Voice referendum question likely ‘misleading, unconstitutional’, legal experts warn

What lies behind all the vagueness is that Albo is quietly aiming at something very big and controversial.  He wants the body of "advisers" formed by the bill as someone he can negotiate a "treaty" with, following the very damaging NZ example.  It is all about a creating a treaty with Aborigines, nothing else.  And there is no knowing what a treaty will do. Some extreme ideas have been put forward. It is dangerous racism

The wording of the Voice referendum question being put to Australian voters could be fundamentally “misleading” and unconstitutional because it fails to state the core function of the proposed body, according to one of the nation’s leading silks.

At the upcoming referendum, likely to be held in October or November, Australians will be asked to vote yes or no on a single 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?”

Victorian barrister and constitutional law expert Stuart Wood KC, in a legal opinion for the conservative Institute of Public Affairs think tank published on Thursday, argued that the question “misleads and misinforms voters” and has a “serious deficiency” as it “fails to state the core function of the Voice”, and would be “open to challenge in the High Court of Australia”.

“In our view, the government’s proposed question misleads and misinforms voters about what they are being asked to approve at this year’s referendum,” Mr Wood said in the opinion, jointly written with barristers Paul Jeffreys and Jakub Patela.

“The central issue with the question is that, although it mimics the long title of the Bill, it fails to state the core function of the Voice, being to make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples.”

The question “instead, as presently framed, emphasises the notion of constitutional recognition of Aboriginal and Torres Strait Islander peoples, with the establishing of the new body being only a symbolic step to achieve that aim”, they wrote.

“This is significant in circumstances where there is differential support amongst electors as to the concept of constitutional recognition, and the concept of a new constitutionally entrenched body,” the opinion said.

Assuming the proposed question remains deficient, they argue it would be “open to challenge by seeking relevant relief, such as a High Court declaration that an answer to the proposed question can not be taken to constitute approval of the proposed law, or an injunction preventing it being put to electors”.

Leading barrister Stuart Wood KC, left. Picture: Liam Kidston
Leading barrister Stuart Wood KC, left. Picture: Liam Kidston
The barristers suggested an alternative referendum question that could be put to voters instead.

“A Proposed Law: To alter the Constitution by establishing a body to be called the Aboriginal and Torres Strait Islander Voice that, despite any Act of Parliament to the contrary, may make representations to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples. Do you approve this proposed alteration?”

Daniel Wild, the IPA’s deputy executive director, said in a statement that the legal opinion showed “fundamental questions now hang over the constitutional validity of the Voice to Parliament referendum”.

“The federal government has sought to prevent the release of detail on the Voice to Parliament proposal at all costs,” Mr Wild said.

“Mr Wood KC’s advice demonstrates the attempts to shroud the danger and divisiveness of the proposal have created a questionable and contestable legal scenario. Every step of the way, the Prime Minister, and Voice to Parliament advocates, have sought to deny Australians basic details, to stack the deck in favour of the Yes case, refused to answer rudimentary questions, and have admitted to not fully reading critical documentation on key legal matters.”

The IPA has called on the government to revise the question before the vote is held.

The legal opinion comes after Mr Wood earlier this year claimed that the “gravy train” of government work created a “big incentive” for barristers to support the Voice to Parliament.

“If you’re a sensible person making decisions about wanting to get onto the gravy train of government work, you’re not going to put sand in the gears,” he told Sky News.

“You’re going to tend to do the sort of things that make you more attractive to the biggest client in town.”



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