Opinion It’s The Voice, try and understand it : WCE supports The Voice

[Agent93]

However, it can still be legislated that the chambers must abide by the voice recomendarion in cases of <to be determined>.

See ... quite scary right?

True, but you could theoretically legislate anything. Like compulsory military field medic training for all students yr 3 and above. Or that citizens must complete two years national service between the ages of 18 and 29.

We shouldn't have representative parliament at all, it's clearly a slippery slope.

 

[Rowan18]

I mean, the only question with genuine importance is the bolded, and the answer is a flat no. Confirmed by the Solicitor General.

I also think it's a safe bet that people on the Voice have to be Aboriginal otherwise what's the point.

But again, it has been stated that the Uluru Statement of the Heart is what they are working from and the design principles are pretty clear.

The Voice Design Principles

A Voice to Parliament will be a permanent body to make representations to the Australian Parliament and the Executive Government on legislation and policy of significance to Aboriginal and Torres Strait Islander peoples.

ulurustatement.org

Thanks. That's still pretty vague on the actual details though

It could be a real nightmare to get it implemented if the referendum passes. They will have a lot of consultation to do with the different communities to figure out how it works. I hadn't appreciated that it might take a fair bit of time before it actually gets up and running.

 

[Miguel Sanchez]

By that screenshot, its stating the race laws in the constitution are racist against anyone not first nations. Did i read that right?

No, you did not.

 

[Miguel Sanchez]

My quote was just a possibility.

It is stated the govt has free reign after an affirmative vote to legislate anything they want in regard to the voice. It could be that.

It doesn’t say that.

The Government (actually, the Parliament) has the power to legislate in accordance with the wording that will be added to the Constitution.

If they go beyond what’s in the constitution, the laws can be struck down.

 

[Frederico_WA]

It doesn’t say that.

The Government (actually, the Parliament) has the power to legislate in accordance with the wording that will be added to the Constitution.

If they go beyond what’s in the constitution, the laws can be struck down.

But when there is such a small statement without details that is the proposed addition to the Constitution it surely can only appear to allow Parliament the powers to legislate anything at all in matters related to the Voice.

Define 'matters relating to Aboriginal and Torres Strait Islander peoples issues'
Define 'matters relating to the Aboriginal and Torres Strait Islander Voice'
Define 'it's composition, function, powers and procedures'

If I knew that, I'd feel that I was being heard and then I can make in good conscious a vote that support our First Nation brothers and sisters.

 

[JackOutback]

Thanks. That's still pretty vague on the actual details though

It could be a real nightmare to get it implemented if the referendum passes. They will have a lot of consultation to do with the different communities to figure out how it works. I hadn't appreciated that it might take a fair bit of time before it actually gets up and running.

I don't think it's vague at all, it makes clear who can be chosen to represent Aboriginal people, how they would be chosen, how they would make representations to the Parliament, that it does not have a veto power over Parliament, that it is subject to the National Anti-Corruption Commission etc. Details such as exactly how many people will be on the Voice or when the elections will be held are largely irrelevant to the intent and goal of the referendum and are generally only being raised by opponents for the purpose of mischief making.

The level of detail being asked for would make any other proposed legislation impossible to pass.

 

[Miguel Sanchez]

Honestly Abbot and Dutton should have tried this line with the gay marriage plebiscite. “There’s not enough detail. How many gays will be married? Who will decide which gays will get married? What if Parliament passes a law saying that only gays can get married? We just don’t know enough to vote Yes. Once we get those details, only then in good conscience can we stand with our homosexual brethren and pass laws to benefit them. Just as soon as we get those details. Promise.”

 

[Big_Tony]

I'm not after minute detail, just a clear idea on how it will work. How many people are on it? It would be well over 100 if they give every nation a voice. If they don't, then how will they be picked? Do they have to be Aboriginal (and what does that actually mean)? Can it over-ride parliament? What is the scope of its consultation (ie what are the safeguards to make sure it doesn't affect legislation that isn't primarily affecting aboriginal and Torres straight islanders).

