OPINION: Indigenous recognition in the Constitution will allow the country to acknowledge, address and move forward from its legacy of colliding histories.
The Voice is a big idea but not a complicated one. It is low risk for a high return. The high return is found in the act of recognition, historical fairness and practical benefit to lawmakers, governments, the Australian people and Australia’s First peoples.
The function of the Voice is set out in the second part of the amendment. To “make representations” is to make official statements to the parliament and the executive. Those words cover submissions or advice about existing or proposed laws and administrative policies and practices. There is no constitutional legal obligation to accept or be bound by such submissions or advice. There would, however, be a high democratic obligation to respect them and take them into account.
The Voice is not a third chamber. The constitutional amendment would, however, support the adoption by parliament of internal procedures to provide for the Voice to be heard. The parliament could also make a law requiring the executive to have regard to representations by the Voice to the executive when adopting or changing policies and practices relating to Aboriginal and Torres Strait Islander peoples.
That is not a constitutional legal obligation. The composition of the Voice is left to the parliament. It is, again, a powerful democratic expectation given the functions of the Voice. There would be nothing to prevent the submission of different views of those who disagreed with a particular representation made by the Voice.There is little or no scope for constitutional litigation arising from the words of the proposed amendment. The amendment is facilitative and empowering.
The third answer is that the constitutional provision creates a democratic mandate for the parliament to create and continue the Voice as a significant institution in our representative democracy. It would be a democratic mandate because it is approved by a majority of electors in a majority of states as required by section 128 of the Constitution.
A law providing that the executive was required to take into account representations from the Voice as a condition of the exercise of executive power would, in all probability, be justiciable. If parliament imposed such a requirement, the executive must be held to account if it does not comply with it. But in providing for representations to be made to the executive, the law does not have to impose such a requirement. That is a matter for the parliament.
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