Professor Michael Detmold on Constitutional Law Problems with the Voice Referendum By Ian Wilson LL.B

“The Voice Referendum: Cheating the Constitution,” by Professor Emeritus Michael Detmold, former constitutional law lecturers at the University of Adelaide, in the Quadrant Special Digital Edition, August 2023, delivers a knockout blow to the constitutional soundness of the Voice Referendum.

The short question will be before voters: “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?” The prosed law is outlined in a little more detail, albeit, still highly vague in the outline but does mention two things; first the Voice’s function (of making “representations to the Parliament and the Executive Government of the Commonwealth …”) and second, the Voice’s structure (Parliament’s “power to make laws with respect to matters relating to the Voice, including its composition, functions, powers and procedures”). But, these provisions, Detmold points out, are not going to be inserted into the constitution, and nor is the short question which is actually visible on the ballot paper. So, what exactly would go into the constitution if the Yes is carried? If this is confusing to legally trained minds, how much more difficult would this be for the ordinary voters to know what is going on? And if people are in the dark about this, as I see it,  the Voice referendum is nothing more than an expensive and nasty deception.

What is being done here is little more than constitutional fraud; creating a new constitutional entitiy, which is only vaguely defined, and where parliament fills out he details as it wants. But, this is why the Voice will fail to be constitutionally valid: “There is no doubt that here there is here a wide discretion in the Parliament as to this connection; but, still, it is the issue. Of the Voice referendum, we must be able to say that: “Recognising the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice” (X) is a short description of: “Recognising the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice that may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples; and recognising also that Parliament has power to make laws with respect to matters relating to the Voice, including its composition, functions, powers and procedures” (Y). No matter how wide the discretion of Parliament, it is not even faintly arguable that this X is a short description of this Y. It follows that the Voice referendum fails on the issue of its submission to the people and is invalid.”

Detmold, and others have therefore shown that the Voice referendum proposal is fundamentally constitutionally flawed. It would be a good idea that legal action is taken now, by challenging the Voice in the High Court of Australia on these grounds and others. A flawed referendum proposal will sow nothing but legal chaos, and the Court must move to protect the rule of law.