I don't think changing the constitution is a flippant thing and the lack of detail makes me nervous. When I'm nervous, I'd rather stay with the status quo (as I can't determine the benefit or detriment to me).

It's because the constitution is not the place for that level of detail. The constitution should have the broad brush strokes. You then have to legislate with more detail, and that detail should be consistent with the broad constitution.

We are going to a referendum to change the constitution, not decide on the fine mechanics of how it's legislated, which can always be changed by future governments.

 

[Eastern Rangers]

However, it can still be legislated that the chambers must abide by the voice recomendarion in cases of .

See ... quite scary right?

It could be legislated if said legislators wanted to lose their jobs at the next election.

Sent from my Pixel 6 using Tapatalk

 

[KERRPOW]

Exactly, the Washington Redskins went woke and changed their name two years ago and are now filing for bankruptcy.


Wait no, they're about to sell for a record amount for a US sporting franchise. I always get those mixed up

are they called the washington red ripperz now?

 

[ziad]

Bloody hell. Morons on BF cannot rationally debate footy, now its on to constitutional law. Move on people

 

[RedWeddingGuest]

Interesting article by Robert Gottliebsen from April 24. The proper interpretation of the proposed new section 129 of the Constitution will definitely be decided by the High Court. That is inevitable. I obviously can’t predict the outcome, and I doubt anyone else on this forum can. The S-G’s opinion is obviously not determinative. The High Court will form its own view.

It probably wouldn’t matter how detailed the proposed amendment is; the entire scheme is destined to be tested in the High Court. Nothing wrong with that – but we all know the old saying about a camel being a horse designed by a committee. In the end, and leaving aside other considerations, I guess it’s a question of whether you’re a glass half full or glass half empty type of person.

*****

Indigenous voice to parliament advice risks turning the proposed model into High Court poker, writes Robert Gottliebsen | The Australian
Robert Gottliebsen

2:42PM April 24, 2023

If the Solicitor-General’s opinion on the voice is correct, then Indigenous peoples will have good reason to believe they were duped. Picture: Gary Ramage/NCA NewsWire

If the Solicitor-General’s opinion on how the voice referendum will work is correct, then Aboriginal and Torres Strait Islander peoples will have good reason to believe they were duped.

But if he is wrong, and the constitutional experts advising me say there is a greater than 50 per cent chance that his controversial opinion will be rejected by the High Court, then it will be the non-Aboriginal and Torres Strait Islander Australians who will have been duped.

The voice referendum aimed to achieve reconciliation. Instead, it has now become akin to a High Court poker game, where the loser will have been double-crossed.

Inevitably, that will create much greater tensions and underlines the dangers of using the Constitution to differentiate between the entitlements of different groups of Australians.

The keywords in the proposed referendum are crystal clear: A body representing Indigenous people is to be empowered “to make representations to the parliament and the executive government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples”.

That’s a constitutional right that an ordinary person might take to mean that the parliament and the government departments – the executive government – would be required to make it possible for the Indigenous people to make those representations, and for the parliament and government departments to properly consider them, although they do not have to accept the representations.

It is true that there is an extra sentence that gives the parliament the power to make laws on the voice body, “including its composition, functions, powers and procedures”. But the referendum proposal makes it clear that the power is subject to the Constitution, and Indigenous people might have reasonably assumed that parliamentary actions would be simply confined to reasonable rules to facilitate the constitutional obligations. Indeed, in the negotiations leading up to the final wording the Solicitor-General and others put forward proposals to change the wording, but the Indigenous people refused because their advice was that the unfettered right to make representations should not be watered down, particularly as there was no limitation on what qualified as “matters relating to Aboriginal and Torres Strait Islander peoples”.

The Solicitor-General’s interpretation of what the proposed Constitution words mean is vastly different from what many Indigenous people believe they signed up to.

The first shock for Indigenous people comes from the Solicitor-General’s claims that the amended Constitution “imposes no obligations of any kind upon the voice, the parliament or the executive government”. Then comes a follow-up blow, stating that the amended Constitution would not “impose any enforceable obligation upon the parliament to consider representations from the voice”.

