Monday, 11 September 2023
Questions without Notice: Take Note of Answers
Aboriginal and Torres Strait Islander Voice
That the Senate take note of answers given by the Special Minister of State (Senator Farrell) to a question without notice I asked today relating to the Aboriginal and Torres Strait Islander Voice referendum.
I'm going to quote from a letter to Ms Kath Gleeson, First Assistant Commissioner and National Election Manager: 'With the greatest respect, I submit that the Australian Electoral Commission has erred in the proposed content of the ballot paper to be distributed and used in the 2023 referendum, as it is unconstitutional. During a telephone conversation of Friday 8 September 2023, you informed Hugh Carter of my office that the ballot paper for the referendum is intended to be in the form of form B, as in schedule 1 one of the Referendum (Machinery Provisions) Act 1984. I submit that form B is unconstitutional as it only refers to the title of the proposal law, when section 128 of Australia's Constitution says that the proposed law shall be submitted to the electors.'
What comprises the proposed law? Section 128 says:
The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament …
This was done by the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023. Schedule 1 of that bill inserts a new chapter to the Constitution as part of the proposed law. I quoted that in my letter, as parliament approved it. The distinction I make is that the above, from the word 'chapter IX' until the words 'powers and procedures', is the proposed law that needs to be put to the electors on the ballot paper in full, not the mere title, to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. I also submit that the content of the official pamphlet is misleading, as on pages 8 and 9 the title is quoted again. I submit that, at best, this title or description is merely a statement of purpose or intention to be attributed to the proposed law and, if printed as part of the ballot paper as currently intended, would be unconstitutional as not complying with the requirements of section 128 of the Constitution to present the proposed law to the electors. With so much invested in the holding of this referendum, it is imperative that the process be uncontroversial and legally sound. To not do so invites external intervention and overview of the electoral and constitutional processes.
Question agreed to.