Senator Pauline Hanson claims if the Indigenous voice referendum is successful, she will be required to consult the new body about any new legislation she puts forward.
The claim is false. The Indigenous voice would be an advisory body that provides advice to parliament and the government on issues affecting Aboriginal and Torres Strait Islander peoples.
But the solicitor-general and other constitutional law experts say neither parliament nor the government would be under any obligation to consult the new body.
Two law academics confirmed to AAP FactCheck there would be no constitutional requirement for private members’ bills to consult with the voice.
The One Nation leader made the claim on June 23 at an anti-voice event in Adelaide.
“Constitutional lawyers have said, if you actually have, you don’t listen to them – and that’s even my private legislation that I might put up, I have to actually consult with them – all legislation that concerns the Aboriginal and Torres Strait people, the Indigenous people of this nation, they have a right to actually have a say in it,” Senator Hanson said at the meeting (video mark 7m37s).
When asked for the basis of the claim, a spokesman for Senator Hanson pointed AAP FactCheck to a 2021 report by Professor Marcia Langton AO and Professor Tom Calma AO, which outlined a possible design for an Indigenous voice to parliament.
The report proposed that parliament would have an “obligation to consult” the body “before making or amending laws specifically targeted at Aboriginal and Torres Strait Islander peoples” such as the Native Title Act or the Aboriginal and Torres Strait Islander Heritage Protection Act (Page 160).
The report was commissioned by the former coalition government to explore options for a legislated voice and has been cited by Labor prime minister Anthony Albanese as a possible basis for a constitutionally-enshrined body.
But Professor Gabrielle Appleby – a constitutional law academic who also previously advised the consultation process that led to the voice proposal – said the 2021 report was the result of an inquiry into previous proposals for a legislated voice, not the constitutionally-enshrined version now on the table.
“It predated the constitutional amendment and the government has not committed itself to the report as the legislative model that will be implemented should a referendum be successful,” Prof Appleby told AAP FactCheck in an email.
“Rather, the government has committed to a set of design principles, agreed with the referendum working group, that will guide the legislative design of the voice.”
Prof Appleby said the design principles state that the voice would be able to proactively make representations on matters affecting Aboriginal and Torres Strait Islander peoples, and that parliament and the government should seek representations from the voice early in the development of relevant new laws.
“Based on these principles, there is no indication that the government intends to create a statutory, legally enforceable obligation to consult,” Prof Appleby said.
If the voice referendum is successful, a new Section 129 would be added to the constitution that would enable an Indigenous voice to “make representations” to parliament and the government on matters relating to Aboriginal and Torres Strait Islander peoples.
The constitutional amendment would be enacted through the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) Bill.
Anne Twomey, a constitutional law professor at the University of Sydney and a member of the expert legal group that advised the government on the voice, told AAP FactCheck that the explanatory memorandum of the bill made it clear there would be no obligation on parliament to consult the voice in advance of any legislation.
It states: “The constitutional amendment would not oblige the parliament or the executive government to consult the voice prior to enacting, amending or repealing any law, making a decision, or taking any other action.”
“The voice, of course, could make representations about a bill,” Prof Twomey added. “Just as anyone can make a submission to a parliamentary committee inquiring into a bill, or write to their member of parliament, or petition parliament, or seek to lobby a minister or member about a bill.
“Further, it is a fundamental constitutional principle that the courts will not interfere with the internal proceedings of parliament, including by requiring MPs to consult or consider the views of others.”
Australia’s solicitor-general Stephen Donaghue KC, the country’s most senior non-elected legal officer, has also confirmed there would be no requirement for politicians to consult the voice before bringing forward legislation.
A constitutionally-enshrined voice “would not prevent the parliament from legislating until it receives a representation” from the body and “nor would it require the parliament to consult with the voice before legislating”, Dr Donaghue said in legal advice released by the government in April 2023 (page 9).
The attorney-general, Mark Dreyfus KC MP, made the same point in parliament on March 30 while speaking on the second reading of the bill.
“Critically, the voice will be proactive,” Mr Dreyfus said in his speech.
“It will not have to wait for the parliament or the executive to seek its views before it can provide them.
“But nor will the constitutional amendment oblige the parliament or the executive government to consult the voice before taking action.”
Other constitutional law experts have told a parliamentary inquiry the same.
UNSW’s Professor George Williams AO said in a written submission to the inquiry that: “No obligations, reciprocal or otherwise, are placed on other bodies to, for example, wait for the voice to make a representation” (page 1).
Dr Harry Hobbs from the University of Technology Sydney said in his written submission that: “There is nothing in the text of proposed section 129 that requires the executive or the parliament to consult with or act on any representations made by the voice. Parliament retains full control over its own procedures” (page 5).
AAP FactCheck asked Senator Hanson’s office if it knew of any constitutional lawyers that agreed with the senator’s claim that MPs would need to consult the voice about private legislation. Senator Hanson’s office did not respond to the request.
The Verdict
The claim that MPs and senators would need to consult the proposed Indigenous voice to parliament about private members’ legislation is false.
The solicitor-general and other constitutional law experts have made it clear neither parliament nor the government would be under any obligation to consult the body.
Law academics told AAP FactCheck there would be no constitutional requirement for individual MPs and senators to consult the body.
False – The claim is inaccurate.
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