It seems that the Solicitor-General believes the parliament may consider the constitutionally empowered voice body’s representations, but it does not have to.

In the case of representations to parliament, the task is relatively straightforward because the issues are on the parliamentary table for all to see. But when it comes to the executive government, which includes government departments, it’s harder to make representations because in many instances (but not all) outsiders don’t know what is being considered until the decision is made. This particularly applies to budget measures.
To implement the constitutional power set to be awarded to the voice body to make representations to government departments, the voice body would need to be informed of issues that were being considered. Otherwise, the powers become close to worthless in many issues.

The former Shadow Attorney-General Julian Leeser saw the problem and wanted the power to make representations to the executive government removed.
Sadly, the Solicitor-General does not delve into the detail, but his view is very clear. The Constitution “would not impose any obligations upon the executive government to follow representations of the voice, or to consult with the voice prior to developing any policy or making any decision”.

If the High Court endorses the Solicitor-General’s opinion, then we are going to set up a complex body where the parliament does not have to consider its representations, and the public service can announce decisions before there was any chance of a meaningful voice of representation.

In practice, it is likely that at least the parliament will consider voice representations, and it is likely the departments will assist, but the bottom line is that such actions are akin to an optional extra, if the Solicitor-General is right.

Accordingly, the Solicitor-General is able to declare that the voice’s “function of making representations will not fetter or impede the exercise of the existing powers of the parliament”.

My two recent comments on the voice made different assumptions as to what the High Court might decide – but recognised that a counter view existed – and came to different conclusions. I assumed that the High Court would take a very serious view of the “representation” powers that had been inserted by the Australian public in the Constitution and would declare unconstitutional or invalid legislation where proper opportunity had not been given to make representations or those representations were not properly considered.

It is agreed by all that there is no obligation on the parliament or the executive government to accept those representations.

Under my scenarios the process of government would not be stopped, but rather be slowed considerably. Others can decide whether such a slowing “fetters or impedes” parliament.

If the Solicitor-General is wrong, and I repeat there is at least a 50 per cent chance that he is wrong, then Australian non-Indigenous people will have changed the Constitution on the basis of a false premise.

And if he is right, then Indigenous people will also have been misled.

This is an appalling situation and requires senior members of the government not to simply leave the matter to the Prime Minister and Solicitor-General. Playing racial politics with a Constitution is not in the interests of any nation.

 

[RedWeddingGuest]

Interesting article by Robert Gottliebsen from April 24. The proper interpretation of the proposed new section 129 of the Constitution will definitely be decided by the High Court. That is inevitable. I obviously can’t predict the outcome, and I doubt anyone else on this forum can. The S-G’s opinion is obviously not determinative. The High Court will form its own view.

It probably wouldn’t matter how detailed the proposed amendment is; the entire scheme is destined to be tested in the High Court. Nothing wrong with that – but we all know the old saying about a camel being a horse designed by a committee. In the end, and leaving aside other considerations, I guess it’s a question of whether you’re a glass half full or glass half empty type of person.

*****

Indigenous voice to parliament advice risks turning the proposed model into High Court poker, writes Robert Gottliebsen | The Australian
Robert Gottliebsen

2:42PM April 24, 2023

If the Solicitor-General’s opinion on the voice is correct, then Indigenous peoples will have good reason to believe they were duped. Picture: Gary Ramage/NCA NewsWire

If the Solicitor-General’s opinion on how the voice referendum will work is correct, then Aboriginal and Torres Strait Islander peoples will have good reason to believe they were duped.

But if he is wrong, and the constitutional experts advising me say there is a greater than 50 per cent chance that his controversial opinion will be rejected by the High Court, then it will be the non-Aboriginal and Torres Strait Islander Australians who will have been duped.

The voice referendum aimed to achieve reconciliation. Instead, it has now become akin to a High Court poker game, where the loser will have been double-crossed.

