Some of the nation’s pre-eminent constitutional law experts have resoundingly backed the proposed Voice to Parliament during a parliamentary committee hearing in the nation’s capital.
- The first day of a parliamentary inquiry into the proposed wording of the Voice to Parliament constitutional amendment has focused on the inclusion of “executive government”
- Constitutional experts rubbished concerns the proposed model for an Indigenous Voice to Parliament could clog up courts
- Some constitutional experts have called for the scope of the Voice to be narrowed
Former High Court justices and constitutional experts have dismissed criticisms about the scope and obligations to consult the proposed independent advisory body.
They have sought to counter suggestions that the inclusion of the words “executive government” risked opening up the Voice to advise on Reserve Bank interest rates or Defence Department procurement.
One of the nation’s most highly regarded constitutional barristers, Bret Walker SC, dubbed suggestions the Voice would clog the courts with legal challenges “too silly for words”.
He gave that evidence at the first parliamentary inquiry into the proposed Voice to Parliament referendum.
Five members of the government’s Constitutional Expert Group — which advised the Referendum Working Group on the proposed wording — appeared at the committee with four backing the proposed wording: Kenneth Hayne AC KC and professors Anne Twomey, George Williams and Megan Davis (Co-chair of the Uluru dialogue).
Former chief justice Robert French also supported the existing proposal.
Professor Greg Craven was the only member of the expert group at Friday’s committee to raise concerns.
The suggested addition to the constitution would be:
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
- 1.There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
- 2.The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
- 3.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.
Concerns ‘too silly for words’, Bret Walker SC says
Prominent High Court barrister Bret Walker rubbished suggestions that the ability of the proposed independent advisory body to “make representations to executive government” would result in court challenges.
“This notion that there is an implication threatened in the proposed Subsection 2, whereby the validity of executive action — multifarious decisions great, small and middling by officials great, small and middling — will be somehow jamming the courts from here to kingdom come as a result of this enactment is really too silly for words,” Mr Walker said.
“There is nothing in the wording in the resemblance of s129, as proposed, to the kind of laws that we ransack in order to say that’s a mandatory relevant consideration.”
‘It will be litigated to death’, Professor Greg Craven says
Constitutional conservative Greg Craven — who has publicly said he would vote “Yes”, regardless of whether changes are made — again argued the proposed wording could be improved.
“This is not simply about preventing litigation, it’s about inviting litigation,” Professor Craven said.
“It’s about trailing your coat with imprecision, knowing you’ll get litigation and that’s what’s proposed here.
“Yes, of course it will be litigated, but you don’t need to make it so unclear that it will be litigated to death.”
Professor Craven suggested including the words “legal effect of representations’ in the draft amendment would address some but not all of his concerns.
“If that went in, I would be perfectly satisfied on executive action, but it doesn’t touch scope,” he said.
Former High Court justice rejects suggestions Voice could advise RBA, Defence
Former High Court justice Kenneth Hayne has hosed down suggestions — largely from the federal opposition — that bodies such as the Reserve Bank of Australia and the Defence Department could be legally obligated to consider advice from the Voice to Parliament.
“The Voice will not waste its social or political capital by exploring the outer range of its scope of representation,” Mr Hayne said.
“That’s a distorting possibility or an extreme example.
“I can not see anything in the proposed draft that comes anywhere near providing anything like a veto.”
Co-chairs hit back at opposition leader
The two co-chairs of the Uluru Dialogue sought to reject Coalition suggestions that the Indigenous Voice to Parliament would be a “Canberra Voice”.
Opposition Leader Peter Dutton has frequently referred to the proposed Voice as a “Canberra Voice”, arguing it would do little for remote Indigenous communities.
Both Professor Megan Davis and Pat Anderson gave evidence at a parliamentary inquiry, where Professor Davis said Mr Dutton’s description was the opposite of what was being put forward.
“The ‘Canberra Voice’ is just a term that is deployed to imply that our people want to be politicians in Canberra, when nothing could be further from the truth,” she said.