Will the First Nations Voice redefine Australia or unleash legal turmoil?

ESG: Amidst raised concerns about legal and constitutional implications, Australians prepare to cast their votes on October 14 in a pivotal referendum. The nation will decide on a proposed alteration of the Constitution, aiming to formally acknowledge the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.

Professor Nicholas Aroney, Professor of Constitutional Law at the University of Queensland, stated that the establishment of the Voice within the Constitution could imply a separation of powers, affecting the Parliament’s ability to enact certain laws and potentially leading to judicial interpretations that reshape the nation’s governance framework.

“An aggrieved party with sufficient standing would be able to initiate proceedings in the courts seeking judicial review. If it was shown that appropriate consideration was not given to the relevant representation of the Voice, the courts would have the jurisdiction to set aside the exercise of power and order the decision-maker [government] to exercise the power in accordance with the law,” Professor Aroney wrote in his submission to the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum.

Professor Katharine Gelber, Head of the School of Political Science and International Studies, emphasised the transformative potential of the proposed First Nations Voice.

“The Voice will provide a constitutionally enshrined recognition of Aboriginal and Torres Strait Islander people for the first time in our history,” she noted. This recognition would enable Indigenous communities to directly engage with the government and its departments on policies affecting their lives. Notably, the constitutionally enshrined nature of the Voice would ensure its continuity and prevent its abolition by future governments.

Also opposing the proposed constitutional amendment, Professor James Allan, Garrick Professor of Law at the University of Queensland, argued that embedding the Voice into the Constitution would disrupt Australia’s current governing arrangements. He raised concerns about potential adverse outcomes, including increased political polarisation, administrative burdens, and legal challenges.

“What is being proposed is in no way at all a modest change. It will go to the heart of our current governing arrangements, in moral, political and in legal terms,” Professor Allan said.

The push for a First Nations Voice stems from a broader global effort to incorporate Indigenous perspectives into governing frameworks. While various countries have their unique mechanisms, such as historic treaties or voice-like structures, Australia’s context necessitates this constitutional recognition. Aboriginal and Torres Strait Islander peoples are advocating for acknowledgment as the First Nations, seeking representation in the form of a Voice to parliament.

Professor Bronwyn Fredericks, Deputy Vice-Chancellor Indigenous Engagement, stressed the importance of prioritising Voice before Treaty, underscoring the urgency of addressing critical issues affecting Aboriginal and Torres Strait Islander peoples, like health disparities and youth suicide.

The referendum on October 14 will ultimately determine whether Australia embraces this significant step toward recognising and amplifying the voices of its First Peoples. It is a moment of reflection and transformation that has the potential to reshape the nation’s future and foster a more inclusive and equitable society for all Australians.

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