigenous populations, it will also accord with the long-standing tradition of the ‘Indigenous international’ practice.ii
The Voice may end up as a toothless tiger, but it will certainly not weaken the Australian legal system, Constitution or democracy. Currently, the Constitution only refers to ‘race’ in relation to the list of legislative powers afforded to the Australian parliament—for since 1967, the Australian government has had the power to make special laws for all peoples, inclusive of Indigenous Australians, without any guarantee that those laws will be for their benefit.iii Moreover, the Voice as an advisory body is not unique to the Australian legal framework, which already, to some extent, gives special treatment to Indigenous peoples. For example, Native Title or cultural rights are often invoked to challenge administrative decisions that have a detrimental impact on Indigenous peoples’ rights and welfare. In some respects, Aboriginal and Torres Strait Islander peoples are thus already treated as ‘citizens plus’ through the recognition of various additional rights, while in others, they continuously head up key disadvantage statistics in the Australian community.
At the very least, the Voice is a rare opportunity for Aboriginal and Torres Strait Islander peoples to be afforded their rightful place within the instrument that is designed to govern the nation. While nobody can predict the future of the Voice, it will certainly not tip the scales for the state of pluralism in the Australian legal system.
i Mark McMillan, ‘Koowarta and the rival Indigenous international: our place as Indigenous peoples in the international’, Griffith Law Review,23(11), pp 1, 125.
ii See McMillan (n 1): ‘[…] ‘Indigenous international’ is rooted in the existence and meaning of the Indigenous peoples in international law. Such a space provides for the historic and contemporary experiences of Indigenous peoples to found a focal and gathering point for each other and then simultaneously position those experiences against the nation states and capturing a place within the ‘international’ without falling into the ‘domestic’ spheres of individual nations’.
iii Koowarta v Bjelke-Petersen (1982) 153 CLR 168.