Indigenous voice to parliament wording ‘could be challenged in court’

One of the nation’s leading silks has warned that the referendum on the proposed Indigenous voice to parliament is vulnerable to legal challenge in the High Court because it misleads voters.

Stuart Wood KC. Picture: AAP

One of the nation’s leading silks has warned that the referendum on the proposed Indigenous voice to parliament is vulnerable to legal challenge in the High Court because it misleads voters.

Stuart Wood KC has produced a legal opinion that says the referendum question fails to state the core function of the proposed Indigenous voice to parliament and the executive.

Instead, the question that will be presented to voters emphasised the notion of constitutional recognition of Aboriginal and Torres Strait Islander people.

In an opinion written jointly with barristers Paul Jeffreys and Jakub Patela, Mr Wood states that the emphasis in the referendum question on constitutional recognition is significant because there is differential support among electors for recognition and the proposed voice.

“In our view, the government’s proposed question misleads and misinforms voters about what they are being asked to approve,” they write.

Their opinion, which was commissioned by the Institute of Public Affairs, says the referendum question is seriously deficient and “will be open to challenge by seeking relevant relief”.

Potential remedies could be a High Court declaration that an answer to the referendum question cannot be taken to constitute approval of the proposed change to the Constitution, or an injunction preventing the question being put to electors, their opinion says.

While their opinion focuses only on potential remedies that could be sought from the High Court before the referendum, it will place the government under pressure to change the referendum question or risk High Court action if there is a successful outcome for the Yes case.

One of those familiar with the opinion said the likelihood of successful intervention by the High Court could be stronger after a successful referendum than if the court were asked to intervene before the question had been considered by voters.

Independent senator Lidia Thorpe urged the government on Wednesday to call off the referendum, describing constitutional recognition as “window dressing” for the proposed voice.

The Wood opinion says the referendum question fails to state the core function of the voice which is to make representations to parliament and the executive branch of government on matters that relate to Aborigines and Torres Strait ­Islander people. It says the referendum question portrays the voice as only a symbolic step.

At the moment, the government’s referendum question will ask voters if they approve of “a proposed law to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait ­Islander voice”.

The Wood opinion contains options on how this could be changed in order to avoid the risk of a High Court challenge.

One option would make it clear that parliament could not restrict the matters that would be subject to representations by the voice.

This option would ask voters if they approve of “a proposed law to alter the Constitution by establishing a body to be called the Aboriginal and Torres Strait Islander voice that, despite any act of parliament to the contrary, may make representations to the parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples.”

Morgan Begg, who is the IPA’s director of research, said the Wood opinion suggested the voice to parliament could be mired in protracted court disputes before the referendum.

“It is a worrying sign of things to come,” he said, and urged the government to immediately revise the referendum question.