Dutton wrong on changing Voice question, say legal experts

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Legal experts have dismissed a call from Opposition Leader Peter Dutton to change the question on the Indigenous Voice before the October 14 referendum, escalating concerns about false claims amid a political storm over his proposal for a second referendum.

Constitutional lawyers rejected Dutton’s assertion in the media on Monday that Prime Minister Anthony Albanese had the power to “change the question for October 14” to ask about recognising First Australians in the Constitution rather than setting up an Indigenous Voice.

One week after the Australian Electoral Commission said Dutton and others were “factually incorrect” when they complained about ticks being counted as Yes votes on the referendum ballot papers, the experts said Dutton was wrong with his claim about changing the question.

Opposition Leader Peter Dutton pushed to have the referendum question recast. Credit: Alex Ellinghausen

Dutton made his claim on the Nine Network on Monday morning when questioned about his proposal for a second referendum on constitutional recognition if Australians vote No to the Voice and constitutional recognition on October 14.

“The PM can change the question for October 14. If he asked people; ‘do you support constitutional recognition?’, I think there would be 70 or 80 per cent support for that. There would be a unifying moment for our nation,” Dutton said.

But the exact wording of the question was decided in the law to set up the referendum, passed by parliament on June 19, and sets a timetable that leaves no scope to change the question unless parliament amends the law and sets a later date for a different referendum.

University of Sydney law professor Anne Twomey said the first problem with Dutton’s claim was that parliament would have to change the law to change the question.

“Second, you can’t ask a general question in a referendum about supporting recognition,” she said.

“Third, you’d have to change the terms of the amendment so it only dealt with recognition. What words would you use? Where would you put it?

“All this would have to be passed by parliament, and there is no time to do that now for an October 14 referendum, as the Constitution says the referendum must be at least two months after the referendum bill is passed and another 33 days are also needed because of electoral laws.

“All up, this proposal to just change the question is not workable.”

Dutton voted in favour of the referendum and the wording of the question when he and others passed the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) on May 31 in the House of Representatives.

University of Melbourne professor Adrienne Stone said Dutton’s proposal could not work because a new law would have to be passed and the nation would have to wait two months for a new referendum date to be chosen, followed by a campaign of 33 days to decide the matter.

“You can’t change the question in that way without changing the proposed amendment,” she said.

“The proposed amendment to implement the Voice has already been passed by the parliament and even if the parliament were to pass a new proposed amendment (not likely, obviously), there is no possibility of doing so in time for an October 14 vote.”

Professor Gail Appleby of the University of NSW said Dutton appeared to be saying the prime minister could change the entire proposal to amend the Constitution, when this would be up to parliament.

“This would simply not be possible before October 14,” she said.

University of NSW associate professor Paul Kildea said the “clock would restart” if a new question was drafted in a new law in parliament.

“Pushing ahead with a revised question for October 14 would be a sure way of inviting a High Court challenge,” he said.

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