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Claims Yes No Referendum Pamphlet

by | Sep 22, 2023 | All Posts

The Voice Referendum

Confused by the contradictory claims in the YES/NO Official pamphlet?

One of our law students currently studying Constitutional Law had to compare opposing claims from the Official YES NO pamphlet and what legal experts from both sides had to say.  Here is a brief summary and resource list of the following claims from a legal perspective:

  • Will the Voice Unite or Divide Australians?
  • Will the Voice give advice only on Indigenous issues or will it have a broad scope?
  • Will the government be compelled to follow/consider the Voice’s representations?

Will the Voice unite or divide Australians?

Anne Twomey – Emeritus Professor of Constitutional Law, Director of the Constitutional Reform Unit at USYD Law School:

  • Equality needs to be substantive, and this is not achieved by treating people the same when there are genuine differences.
  • The Voice will achieve equality by providing additional support and opportunities to disadvantaged First Nations communities.

Robert French – Former Chief Justice of the High Court of Australia and Geoffrey Lindell – Emeritus Professor of Law at the University of Adelaide:

  • By passing the referendum and enshrining the Voice into the Constitution, the Australian people, by voting Yes together, will perform a unifying act of recognition and acknowledgement of Aboriginal and Torres Strait Islander peoples.

James Allan – Garrick Professor of Law at the University of Queensland:

  • The Voice is affording entitlements by group status and does not align with Australia’s foundations in liberal democracy.
  • By creating special rights based on group status, it is far more likely to lead to disunity, bitterness and a sense that some groups in Australian life get special treatment solely based on birth.

D.F Jackson KC – Barrister for King’s Counsel and former Judge of the Federal Court of Australia:

  • The amendment would mean Australia becomes a nation where, whenever our ancestors first came to this country, we are not all equal.

Will the Voice give advice only on Indigenous issues or will it have a broad scope?

Robert French – Former Chief Justice of the High Court of Australia and Geoffrey Lindell – Emeritus Professor of Law at the University of Adelaide:

  • The Voice should be able to make representations relating to Aboriginal Torres Strait Islander education and training, family and social welfare, health, policing, Aboriginal art, cultural and heritage protection, traditional ownership of land and waters.

Megan Davis – Pro Vice-Chancellor Society (PVCS) at UNSW Sydney and Gabrielle Appleby – Professor of Law at UNSW Sydney:

  • It’s important that the voice speaks not just on matters that directly, or explicitly, affect Aboriginal and Torres Strait Islander people, but on matters that have an indirect but significant effect on them, so as to bring about the necessary connection

Lorraine Finlay – Australian Human Rights Commissioner:

  • It is difficult to think of an issue that would be beyond the scope of the voice in its proposed form, as surely every law or policy of general application would be considered to be “matters relating to” Indigenous Australians in the same way as they are matters relating to all other Australians.

Nicholas Aroney – Professor of UQ Law School, and Peter Gerangelos – Professor of USYD Law School:

  • Given the lack of definition regarding the Voice’s scope, its representations to the Executive could potentially extend to any agencies, boards or corporations established by Commonwealth law to undertake public law functions, such as the Australian Human Rights Commission and Australian Law Reform Commission.

Will the government be compelled to follow/consider the Voice’s representations?

Mark Dreyfus KC – Attorney-General of Australia:

  • The proposal imposes no obligations of any kind upon the Voice, the Parliament or the Executive Government. The current proposal would not impose any enforceable obligation upon the parliament to consider representations from the Voice, let alone follow such representations

Dr Stephen Donaghue KC – Solicitor-General of Australia:

  • The amendment does not require Parliament to consult with the Voice before tabling or enacting legislation.

Nicholas Aroney – Professor of UQ Law School, and Peter Gerangelos – Professor of USYD Law School;

  • The Indigenous Voice would have its own chapter. While distinct from Parliament, the Executive and the Courts, the Indigenous Voice would be accorded a similar constitutional status.

Ian Callinan AC KC – Former Justice of the High Court of Australia:

  • Foresees that there will be “a decade or more of constitutional and administrative law litigation arising out of the Voice.”
  • “It is one thing to say the voice can make representations only, but in the real world of public affairs.. it would be a brave parliament that failed to give effect to representations of the Voice.”

 

Rule of Law Education Centre Resources on the 2023 Rerendum on the Proposed Voice to Parliament

  • Voice Legal Realities Both Sides of the Debate: Discussion on the legal realities of the Voice, featuring two legal experts, Professor Greg Williams on NO side of the voice debate, and Chris Merritt on the YES side.
  • The Voice Referendum and the Impact on the Constitution: How will the Voice and the proposed amendment change the Australian constitution? What changes will be made to the Constitution and why the changes are said to be needed to be made. Learn the basics of the Constitution and why these changes need to be made
  • The Case for Voting No: From a Rule of Law perspective there are arguments for Voting No on First Nations Voice to Parliament at Referendum.
  • The Voice:Getting to Yes Changes that could have been made to the wording of the Voice proposal to improved the referendum’s chance of success

    Further Resources of Both Sides of Debate

    Resources Outlining Summarising Both the Yes and No Cases

    Books:

    • A V Dicey, Introduction to the Study of the Law of the Constitution (1st ed, 1885; 10th ed, MacMillan, London, 1964), pp202-203


    Journal articles:

