Constitutional Law Aspects of the Voice Referendum By Ian Wilson LL.B
The beginnings of a critical legal analysis of the Voice is being made. While the Prime Minister is loudly proclaiming, having dried his tears, that parliament will control what the Voice will consider, constitutional law experts disagree. The amendment’s second clause, which gives the Voice power to “make representations to the parliament and the executive government of the commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples,” is extremely wide, and does not in any way limit what the Voice can consider. After all, every law made by parliament, by definition, has some impact upon some segments of the Australian community, and Aboriginals and Torres Strait Islanders are part of this, and could in principle be affected. Making this change to the constitution itself, reinforces that the Voice is to have extreme import, and will not be limited to the mere advisory role that the prime minister says it will have.
However, in terms of real politics, in the present woke culture, the Voice will be making recommendations, which if parliament rejects them, will be howled down as “racist.” This will mean that the Voice will be a Third Chamber of parliament, and contrary to the constitution. It would be a good move for a constitutional challenge to be made now that the exact phrasing of this most divisive idea is out in the open. Even if the referendum was to pass, still, if this involved introducing a conflict of laws into the constitution itself, which has no principle of deciding internal inconsistencies, in principle the amendments should be struck down. But, it is best for legal teams to take this issue to the High Court of Australia as soon as possible.
“Anthony Albanese’s public assurance that parliament will control what matters the voice can consider has been challenged by the nation’s top constitutional law experts, who say the scope of the advisory body cannot be restricted by politicians.
Ahead of the government’s Constitution Alteration Bill being introduced to the House of Representatives on Thursday, laying out the proposed question and constitutional amendment to be put at the referendum, the Prime Minister condemned the “noise” and “scare campaign” he said was being stoked by opponents of the voice.
Mr Albanese has twice this week argued the third clause of the government’s proposed constitutional amendment delivers “primacy of the parliament for what the voice will consider”.
But constitutional law experts Anne Twomey and George Williams said the amendment’s second clause, which gives the voice power to “make representations to the parliament and the executive government of the commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples”, ensured what it considered and advised on was out of reach of the parliament.
The third clause of Mr Albanese’s proposed new chapter of the Constitution states: “The parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander voice, including its composition, functions, powers and procedures”.
On Wednesday, Mr Albanese said that clause gave “the primacy of the parliament to determine the structure and functions, including to determine the operation, essentially, of the voice and what it considers”.
Professor Twomey, from the University of Sydney, said the amendment gave parliament primacy over matters relating to the voice, including whether the government was obliged to consider its representations and how it responds to them.
But she added: “The scope of what the voice can make representations about is determined by proposed s 129(ii) (the second clause), which states that the voice can make representations ‘on matters relating to Aboriginal and Torres Strait Islander peoples’. That cannot be altered or limited by an act of parliament.”
Professor Williams, of the University of NSW, said Mr Albanese’s statement on the primacy of parliament could not stand without qualification.
“They (the parliament) do have primacy over most things and that’s what clause three does, it’s a strong power that emphasises the role of parliament and the government has strengthened that role significantly. But there are some things it will not have a remit over, which is actually pretty limited,” he said.
“Parliament couldn’t stop there being a voice and parliament can’t stop the voice being able to make representations to parliament and the government of the Commonwealth on those matters relating to Aboriginal and Torres Strait Islander people. They’re fixed. That’s the point of putting things in the Constitution, it puts them beyond the parliament.”
Australian Human Rights Commissioner Lorraine Finlay on Thursday split from her colleagues at the commission to denounce the proposed voice, saying it was not a “modest proposal” and could substantially increase the risk of bureaucratic complexity, legal uncertainty and judicial activism.
Ms Finlay – writing in The Australian – also said the second clause went beyond even the UN Declaration on the Rights of Indigenous Peoples.
The Human Rights Commissioner, a long-time critic of the voice proposal, said: “It is difficult to think of an issue that would be beyond the scope of the voice in its proposed form, as surely every law or policy of general application would be considered to be ‘matters relating to’ Indigenous Australians in the same way as they are matters relating to all other Australians.”
Ms Finlay, who was appointed to her role by the Morrison government and was a former Liberal candidate, has previously appeared in a 2021 Institute of Public Affairs advertisement saying it would divide Australians on the basis of race.
On Thursday, she wrote the proposed new constitutional amendment goes beyond the UN Declaration on the Rights of Indigenous Peoples and possibly conflict with other international human rights agreements.
“Article 1 of the Universal Declaration of Human Rights says ‘all human beings are born free and equal in dignity and rights’. UNDRIP itself expressly provides that it does not authorise any action which would impair the ‘political unity of sovereign and independent states’,” she writes.
“The draft wording that has been announced goes beyond ensuring that Aboriginal and Torres Strait Islander peoples have a right to participate in decision making that affects them. It inserts race into the Australian Constitution in a way that undermines the foundational human rights principles of equality and non-discrimination.
“You can believe passionately in human rights, equality, and the importance of reconciliation and decide – based on your very belief in the importance of those principles – to vote No.”
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