In the upcoming Voice referendum, all Australian voters must decide whether to approve the proposed law to recognise Aboriginal and Torres Strait Islander peoples through the mechanism of a Voice to Parliament and the executive government of the Commonwealth.
So what actually is the “executive government”? Here, I will answer that question, specifically in the context of the proposal that the Aboriginal and Torres Strait Islander Voice will “make representations” (that is, provide its views and advice) to it on matters relating to Aboriginal and Torres Strait Islander people.
What does ‘executive government of the Commonwealth’ mean?
There are three branches of government at the Commonwealth level in Australia: the parliament, the executive government, and the judiciary. Broadly speaking, each branch performs a different function of governance.
- The parliament makes the laws. The federal parliament may only make laws that are connected to its powers, but these laws can override inconsistent state laws.
- The executive develops laws and policies. Once laws are enacted, it executes or administers those laws (that is, it puts the laws into practice at a day-to- day level).
- The judiciary determines disputes that arise under the laws.
Once these different functions are understood, it becomes clear why it is important the Voice should speak to both the parliament and the executive.
The Voice needs to speak to parliament as our ultimate lawmaker. It can inform parliamentarians when they debate proposed laws and consider amendments to them.
But the Voice will also need to be involved earlier in the development of proposed laws. This means these earlier and more formative steps, which the executive government undertakes, can benefit from the input of Aboriginal and Torres Strait Islander people’s views and experiences.
It’s also important the Voice be involved when policies (which might never become formal laws) are developed, as these will shape government practice and so can have a big impact on peoples’ lives. And of course, once a law is enacted, how the executive government actually applies those laws and policies will benefit from their input. As Senator Patrick Dodson has explained:
Government policies and bureaucratic actions have so often adversely affected First Peoples who have not had a say in the implementation of those policies and actions.
So, who is this ‘executive government’?
The “executive government of the Commonwealth” is not a new term. It has been used in a number of other constitutional provisions.
It’s often useful to think of the executive like a pyramid.
At the top of the pyramid sits the governor-general, representing the king, who plays a largely symbolic role. The governor-general acts on advice of the federal ministers, who sit in the next layer down. This is where the prime minister also sits.
In the next layer down are the “other officers of the executive government of the Commonwealth”. This is a much larger group including public servants working in federal government departments, advising ministers and making government decisions, as well as the front-line workers – think, for example, of the service staff at Centrelink. It will also include defence force personnel and police officers. It doesn’t include the public servants working for state and local governments.
The executive also includes people who work in a range of federal statutory entities and authorities. The majority of these are officers of the executive – such as those in the Australian Tax Office, Fair Work Australia, or the Parliamentary Budget Office. (If you are curious, you can see a flip chart of them and their nature here.)
However, some of these entities have been given their own legal “personality” by statute and are incorporated separate from the executive government. These are sometimes described as “independent” agencies. This includes bodies such as the Australian Human Rights Commission, the National Library of Australia and the Reserve Bank. This has given rise to confusion as to whether the Voice may make representations to these entities.
In practice, there is likely to be little confusion. All statutory agencies and independent office-holders are accountable to a minister and therefore have close relationships with them. This means, if that agency is making decisions relating to Aboriginal and Torres Strait Islander people, the Voice would be able to make representations to the minister, and the minister would (one would hope) bring that advice to the attention of the agency.
And, as has been stressed many times, no person or body in the executive is under any legal obligation to accept that advice.
What does it mean to say the Voice will make 'representations’ to the executive?
Many parts of the executive already seek the views of all sorts of different people and groups before making decisions and developing policy. This will often include Aboriginal and Torres Strait Islander people and groups.
Sometimes consulting with affected groups is mandated by statute, and sometimes it isn’t. But government officials realise the huge benefit of engaging with people affected by what they do: decisions and policies improve through consultation, and people feel they have been given a fair hearing and process even if the outcome is not exactly what they were seeking. This in turn increases trust in government.
Of course, it’s important to remember that not all parts of the executive are making decisions and developing policies and laws that relate to Aboriginal and Torres Strait Islander people. But in those areas where it is, the Voice proposal builds from and improves the current position in three key respects.
First, it provides a standing national body that is representative of Aboriginal and Torres Strait Islander people. This is of huge benefit not just to these people, who will be given a say in matters that affect them, but to the vast array of executive officers, who now have the convenience of being able to access views of Aboriginal and Torres Strait Islander people through the Voice when making decisions that will affect them.
Second, it provides a guaranteed avenue for the Voice to be able to speak to all layers of the executive. This means Aboriginal and Torres Strait Islander people don’t have to wait to be consulted, but can be proactive, engaging with the executive and making representations on matters that those in the community are telling the Voice are important and pressing. This will enhance those benefits I spoke about above – improving decision-making and policy/law development, as well as improving a sense of fairness in government process and trust in government.
Third, if the Voice is established, laws will be passed to clarify the relationship between it and the executive. These laws are likely to govern matters such as exactly to whom representations will be directed in the first instance within a particular department or agency, how they will be received and considered, and their legal effect.
This will bring a welcome level of clarity – not confusion – to government decision-making, law and policy development.
Gabrielle Appleby was a pro bono constitutional consultant to the Regional Dialogues and First Nations Constitutional Convention that delivered the Uluru Statement from the Heart. She is a member of the Indigenous Law Centre (UNSW Law & Justice) and supports the work of the Uluru Dialogues.