The following editorial has been written by the General Editor of the Australian Law Journal, Justice François Kunc. It is due to appear in the March issue of the ALJ, in “Current Issues”. This is the prepublication version:
As the debate continues, some observations about the Voice to Parliament
 This column is being written just after Australia Day 2023. While the final wording of the proposed amendment to the Constitution and the other terms of the referendum bill have not yet been finalised, debate about the Voice has been, to say the least, vigorous. In response to that debate so far, the Journal offers these observations.
First, to demand more detail about how the Voice would work, or to suggest that it be legislated and operate before any constitutional amendment, is a distraction which misses the point. That point is the pressing need for substantive, rather than symbolic, and enduring recognition of Australia’s First Nations in our Constitution. The Uluru Statement from the Heart is a respectful, reasoned and representative request by those First Nations to their fellow Australians for such enduring recognition in contemporary Australia’s founding document. A constitution is for principles, touchstones and only the most fundamental machinery. It is entirely unremarkable that the practical detail of the Voice should be left to the political and legislative process, including further consultation with indigenous groups, after the amendment has been passed.
Second, it is essential that there be official “yes†and “no†cases as has been the case in previous referenda. It is still early in the process, but it would be an unhelpful abdication by the government, elected on a platform of support for the Voice, to leave the prosecution of the “yes†case to community groups, whether or not funded with tax deductible donations. It is also in the public interest that there be an official “no†case. Rational arguments can be made for both sides.
In these times of mistrust of public authority, concern has been expressed about who would “fact check†any such official cases. The answer is that the accuracy or otherwise of the cases would be generative of, and tested in, the public debate that would follow. That will be the case no matter how rigorously those cases have been prepared or reviewed by any independent authority. However, a corollary of this approach must be that who accepts responsibility for, and is funding any published responses to, the official cases should be the subject of immediate disclosure.
Third, not all Australians are digital natives. At the very least, the official cases should be published in major newspapers (including widely circulating non-English newspapers) around the country, as well as being available on a website maintained by the Australian Electoral Commission. That website should include translations of those cases into as many community languages as possible.
Fourth, while the Voice as proposed by the Prime Minister cannot impede the ultimate sovereignty of Parliament, Australians should not fear the prospect of the High Court having to construe the meaning of the constitutional amendment and adjudicate on consequential matters. That is how our system of government works and constitutional challenges demonstrate the vitality of the rule of law. The possibility that, in the particular factual circumstances of a given case and contrary to some eminent opinions, the High Court might conclude that a bill could not be enacted until it had been the subject of consultation with the Voice, is also not a reason to oppose the creation of the Voice. Parliament could still make or repeal whatever law it wished, provided the identified requirement for consultation was satisfied.
Finally, the argument that treaty and truth telling should come before the Voice must be engaged with respectfully and seriously. There are two reasons why the Journal considers that the Voice should precede those other important steps.
First, there can be no doubt that constitutional amendment and then legislation of the Voice can be done much more quickly than the processes around treaty and truth telling. For example, the work of a Makarrata Commission will take years. There has already been so much delay and frustration since Australians first heard the Uluru Statement from the Heart nearly six years ago.
Second, the Voice will be an integral part of laying the groundwork for, and advising on, the successful legislation of both treaty and truth telling. In other words, the Voice is neither antithetical, nor an alternative, to treaty and truth telling but can and should be seen as the first step in a larger national project that embraces all three.
FK
