The current score is two for and one against – at least when it comes to the current wording for the referendum and whether it will lead to “a decade of litigation”.
They have said the current wording is highly unlikely to open the litigation floodgates. At least not any successful litigation – unless the parliament says the executive must consider “representations” made by the Voice.
He is the son of former High Court chief justice Gerard Brennan, who wrote the lead judgment in Mabo. Brennan was a member of the advisory group for the report prepared by Tom Calma and Marcia Langton on a possible design for the Voice.The current wording – after a preface that recognises Aboriginal and Torres Strait Islander Peoples as the First Peoples of Australia – is:1. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
Brennan suggests paring the wording right back; to remove “executive” and ensure the Voice makes representations only on Indigenous topics, not laws with general application. “It was Professor Twomey who drafted what I understand to be the original proposed form of amendment,” Gleeson said. “Her proposal demonstrated that a constitutionally entrenched Voice can be achieved without legal derogation from parliamentary supremacy.”of the functions” of the Voice as being to monitor law specifically made for Indigenous people.
“That argument has now been roundly rejected, and rightly so,” Twomey said. “But Gleeson also recognised that my 2015 draft amendment, which did propose a Voice both to Parliament and the Executive Government, was a demonstration ‘that a constitutionally entrenched Voice can be achieved without legal derogation from parliamentary supremacy’.
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