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Voice: Legal Realities and Both Sides Debate

by | Sep 20, 2023 | All Posts

Voice Referendum:

Legal Arguments For and Against the Voice

The Voice Debate has legal experts divided on arguments for and against the Voice Referendum.  There are differing opinions regarding the significance of the proposal and the different pros and cons of the proposed Voice to Parliament. Legal experts on the YES side believe the change will be modest, giving First Nations peoples special recognition and an opportunity to have a say on laws and policies that impact them. Legal experts on the NO side believe the change is significant given the extensive scope of the Voice and they believe it will erode a fundamental principle of democracy- equality of citizenship.

Both sides should be considered by all people voting at the Voice referendum as a change to the Australian Constitution will have permanent implications on our democracy and system of governance in Australia. 

This resource helps Australians:

Understanding of the Key Purpose and Features of the Constitution

Regardless of where we stand on the upcoming referendum on the Voice, it is important as a nation under the rule of law, that laws are made in an open and transparent way and are able to be subject to open and free criticism. Discussions and debates are important as the Constitution is not just another law. It is the fundamental framework of our system of government that allocates and limits power and is not easily amended or repealed. It can only be changed by the community – not Parliament. 

Before you vote at the Referendum, watch our video to learn about the Constitution. The video walks you through the different sections of the Constitution then outlines where the Voice to Parliament fits in. The video then looks at both sides of the debate and how the Voice to Parliament will impact the Constitution and our system of Government.

Consider Both Sides of the Voice Debate

In July 2023, the Australian Electoral Commission released the Yes/ No Case Pamphlet. Three months before this, the Sydney Institute held an online discussion on the legal realities of the Indigenous Voice to Parliament, featuring two legal experts on either side of the Voice  debate. The debate provided rational arguments from both sides of the YES/NO Case and can be found on Youtube. 

This document outlines the points made by both experts during the debate.

George Williams & Chris Merritt at the Sydney Institute, The Voice to Parliament: The Legal Realities.

Download PDF Version of Summary

The Voice Referendum: Pros and Cons

Vote YES: Arguments for the Voice

On the left hand column in green are comments from the YES side of the debate by George Williams AO, Professor of Constitutional Law at UNSW and member of the Constitutional Experts Group which gave feedback on the Voice.

George Williams supports the Constitutional Amendment.  He has written many articles in the Australian newspaper about the Voice which can be found here.

Vote NO: Arguments against the Voice

On the right hand column in red are comments from the NO side by Chris Merritt , Vice President of Rule of Law Education Centre (and creators of this resource) and columnist for Legal Affairs in the Australian Newspaper.

Chris Merritt supports Constitutional recognition of Indigenous People as First Occupants but believes the Voice should be a statutory body with defined reach and scope.  He has written about ‘The Case for No’ here.

Summary of Both Sides of the Argument for the Indigenous Voice to Parliament

During the discussion, the following comments were made regarding the Proposed Constitutional Change: 

Recognise Indigenous Peoples as First Peoples as Australia

Both agree with the recognition of Indigenous People as First Occupants in Constitution

VOTE YES

YES to recognition,
YES to Constitutional body called the Voice

VOTE NO

YES to recognition,
NO to Constitutional body called the Voice

NOTE: In the Referendum, voters are being asked whether they wish to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.  It is important to understand that the proposed alteration to the Constitution is not just Constitutional Recognition for the First Peoples of Australia but the addition of a separate Chapter in the Constitution. 

 This new Chapter will establishes a body called The Aboriginal and 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.” 

Comments on Clause 1: Introduce a separate Entity alongside judiciary, executive and Legislature called ‘The Voice’ 

VOTE YES

  • Amendments will establish an advisory body that is a political institution with influence in political realm
  • Entirely appropriate to have an opportunity for Indigenous peoples to have say on laws due to their unique status- there is no other group with that status in the community and our nation is formed upon their ancestral lands
  • 1967 Referendum did not include positive references to Indigenous peoples and left unfinished business
  • Constitution permits the States to disenfranchise people, with their race stated overtly and a race based power to make laws because of a person’s race and fix upon them negative consequences
  • We have a racially discriminatory system as it is

VOTE NO

  • In a modern Constitution, there should be no place for race at all. We should be removing all references to race
  • Sovereignty of land derives from all peoples of this nation
  • Amendments will change the system of government whereby Indigenous peoples will have a second method of influencing public policy and the ability to have additional say on every law and administration. This will erode equality of citizenship where everyone should be equal not just before the law but before those who make the law
  • As it is entrenched in the Constitution, it would be permanent. Mechanisms (laws) to improve standards should be temporary and terminated when goals ( ie closing the gap) have been achieved