Inevitably, that will create much greater tensions and underlines the dangers of using the Constitution to differentiate between the entitlements of different groups of Australians.

The keywords in the proposed referendum are crystal clear: A body representing Indigenous people is to be empowered “to make representations to the parliament and the executive government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples”.

That’s a constitutional right that an ordinary person might take to mean that the parliament and the government departments – the executive government – would be required to make it possible for the Indigenous people to make those representations, and for the parliament and government departments to properly consider them, although they do not have to accept the representations.

It is true that there is an extra sentence that gives the parliament the power to make laws on the voice body, “including its composition, functions, powers and procedures”. But the referendum proposal makes it clear that the power is subject to the Constitution, and Indigenous people might have reasonably assumed that parliamentary actions would be simply confined to reasonable rules to facilitate the constitutional obligations. Indeed, in the negotiations leading up to the final wording the Solicitor-General and others put forward proposals to change the wording, but the Indigenous people refused because their advice was that the unfettered right to make representations should not be watered down, particularly as there was no limitation on what qualified as “matters relating to Aboriginal and Torres Strait Islander peoples”.

The Solicitor-General’s interpretation of what the proposed Constitution words mean is vastly different from what many Indigenous people believe they signed up to.

The first shock for Indigenous people comes from the Solicitor-General’s claims that the amended Constitution “imposes no obligations of any kind upon the voice, the parliament or the executive government”. Then comes a follow-up blow, stating that the amended Constitution would not “impose any enforceable obligation upon the parliament to consider representations from the voice”.

It seems that the Solicitor-General believes the parliament may consider the constitutionally empowered voice body’s representations, but it does not have to.

In the case of representations to parliament, the task is relatively straightforward because the issues are on the parliamentary table for all to see. But when it comes to the executive government, which includes government departments, it’s harder to make representations because in many instances (but not all) outsiders don’t know what is being considered until the decision is made. This particularly applies to budget measures.
To implement the constitutional power set to be awarded to the voice body to make representations to government departments, the voice body would need to be informed of issues that were being considered. Otherwise, the powers become close to worthless in many issues.

The former Shadow Attorney-General Julian Leeser saw the problem and wanted the power to make representations to the executive government removed.
Sadly, the Solicitor-General does not delve into the detail, but his view is very clear. The Constitution “would not impose any obligations upon the executive government to follow representations of the voice, or to consult with the voice prior to developing any policy or making any decision”.

If the High Court endorses the Solicitor-General’s opinion, then we are going to set up a complex body where the parliament does not have to consider its representations, and the public service can announce decisions before there was any chance of a meaningful voice of representation.

In practice, it is likely that at least the parliament will consider voice representations, and it is likely the departments will assist, but the bottom line is that such actions are akin to an optional extra, if the Solicitor-General is right.

Accordingly, the Solicitor-General is able to declare that the voice’s “function of making representations will not fetter or impede the exercise of the existing powers of the parliament”.

My two recent comments on the voice made different assumptions as to what the High Court might decide – but recognised that a counter view existed – and came to different conclusions. I assumed that the High Court would take a very serious view of the “representation” powers that had been inserted by the Australian public in the Constitution and would declare unconstitutional or invalid legislation where proper opportunity had not been given to make representations or those representations were not properly considered.

It is agreed by all that there is no obligation on the parliament or the executive government to accept those representations.

Under my scenarios the process of government would not be stopped, but rather be slowed considerably. Others can decide whether such a slowing “fetters or impedes” parliament.

If the Solicitor-General is wrong, and I repeat there is at least a 50 per cent chance that he is wrong, then Australian non-Indigenous people will have changed the Constitution on the basis of a false premise.

And if he is right, then Indigenous people will also have been misled.

This is an appalling situation and requires senior members of the government not to simply leave the matter to the Prime Minister and Solicitor-General. Playing racial politics with a Constitution is not in the interests of any nation.

BTW I accept this is a footy forum and not a political forum. By the time I prepared my post the topic had moved on. I won’t revisit it.