    • Anne Twomey, ‘The Voice and Constitutional Equality’ (2023) 26(1-2) Journal of Australian Indigenous Issues 97. 
    • Gabrielle Appleby, ‘The Aboriginal and Torres Strait Islander Voice: A Modest, Yet Transformative Proposal’ (2023) 23(1-2) Journal of Australian Indigenous Issues 3.
    • Harry Hobbs, ‘Introducing the Symposium on the Voice to Parliament’ (2023) 34(2) Public Law Review 103.  
    • Harry Hobbs, ‘The Voice and its Constitutional Relationship to Parliament and Government’ (2023) 26(1-2) Journal of Australian Indigenous Issues 49.
    • James Allan, ‘Very high risk, very low reward: This Voice referendum deserves to be defeated’ (2023) 97(6) Australian Law Journal 411.
    • Megan Davis, ‘Voice Of Reason: On Recognition And Renewal’ (2023) 90 Quarterly Essay 1.
    • Robert French and Geoffrey Lindell, ‘The Voice – A Step Forward for Australian Nationhood’ (2023) 97(6) Australian Law Journal 400.  
    • Scott Stephenson, ‘Justiciability and the Voice’ (2023) 34 Public Law Review 21.
    • Sophie Rigney, ‘The Proposal for the Voice to Parliament: Placing the Referendum Proposal in Context’ (2023) 34 Public Law Review 110. 

    Electronic Newspaper

    • Lorraine Finlay, ‘Voting No to Indigenous voice to parliament doesn’t mean you reject human rights’, The Australian (online, 30 March 2023) < https://www.theaustralian.com.au/commentary/voting-no-to-voice-doesnt-mean-you-reject-human-rights-human-rights-commissioner-lorraine-finlay/news-story/368dbabe2ea1f0f3342306b8da193ba1 >.
    • Malcolm Turnbull, ‘Why my government didn’t back the Voice, but I’m now voting yes’ The Sydney Morning Herald (online, 30 August 2023) <https://www.smh.com.au/politics/federal/why-my-government-didn-t-back-the-voice-but-i-m-now-voting-yes-20230829-p5e0a0.html >.
    • Megan Davis and Gabrielle Appleby, ‘Voice only works if it’s free to choose what to talk about’ The Australian (online, 1 April 2023) <https://www.theaustralian.com.au/inquirer/indigenous-voice-to-parliament-only-works-if-its-free-to-choose-what-to-talk-about/news-story/8361479386a83d8f569640a25622e4fd >.
    • Peter Sawn and Mark Humphery-Jenner, ‘Six reasons to read the fine print on Indigenous voice’ The Australian (online, 12 September 2023) <https://www.theaustralian.com.au/commentary/six-reasons-to-read-the-fine-print-on-indigenous-voice/news-story/9358a05572076120ef5030a1bb10201e >.
    • Robert Gottliebsen, ‘Indigenous voice to parliament advice risks turning model into High Court poker’ The Australian (online, 24 April 2023) <https://www.theaustralian.com.au/business/advice-risks-turning-the-voice-model-into-high-court-poker/news-story/719bff0f00d087c84ab1b65dea4f8344 >.
    • Tyrone Clarke, ‘Legal export Greg Craven admits Voice would have ‘great width’ in advising parliament amid stoush with No campaign’ Sky News (online, 18 July 2023) <https://www.skynews.com.au/australia-news/voice-to-parliament/legal-expert-greg-craven-admits-voice-would-have-great-width-in-advising-parliament-amid-stoush-with-no-campaign/news-story/c0b0e10c692015864d632706a7bfab5c >.

    Internet Materials

    • ‘A common law principle’, Australian Law Reform Commission (Web Page) <https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-report-129/15-judicial-review/a-common-law-principle-13/ >.
    •  ‘About the Voice’, Australian Government (Web Page) < https://voice.gov.au/about-voice >.
    • ‘First Nation’s Voice to Parliament: The Argument for Voting NO, Rule of Law Education Centre (Web Page) <https://www.ruleoflaw.org.au/voice-the-case-for-voting-no/ >.
    • ‘History of constitutional recognition and the Aboriginal and Torres Strait Islander Voice’, Australian Government (Web Page) < https://voice.gov.au/about-voice/history-constitutional-recognition-and-aboriginal-and-torres-strait-islander-voice >.
    •  ‘International Convention on the Elimination of All Forms of Racial Discrimination – Human righst at your fingertips – Human rights at your fingertips’, Australian Human Rights Commission (Web Page) <https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/indigenous-rights-voice >.  
    • ‘Your official referendum booklet’, Australian Government (Web Page) < https://www.aec.gov.au/referendums/files/pamphlet/referendum-booklet.pdf >.
    • John Storey, ‘The New Zealand Maori Voice to Parliament And What We Can Expect From Australia’, Institute of Public Affairs (Blog Post, 14 February 2023) <https://ipa.org.au/ipa-today/the-new-zealand-maori-voice-to-parliament-and-what-we-can-expect-from-australia >.
    • Leanne Collingburn and Jonathan Fulcher, ‘The Indigenous Voice: Equal treatment and the race power’, Hopgood Ganim Lawyers (Blog Post, 20 March 2023)  <https://www.hopgoodganim.com.au/page/knowledge-centre/blog/the-indigenous-voice >.

    Parliamentary Papers, Committee Reports, Bill Digests and Alert Digests

    • Joint Select Committee on the to Aboriginal and Torres Strait Islander Voice Referendum, Advisory Report on the Constitution Alternation (Aboriginal and Torres Strait Islander Voice) 2023 (Advisory Report, May 2023).

    Social Media Posts

    • John Anderson, ‘How Much Legal Authority Does the Voice Have? | Prof. Nicholas Aroney’ (YouTube, 23 August 2023) <https://www.youtube.com/watch?v=7um6gTpZo_Q >.

    United Nations Material

    • United Nations Declaration on the Rights of Indigenous Peoples.

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