One of the nation’s leading silks has warned that the referendum on the proposedIndigenous voice to parliamentis vulnerable to legal challenge in the High Court because it misleads voters.
Stuart Wood KC has produced a legal opinion that saysthe referendum questionfails to state the core function of the proposed Indigenous voice to parliament and the executive.
Instead, the question that will be presented to voters emphasised the notion of constitutional recognition of Aboriginal and Torres Strait Islander people.
In an opinion written jointly with barristers Paul Jeffreys and Jakub Patela, Mr Wood states that the emphasis in the referendum question on constitutional recognition is significant because there is differential support among electors for recognition andthe proposed voice.
“In our view, the government’s proposed question misleads and misinforms voters about what they are being asked to approve,” they write.
Their opinion, which was commissioned by the Institute of Public Affairs, says the referendum question is seriously deficient and “will be open to challenge by seeking relevant relief”.
Potential remedies could be a High Court declaration that an answer to the referendum question cannot be taken to constitute approval of the proposed change to the Constitution, or an injunction preventing the question being put to electors, their opinion says.
While their opinion focuses only on potential remedies that could be sought from the High Court before the referendum, it will place the government under pressure to change the referendum question or risk High Court action if there is a successful outcome for the Yes case.
One of those familiar with the opinion said the likelihood of successful intervention by the High Court could be stronger after a successful referendum than if the court were asked to intervene before the question had been considered by voters.