Make Representations to Parliament and Executive on matters relating to Aboriginal and Torres Strait Islander Peoples (Clause 2)

VOTE YES

  • The Voice has the power to make representations with no power to Veto or direct and no obligation on Parliament or Executive to follow
  • This will not affect the ability of Parliament to make decisions Executive may need to follow a process that listens to representations
  • The High Court will make sure the Voice operates within its remit within constitution (ie matters relating to Indigenous people)
  • High Court challenges regarding representations made to Parliament: It is expected that if Parliament ignored the Voice or refused to read its representations, then the High Court has consistently said that it will not intervene in internal workings of Parliament
  • High Court challenges regarding representations made to Executive: It is expected that if the Executive ignored the Voice or refused to read its representations, then the High Court may direct them to read everything relevant to decision and remake the decision. The High Court wouldn’t direct the outcome but would require the Executive to get the process right

VOTE NO

  • Unlimited scope of subject matter which the Voice can make representations
  • The scope is not limited to matters that relate only to Indigenous people. The only limit on the scope of subject matter is that it must relate to Aboriginal and Torres Strait Islander people ie tax laws relate to Indigenous people
  • High Court and not Parliament will have final say on scope of subject matter of representations made to Parliament and Executive
  • High Court challenges regarding Representations made to Executive: If Constitution empowers the Voice to make representations, that gives rise to implication that representations should be listened to
  • If we are going to change the Constitution, there should be very little room for ‘creativity.’ There are so many unknowns about what flows from representations, the High Court should not be left to fill in the gaps
  • Uncertainty about the role of High Court could be removed if the Voice was legislated and not put in Constitution

Give Parliament, subject to the Constitution, the power to make laws relating to Voice (Clause 3)

VOTE YES

  • Parliament has a key role in determining how the Voice will operate, with broad powers to make laws generally in respect of the Voice including to regulate procedures, composition and workings

VOTE NO

  • Once in the Constitution, if Parliament makes laws to limit the scope and reach of the Voice, the legislation would be subject to High Court interpretation

Amendment is more than Recognition

VOTE YES

  • Recent dialogues with Indigenous peoples sought the Voice to have a say on laws and policies that affect them, Treaty to Provide for mutual co-existence and Truth Telling on their History. The only one that requires Constitutional change is the Voice, as this would guarantee a say in making laws and polices

VOTE NO

  • Amendment would open door to New Zealand style system of co-governance and would remove doctrine of Equality of Citizenship
Click Here to Download a PDF Version of this Summary

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?

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.

Joint Select Committee

A Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum was appointed to inquire into and report on the provisions of the Bill introduced by the Government to be submitted to a referendum on the Aboriginal and Torres Strait Islander Voice. Details of the Inquiry and copies of all the Submissions and hearings can be found on the Parliament of Australian website: 

Over 100 Submissions have been made with many perspectives and differing opinions. Both legal experts who spoke to the Sydney Institute ‘Legal Realities of the Voice’ made submissions.

Professor George Williams AO Submission #3 to the Select Committee was made in a personal capacity, noting that he was a member of the Government’s Constitutional Expert Group that provided the Referendum Working group with legal support on Constitutional matters relating to the referendum.

Chris Merritt’s Submission #36 to the Select Committee, was made on behalf of our sister organisation The Rule of Law Institute of Australia. The Rule of Law Education Centre and the Rule of Law Institute of Australia are independent, non-political, non-partisan organisations that focus on whether key rule of law principles as outlined in our Rule of Law Wheel are impacted. such as the law is applied equally and fairly, the presumption of innocence, fair and prompt trials etc

Some other noteworthy submissions:

  • Anne Twomey, Submission No 17 to Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum (13 April 2023).
  • D.F Jackson, Submission No 31 to Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum (11 April 2023).
  • Graham Connolly, Submission No 27 to Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum (13 April 2023).
  • I.D.F Callinan, Submission No 71 to Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum (20 April 2023).
  • Mark Dreyfus, Submission No 64 to Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum (21 April 2023).
  • Nicholas Aroney and Peter Gerangelos, Submission No 92 to Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum.

Regardless of where we stand on these issues, it is important as a nation under the rule of law, that laws are made in an open and transparent way and are able to be subject to open and free criticism. These discussions and debates are important as the Constitution is not just another law. It is the fundamental framework of our system of government that allocates and limits power and is not easily amended or repealed. It can only be changed by the community – not Parliament.

Click Here to Download a PDF Version of this Summary

Authorised by Chris Merritt on behalf of the Rule of Law Education Centre, Sydney.

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