Liberal Members' Dissenting Report
1.1This dissenting report deals with issues of constitutional risk raised by the proposed wording in the Bill.We take the Parliament’s role seriously and have attempted in good faith to engage with complex issues of constitutional law.Before dealing with those issues, we wish to make some observations on the process.
1.2There is no defensible reason why the government established a committee to consider a permanent change to our country’s constitution with only six weeks to receive submissions, hold public hearings around the country, and report back to the Parliament on the legal effect of the constitutional change.
1.3The Committee was hamstrung by the government’s refusal to provide any detail that would illustrate how the constitutional change might operate. The government has taken the extraordinary approach of saying that the institution would be designed after the referendum.
1.4The comparisons of the constitutional provisions that establish the High Court and the Australian Defence Force (then “Naval and military defence”) are oversimplified. At Federation, voters could point to examples of those institutions here and overseas.No such comparison can be made for this proposal, which is novel.
1.5The uncertainty and risk associated with the proposal as currently drafted are unquantifiable, and if adopted at a referendum would in effect be permanent.
1.6The Committee, the Parliament, and all Australians have been denied the benefit of a constitutional convention. In the ordinary course, a constitutional convention would iron out issues with the drafting and narrow the areas of dispute. As has been demonstrated by the sum of the submissions, there is no agreement on the drafting, and the issues are manifold.
1.7The Parliament should never again be asked to consider a constitutional change that is put forward without detail, without process, and without a proper understanding of the risks.More importantly, the Australian people should not be asked to vote on a serious constitutional change in those circumstances.
1.8However, the Coalition will not stand in the way of Australians voting on the government’s proposal. While the Coalition does not support the proposal as presently drafted, it is right that Australians will have the final say on the Referendum. Their vote may hinge on the principle of equality of citizenship, whether a new national institution can address disadvantage, or whether the wording contains unacceptable constitutional risk, as this report addresses.
1.9Evidence presented to the Committee demonstrated that if the Constitution is amended in accordance with the Bill, there is a risk that government could become unworkable.The risk arises from the proposal to entrench in the Constitution the Voice’s power to make representations to the Executive.
1.10If the Constitution is amended in accordance with the Bill, it is inevitable that the High Court will be asked to decide whether the Executive is under a duty to consult the Voice in advance of making decisions and a duty to consider the Voice’s representations.Two former justices of the High Court gave evidence that if the High Court found these duties to exist, government would become unworkable.
1.11There are reasonable arguments for and against finding that the Executive would have a duty to consult the Voice and consider its representations.The Committee received submissions from legal experts setting out both sides of the argument.
1.12No lawyer, no matter their status or how distinguished their career, can seriously guarantee which arguments the High Court will accept in the future.As former ChiefJustice Robert French said, predictions about how courts will decide questions of law “involve evaluative judgements upon which reasonable minds can differ.”[1] That uncertainty is magnified where a provision is unique and has no constitutional comparison.
1.13The response to risk can’t be judged by counting the number of lawyers for and against a particular argument. The fact is, serious experts, including former High Court and Federal Court judges, gave conflicting evidence about the risk. That is enough cause for the Parliament to take the issue seriously and take steps to eliminate it.
1.14Even if the chance of the High Court finding the duties to consult and consider is low, the risk of government becoming unworkable is too great to ignore. The question is: would it be open to the High Court at some stage to find those duties are implied? The answer is yes.
1.15The evidence also demonstrated that through minor amendments there are options available to reduce the risk of government becoming unworkable.Some of those options are outlined and considered below.
1.16Australia is a highly stable democracy.Human history and current affairs should remind us that stable and effective democratic government is not inevitable.
1.17The ingredients for stable democracy should be zealously protected.For Australia, our Constitution is undoubtedly one such ingredient.
1.18Members and Senators of this Parliament are provided with booklets to distribute to schoolchildren to explain the Constitution.The booklet makes this insightful observation:
Australia’s Constitution contains little of the soaring rhetoric which is familiar in the constitutions of many other lands. That is one of its strengths. It is a practical, matter-of-fact, unpretentious but effective document. As such, it reflects the pragmatic, no-nonsense attitude which we like to think is among the most attractive features of the Australian character.