 

[Miguel Sanchez]

Interesting article by Robert Gottliebsen from April 24. The proper interpretation of the proposed new section 129 of the Constitution will definitely be decided by the High Court. That is inevitable. I obviously can’t predict the outcome, and I doubt anyone else on this forum can. The S-G’s opinion is obviously not determinative. The High Court will form its own view.

It probably wouldn’t matter how detailed the proposed amendment is; the entire scheme is destined to be tested in the High Court. Nothing wrong with that – but we all know the old saying about a camel being a horse designed by a committee. In the end, and leaving aside other considerations, I guess it’s a question of whether you’re a glass half full or glass half empty type of person.

*****

Indigenous voice to parliament advice risks turning the proposed model into High Court poker, writes Robert Gottliebsen | The Australian
Robert Gottliebsen

2:42PM April 24, 2023

If the Solicitor-General’s opinion on the voice is correct, then Indigenous peoples will have good reason to believe they were duped. Picture: Gary Ramage/NCA NewsWire

If the Solicitor-General’s opinion on how the voice referendum will work is correct, then Aboriginal and Torres Strait Islander peoples will have good reason to believe they were duped.

But if he is wrong, and the constitutional experts advising me say there is a greater than 50 per cent chance that his controversial opinion will be rejected by the High Court, then it will be the non-Aboriginal and Torres Strait Islander Australians who will have been duped.

The voice referendum aimed to achieve reconciliation. Instead, it has now become akin to a High Court poker game, where the loser will have been double-crossed.

Inevitably, that will create much greater tensions and underlines the dangers of using the Constitution to differentiate between the entitlements of different groups of Australians.

The keywords in the proposed referendum are crystal clear: A body representing Indigenous people is to be empowered “to make representations to the parliament and the executive government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples”.

That’s a constitutional right that an ordinary person might take to mean that the parliament and the government departments – the executive government – would be required to make it possible for the Indigenous people to make those representations, and for the parliament and government departments to properly consider them, although they do not have to accept the representations.

It is true that there is an extra sentence that gives the parliament the power to make laws on the voice body, “including its composition, functions, powers and procedures”. But the referendum proposal makes it clear that the power is subject to the Constitution, and Indigenous people might have reasonably assumed that parliamentary actions would be simply confined to reasonable rules to facilitate the constitutional obligations. Indeed, in the negotiations leading up to the final wording the Solicitor-General and others put forward proposals to change the wording, but the Indigenous people refused because their advice was that the unfettered right to make representations should not be watered down, particularly as there was no limitation on what qualified as “matters relating to Aboriginal and Torres Strait Islander peoples”.

The Solicitor-General’s interpretation of what the proposed Constitution words mean is vastly different from what many Indigenous people believe they signed up to.

The first shock for Indigenous people comes from the Solicitor-General’s claims that the amended Constitution “imposes no obligations of any kind upon the voice, the parliament or the executive government”. Then comes a follow-up blow, stating that the amended Constitution would not “impose any enforceable obligation upon the parliament to consider representations from the voice”.

It seems that the Solicitor-General believes the parliament may consider the constitutionally empowered voice body’s representations, but it does not have to.

In the case of representations to parliament, the task is relatively straightforward because the issues are on the parliamentary table for all to see. But when it comes to the executive government, which includes government departments, it’s harder to make representations because in many instances (but not all) outsiders don’t know what is being considered until the decision is made. This particularly applies to budget measures.
To implement the constitutional power set to be awarded to the voice body to make representations to government departments, the voice body would need to be informed of issues that were being considered. Otherwise, the powers become close to worthless in many issues.

The former Shadow Attorney-General Julian Leeser saw the problem and wanted the power to make representations to the executive government removed.
Sadly, the Solicitor-General does not delve into the detail, but his view is very clear. The Constitution “would not impose any obligations upon the executive government to follow representations of the voice, or to consult with the voice prior to developing any policy or making any decision”.

