Recently, the Sydney Institute conducted a virtual discussion centered on the legal aspects of the Voice referendum, where two legal experts expressed their views on either side of the debate. The discussion revolved around the creation of a constitutional body called the “Aboriginal and Torres Strait Islander Voice” and its potential implications. In this article, we present a summary of the arguments put forth by both experts during the debate.

On one hand, Professor George Williams AO, a renowned Constitutional Law expert at UNSW and a member of the Constitutional Experts Group, which offered feedback on the Voice proposal, supports the idea of recognizing Indigenous people as the First Occupants in the Constitution. However, he proposes that the Voice should not be a Constitutional body. Instead, it should be empowered to make representations to the Parliament and Executive on matters concerning Aboriginal and Torres Strait Islander Peoples. Notably, the Voice would possess the authority to make representations, but it would not have the power to veto or direct decisions, and Parliament or the Executive would not be obligated to follow its suggestions.

According to Professor Williams, this setup would not impede Parliament’s decision-making ability. Still, the Executive might be required to listen to the Voice’s representations and follow a due process in making decisions based on the provided input. Furthermore, the High Court would oversee the Voice’s operations within the Constitution’s limits, specifically on matters relating to Indigenous people.

Regarding potential High Court challenges regarding representations made to Parliament and the Executive, it is anticipated that if either body ignores or refuses to consider the Voice’s representations, the High Court would not intervene in the internal workings of Parliament. However, if the Executive neglects the Voice’s input, the High Court might direct them to review all relevant information before remaking the decision. It is important to note that the High Court would not dictate the outcome but would ensure that the process adheres to proper procedures.

The scope of subjects for which the Voice can make representations is another crucial aspect. Professor Williams argues that the Voice’s scope should not be limited solely to matters related to Indigenous people but should encompass any subject matter that is relevant to Aboriginal and Torres Strait Islander communities, even including tax laws as they relate to these communities.

Moreover, Professor Williams suggests that the final authority on the scope of subject matter for representations made to Parliament and the Executive should rest with the High Court rather than Parliament. This would ensure impartiality and consistency in interpreting the scope.

On the other side of the debate, Chris Merritt, Vice President of the Rule of Law Education Centre and columnist for Legal Affairs in the Australian Newspaper, presents opposing views. While agreeing with the recognition of Indigenous Peoples as the First Peoples of Australia, Merritt contends that if the Constitution empowers the Voice to make representations, it implies that these representations should be taken into consideration.

Merritt raises concerns about leaving room for ambiguity in the Constitution, arguing that there are numerous unknowns about the implications of representations. To avoid potential issues, Merritt suggests that the Voice should be legislated rather than being included in the Constitution.

Image by Ekaterina Bolovtsova via Unsplash

According to Merritt, Parliament should have the power to enact laws regarding the Voice, including its composition, functions, powers, and procedures. However, he emphasizes that any legislation enacted by Parliament to limit the scope and reach of the Voice would be subject to interpretation by the High Court.

In conclusion, the Voice Referendum remains a matter of extensive debate and public scrutiny. As we approach the 2023 referendum, the question of whether to establish the Aboriginal and Torres Strait Islander Voice as a constitutional body or through legislation holds significant implications for our system of government and Indigenous representation. Irrespective of the stance one takes, open and transparent discussions surrounding constitutional matters are vital to preserve the essence of our democratic society, where laws are made through a community-driven process, not solely dictated by the Parliament.