1.19The framers of our Constitution sought to distil the best features of the constitutional arrangements in the United Kingdom and the United States: thus ‘Washminster’ is sometimes used to describe the Australian system of government.
1.20One important choice made by the framers of our Constitution was to leave out an extensive statement of citizen rights. In this respect, our Constitution differs greatly from the United States Constitution.
1.21The Bill of Rights in the United States Constitution has had profound effects on how democracy is practised in that country.Laws and government action are routinely challenged in US courts on constitutional grounds. Two well-known examples of this are cases concerning the first amendment right to freedom of speech and the second amendment right to keep and bear arms.
1.22Each of those rights have drawn US courts into political controversies in a way that has not happened in Australia.Furthermore, each of those rights have been interpreted by US courts in ways that many, if not most Australians would find surprising.
1.23Australia’s Constitution confers very few rights.[2] That is its strength.The Constitution instead leaves it to the Parliament to make laws providing for rights where necessary, with the flexibility to adjust to changing circumstances over time [3]
1.24Improvements can be made, and mistakes can be undone.Through the democratic process, governments are constantly accountable to the people for the quality of our laws.
1.25Entrenching laws in the Constitution denies the Parliament the flexibility to adapt or abandon those laws in the light of changed circumstances.A pertinent example of this is section 25 of the Constitution, which is in these terms:
25 Provisions as to races disqualified from voting
For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.
1.26Section 25 was modelled on the fourteenth amendment to the US Constitution.According to Quick and Garran, that amendment was passed after the US Civil War, in order to induce governments of the US states to confer the right to vote on emancipated slaves.[4]
1.27What might have seemed like a good idea to the framers of Australia’s Constitution in the 1890s, section 25 should now be viewed by all Australians as an embarrassing remnant of a 19th century preoccupation with notions of “race”.Despite repeated bipartisan calls for the repeal of section 25[5], the goal of removing it has so far remained elusive.
1.28The fact that the current government proposes a Referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution while at the same time leaving section 25 untouched, demonstrates the political and social reality that once something goes in the Constitution, it is extremely difficult to get it out.
1.29Section 75(v) of the Constitution entrenches the High Court’s jurisdiction to conduct judicial review of executive action undertaken by officers of the Commonwealth.While this is not an explicit right conferred on any person, it does have the practical effect of enabling people to call on the High Court to determine whether the Executive has acted in accordance with Parliament’s laws.
1.30Consequently, the “right” to judicial review is largely controlled by the Parliament, in the sense that legislation will usually provide the framework by which the courts review Executive decisions.Access to the right of judicial review is further limited by a requirement that the party seeking review must either show that their legal rights are affected by the decision, or that they have a sufficiently special interest.[6]
1.31The primary issue this Committee has considered is whether the government’s proposed amendment to the Constitution will generate grounds for judicial review of Executive action under s 75(v).In short, the question is this: could the High Court interpret the proposed new Chapter IX of the Constitution in a way that imposes duties[7] on the Executive?
1.32Various legal experts made submissions to the Committee on whether proposed s 129 could be interpreted by the High Court in a way that would impose duties on the Executive Government.
1.33In summary, the legal experts considered whether s 129 could be interpreted by the High Court as imposing on the Executive either or both of two related duties.
1.34The first duty considered by the experts is one which would make it mandatory for the Executive to give the Voice an opportunity to submit a representation before making decisions on matters relating to Aboriginal and Torres Strait Islander people (duty to consult).
1.35The second duty considered by the experts is one which would make it mandatory for the Executive to consider representations from the Voice before making decisions on matters relating to Aboriginal and Torres Strait Islander people (duty to consider).
1.36Before addressing the arguments about whether these duties could arise, it is crucial to understand why this debate is important.