If the High Court endorses the Solicitor-General’s opinion, then we are going to set up a complex body where the parliament does not have to consider its representations, and the public service can announce decisions before there was any chance of a meaningful voice of representation.

In practice, it is likely that at least the parliament will consider voice representations, and it is likely the departments will assist, but the bottom line is that such actions are akin to an optional extra, if the Solicitor-General is right.

Accordingly, the Solicitor-General is able to declare that the voice’s “function of making representations will not fetter or impede the exercise of the existing powers of the parliament”.

My two recent comments on the voice made different assumptions as to what the High Court might decide – but recognised that a counter view existed – and came to different conclusions. I assumed that the High Court would take a very serious view of the “representation” powers that had been inserted by the Australian public in the Constitution and would declare unconstitutional or invalid legislation where proper opportunity had not been given to make representations or those representations were not properly considered.

It is agreed by all that there is no obligation on the parliament or the executive government to accept those representations.

Under my scenarios the process of government would not be stopped, but rather be slowed considerably. Others can decide whether such a slowing “fetters or impedes” parliament.

If the Solicitor-General is wrong, and I repeat there is at least a 50 per cent chance that he is wrong, then Australian non-Indigenous people will have changed the Constitution on the basis of a false premise.

And if he is right, then Indigenous people will also have been misled.

This is an appalling situation and requires senior members of the government not to simply leave the matter to the Prime Minister and Solicitor-General. Playing racial politics with a Constitution is not in the interests of any nation.

Where does his “he has a 50% chance of being wrong” come from?

 

[Get_The_Gaff]

Exactly, the Washington Redskins went woke and changed their name two years ago and are now filing for bankruptcy.


Wait no, they're about to sell for a record amount for a US sporting franchise. I always get those mixed up

Their average attendance is down from 83000 in 2010 to 58000 last year .

You are mixing up the average punter who attend games with billionaire's buying a NFL franchise

 

[Ochre]

Their average attendance is down from 83000 in 2010 to 58000 last year .

You are mixing up the average punter who attend games with billionaire's buying a NFL franchise

And that's due to a 2020 name change and not Dan Snyder being the worst owner in US sport for 20 years?

 

[Forward Press]

Interesting article by Robert Gottliebsen from April 24...

From Wikipedia:

Robert Norman Gottliebsen AM is a columnist for Business Spectator and an economics writer at The Australian

Why should I care about what he thinks is his legal opinion on the impact of the Voice on the Constitution. What about two actual High Court justices, the ones who have spent their entire professional lives in constitutional law?

Legal experts criticise suggestions Indigenous voice will have veto power in parliament

‘No substance in it,’ former chief justice Robert French says, while experts split on whether amendment should include ‘executive government’

www.theguardian.com

The former chief justice of Australia Robert French had four words of reply to the hand-wringing among conservative circles, including the deputy opposition leader, Sussan Ley, that the voice could hold a de facto veto over public holidays.
https://www.theguardian.com/austral...-of-indigenous-voice-to-parliament-at-hearing
“No substance in it,” he said. “I’ll be polite about it.

“That would be no more than advice and it certainly wouldn’t bind anybody and it wouldn’t be a veto. What is a de facto veto? … I’m still at a bit of a loss.

“If I were confronted with this provision as a judge … it’s a big thing, to draw a constitutional implication and the implications which have been suggested are not supported by the text and will be inconsistent with it.”

The former high court justice Kenneth Hayne told the inquiry that he couldn’t see “anything in those drafts that comes anywhere near providing anything like a veto”.

“The voice will not waste its social or political capital by exploring the outer range of its scope of representation,” he said. “[That is] an unreal case or distorting possibility or extreme example.”

Justice French and Justice Hayne also aren't exactly regarded as progressive or liberal High Court judges too.

 

[kempy]

Interesting article by Robert Gottliebsen from April 24. The proper interpretation of the proposed new section 129 of the Constitution will definitely be decided by the High Court. That is inevitable. I obviously can’t predict the outcome, and I doubt anyone else on this forum can. The S-G’s opinion is obviously not determinative. The High Court will form its own view.

