THOUGHTS, THEORIES, QUERIES

The Voice’s operation as an external body offering recommendations will eliminate many concerns about disruptions to the separation of powers, or that Parliament would be forced to effectuate the Voice’s representations. In reality, the High Court is precluded from forcing the Parliament to enforce the Voice’s commentary to protect Parliamentary integrity and maintain fairness through the separation of powers. The only real way that courts could intervene is to review a government decision that does not appear to have been made fairly, considering all relevant or required representations.

A further argument has been made that courts might interpret the proposed Constitutional reform as a requirement to consult and accept recommendations from the Voice. Given the wording and purpose of the drafting, this seems an unlikely determination. Robert French, a former Chief Justice of Australia reinforces this sentiment, expressing that “[t]here is no constitutional legal obligation for the Parliament or the Executive to accept or be bound by such submissions or advice.”6 This concern however provokes a crucial question of , whether the Voice will even be effective if there is no real requirement to listen?

I believe it is fair to say that establishing the Voice is intended to incite consideration of the impacts of pParliamentary decisions proactively as opposed to retrospectively. Assuredly, the guiding principles for the proposed Voice seem to favour the body’s independence, allowing for more sincere, community-led and culturally informed representations of community views to be conveyed. Having this platform to raise concerns that are typically overlooked or even disregarded is certainly a positive contribution to Australia’s system of governance. This viewpoint appears to be the majority view in Australia, with 80% of Australians affirming that there is a need to include some version of an Indigenous body in the Constitution.7

THE REFERENDUM – WHAT WILL BE ADDED TO THE CONSTITUTION?

Assuming the premise of the Voice is uncontentious, we can look at how it will be implemented. In order to enact these changes as proposed, there is a need for constitutional amendment, which can only take place through a referendum. It is expected that in late 2023, Australians will be asked to answer either ‘yes’ or ‘no’ to the following 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?’”

3 Ellen McCutchan and David Campbell, ‘Does New Zealand’s parliament really play second fiddle to a ‘Māori Voice’?’, ABC News (online, 14 April 2023) <https://www.abc.net. au/news/2023-04-14/fact-check-checkmate-maori-voice-waitangi-tribunal/102217998>.

4 Dominic O’Sullivan, ‘What Australia could learn from New Zealand about Indigenous representation’, Charles Sturt University News (online, 21 March 2023) <https://news.csu. edu.au/opinion/what-australia-could-learn-from-new-zealand-about-indigenous-representation>.

5 Gabriella Appleby and Eddie Synot, ‘A First Nations Voice: Institutionalising Political

Whilst Australians will not be asked to contribute to a specific model through which the Voice will operate, it is safe to say that this is not a radical change. Rather, if the double majority agrees, we will simply be recognising the significance of First Nations peoples as part of the fabric of Australia’s society. This is a pivotal step in reconciling and closing the gap in a way that leads to better outcomes for all Australians.

Listening’ (2020) 48(4) Federal Law Review 529.

6 Robert French, ‘The Voice – A step forward for Australian Nationhood’ (online, 20 February 2023) <https://www.auspublaw.org/first-nations-voice/the-voice-a-step-forwardfor-australian-nationhood>.

7 ‘Voice to Parliament’ Reconciliation Australia (Web Page) <https://www.reconciliation. org.au/reconciliation/support-a-voice-to-parliament/#DoAustralianswantchange>.