1.37If proposed s 129 is interpreted by the High Court in a way that imposes on the Executive either a duty to consult the Voice or consider its representations, this will have profoundly disruptive effects on the operation of government.This is not a rhetorical flourish on our part.This was the undisputed evidence presented to the Committee, including from witnesses who were intimately involved in the government’s design process.
1.38Robert French AC, a retired Chief Justice of Australia, gave evidence that if a duty to consult the Voice was to be found in proposed s 129, this would “make government unworkable”.[8]
1.39Kenneth Hayne AC, a retired justice of the High Court and a member of the government’s Constitutional Expert Group, gave evidence that a duty to consult the Voice would “disrupt the ordinary and efficient working of government” to such an extent that it would “bring government to a halt”.[9]
1.40The disruption that a duty to consult the Voice or consider its representations could cause is a product of the scope of the Voice’s power to make representations.
1.41Proposed s 129 would empower the Voice to make representations on all matters relating to Aboriginal and Torres Strait Islander people.According to Professor Megan Davis, the chair of the government’s Referendum Working Group:
The Voice will be able to speak to all parts of the government, including the cabinet, ministers, public servants, and independent statutory offices and agencies - such as the Reserve Bank, as well as a wide array of other agencies including, to name a few, Centrelink, the Great Barrier Marine Park Authority and the Ombudsman - on matters relating to Aboriginal and Torres Strait Islander people.[10]
1.42Assuming Professor Davis’ view of the scope of the Voice’s power is correct, the Executive Government would make thousands of decisions every year on matters relating to Aboriginal and Torres Strait Islander people in relation to which the Voice would be entitled to make representations.
1.43If the High Court finds that there is a duty to consult the Voice or consider its representations within proposed s 129, this will have several practical effects.
1.44If there is a duty to consider the Voice’s representations, any administrative decision that failed to take into account the representations could be set aside by the High Court in judicial review proceedings under s 75(v) of the Constitution.[11]
1.45To discharge the duty to consider, there would need to be systems for ensuring that before any relevant decision was made, the decision-maker had received and considered any representation made by the Voice.
1.46The magnitude of designing and implementing a system of this kind would be affected by the number and form of the Voice’s representations.
1.47As Professors Aroney and Gerangelos observed, it appears that proposed s 129(ii) contemplates the Voice’s representations being made either orally or in writing.[12]
1.48It is unclear how the Voice’s oral representations could be reliably captured and considered.
1.49The Government offered no submission to the Committee explaining how these systems would be designed and implemented, or how much they would cost taxpayers.
1.50It is likely that the systems would be difficult to design, even harder to implement and extremely expensive.
1.51The duty to consult the Voice would be even more onerous than the duty to consider.
1.52In various contexts, the common law of Australia already recognises a duty to consult as part of the law of natural justice and procedural fairness.[13]
1.53Conventionally, a duty to consult would involve the Executive giving a person who might be affected by a decision a reasonable opportunity to make a representation about the decision before it is made.
1.54Usually, a duty to give a person an opportunity to make a representation would be accompanied by a duty to provide reasonable information about the proposed decision, so that a meaningful representation can be made.
1.55As Mr French and Mr Hayne said, a duty to consult the Voice would make government unworkable.
1.56In this section of the dissenting report, we explain why there is a genuine risk of the High Court finding a duty to consult the Voice and/or a duty to consider its representations.
1.57Proposed s 129 does not expressly impose a duty on the Executive to consult the Voice or consider its representations.The question is: would it be open to the High Court to find those duties are implied?
1.58The High Court has found implications in the Constitution that have had major effects on the distribution of power between the branches of government.For example, in Lange v Commonwealth (1997) 189 CLR 520 the High Court held that the Constitution contained an implicit freedom of communication between the people concerning political and government matters.
1.59The High Court’s preparedness to find implications in the Constitution is not limited to restraints on power.For example, Commonwealth executive power also includes the implied power that is part of nationhood[14]and the power to respond to a national emergency.[15]
1.60Proposed s 129(ii) will confer on the Voice a power, right or function to make representations to the Parliament and the Executive.It is unlikely that the High Court will interpret that provision in a way that gives it no practical effect.
