4.10. Could the Voice undermine the power of parliament?
One frequently stated concern about the establishment of a Voice to Parliament is that the body could undermine the power of the parliament, delaying legislation or potentially becoming the equivalent of a ‘third house’. However, most authoritative commentators are clear that it is within the government’s ability by legislation to design a Voice that would not infringe on the power of either government or parliament.
Emeritus Professor Anne Twomey has written the clearest responses to this question. She points out that the proposed amendment to the Constitution specifies that parliament would have the power to determine the ‘composition, roles, powers and procedures’ of the Voice, which could give advice on legislation put forth by the parliament where it concerned Aboriginal and Torres Strait Islander people. She explains that, if the referendum is successful, the government would then draft legislation to establish a body without the capacity to interfere with the work of parliament. She emphasises that the amendment would only enable the existence of an Indigenous Voice to Parliament, leaving to the parliament the power to establish its precise nature. This would have the added advantage of allowing the Voice’s structure and capacities to be changed if were to be perceived not to be functioning as efficiently as it should be, or to be undermining the power of the parliament.
Additionally, Twomey points out, it is readily possible to ensure the Voice would not be capable of delaying or vetoing legislation by specifying that parliament need only seek its advice in relation to legislation being discussed or about to be discussed. It would equally be possible to prevent the courts from limiting the power of parliament to pass legislation without consulting the Voice.
For these reasons there is a strong case that the establishment of a Voice to Parliament need not infringe on the power or efficiency of the Australian parliament. Both the wording of the proposed constitutional amendment and the capacity of the parliament to fashion any ensuing legislation appropriately provide sufficient safeguards to ensure that the existing system of government will not be undermined.