Former chief justice backs “constitutionally sound” Indigenous voice

UPDATED | The powers of any voice to parliament in the constitution can be limited by Australian legislation and lawmakers will remain supreme, one of the nation’s eminent legal minds says.

Oct 06, 2023, updated Oct 06, 2023
Former High Court chief justice Robert French says the proposed voice is constitutionally sound. Photo: AAP/Mal Fairclough

Former High Court chief justice Robert French says the proposed voice is constitutionally sound. Photo: AAP/Mal Fairclough

The third clause of the amendment means the body cannot overpower parliamentarians, according to former High Court chief justice Robert French.

The clause says “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”.

This means lawmakers will be able to decide who makes representations and how they are made, French argued on Friday.

An implication the government needed to consult the body regardless of whether took the advice or not was “highly improbable”.

“On no view can they give rise to any constitutional legal obligation for the parliament or the executive to accept or be bound by such submissions or advice (from the body),” he told the National Press Club.

“Nor is there any available reading of the constitutional change which would bind the parliament to have regard to representations from the voice about a proposed law.”

But the argument didn’t fly with Liberal senator Kerrynne Liddle who said legal minds had differing views about the broadness of the wording.

“What was really clear from (a parliamentary committee) was that the risk seemed to be unquantifiable,” she told ABC TV.

French rubbished this, saying any representations would not translate “into a mandate enforceable by the courts” but only pressure on governments to listen to the mandate given to them by voters to consult Indigenous people.

An Indigenous voice to parliament would bring people together, not divide the nation and save taxpayers money, Prime Minister Anthony Albanese said.

It was a chance to show the nation’s best characteristics and “appeal to our better angels, not to a dark side of fear”.

“What makes a nation greater is optimism and hope and a positive vision,” he said.

“(It’s) a form of recognition that won’t just be about symbolism but about making a difference to their lives by giving them an opportunity to have a voice so we can listen to them about matters that directly affect their lives.”

But Opposition Leader Peter Dutton continues to argue the voice proposal lacks detail and people who want to help Indigenous Australians will be forced to vote ‘no’ if their questions go unanswered.

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“It just makes people more reluctant – tradies and others who are saying, ‘I want to help Indigenous people but the prime minister is not putting the detail out there, so I don’t understand it, I am not voting for it’,” he told Nine’s Today program.

French dismissed that argument.

He said the “don’t know, vote ‘no’” slogan “invites us to a resentful, uninquiring passivity” towards a straightforward proposal.

“Australians whether they vote ‘yes’ or ‘no’ are better than that,” he said.

On arguments about a lack of detail, the former chief justice said constitutional provisions ordinarily didn’t provide granular specifics because doing so invited more room for legal interpretation.

“So the ultimate form and functions will be in the hands of the elected parliament,” French said.

If the referendum succeeds, the voice will be a permanent but non-binding advisory body that will be able to make representations to the parliament and government.

The referendum will be held on October 14.


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