1.61Based on existing principles, the High Court will interpret proposed s 129(ii) in a way that enables it to achieve its intended purpose.As the explanatory memorandum and the Minister’s second reading speech make plain, the purpose of s 129(ii) is to enable the Voice to influence government decisions.
1.62Proposed s 129(ii) will be pointless if the Executive is free to make irreversible decisions without first consulting the Voice.As stated earlier, a “duty to consult” in this context means providing the Voice with a prior opportunity to make a representation and providing reasonable information about the issue so that a meaningful representation can be prepared.
1.63Similarly, proposed s 129(ii) will be pointless if the Executive is free to refuse to receive the Voice’s representations, or receive them but ignore them.
1.64There is at least a reasonable argument that to avoid s 129(ii) being pointless and to allow it to achieve its intended purpose, the Executive is under an implied constitutional duty to consult with the Voice and consider its representations.
1.65At least some of these arguments are supported by some of the government’s own constitutional experts. The third tranche of advice from the Constitutional Expert Group released on 27 April 2023 records that there were differing views among the Expert Group as to whether proposed s 129 is likely to be interpreted by a court as giving rise to a constitutional duty for government decision-makers to consider relevant representations by the Voice, even if Parliament did not require this.[16]
1.66Furthermore, the Solicitor General considers there is room for argument in relation to a duty to consider.[17]
1.67Similar views were expressed by Professor Craven, Professors Aroney and Gerangelos, Father Brennan and others.
1.68The force of the argument in favour of the duty to consult the Voice and consider its representations can be tested by considering the alternative analysis put forward by the government and some of the legal experts who made submissions supporting the government’s proposal.
1.69Every year, the Executive makes thousands of decisions on matters relating to Aboriginal and Torres Strait Islander people.The overwhelming majority of those decisions are made in private without prior notice to the public.
1.70On the view put forward by the government, the Voice will have no legal ground to complain if the Executive carries on making decisions relating to Aboriginal and Torres Strait Islander people without first consulting the Voice.
1.71Similarly, on the view put forward by the government, the Voice will have no legal ground to complain if the Voice attempts to make a representation and the Executive either refuses to receive it, or having received it, ignores it.
1.72We accept that there may be reasonable arguments supporting the government’s position, however, we cannot agree that those arguments are so overwhelmingly and obviously correct that it is inevitable the High Court will accept them.
1.73The uncertainty around how proposed s 129(ii) should be interpreted is further demonstrated by the fact that there is no agreement on how it should be characterised.Some experts described it as conferring a “power”, while others described it as a “function”.The distinction can be important.
1.74In the High Court’s recent judgment in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10, Edelman J explained the difference between a “power” and a “capacity”.His Honour said at [120]:
Perhaps the best known, and most widely accepted, legal and analytical meaning given to the term "power", which separates it from other forms of legal relation, is that it is the ability to effect a change in legal relations.(underlining added)
1.75A “capacity” can be distinguished from a power.In some contexts, the term capacity has been used to describe “rights, liberties or privileges, and immunities”, but in others it has been used to describe a general freedom to act in a way that does not alter legal relations with third parties: Davis [122] – [123].
1.76The distinction between a “power” and a “function” is not rigid,[18]however, a “function” is typically an action which is deemed to be authorised, but not necessarily a legal obligation.[19]
1.77The Voice does not need proposed s 129(ii) to have the freedom to make a representation to the Executive.Any person or body can do this.Therefore, if proposed s 129(ii) confers a power that effects a change in legal relations, it is arguable that it does so by changing the legal relations between the Voice and the Executive.Arguably, that change in relations is brought about by imposing on the Executive a duty to consult the Voice and consider its representations.
