The wording of the Voice referendum question being put to Australian voters could be fundamentally “misleading” and unconstitutional because it fails to state the core function of the proposed body, according to one of the nation’s leading silks.
At the upcoming referendum, likely to be held in October or November, Australians will be asked to vote yes or no on a single question, “A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?”
Victorian barrister and constitutional law expert Stuart Wood KC, in a legal opinion for the conservative Institute of Public Affairs think tank published on Thursday, argued that the question “misleads and misinforms voters” and has a “serious deficiency” as it “fails to state the core function of the Voice”, and would be “open to challenge in the High Court of Australia”.
“In our view, the government’s proposed question misleads and misinforms voters about what they are being asked to approve at this year’s referendum,” Mr Wood said in the opinion, jointly written with barristers Paul Jeffreys and Jakub Patela.
“The central issue with the question is that, although it mimics the long title of the Bill, it fails to state the core function of the Voice, being to make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples.”
The question “instead, as presently framed, emphasises the notion of constitutional recognition of Aboriginal and Torres Strait Islander peoples, with the establishing of the new body being only a symbolic step to achieve that aim”, they wrote.
“This is significant in circumstances where there is differential support amongst electors as to the concept of constitutional recognition, and the concept of a new constitutionally entrenched body,” the opinion said.
Assuming the proposed question remains deficient, they argue it would be “open to challenge by seeking relevant relief, such as a High Court declaration that an answer to the proposed question can not be taken to constitute approval of the proposed law, or an injunction preventing it being put to electors”.
The barristers suggested an alternative referendum question that could be put to voters instead.
“A Proposed Law: To alter the Constitution by establishing a body to be called the Aboriginal and Torres Strait Islander Voice that, despite any Act of Parliament to the contrary, may make representations to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples. Do you approve this proposed alteration?”
Daniel Wild, the IPA’s deputy executive director, said in a statement that the legal opinion showed “fundamental questions now hang over the constitutional validity of the Voice to Parliament referendum”.
“The federal government has sought to prevent the release of detail on the Voice to Parliament proposal at all costs,” Mr Wild said.
“Mr Wood KC’s advice demonstrates the attempts to shroud the danger and divisiveness of the proposal have created a questionable and contestable legal scenario. Every step of the way, the Prime Minister, and Voice to Parliament advocates, have sought to deny Australians basic details, to stack the deck in favour of the Yes case, refused to answer rudimentary questions, and have admitted to not fully reading critical documentation on key legal matters.”
The IPA has called on the government to revise the question before the vote is held.
The legal opinion comes after Mr Wood earlier this year claimed that the “gravy train” of government work created a “big incentive” for barristers to support the Voice to Parliament.
“If you’re a sensible person making decisions about wanting to get onto the gravy train of government work, you’re not going to put sand in the gears,” he told Sky News.
“You’re going to tend to do the sort of things that make you more attractive to the biggest client in town.”
Retired judges support Voice
Mr Wood’s analysis is at odds with other legal experts, who have largely come out in support of the Voice.
That includes the federal government’s Constitutional Expert Group, chaired by Attorney-General Mark Dreyfus and Senator Patrick Dodson, which was formed to provide legal support on the content and drafting of the amendment and referendum.
Earlier this month, an eminent group of retired judges penned an open letter calling on Australians to vote Yes.
Arguing that the Voice to Parliament would “enhance Australian governance”, the judges noted that they had spent their “professional lives listening to, and seeking to evaluate, contending arguments” and had “considered carefully” the case for both sides.
“Having done so, we confidently believe that, by raising the quality of our public debate, the proposed Voice will both enrich our democracy and increase the likelihood of governments making correct decisions about matters that affect Indigenous peoples,” said the letter, published by the progressive Australia Institute think tank.
“It will also, and very importantly, give Indigenous Australians their due recognition in our Constitution as this nation’s first peoples.”
The letter was signed by former High Court Judge Mary Gaudron, former WA Supreme Court President Carmel McClure, former Victoria Supreme Court Judges Stephen Charles, David Harper and Robert Redlich, former NSW Supreme Court Judges Paul Stein and Anthony Whealy, and former Queensland Supreme Court Judge Margaret White.
The judges added that while it the “possibility of disruption and instability is a concern which ... deserves respect”, and it was “reasonable to have doubts about the detail of the arrangements which will follow a successful referendum”, those were “not reasons for voting No”.
“It will not, in our opinion, divide our nation,” they said.
Thorpe says cancel referendum
On Wednesday, independent Senator Lidia Thorpe said the referendum should be called off as the proposed Voice to Parliament was “window dressing”.
Ms Thorpe, the face of the Blak Sovereign Movement, slammed the Uluru Statement from the Heart for promoting the Voice, which she called a “romanticised spiritual notion” of Indigenous sovereignty and just a continuation of the “colonial project”.
“This country, your system of government, has been built on lies,” she told the National Press Club.
“The referendum for the Voice to Parliament is a continuation of these lies. It promise to finally fix the Aboriginal problem. It is false hope, because it is tricking people into genuinely believing that a powerless advisory body is going to protect our country and sacred sites, save our lives, keep our babies at home.”
Yes23 campaign director Dean Parkin rejected Ms Thorpe’s suggestion that the Voice was not broadly supported by Indigenous Australians.
“That’s not the message that we’re getting from Indigenous peoples across the country,” he told the ABC on Wednesday.
“We’re getting a very strong message that now is the time.”
Mr Parkin said he also remained confident despite a series of recent polls showing public support for the Voice dropping sharply.
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“The most important number for us that we’re seeing right now is 40 per cent, and that is 40 per cent of the Australian people haven’t made their minds up on this,” he said.
“They’re either undecided or they’re absolutely persuadable. And they’re persuadable to Yes, between now and the referendum.”
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