Indigenous Voice to Parliament line that sparked fears it is a ‘slippery slope’

A single clause in the constitutional amendment from the indigenous vote to parliament could make it unworkable, with issues as broad as tax policy and even roads falling within its purview, legal experts fear.

Prime Minister Anthony Albanese today introduced legislation to parliament that would enshrine the advisory body in the constitution if the proposal wins the referendum.

The bill contains the language that would be incorporated into the constitution to create the vote and establish basic functions.

However, the second clause of the wording has raised concerns that it is too broad, goes far beyond the human rights concerns originally intended, and could lead to unintentional bureaucracy and legal wrangling.

Human Rights Commissioner Lorraine Finlay (pictured) argued that the wording of the Voice constitutional amendment was problematic

The rule in question says the Voice will be allowed to “submit demonstrations to the Commonwealth Parliament and Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.”

One expert fears there will be virtually no problem in Australia that will not fall within the remit of the line, even things like tax policy, because it will also affect Indigenous Australians in the same way as everyone else.

Human Rights Commissioner Lorraine Finlay, a former constitutional law academic, outlined her difficulties with the wording in an op-ed for The Australian.

Ms Finlay, a longtime critic of The Voice who was appointed by former Prime Minister Scott Morrison, wrote that it was not the modest proposal Albanese pushed for.

Her first problem was the inclusion of “executive government” in the clause, which she says “significantly increases the risks of bureaucratic complexity, legal uncertainty and judicial activism.”

The inclusion of ‘executive government’ has been hotly debated in parliament and elsewhere over the past two weeks, with the prime minister taking issue with opposition leader Peter Dutton.

The labor side of the House of Representatives erupts in applause after the bill has been submitted

Meanwhile, the Coalition benches (right) were all but empty when the amendment was tabled

Her second point, echoed by other legal experts, was that the scope of the Voice as outlined was far too broad.

The clause also went far beyond “matters that would affect their rights,” the wording used in the UN Declaration on the Rights of Indigenous Peoples.

Ms Finlay argued that it was ‘difficult to think’ of a political issue that would not be covered by the broad wording because they all concerned Indigenous Australians as much as any other citizen.

The prime minister argues that the amendment’s third clause gives parliament the power to determine how the indigenous vote works.

“Parliament shall, subject to this Constitution, have the power to make laws in respect of matters relating to Aboriginal and Torres Strait Islander voices, including its composition, functions, powers and procedures,” it reads. .

Indigenous Australians Minister Linda Burney addresses the media after the bill was introduced

Ms Burney was flanked by numerous Indigenous leaders as she spoke about the legislation

However, Ms Finlay argued that parliament was subject to the constitution and would thus be bound by the content of the second clause.

“An uncomplicated reading of this second clause suggests that the questions to whom and about what the vote can comment are enshrined in the constitution,” she wrote.

Parliament could try to make minor adjustments, but any changes that could be shown to conflict with the wording in the constitution could be challenged in court.

Where exactly that line is drawn will have to be decided by the Supreme Court. Once that decision is made, there is no democratic recourse through parliament if the vote turns out to be something very different from what Australians thought they agreed on,” Ms Finlay wrote.

Professor George Williams of the University of NSW agreed that the second clause was problematic because Parliament could not amend it once it had been added.

“That’s the point of putting things in the constitution, it puts them outside parliament,” he said The Australian.

Professor George Williams from the University of NSW and Professor Anne Twomey from the University of Sydney are also concerned

He disagreed with Mr Albanese’s claim that the Voice would only be able to comment on issues that “directly” affected them.

“It can’t comment on tax policy without any ties to its community, but if it made a statement advocating tax deductions specific to Indigenous peoples or different tax zones specific to Indigenous peoples, that would be business about which it could comment. because it is provided for in the constitutional amendment. It’s all about context,” he said.

Professor Anne Twomey from the University of Sydney said parliament and government could decide how to consider and respond to the Voice recommendations.

However, she said the scope of what the Voice could make representations about would be entirely determined by the second clause.

“That cannot be changed or limited by a parliamentary law,” she said.