1.78The extrinsic materials to the Bill inconsistently describe the character of s 129(ii).The Explanatory Memorandum describes s 129(ii) as setting out “the core function of the Voice”.[20] Elsewhere, the Explanatory Memorandum describes s 129(ii) as a provision which “empowers the Voice to make representations”.[21]
1.79The submissions to the Committee are also inconsistent on this point.
1.80For example, Professors Twomey,[22]Williams[23]and Craven[24]and Mr Hayne[25]described s 129(ii) as conferring a power on the Voice, whereas the Solicitor-General and Mr French[26]used the terminology of “empower” and “function” in the same manner in which those terms are used in the Explanatory Memorandum.The Government’s Constitutional Expert Group describes s 129(ii) as providing a power.[27]
1.81The diverse views on this topic, including from experts who have been close to the government and the design of the proposed s 129, demonstrates that the High Court could reasonably adopt either point of view.
1.82As already stated, the Committee received submissions and evidence from various legal experts for and against the proposition that s 129(ii) could be interpreted in a way that would impose duties on the Executive.
1.83Fundamentally, each of the legal opinions put to the Committee involve a prediction about how the High Court might interpret s 129 in the future.As Robert French said, predictions about how courts will decide questions of law “involve evaluative judgements upon which reasonable minds can differ”.He went on to say:
When we get to legal texts, be they contracts, statutes or constitutional provisions, there is never absolute precision. There is always a boundary area of choices of construction, and a lot of that has engaged the work of the High Court over many years, particularly in the area of statutory construction.[28]
1.84Many of the predictions offered to the Committee by legal experts were put with a degree of certitude that cannot be reconciled with Mr French’s cautious observation reproduced above.
1.85Indeed, some of the predictions differed so significantly, that at least some of them cannot be correct.To recognise this is not to doubt the sincerity or expertise of the lawyers who took the time to make submissions.
1.86Several legal experts, such as Mr Ian Callinan AC, a retired justice of the High Court, and Mr Roger Gyles AO KC, a retired justice of the Federal Court, have pointed out that Australian legal history is replete with decisions of the High Court where the outcome was opposed by the government of the day and would have come as a surprise to many lawyers, including many senior lawyers advising the government.
1.87To give just a few recent examples:
1.97The Committee received various submissions suggesting amendments to proposed s 129 that would eliminate or reduce the risk of it being interpreted in a way that would impose unworkable burdens on government.We address some of these below.
1.98Some urge the deletion of s 129(ii).[32]
1.99Deleting s 129(ii) will eliminate the risk of making government unworkable, but will make no practical difference to what the government is hoping the Voice can achieve.
1.100If s 129(ii) is deleted, there is no reduction of the constitutional recognition of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.
1.101The title of Chapter IX will remain “Recognition of Aboriginal and Torres Strait Islander Peoples” and the opening words of s 129 will remain “[i]n recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia”.
1.102If s 129(ii) is deleted, the Voice will still have the same constitutionally protected freedom as everyone else to make representations to Parliament and the Executive.[33]
1.103The Parliament could not enact a valid law prohibiting the Voice from making representations to the Parliament and the Executive, for such a law would almost certainly breach the implied constitutional freedom of communication on political and government matters.[34]
1.104If s 129(ii) is deleted, the Parliament’s power to make laws under s 129(iii) would be simplified and enhanced.There would no occasion to debate, either politically or in legal proceedings, whether or to what extent the power in s 129(iii) is limited by the grant of power or function in s 129(ii).
1.105If s 129(ii) is deleted, there will be no occasion for any person to argue that the Executive is under a constitutional duty to consider or consult.
1.106If the government’s model is adopted without s 129(ii), the Voice will still have a constitutionally guaranteed existence and a constitutionally protected freedom to make representations to the Parliament and the Executive.
1.107Those who support the government’s current model insist that s 129(ii) will not impose any duties on the Executive and that this is not the intention.
1.108All sides of the debate are in fierce agreement that if s 129(ii) does impose duties on the Executive, this would make government unworkable.In these circumstances, there is no sensible reason to retain s 129(ii).
