Voice in Parliament ‘will fail’, predicts constitutional law expert as opponent shoots down ‘scaremonger campaigns’

Debate around the proposed indigenous voice in parliament is heating up, with one side warning that it will be extremely powerful – encouraged by politicians whether they like it or not – while the other side has called the argument a ” “absurd”.

The Albanian government insists that the Voice’s role will be purely advisory, limited to issues that concern Aboriginal and Torres Strait Islander people, with its existence enshrined in the Constitution.

But constitutional law expert and University of Queensland Conservative James Allan said the government would feel bound to follow his advice.

“It will be practically binding, it will not be legally binding,” Prof Allan told The West Australian.

“We will have a body that parliament that all Australians vote for cannot in practice override.

“When Labor is in power they will delay and when the Libs are in power they will huff and puff and moan and then they will delay.

“So concretely, you will have this body that will do it effectively. . .have a lot of power.

Camera iconThe very first words of Prime Minister Anthony Albanese’s election victory speech were his government’s plan to adopt the Heart of Uluru Declaration “in its entirety”. Credit: AARON BUNCH/AAPIMAGE

Professor Anne Twomey of the University of Sydney disagreed, saying earlier versions of the proposal required the government to consult the voice, but the Albanian government’s plan was much more limited, simply giving the body the ability to make representations.

“And that’s all he’s saying: there’s no obligation on the government or parliament as to how they respond to these recommendations, there’s nothing in there that says the government or parliament must consult in advance,” Professor Twomey said.

“This notion that he somehow becomes binding is a bit disconcerting.

“Legally, it is clearly not binding. He can’t veto anything that goes to parliament, he can’t delay anything that goes to parliament.

She said opponents who claimed politicians would “feel obligated to automatically obey” the Voice – handing over responsibility to everyone in the country – were “obviously absurd”.

Professor Anne Frances Twomey AO is an Australian scholar and lawyer specializing in Australian constitutional law.  She is currently Professor of Constitutional Law and Director of the Constitutional Reform Unit at Sydney Law School, University of Sydney.
Camera iconProfessor Anne Twomey fears ‘scare-mongering’ campaigns could derail the proposed vote in Parliament, calling some of the arguments from the ‘no’ camp absurd. Credit: Unknown/Provided

There are suggestions from the ‘no’ side that an unheeded voice could lead to all sorts of rows in the High Court, and Prof Allan suggests even rulings on Indigenous peoples issues could end up there .

“You will have questions about judicial review,” he said, adding that a section of the Canadian Charter of Rights and Freedoms which sought to limit the power of judges – allowing Parliament “to be supreme” – hadn’t been used once in 40 years. since its introduction.

But Prof Twomey said the High Court would be aware that the original intention of the proposal was “for these things to be dealt with at a political level”.

While a recent poll tentatively suggested that support for the voice idea was backed by 47% of Australians – a near majority – Prof Twomey fears support will wane “as scarier campaigns are carried out”.

She said bipartisan support was key and if voters weren’t sure, they would vote no.

Prof Allan said he was ‘pretty confident’ the referendum would be a failure.

“A group of Australians with an extra say – I don’t think Australians would vote for this and I wouldn’t,” he said.

“If they lose, it’s dead for a few decades.”