Legal experts fear that a single provision of the Aboriginal vote constitutional amendment to parliament could make it impractical, with broad issues such as tax policy and even roads coming under its purview.
Prime Minister Anthony Albanese today introduced legislation to parliament that would enshrine the advisory body in the constitution if the proposal wins the referendum.
The bill includes the language that will be included in the constitution to create the voice and define its basic functions.
However, the second clause of the wording has raised concern that it is too broad, goes far beyond human rights issues originally intended and could create unintended bureaucracy and legal wrangling.
Attorney General Marc Dreyfuss reads the Constitution (Aboriginal and Torres Strait Islander Voice) Amendment Bill 2023, introducing it to Parliament on Thursday
Human Rights Commissioner Lauren Finley (pictured) argued that the wording of the Voice constitutional amendment was problematic
The line in question states that the Voice should be allowed to “make representations to Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander people”.
One expert fears that there will be almost no problem in Australia that will not fall under its purview, even things like tax policy, because it also affects Indigenous Australians in the same way that it affects everyone else.
Human Rights Commissioner Lorraine Finlay, a former constitutional law academic, laid out her problems with the wording in an opinion piece for Australian.
This was not the modest proposal Albanese insisted on, writes Finlay, a longtime The Voice critic who was appointed by former prime minister Scott Morrison.
Her first issue was the inclusion of “executive government” in the provision, which she said “dramatically increases the risks of bureaucratic complexity, legal uncertainty, and judicial activity.”
The inclusion of an “executive cabinet” has been hotly debated in parliament and elsewhere over the past two weeks with the prime minister at odds with opposition leader Peter Dutton over it.
The Labor side of the House of Representatives burst into applause after the bill was introduced
Meanwhile the coalition seats (on the right) were nearly empty and the amendment was put forward
Her second point, which was echoed by other legal experts, was that the range of sound as set out was far too wide.
The clause also went further than “matters that may affect their rights,” which is the wording used in the United Nations Declaration on the Rights of Indigenous Peoples.
Ms Finlay argued that it was “difficult to think of” a political issue that did not fall under the broad formulation because they were all as closely related to Indigenous Australians as they were to all other citizens.
The prime minister argues that Clause 3 of the amendment gives Parliament the power to determine how the Indigenous vote works.
It states that “Parliament shall, under this Constitution, have the power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander vote, including its composition, functions, powers and procedures.”
Australian Indigenous Minister Linda Burney addresses the media after introducing the bill
Mrs. Burney was surrounded by several Aboriginal leaders as she spoke about the legislation
However, Mrs Finley said Parliament was subject to the Constitution and would therefore be bound by the content of Clause Two.
She wrote, “A direct reading of this second paragraph suggests questions about who and what voice can make representations enclosed in the Constitution.”
Parliament can attempt minor amendments, but any changes that are said to conflict with the wording of the constitution can be challenged in court.
Where to draw that line will be for the Supreme Court to decide. Once that decision is made, there will be no democratic way through parliament if it turns out to sound so different from the one Australians thought they would approve of.”
George Williams, a professor at the University of New South Wales, agreed that the second clause was problematic because Parliament could not change it, since it had been added.
“That’s the point of putting things in the constitution,” he said, “that gets them out of parliament.” Australian.
University of New South Wales professor George Williams and University of Sydney professor Ann Twomey also have concerns
He disagreed with Mr. Albanese’s assertion that The Voice would only be able to make representations on issues that “directly” affect them.
She can’t make representations about tax policy without any connection to her community, but if she makes a representation asking for Aboriginal tax cuts or different areas of Aboriginal taxation, those are things she can file returns on because it’s provided for by the constitutional change. It’s all about context, he said.
University of Sydney professor Ann Twomey said parliament and government could decide how to consider and respond to Voice’s recommendations.
However, she said that the range of what a voice could make representations about would be determined entirely by the second paragraph.
“This cannot be changed or restricted by an Act of Parliament,” she said.