1.109We urge the government to give the most serious consideration to amending the Bill by deleting s 129(ii).If the government is not prepared to adopt that course, we think it is incumbent on the government to clearly explain exactly what it is that s 129(ii) will enable the Voice to do, that it could not do without it.
1.110Uphold & Recognise[35] submits that if proposed s 129 is left in its current form, a new s 77(iv) should be inserted into the Constitution, giving the Parliament power to make laws about the application of s 75(v) to the body established in s 129(i).[36]
1.111Proposed s 77(iv) would enable Parliament to prevent or restrict the Voice from pursuing judicial review proceedings in the High Court.The practical effect of this would be that the opportunity for legal proceedings in relation to the Voice would be reduced, although not eliminated.
1.112The logic of this proposal is similar to option 1.There cannot be any good reason to refrain from including proposed s 77(iv), when those who support the government’s model insist that legal proceedings will not arise in any event.
1.113If, as the Government has repeatedly claimed, there is little or no risk of the courts finding a duty to consult, there is nothing to lose by enabling the Parliament to make laws to make certain of that outcome.
1.114We note that similar amendments would need to be made to s 39B of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth).
1.115It was reported that in the Referendum Working Group, the Solicitor-General and Attorney-General had proposed an addition to the end of s 129(iii) of seven words: “and the legal effect of its representations.”[37]
1.116Professor Craven submitted that proposed s 129(iii) should be amended to expressly empower the Parliament to make laws declaring the legal effect of the Voice’s representations.[38]
1.117Professor Twomey agreed that the proposed wording could be more precise and had no objection to including Professor Craven’s suggestion.[39]
1.118However, as the Solicitor General observed, that contention depends on accepting that the High Court will not find a contrary implication in s 129(ii).[40]
1.119According to some, it is unnecessary to expressly empower the Parliament to make laws declaring the legal effect of the Voice’s representations, because that power is already implicitly contained in the proposed wording of s 129(iii).[41]
1.120We do not believe there is any good reason to refrain from amending proposed s 129(iii) by adding at the end “and the legal effect of the Voice’s representations”.
1.121All this would do is make express that which the Solicitor General says is implicit and would strengthen the argument that an express power to make laws as to the legal effect of the Voice’s representations is inconsistent with an implication in s 129(ii) on that same matter.[42]
1.122Father Frank Brennan SJ AO urges that the words ‘Executive Government’ in s 129(ii) be replaced with ‘Ministers of State’.[43]
1.123The logic of this option is that if the government insists on retaining s 129(ii), it would avoid the disruption of representations being made directly to public servants.
Recommendation 1
1.124The proposal for an Aboriginal and Torres Strait Islander Voice should not be adopted in its current form.
Recommendation 2
1.125Noting the Coalition will not stand in the way of Australians having their say on the proposal, the Government should amend the drafting of the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 to address the significant risks identified through the Committee process.
Recommendation 3
1.126The People should never again be asked to vote on constitutional amendments that do not have the benefit of detailed public debate, in the form constitutional conventions or similar.
1.127We thank all who took the time to prepare submissions and appear as witnesses.
1.128We especially thank those witnesses who were prepared to publicly raise their concerns about the government’s model.To do so required moral courage.Many were, and still are, passionate supporters of the idea of the Voice yet felt compelled to come forward and warn of risk in this proposed draft.No one can question their motives in doing so.
1.129A dispiriting feature of the public debate about the Voice over the last year has been the countless accusations of bad faith levelled at people who have spoken out on ways the government’s proposal could be improved.
1.130It is mystifying that public discussion about issues of constitutional law have resulted in distinguished advocates for the Voice labelling opponents with terms such as “racist” and “scaremongering”.These lazy, ad hominin insults have done no credit to those who advanced them and, if anything, have made reaching consensus more difficult.
1.131We have prepared this report in good faith, conscious of our duties to the Parliament and to the Australian people.We hope that the government will consider this report with the same good faith.
