Institute Of Public Affairs Research Note Regarding The Legal Risks Of The Voice

The following research note was prepared by the Institute of Public Affairs (the IPA) regarding the potential legal risks associated with the federal government’s proposal to insert into the Australian Constitution the Aboriginal and Torres Strait Islander Voice (the Voice).

At the National Press Club on 5 July 2023, the Minister for Indigenous Australians Linda Burney MP asserted that the Voice would operate by making representations to the government in only a few select policy areas: health, education, jobs, and housing. The assertion that the Commonwealth parliament would possess the power to limit the scope of the Voice has been expressed in the Attorney-General’s second reading speech and explanatory memorandum to the Constitution Alteration Bill.

The IPA has undertaken research on the Voice and had the opportunity to participate in briefings with community and political leaders across the country. In one briefing with a senior politician the question of constitutional and legal risk was raised, including whether the intentions expressed in the Attorney-General’s second reading speech or the explanatory memorandum would effectively reduce the risk or scope of the Voice.

This IPA Research Note considers the potential role of documents such as the explanatory memorandum or the Attorney-General’s second reading speech in guiding the High Court’s interpretation of the proposed new constitutional text. IPA research finds:

• Due to the vague and uncertain nature of the proposed alteration, the High Court is likely to rely on other material as aids to interpret the scope and powers of the Voice.
• The High Court will not be limited to considering the explanatory memorandum or assurances by the Attorney-General but will also be able to consider other material that form the history, context and background to the Voice such as parliamentary reports, the Voice Co-design process, and the Uluru Statement from the Heart.
• The comments made in documents such as the Uluru Statement from the Heart would give license to the High Court to give broad and expansive meaning to the words proposed to be added to the Constitution.

A careful analysis of constitutional interpretative principles suggests there will be substantial constitutional and legal risk arising from a constitutionally enshrined Voice.