“The purpose behind the proposed amendment is to allow Parliament and the executive government to be better informed when making or altering laws or policies, by hearing from those affected, so that outcomes can be improved,” Ms Twomey explained.

“The primary function of the Voice, as set out in proposed s 129(ii), will be to make representations to the Parliament and the executive government.” 

“This could, for example, include representations to Parliament asking it to amend an existing law to improve its efficient application or prevent an adverse effect upon Aboriginal and Torres Strait Islander peoples.

“It could also include representations about a proposed law, seeking to improve its operation.”

The legislation that establishes the Voice will be of importance, she continued. 

“How the Voice operates in practice will very much depend upon the legislation that sets it up and determines its procedures and how it interacts with the executive government and the Parliament,” Ms Twomey outlined.

Ms Twomey noted that Parliament might legislate established procedures by which representations by the Voice are made.

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“There would need to be some kind of mechanism for these representations to reach Parliament,” she outlined.

“It will be this legislation which deals with the composition, functions, powers and procedures of the Voice which will impose limitations on it, but those limitations will be subject to s 129(ii). 

“This means they could not take away the capacity to make representations to the executive government or Parliament — but they could regulate how this is done.”

Ms Twomey also outlined the limitations of the Voice, in the kinds of matters it can engage with. 

The function of the Voice “is confined to representations ‘on matters relating to Aboriginal and Torres Strait Islander peoples’”, Ms Twomey highlighted, meaning that representations on matters beyond that category would fall outside the function conferred by s 129(ii). 

Lawyers Weekly asked Ms Twomey about the concerns that have been raised about the Voice leading to increased numbers of High Court challenges. 

“Court challenges may arise if people or bodies act outside the scope of their powers, or act in a manner that breaches rules of procedural fairness,” Ms Twomey highlighted. 

Ms Twomey gave an example: “If legislation conferred power on a minister which required the minister to take certain matters into account, including representations by the Voice, before making that decision, and the minister failed to take a representation by the Voice into account, then the minister’s decision could be the subject of judicial review because the minister failed to take into account a mandatory relevant consideration.”

“When people speak about High Court challenges in relation to the Voice, they are really directing their concerns at a separate matter.”

“This is the concern that someone might challenge the validity of a law or decision on the basis that the Voice had not been consulted in advance or had not been given time and information in advance of the making of the law or decision to allow a representation about it to be made,” Ms Twomey explained.

“Some have expressed the concern that the High Court would draw constitutional implications from s 129(ii) that require prior consultation, warning and information, or that require the consideration of all representations by the Voice before laws or decisions are made.”

“In my view, this is most unlikely,” Ms Twomey stated, “because such an implication is not supported by the text or the intention behind the amendment, as clearly expressed in the explanatory memorandum and the second reading speech, and any implication would have to be significantly narrowed down to make it operable, undermining its basis”.

Ms Twomey outlined how the constitutional recognition of Indigenous Australians could potentially alter how they are implicated in the justice system. 

“Recognition arises through hearing Aboriginal and Torres Strait Islanders speak through the Voice,” Ms Twomey explained. “It is this form of recognition that may have an impact upon the involvement of Indigenous Australians in the justice system.”

“The Voice might be able to inform and persuade the Parliament or the executive government to better address the causes of crime, so that Indigenous Australians are less likely to be involved in, or affected by, crime in the future.” 

“It might be able to develop policy ideas, which a government could choose to adopt, about how to respond to crime, or alternative forms of punishment,” she suggested.

“The effectiveness of the Voice will depend upon the quality of its representations and the practicality of its proposals.”