Mr Keith Wolahan MPSenator Kerrynne LiddleDeputy ChairSenator for South AustraliaMember for Menzies
Senator Andrew BraggSenator for New South Wales
Footnotes
[1]Committee Hansard, 14 April 2023, p. 50.
[2]There are five explicit individual rights in the Constitution. These are the right to vote (section 41), protection against acquisition of property on unjust terms (section 51 (xxxi)), the right to a trial by jury (section 80), freedom of religion (section 116) and prohibition of discrimination on the basis of State of residency (section 117).
[3]A recent example of Parliament conferring a new right is the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) reforms to permit same sex marriage
[4]Quick & Garran, The Annotated Constitution of the Australian Commonwealth (revised ed) (2015), p. 518.
[5]Final Report of the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, November 2018, p .121 – 124.
[6]Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10, [142] – [144].
[7]We use the word “duties”, recognising that there are various other ways in which the law might deal with this idea, such as a condition on executive power.
[8]Committee Hansard, Friday 14 April 2023, p. 52.
[9]Committee Hansard, Friday 14 April 2023, p. 40.
[10]The Hon R Barrett AO, Submission 02.2.
[11]Professor Nicholas Aroney and Professor Peter Gerangelos Submission 92, p.14-15.
[12]Professor Nicholas Aroney and Professor Peter Gerangelos Submission 92, p. 8.
[13]Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [11] – [15] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.
[14]Davis v The Commonwealth (1988) 166 CLR 79 at 110-111; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at 48-49 [92].
[15]Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at 89 [233]. See also Williams v The Commonwealth (No 2) (2014) 252 CLR 416 at 454 [23].
[16]Third tranche of advice from the Constitutional Expert Group released on 27 April 2023, section 3.
[17]Opinion of the Solicitor General, annexed to Submission 64, p. 29.
[18]Wilkie v Commonwealth; Australian Marriage Equality Ltd v Cormann (2017) 263 CLR 487, [149] – [150].
[19]Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1, 6 (Dixon CJ); Binsaris v Northern Territory (2020) 270 CLR 549, [17].
[20]Explanatory Memorandum, Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023, p 2.
[21]Explanatory Memorandum, Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023, p12.
[22]Professor Anne Twomey, Submission 17, p. 3.
[23]Committee Hansard, p 38.
[24]Committee Hansard, Friday 14 April 2023, p. 28.
[25]Committee Hansard, Friday 14 April 2023, p. 48.
[26]Committee Hansard, Friday 14 April 2023, p. 52.
[27]Third tranche of advice from the Constitutional Expert Group released on 27 April 2023; https://voice.gov.au/news/third-tranche-advice-constitutional-expert-group-released
[28]Committee Hansard, 14 April 2023, p. 50.
[29]See also, Wainohu v New South Wales (2011) 243 CLR 181.
[30]See also Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106.
[31]Roger Gyles AO KC, Submission 246, p. 2.
[32]Julian Leeser MP, Submission 89, p. 5-6.
[33]Professor Anne Twomey, Submission 17.2, p. 1-3.
[34]Lange v Commonwealth (1997) 189 CLR 520; Unions New South Wales v New South Wales (2013) 252 CLR 530.
[35]Uphold & Recognise, Submission 40, p. 15.
[36]Uphold & Recognise, Submission 40, p. 15.
[37]https://www.smh.com.au/politics/federal/the-seven-extra-words-that-could-broker-a-compromise-deal-and-win-the-referendum-20230312-p5crct.html
[38]Committee Hansard, Canberra, 14 April 2023
[39]Committee Hansard, Canberra, 14 April 2023, p. 44.
[40]Opinion of the Solicitor General, annexed to Submission 64, p. 17.
[41]Opinion of the Solicitor General, annexed to Submission 64, p. 15-17.
[42]Opinion of the Solicitor General, annexed to Submission 64, p. 19.
[43]Fr Frank Brennan, SJ AO, Submission 18, p. 1.Father Brennan’s recommendation is supported by Mr Matt Foley, the former Attorney General of Queensland: Submission 171, p. 4.
The Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum inquired into and report on the provisions of the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023.
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