Constitutional experts have criticised suggestions the Indigenous voice will have veto power in the Australian parliament, calling such prophecies “doomsdaying” and “distorting” of the truth.
Speaking at the first hearing of the joint select committee on the Aboriginal and Torres Strait Islander voice referendum, a string of legal experts said the voice would be legislated to provide representations on relevant matters, akin to advice.
The former chief justice of Australia Robert French had four words of reply to the hand-wringing among conservative circles, including the deputy opposition leader, Sussan Ley, that the voice could hold a de facto veto over public holidays.
“No substance in it,” he said. “I’ll be polite about it.
“That would be no more than advice and it certainly wouldn’t bind anybody and it wouldn’t be a veto. What is a de facto veto? … I’m still at a bit of a loss.
“If I were confronted with this provision as a judge … it’s a big thing, to draw a constitutional implication and the implications which have been suggested are not supported by the text and will be inconsistent with it.”
The former high court justice Kenneth Hayne told the inquiry that he couldn’t see “anything in those drafts that comes anywhere near providing anything like a veto”.
“The voice will not waste its social or political capital by exploring the outer range of its scope of representation,” he said. “[That is] an unreal case or distorting possibility or extreme example.”
The constitutional lawyer Anne Twomey agreed. She said she was confident the voice would stay focused on core issues affecting First Nations people and to do otherwise would squander its resources and influence.
“If the voice goes out and tries to make representations about what submarines Australia should buy or whatever, well … people will think it’s crazy,” she said.
“But more to the point its constituency of Aboriginal and Torres Strait Islander people will be awfully furious that it is not focusing on the things that are relevant and important to them.”
Experts were split, however, on whether the wording of the constitutional amendment should be altered to remove the reference to the voice as being able to make representations to the executive government.
Louise Clegg, a barrister from PG Hely Chambers, was in favour. She said there was “no prescription” in the Uluru statement about what should be in the wording and to exclude it would still satisfy the statement, while clarifying she wasn’t an Indigenous person.
The constitutional lawyer Prof Greg Craven said there had been “mission creep” by the working group in drafting the wording and it was “very surprisingly different” to what he thought when it came back out.
But the constitutional barrister Bret Walker said it was “bizarre” to suggest the inclusion of a reference to “executive government” would bring in court cases.
He said the proposed wording “vaults over race” to recognise people were “supplanted against their will” and who “have not been dealt with very generously ever since”.
“It’s the combination of recognition and a kind of reparation, which in my opinion cannot possibly, seriously or charitably be seen as an exercise of inequality,” he said.
Twomey told the inquiry the high court was “not in the business of trying to destroy government” and reiterated executive government means minister and government departments but does not include all statutory bodies.
George Williams, a constitutional lawyer, said the voice would go some way towards finishing the “unfinished business” of the 1967 referendum that recognised Aboriginal and Torres Strait Islanders.
He said the constitution is a document that does not reflect the people “who have been the custodians of these lands and waters” for tens of thousands of years.
Inquiry hearings will be held in Orange, Cairns and Perth to gather views from Indigenous communities and those involved in the processes that led to the voice proposal.
