Voice To Parliament Referendum Question Likely Unconstutional, Misleading: Expert Legal Advice

Written by:
18 August 2023
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“Fundamental questions now hang over the constitutional validity of the Voice to Parliament referendum, as expert legal analysis asserts the question to be put to Australians could be unconstitutional and misleading,” said Daniel Wild, Deputy Executive Director of the Institute of Public Affairs.

The IPA recently received legal advice from leading Victorian barrister and constitutional law expert, Mr Stuart Wood AM KC, about the lawfulness of the proposed referendum question to insert a new chapter into the Australian Constitution to establish an “Aboriginal and Torres Strait Islander Voice”.

Mr Wood KC’s analysis of the referendum question states that the proposed referendum question:

  • “Misleads and misinforms voters”.
  • Has a “serious deficiency”.
  • “Fails to state the core function of the Voice”.
  • Would be “open to challenge in the High Court of Australia.”

In Mr Wood KC’s opinion, the referendum question fails to state the core function of the Voice proposal, which is to make representations to the Parliament and the Executive Government of the Commonwealth. Instead, the question, as it stands, emphasises the notion of constitutional recognition, with the establishment of the new body being only a symbolic step to achieve that aim.

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

“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.”

In light of this damning expert constitutional advice, the IPA is calling on the federal government to immediately revise the referendum question, so it fully reflects the form and powers of the proposed Canberra-based Voice to Parliament to ensure its constitutional validity.

“It is unconscionable that a government would, with full knowledge, put forward a seriously deficient and misleading question, in an attempt to misinform the Australian people at a referendum as critical as the one ahead,” said Mr Wild.

“The Prime Minister’s admission that he has not read the full detail of the Uluru Statement begs the question, did he, or his colleagues, seek legal advice on the constitutional validity of the referendum question, and if so, did they it read in full?”

“It is worrying, given the advice of leading senior constitutional law experts, that the Voice to Parliament could, even before the referendum, be mired in protracted court disputes. No doubt it is a sign of things to come should the referendum be successful,” said Mr Wild. To download Mr Wood KC’s advice click here.

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