No, the Voice proposal will not be 'legally risky'. This misunderstands how constitutions work
The “no” campaign’s primary argument in the current referendum debate focuses on the dangerous consequences of a constitutionally enshrined Voice to Parliament.
- The “no” campaign’s primary argument in the current referendum debate focuses on the dangerous consequences of a constitutionally enshrined Voice to Parliament.
- This argument is relevant to the parliamentary debate about how a constitutional Voice to Parliament will be set up through legislation.
What exactly is the ‘no’ campaign arguing?
- Although the “no” campaign opposes a constitutionally enshrined Voice, some of its key leaders are not against the general idea of a Voice institution itself.
- Instead, many “no” campaigners, including Opposition Leader Peter Dutton, support legislated Voice institutions at the regional level.
- A constitutional law expert explains
In its official campaign pamphlet, the “no” side claims that doing this will:
Finally, the “no” side claims the Albanese government has not put forth any details on how this Voice body would function, and it would be a “permanent” change that will open the door for “activists”.
The nature of constitutions
- Constitutions are not detailed documents that anticipate every possible circumstance.
- On the contrary, they are by nature short and incomplete documents.
- The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.
- Indeed, it was left to parliament to establish the jurisdiction and powers of the High Court in the Judiciary Act in 1903.
The Voice to Parliament proposal
- Details on how the body is selected and how it will operate are explicitly left to parliament.
- The final section of the proposed Voice provision 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. - If the October referendum vote is successful, it will be up to the current parliament to pass the foundational legislation setting up the Voice body.
- The proposed constitutional Voice will, therefore, operate in much the same way as a legislated Voice would.
A moral question
- Instead, we face a clearer, moral question on October 14: do we support the idea of recognising First Australians in the Constitution by giving them a voice in matters that affect them?
- In answering this question, it is worth considering the findings of the Royal Commission into Aboriginal Deaths in Custody from more than 30 years ago.
- This empowerment process began with a series of First Nations regional dialogues that ultimately called for a constitutionally enshrined Voice to Parliament in 2017.