The Voice and the law

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John Andriano

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John Andriano

23 May 2023

4:00 AM

Many Australian legal groups such as the NSW Bar Association and possibly the Victorian Bar Association, as well as most state Law Societies, are endorsing the ‘Yes’ vote in the proposed referendum to introduce an Indigenous Voice to Parliament. Others are choosing to remain silent. None, however, are endorsing a ‘No’ vote. The major issue I have is how they come to these conclusions.

Lawyers are trained partly at Law School, but significantly in practice, not to rush into advising clients without the facts and the relevant law being known with a high degree of clarity. Essentially, all we know about the proposed Voice is that a small committee known as the ‘working group’ are proposing something with very vague wording to be inserted into the Constitution. The Albanese government wants to accordingly amend the most significant law in the country, the Constitution Act 1900, while promising to fill in the details later after a Referendum has been completed.

If a lawyer in private practice was confronted with such scant details, and advised the client to proceed in court and it then loses the case in court, that lawyer should be very concerned about being sued by the beleaguered client.

If the ‘Yes’ vote is successful, the Constitution will include a body of unelected people chosen by race, with influence over the policy and legal framework of the nation. The Working Group has openly, either directly or indirectly, accused non-Indigenous Australians of stealing the land and should therefore pay reparations.

The Voice is apparently to be made up of 24 people. They are to have some direct access in an advisory capacity to all branches of government. The Executive, which is the Ministers of Cabinet, their departments and agencies. The Legislature, which is both Upper andLower houses of Parliament, and the Judiciary, which are the courts, in particular the High Court of Australia. To control these three branches of government is to control the legislature of the Nation.

Logic suggests, these 24 people will be brought together as one legal entity, presumably an incorporated structure like a company or an unincorporated structure, like a club or some other entity. This body will then formulate one Voice through a process of rules governed by its own constitution. A body within the body such as a board of directors will oversee the Voice. Australians, as yet know nothing about how this mechanism will operate.

The Voice will instruct its own lawyers. It will have its own solicitors on retainer who will instruct a panel of counsel and senior counsel on behalf of the Voice, all of which will also be on retainer.

These lawyers will have one duty and that is to properly conduct their work in the interests of their client and their client is the Voice. Not the Australian government, not the Australian people, but the Voice.

The Voice is to exist, ostensibly, to advise the government on matters relating to Aboriginals and Torres Strait Islander people. The federal government, pursuant to the Constitution is authorised to make laws affecting all Australians. Since Aboriginals and Torres Strait Islander people are Australians, then the Voice can advise the government in relation to all laws.

If the government ignores the Voice, then the Voice may have a direct pathway to the High Court. The High Court has mostly appellate jurisdiction however it can be the first port of call in matters of, among other things Constitutional interpretation, treaties, or an injunction sought against an officer of the Commonwealth such as the Prime Minister, or any other high-ranking government officer. This is made clear in sections 75 and 76 of the Constitution.

A direct pathway to the High Court by the Voice is of extra note when one considers how the majority of judges of the High Court decided the Love and Thoms cases.

The lawyers instructed by the Voice will be very competent, well-paid, and highly motivated to accommodate their clients. They will be across all these issues. They will and should have no hesitation bringing proceedings against the Commonwealth if it assists their client.

Funding of any court proceedings brought by the Voice will be provided by the government, or more accurately, the taxpayer.

Even if the Voice loses any Court challenge, a costs order will be tokenistic because the taxpayer is funding both sides. The Voice, therefore, will be immune from liability.

Since the Albanese government has given such little information about the Voice most of the above is hypothetical, but under the current legal framework nothing presented here is a legal impossibility, so it is therefore possible.

That such little detail about the workings of the Voice, after implementation and the possible dire ramifications is the reason lawyers in general should advise people to Vote ‘No’ from a legal position.

Lawyers are also human beings. They can always have a conscience vote and say, ‘To the devil with the law, I think an Indigenous race-based body should be in the Constitution no matter what the legal ramifications might be.’ There is nothing wrong with that as it is an individual’s choice.

That is not the case with legal bodies. Their utterances are not individual. They, as legal groups, seek to give legal validity to concepts so lacking in detail that they have no legal validity.

The fact is the Albanese government is seeking to put an enormous arsenal of legal weaponry in the hands of a small group of people, some of whom, have not hidden their contempt for their fellow Australians.

Most Australians of all cultural backgrounds, I believe, are overwhelmingly well-intentioned and good-natured.

These sublime traits inherent in all free-spirited Australians are what bind Indigenous and non-Indigenous Australians. These qualities are what will drive all Australians to meet all challenges in the future as a Nation, not the nebulous legal minefield proposed by the Albanese government.

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Published by Nelle

I am interested in writing short stories for my pleasure and my family's but although I have published four family books I will not go down that path again but still want what I write out there so I will see how this goes

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