Questions and answers about the proposed First Nations Voice to Parliament

Questions and answers about the proposed First Nations Voice to Parliament

4.12.        Will the Voice lead to legal challenges?

There is concern expressed by a minority that the Voice to Parliament might lead to ongoing legal problems for the Australian parliament. The primary claim here is that the Voice would constitute a challenge to parliamentary sovereignty and that the courts could somehow be drawn into regulating parliament’s response to the Voice’s advice. It is suggested that this could become time consuming and expensive if it were to continue for a long period of time.

There appears to be strong evidence that the careful, plain-language wording of the constitutional amendment would allow these issues to be avoided. [121] Currently the Australian parliament has ‘sovereignty’ in the sense that it has the ability to pass legislation without external interference. Concerns about parliamentary sovereignty relate to the prospect of a body that would be able to ‘delay or prevent the enactment of legislation’.[122] Opponents of this view, however, argue that it could be specified in the constitutional amendment that the government ‘may’ receive advice from the Voice and in the legislation that only ‘tabled’ advice from the Voice needs to be considered. Such careful wording would ensure that parliament only had a responsibility to consider advice that was presented before or at the time legislation was being discussed. In this way it would not be possible for the Voice to impede the passing of legislation. The body would exist to help parliament create effective legislation and would not infringe on its authority or power.[123]

Another concern relates to the justiciability of the Voice. ‘Justiciability’ here relates to the capacity of the courts to regulate and challenge matters involving the Voice. If the body were to be justiciable, it is feared that there could be ongoing challenges from the courts questioning whether parliament has fulfilled the obligations established by the constitutional amendment. If this were to occur, it could potentially be expensive and take up considerable amounts of time. Here too, however, experts have pointed out that the risk can be averted by the careful wording of the proposed amendment, through the inclusion of an ‘express non-justiciability clause’, such as is sometimes used in state constitutions with enshrined recognition of Aboriginal and Torres Strait Islander people.[124]

Even without a specific clause, justiciability could be avoided through other forms of wording. The courts do not typically involve themselves in regulating or enforcing parliamentary procedures. With a choice of words that made it clear that the Voice’s functions – including its presentation of advice for ‘proposed laws’ and parliamentary obligation to consider ‘tabled advice’ – related to ‘internal parliamentary proceedings’, it is argued that it should be possible to avoid the courts’ ability to litigate matters regarding the Voice.[125] It is important to note that the Commonwealth Solicitor General, in his formal opinion presented to the Senate Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum, fully concurs with the views of the other experts referred to above.[126] 

These are technical legal matters, but it should be noted that it has never been proposed that the Voice should be able to restrict the capacities or efficiency of parliament. Rather, its objective is supposedly to improve the ability to create effective legislation to benefit Indigenous Australian citizens. 

In summary, it appears likely that it is possible to avoid legal challenges resulting from the establishment of a Voice. Most experts agree that, if the Voice’s basic functions are laid out clearly and the amendment is worded carefully, parliamentary sovereignty should be able to be protected and that court involvement in matters regarding the Voice should be able to be limited.

Continue readingExcerpts 5.12.

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