By John Wayne on Monday, 28 August 2023
Category: Race, Culture, Nation

Legal Problems with the Voice Referendum Question By James Reed

The Institute of Public Affairs has sought the advice Mr Stuart Wood KC   on the issue of the constitutional validity of the Voice referendum question. The argument is that it is implicit to section 128 of the constitution that the referendum question must accurately describe the proposed change so voters can have a “free and fair” choice. But the question on the ballot paper does not do this at all. There will be a new Chapter IX, but the role and function of the Voice has not been detailed. Albo sees that as something to be fixed up once it is all in the bag.  But, that is not how democracy works; maybe socialist republics.

 

Would it be a wise strategy to go for a High Court challenge now, or wait to see if this monstrosity is defeated?

 

https://ipa.org.au/publications-ipa/parliamentary-research-briefs/parliamentary-research-brief-voice-referendum-question-may-be-constitutionally-invalid-for-misleading-and-misinforming-voters

 

PARLIAMENTARY RESEARCH BRIEF

 

A Research note from the Institute of Public Affairs distributed to all federal parliamentarians VOICE REFERENDUM QUESTION MAY BE CONSTITUTIONALLY INVALID FOR MISLEADING AND MISINFORMING VOTERS

 

The Institute of Public Affairs recently received legal advice from leading Victorian barrister and constitutional law expert Mr Stuart Wood KC about the lawfulness of the proposed referendum question to insert into the Australian Constitution an ‘Aboriginal and Torres Strait Islander Voice’. The federal government has proposed the following referendum question for voters to answer: A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration? Mr Wood’s advice, written jointly with barristers Paul Jeffreys and Jakub Patela, states that the proposed referendum question:

‘Fails to state the core function of the Voice’.

 

Section 128 of the Australian Constitution requires a referendum to be free and fair Section 128 of the Australian Constitution provides that a constitutional amendment, known as a ‘proposed law’, will only pass if a majority of electors in a majority of states, and a majority of all electors, approve the proposed law. Mr Wood’s advice states that in order for electors to give approval to a proposed law:

 

 

 

The Voice referendum question may be unconstitutional for failing to accurately reflect the proposed change Mr Wood’s advice states that there is a requirement implicit in section 128 of the Australian Constitution that the referendum question submitted to voters: sufficiently corresponds to the proposed law so that an affirmative answer to it can be interpreted as an elector’s ‘approval’ of the proposed law.2 According to the advice, the question to be put to voters is ‘deficient’3 because it ‘fails to state the core function of the Voice’.4 The referendum question is framed as a proposal to ‘recognise the First Peoples of Australia’ by establishing ‘an Aboriginal and Torres Strait Islander Voice’. The proposed change to the Constitution is to create a new Chapter IX. The question does not provide information about the role and function of the Voice, or the content and scope of the proposed new Chapter IX. Only the introductory line of the proposed change to the Constitution mentions recognition, whereas the substantive terms of the proposed Chapter IX—subsections 129(1), 129(2), and 129(3)—all relate to the scope, powers, and role of the Voice. This includes the provisions of subsection 129(3) which make Parliament’s powers to pass laws in respect to the Voice ‘subject to this constitution’, meaning subject to the interpretations of the High Court of Australia as to what the scope, powers and role of the Voice are.5 Mr Wood concludes that this ‘misleads and misinforms voters’ and thus makes the referendum ‘open to challenge’6 in the High Court of Australia. 1

 

 For more information contact John Storey, Director, Legal Rights Program at This email address is being protected from spambots. You need JavaScript enabled to view it.

 

The referendum process has denied voters the ability to exercise a free and informed choice Mr Wood’s advice also states that there is a reasonable argument that the Constitution requires electors be able to exercise a ‘free and informed choice’ when voting in a referendum. He observes that the ability of electors to exercise a free and informed choice in the Voice debate has potentially been undermined due to:

 

Added to this is the flawed process conducted by the Joint Select Committee into the Aboriginal and Torres Strait Islander Voice Referendum, where

 

 

 

 

The IPA proposes the following options to ensure the referendum is constitutionally sound: • Cancel or delay the date of the referendum.

 

 

 

 

End Notes 1. Stuart Wood, Paul Jeffreys, and Jakub Patela, Advice relating to Aboriginal and Torres Strait Islander Voice Referendum: Constitutional and other matters (Signed 30 May 2023) [12]. 2. Legal Advice [10]. 3. Legal Advice [20]. 4. Legal Advice [12]. 5. Morgan Begg and John Storey, Voice to Parliament: Research report provided to the Parliamentary Joint Committee into the Aboriginal and Torres Strait Islander Voice Referendum (Institute of Public Affairs, April 2023) 24-25. 6. Legal Advice [20]. 7. Legal Advice [30]-[35]. 8. Legal Advice [36]-[42]. 9. Legal Advice [43]-[44]. 10. Daniel Wild. ‘95% of referendum committee witnesses ‘Yes’ activists’ (Institute of Public Affairs Analysis, 1 May 2023): https://ipa.org. au/publications-ipa/media-releases/95-ofreferendum-committee-witnesses-yes-activists. 11. Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum, Parliament of the Commonwealth of Australia, Advisory Report on the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (2023). 12. John Storey, IPA Submission to the Senate Finance and Public Administration References Committee inquiry into the administration of the referendum into an Aboriginal and Torres Straits Islander Voice (Institute of Public Affairs, 24 April 2023). 13. Legal Advice, Appendix 1. 2 For more information contact John Storey, Director, Legal Rights Program at This email address is being protected from spambots. You need JavaScript enabled to view it..a

 

 

 

 

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