Monday, 11 September 2023
Questions without Notice
Aboriginal and Torres Strait Islander Voice
My question is to the Special Minister of State, Senator Farrell. The Constitution requires the proposed law to be submitted to the electors so electors can see what they are voting on in a referendum. Do you agree that the proposed text to be included on the ballot paper is the full text of the proposed law change as contained in the enabling legislation, the Constitution Alteration (Aboriginal and Torres Strait Islander) Voice 2023?
Honourable senators interjecting—
Well, some people just like me! I hate to say it—I can't help it! Some of them actually get a better answer if they give me a bit of advance notice. It's hard to believe, I know.
I have been made aware that there are claims by one legal academic that the form of the proposed constitutional amendment and/or the ballot paper question do not satisfy the constitutional requirements for a referendum. But the referendum legal issues have been considered in detail by the Constitutional Expert Group, the Solicitor-General and the parliamentary inquiry. This gives me some assurance that the amendment and the question are legally sound, Senator Roberts.
Historically, all referendum ballot paper questions have either used the short title, until 1951, or the long title, after 1951, of the Constitution alteration that passed through the parliament. The question for the Voice uses the long title, consistent with the practice for over 70 years. The government is aware of a potential challenge to the ballot paper reform. This application has not yet been accepted by the High Court and is therefore not an active proceeding. At this point, I'm advised that it is probably inappropriate to comment further on that possible legal challenge.
Section 128 of the Constitution makes no provision for a summary of the change to appear on the ballot paper. Section 128 requires the proposed law change to be submitted in full. Form B of the Referendum (Machinery Provisions) Act 1984, which allows for a summary, is in breach of section 128 of the Constitution. Minister, will you ensure the Voice ballot paper is compliant with the constitutional provisions for a referendum?
I thank Senator Roberts for his first supplementary question. Yes, Senator Roberts, I will ensure that the wording in the question on the referendum on 14 October is compliant with the Constitution. Can I reiterate my earlier answer, that all of the advice that I've got from the Constitutional Expert Group, from the Solicitor-General and from the parliamentary inquiry that examined this issue is that it does meet the existing constitutional requirements. I should say that my office has at all times tried to facilitate your ability to get advice directly from the AEC about any issues that you might have with the ballot paper. I invite you to— (Time expired)
A case could and will be made to the High Court that including a misleading feel-good summary on the referendum ballot paper rather than the actual details of the change is a breach of section 128 of the Constitution, which may have the effect of misleading voters and rendering the result void. Minister, are you or your government about to make a $364 million mistake?
I thank Senator Roberts for his second supplementary question. No, I don't believe so. I have seen some of the reports that you are referring to. Interestingly, one of the reports I think that you're relying on was from Michael Detmold, who was my constitutional law lecturer in 1972 at Adelaide university. But that doesn't mean, Senator Roberts, unfortunately, that everything he may or may not say is correct.