It probably wouldn’t matter how detailed the proposed amendment is; the entire scheme is destined to be tested in the High Court. Nothing wrong with that – but we all know the old saying about a camel being a horse designed by a committee. In the end, and leaving aside other considerations, I guess it’s a question of whether you’re a glass half full or glass half empty type of person.

*****

Indigenous voice to parliament advice risks turning the proposed model into High Court poker, writes Robert Gottliebsen | The Australian
Robert Gottliebsen

2:42PM April 24, 2023

If the Solicitor-General’s opinion on the voice is correct, then Indigenous peoples will have good reason to believe they were duped. Picture: Gary Ramage/NCA NewsWire

If the Solicitor-General’s opinion on how the voice referendum will work is correct, then Aboriginal and Torres Strait Islander peoples will have good reason to believe they were duped.

But if he is wrong, and the constitutional experts advising me say there is a greater than 50 per cent chance that his controversial opinion will be rejected by the High Court, then it will be the non-Aboriginal and Torres Strait Islander Australians who will have been duped.

The voice referendum aimed to achieve reconciliation. Instead, it has now become akin to a High Court poker game, where the loser will have been double-crossed.

Inevitably, that will create much greater tensions and underlines the dangers of using the Constitution to differentiate between the entitlements of different groups of Australians.

The keywords in the proposed referendum are crystal clear: A body representing Indigenous people is to be empowered “to make representations to the parliament and the executive government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples”.

That’s a constitutional right that an ordinary person might take to mean that the parliament and the government departments – the executive government – would be required to make it possible for the Indigenous people to make those representations, and for the parliament and government departments to properly consider them, although they do not have to accept the representations.

It is true that there is an extra sentence that gives the parliament the power to make laws on the voice body, “including its composition, functions, powers and procedures”. But the referendum proposal makes it clear that the power is subject to the Constitution, and Indigenous people might have reasonably assumed that parliamentary actions would be simply confined to reasonable rules to facilitate the constitutional obligations. Indeed, in the negotiations leading up to the final wording the Solicitor-General and others put forward proposals to change the wording, but the Indigenous people refused because their advice was that the unfettered right to make representations should not be watered down, particularly as there was no limitation on what qualified as “matters relating to Aboriginal and Torres Strait Islander peoples”.

The Solicitor-General’s interpretation of what the proposed Constitution words mean is vastly different from what many Indigenous people believe they signed up to.

The first shock for Indigenous people comes from the Solicitor-General’s claims that the amended Constitution “imposes no obligations of any kind upon the voice, the parliament or the executive government”. Then comes a follow-up blow, stating that the amended Constitution would not “impose any enforceable obligation upon the parliament to consider representations from the voice”.

It seems that the Solicitor-General believes the parliament may consider the constitutionally empowered voice body’s representations, but it does not have to.

In the case of representations to parliament, the task is relatively straightforward because the issues are on the parliamentary table for all to see. But when it comes to the executive government, which includes government departments, it’s harder to make representations because in many instances (but not all) outsiders don’t know what is being considered until the decision is made. This particularly applies to budget measures.
To implement the constitutional power set to be awarded to the voice body to make representations to government departments, the voice body would need to be informed of issues that were being considered. Otherwise, the powers become close to worthless in many issues.

The former Shadow Attorney-General Julian Leeser saw the problem and wanted the power to make representations to the executive government removed.
Sadly, the Solicitor-General does not delve into the detail, but his view is very clear. The Constitution “would not impose any obligations upon the executive government to follow representations of the voice, or to consult with the voice prior to developing any policy or making any decision”.

If the High Court endorses the Solicitor-General’s opinion, then we are going to set up a complex body where the parliament does not have to consider its representations, and the public service can announce decisions before there was any chance of a meaningful voice of representation.

In practice, it is likely that at least the parliament will consider voice representations, and it is likely the departments will assist, but the bottom line is that such actions are akin to an optional extra, if the Solicitor-General is right.

