‘Too silly for words’: Experts reject claims Voice will trigger deluge of legal action

Any prospect of a consensus being struck with conservatives on the Voice to parliament wording has further dwindled, as constitutional law experts and prominent Indigenous figures backing the Yes case rubbished suggestions the body would disrupt the nation’s system of government.

On the first of five days of public hearings on the referendum, Voice advocates insisted the proposed amendment to enshrine the body in the Constitution was sound, and dismissed claims that allowing the Voice to lobby ministers and bureaucrats would lead to a deluge of High Court litigation.

Voice advocates (from left) Kenneth Hayne, Bret Walker and Robert French dismissed suggestions the Voice would lead to a deluge of court litigation.Credit: Arsineh Houspian, Natalie Boog, Andrew Meares

As Deputy Opposition Leader Sussan Ley sought to drum up concerns the Voice could have a “de facto veto role” in changing Australia Day or Anzac Day, former High Court chief justice Robert French told a parliamentary inquiry the claim had “no substance”.

French, who has publicly supported the wording of the proposed constitutional alteration to create the Voice, said the body could argue in favour of changing the date of Australia Day if it chose to, but “it would be no more than advice”.

“I’ll be polite about it … I don’t know what a de facto veto role is,” he said.

In a scathing attack on critics of the amendment, eminent constitutional silk Bret Walker, SC, condemned as “too silly for words” the prospect that the courts would be jammed with a “mythical procession of meritless cases” based on the claim the Voice had not been properly consulted on a government decision.

Deputy Opposition Leader Sussan Ley has concerns the Voice could have a “de facto veto role” in changing Australia Day or Anzac Day.Credit: Alex Ellinghausen

“I don’t think there’s any prospect if this is put into our Constitution that a 10-year review ... will reveal that litigators have been run ragged keeping up with a deluge of cases. It’s nonsense,” Walker said.

The evidence by Walker, French and former High Court judge Kenneth Hayne, who has given advice on the amendment wording, provided a high-powered endorsement of the Voice to the committee.

The committee will report its findings at the end of a six-week inquiry, amid an ongoing debate about the potential scope and power of the body.

Some legal thinkers and politicians – including the Liberals’ most prominent pro-Voice MP, Julian Leeser – believe clause two of the amendment, which gives the Voice the power to “make representations” to the executive government, should be deleted to remove the risk of litigation.

The committee’s deputy chair, Liberal MP and barrister Keith Wolahan, highlighted the proposition put by some legal experts, that the High Court would interpret the constitutional wording to mean the government must give the Voice prior notice about policies, give information about those policies, and consider the Voice’s views.

These obligations could delay the work of the government, Wolahan suggested.

Constitutional conservative and law professor Greg Craven, a long-time supporter of the Voice, claimed such outcomes were “entirely possible”, and argued executive government covered the expanse of the bureaucracy “from cabinet down to the lighthouse keeper’s bulb polisher”.

“This is not simply about preventing litigation. It’s about inviting litigation. It’s about trailing your coat with imprecision, knowing you will get litigation and that’s what’s proposed here. Yes of course it can be litigated, but you don’t need to make it so unclear that it will be litigated to death,” Craven said.

But Craven was in the minority at Friday’s hearing, departing from the views held by other constitutional law academics Anne Twomey and George Williams, who worked alongside him on a legal experts’ panel advising Indigenous leaders on the drafting of the amendment.

“There is no realistic possibility whatsoever that this will give rise to a deluge of litigation. The words don’t support it,” Williams said.

French, Twomey and Williams said they did not believe there was any legal need to change the proposed wording, but acknowledged doing so could help generate more political support for the referendum.

Professor Megan Davis, a Cobble Cobble woman and leading architect of the Voice proposal, labelled the concerns of some conservatives “constitutional shadow-boxing”.

“People are throwing up the most extreme examples to try and scare the Australian people,” she said.

“I just can’t answer those questions because it feeds into a discourse … that is not accurate.”

Indigenous academic Marcia Langton rejected the concerns around litigation as “so minor as to not warrant attention”, and noted the majority of legal experts consulted in the development of the Voice agreed.

“The proposition that advice from [Indigenous] people will cause delays and threats is a very negative view of us. We’re not allowed to use the ‘R-word’ any more, but you know, how is advice from me or [Indigenous academic] Tom [Calma] a threat to civilisation, a threat to democracy? It’s a nonsense.”

Liberal senator Andrew Bragg, who supports the Voice, and Indigenous Liberal senator Kerrynne Liddle, who opposes it, both questioned witnesses about a previous Voice report that said the body should not be able to prompt High Court reviews.

Langton, who was involved in the report along with Calma, said she did not personally agree with that specific component of the report.

Opposition Leader Peter Dutton has begun referring to the proposed Indigenous advisory body, which will be voted on in a referendum later this year, as the “Canberra Voice bureaucracy” that could cost billions of dollars and require thousands of public servants to run.

Indigenous leader Pat Anderson emphasised that it was a Voice to parliament and Canberra, rather than one that existed in Canberra.

Davis said the use of the term ‘Canberra Voice’ was similar to monikers used to talk down the republic referendum in 1999 and portray the concept as distant from local concerns.

“People do not want to be politicians … they don’t want to be going to Canberra, they want to be with their communities,” she said.

“The ‘Canberra Voice’ is just a term deployed to imply that our people want to be politicians in Canberra when nothing could be further from the truth.”

Davis said symbolic recognition in the Constitution – which would note the place of Indigenous Australians in the nation’s history but would not create a Voice body – was ineffective.

She explained that constitutional recognition ran along a “spectrum”, of which the Voice existed at the strong end because it altered the status quo, empowered Indigenous people and forced the state to act.

“Symbolism alone won’t cut it … [The Voice] will also evolve and change in the decades to come.”

Former journalist and 7.30 Report host Kerry O’Brien said bad-faith actors were using misinformation to sow doubt about the Voice, and urged the media to avoid contributing to misleading debates.

Another Voice campaigner, Thomas Mayor, said “tactics of confusion” risked the referendum’s failure, which would deal a devastating blow to reconciliation efforts.

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