Former High Court Justice Ian Callinan opposes Voice to Parliament

Many Australians want to know exactly what power a Voice to Parliament will have if the referendum passes. It will come down to one court to decide that.

Realistically, the Voice will be a political as well as a constitutional creature. Human experience teaches it is in the nature of political creatures to seek to expand their powers.

It would be naïve to the point of irresponsibility to believe the Voice would be different.

The Voice would be an entirely new constitutional identity.

The authors of the Australian Constitution had regard to the history of the unwritten British constitution and the written United States one in providing for a tripartite Australian polity, the parliament, the executive and the judiciary, each to serve as a check and balance upon the others.

The Prime Minister, Mr Albanese, said it would be a brave government only that would not heed the Voice.

The reach of the proposed Voice will ultimately be for the High Court to decide.

The High Court has repeatedly given the broadest possible operation to the words used in the proposed amendment “... representations... on matters relating to Aboriginal and Torres Strait Islander peoples”.

Those words are likely to be interpreted as extending to almost everything.

Former Justice of the High Court Ian Callinan. Picture: Supplied

Take, for example, waters between the low water mark and the boundary of Australia’s territorial seas. The High Court in Yarmirr held that Native Title can exist over these.

Proponents of the Voice have advocated already for a say in the location of and access to ports and training by foreign troops on Australian soil.

The recent Western Australian heritage legislation, now abandoned, defined Aboriginal

tradition extraordinarily widely. Already some Voice proponents are demanding similar

provisions throughout Australia.

That legislation and other heritage legislation often fails to distinguish between tradition, ritual, lore, historical fact, law, religion, spirituality, myth and legend.

In the Timber Creek case in 2019 the High Court held that non-exclusive Native Title holders

should receive one half freehold value for Native Title and a further $1.3 million for the

damage done to traditional attachment to country and spiritual sustenance from the land.

Five judges colourfully wrote “[t]he earlier acts, which were not compensable, punched

holes in what could be likened to a single large painting – a single and coherent pattern of

belief in relation to a far wider area of land”.

Neither the Catholic Church, its communicants in Canberra nor its grateful patients will receive compensation for loss of spiritual sustenance arising out of the seizing and demolition of the Calvary Hospital and the chapel inside it. Where is the equivalence in this?

The Amendment makes no provision for a fair election by Indigenous people of the Voice.

It is anomalous that the Voice unlike the Commonwealth Parliament will not be directly chosen by the Indigenous people for whom it will be purporting to make representations.

Just as it would be naïve to imagine a constitutional creature without a tendency to extend its remit, it is unimaginable that the Voice would not be armed with all the apparatus of government, a central office in Canberra, branches throughout Australia, its own executive or cabinet, staffers, media officers and public servants.

Further frontiers of legal friction will open. Ultimately all constitutional points and subject matter of federal legislation fall to be determined in both the Federal and ultimately the High Court.

Lead times for even modest projects are already lengthy. Consultations with and the processing of the Voice will inevitably impede government business and economic activity.

It is not for this writer or for anybody else, company director, municipal councillor or champion athlete to presume to tell anyone how to Vote.

Voters should remember what Gladstone advised, don’t confuse the strength of opinions for the strength of an argument.

Originally published as Former High Court Justice Ian Callinan opposes Voice to Parliament