Accordingly, the Solicitor-General is able to declare that the voice’s “function of making representations will not fetter or impede the exercise of the existing powers of the parliament”.

My two recent comments on the voice made different assumptions as to what the High Court might decide – but recognised that a counter view existed – and came to different conclusions. I assumed that the High Court would take a very serious view of the “representation” powers that had been inserted by the Australian public in the Constitution and would declare unconstitutional or invalid legislation where proper opportunity had not been given to make representations or those representations were not properly considered.

It is agreed by all that there is no obligation on the parliament or the executive government to accept those representations.

Under my scenarios the process of government would not be stopped, but rather be slowed considerably. Others can decide whether such a slowing “fetters or impedes” parliament.

If the Solicitor-General is wrong, and I repeat there is at least a 50 per cent chance that he is wrong, then Australian non-Indigenous people will have changed the Constitution on the basis of a false premise.

And if he is right, then Indigenous people will also have been misled.

This is an appalling situation and requires senior members of the government not to simply leave the matter to the Prime Minister and Solicitor-General. Playing racial politics with a Constitution is not in the interests of any nation.

Robert Gottliebsen - well known constitutional lawyer
The Australian - well known for balance and non-partisan reporting.

Enough said really. There is an army of constitutional lawyers other than the SG who believe the proposal will stand.


Sent from my iPhone using BigFooty.com

 

[Agent93]

Where does his “he has a 50% chance of being wrong” come from?

They asked two people.

 

[THE A5]

Washington should have just replaced the red with Fore and that would get more fans ever

 

[RedWeddingGuest]

Robert Gottliebsen - well known constitutional lawyer
The Australian - well known for balance and non-partisan reporting.

Enough said really. There is an army of constitutional lawyers other than the SG who believe the proposal will stand.


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If the referendum is carried and s 129 becomes part of the Constitution, of course it will “stand”. The High Court can’t overrule the Constitution. The question for the HC will be what it means and how does it operate, and whether laws passed pursuant to it (and administrative acts taken in reliance on those laws) fall within the purview of the new section (and any new laws passed to give effect to it). This type of litigation is very common. It’s trite, but the devil is always in the detail. Can the HC figure it out? Yes, of course – but there will be plenty of work for lawyers for years to come.

This says nothing about whether there should or shouldn’t be the amendment sought. And I said in my earlier post that the provision of much more detail now will not avoid the litigation that will surely follow a constitutional amendment. It’s anybody’s guess how the dice will fall when it all plays out.

Now I really am opting out of this discussion…

 

[Seadog]

Every policy and decision affects all people equally. Anything else is against the law as per human rights that we in Australia abide by.

Really, how did the cashless welfare card effect you. Or immigration policy or policies related to women or the hundreds of other policies that target various sections of the community. I'd be interested to see the law that says all policy has to treat people equally, maybe you could enlighten us all and post it.

 

[Miguel Sanchez]

This type of litigation is very common.

No it’s not. All constitutional matters have to go before the High Court. How many cases do you think they hear in a year? Thousands? Hundreds? It’s in the dozens. And the vast majority of those are appeals from State courts.

This suggestion that the Voice will result in the courts being tied up with litigation are pure fearmongering.

 

[South of the Yarra]

If you don't love your country and the people in it than how can you extend your parameters of love to the rest of the world?
I like to view positives and not dwell on negatives and thank every day that I am not shot at, beaten or tortured and can express religious freedom etc.
If I lived in Russia, Sudan etc this would be impossible. So, yeah, I love my Country.

Excuse the intrusion but unfortunately many Aboriginal people have been beaten, tortured and even shot at so it is hard to be positive under these circumstances. Yes, I know Aboriginal people have committed crimes such as these as well. The beatings and torture of Aboriginal people were not isolated cases and were part of a systematic racist system designed to break them and wipe them out.

 

[HoneyBadger35]

Not sure if this has been posted and not trawling back the SRP thread to find out.

Back to the football please.

So uh…isn’t…uh…isn’t the Herald Sun a rag.