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Voice ‘legally safe’ and ‘will not result in excessive litigation’, says Law Council

The proposed Voice to Parliament is “simple, straightforward, safe and modest”, and lawyers have a duty to ensure people fully understand its implications, says the Law Council of Australia.

user iconJerome Doraisamy 29 September 2023 Politics
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Recently, the Law Council of Australia held a webinar – featuring Professor Megan Davis, the Honourable Kenneth Hayne AC KC, Professor Cheryl Saunders AO, and Greg McIntyre SC – to discuss the proposal to be put to Australians next month and answer questions raised by their colleagues.

The panel, LCA president Luke Murphy said, was “unanimous” in its view that the referendum proposal is “simple, straightforward, safe and modest”.

“Its strength is its simplicity,” he noted.


“It reflects how a constitutional amendment should occur and has in the past, in that it asks the public to vote on a principle and leaves it to Parliament to implement the detail. During the webinar, Professor Saunders explained that what goes into the Constitution is what we want to protect,” he argued.

“Things we don’t need to protect, that we are happy to see change over time, can and should be left out. This is vitally important as the legislation, the regulations, the rules underpinning the Voice must be flexible and subject to future change with public support and consultation.”

“What we as a nation are being asked to decide is whether we agree that our Constitution should recognise Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia and give them a say in matters that impact them,” he said.

“As the wording of the proposed constitutional amendment makes very clear, the Voice will only be able to make representations to Parliament and the executive, just as bodies such as the Law Council do on a regular basis.”

It will not, Mr Murphy continued, have the capacity to demand changes or to veto government decisions.

“As a result, the panel said confidently that establishment of the Voice will not result in excessive litigation which will impact the functioning of government,” he said.

“As Professor Davis shared during the webinar, many lawyers have spent over a decade testing the suggested amendments for their legal and technical risk and to ensure they are legally sound.”

Lawyers Weekly has extensively covered the legal profession’s responses to the proposed Voice to Parliament, as well as various business and employment implications for individuals or businesses taking a position. You can read that coverage here.

Moreover, Mr Murphy said, the legal profession is “uniquely qualified to assist the Australian community to understand this issue”.

“We have a responsibility, as a profession, to help people fully understand what is being proposed,” he proclaimed.

LCA, Mr Murphy went on, has long considered a constitutionally enshrined Voice as critical to addressing the social and political disempowerment of Aboriginal and Torres Strait Islander peoples.

“It has called consistently for a referendum, to accept the powerful invitation issued in the Uluru Statement for all Australians to move together towards a better future.

“The Law Council has considered the proposed constitutional amendment, the referendum question, and the referendum process more generally over the past year or so. The Law Council’s view is that the constitutional amendment as proposed is constitutionally orthodox, just, and legally sound,” he posited.

“As the [Honourable] Kenneth Hayne put it in the webinar: ‘By recognising our First Peoples in our Constitution in this way, we lose nothing, but we gain so much for the whole nation’.”

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