No camp pretends to misunderstand how government and the law interact

“If the Voice is not satisfied with the way it has been consulted, or a decision that is made, it could appeal to the courts. How long would this take?”

The genius of the No case is in its deceptive simplicity. Each debating point is crisp, clear and disturbing, designed to steer the unengaged majority towards the too-hard basket. This particular line of argument, that the Voice will cause a deluge of unproductive litigation, is getting a lot of traction.

The longer form of the argument follows this logic: if the referendum passes, the constitution will entrench the legal right of a new body, the Voice, to have a say on every law Parliament wants to make and every action the executive government wants to carry out. If the Voice doesn’t like any of that, it can go to the courts and challenge the validity of what’s been done. Result: as the No case says, a “risk of dysfunctional government. That is not good for Australia.”

The sleight of hand at play here is in the exploitation of a common misunderstanding about the role of the courts and their interaction with government decision-making. Compounding that is a smooth elision between executive action and parliamentary law-making, as if they’re the same thing and equally impacted by the Voice.

It’s worth a careful unpacking.

First, there is no prospect of litigation challenging the validity of laws made by Parliament on the basis that the Voice hasn’t been listened to. That kind of case wouldn’t get past first base.

The constitutional scheme (which provides the outer limits of the statutory design of the Voice) is unambiguous: the Voice’s function and power will be to “make representations” to Parliament (or the executive) about matters relating to Aboriginal and Torres Strait Islander peoples. That’s all.

If the Voice makes a representation about a law Parliament is considering, and Parliament ignores it, there will be no basis for a legal challenge. It would not be constitutionally invalid just because the Voice’s representations were not heard. The Voice will not be part of the parliamentary framework; it will be entirely external. It can make representations, and they can be discarded.

The real question is what happens when the Voice makes a representation to the executive arm of government, in relation to a decision of policy or administration. Say the Defence Department was contemplating building a military base on a site that is sacred to Aboriginal peoples. The Voice would have the power to say to the department “Please don’t do that — it would be an act of desecration.” And say the department went ahead anyway.

The decision to lay a runway over a sacred site would be one of policy. That is not a matter in which the courts will get involved, as it is not part of their function (assuming the statutory power to do the act exists). If the decision-makers received the Voice’s representations and considered them, but rejected them, the Voice would have no legal standing to challenge the decision.

The courts do have power to look at decisions of the executive, in a process called judicial review of administrative action. The executive’s powers are limited to what the law gives it, and its exercise of those powers is governed by a set of principles including procedural fairness and natural justice. The courts apply those principles when engaging in judicial review.

Critically, the courts can decide only whether or not the decision-making process was valid or flawed; they do not get to replace the executive’s decision with one of their preference. This is quite different from what happens in an appeal from one court’s judgment to a higher court. Judicial review is not about merit; it’s about process.

So if the Voice went to a court and said “They ignored our view and made the wrong decision,” the court would reply “That’s too bad.” The Voice would have exhausted its constitutional power, and the executive had no obligation to do what the Voice wanted.

If the department had thrown the letter it received from the Voice in the bin, unopened, there would then be a basis for challenge. That is because the executive’s action would subvert or undermine the constitutional scheme which provides that Voice should have a genuine say, in the sense that when it speaks it will be listened to. A refusal to do that would infect the validity of executive action because a critical step had been missed.

This isn’t all that hard to understand. The scheme of the Voice is that it will have substantive meaning, in that the Voice is empowered to speak, and government must listen. That is the whole journey; nothing comes after. What the Voice has said can be discarded, and there will be no recourse.

The claims of a tsunami of government-strangling litigation are not just exaggerated; they are false. As the former High Court chief justice Robert French said: “There is little or no scope for constitutional litigation.” Or Bret Walker SC, asked if there will be litigation to force anyone to accept what the Voice has said: “Nonsense. That will never happen.”

Stripped bare, that is the essence of the No case: nonsense.