The 'No' pamphlet claims that the Voice is too legally risky, a leap into the unknown, and that legal experts disagree about how the High Court will interpret the new provisions. I addressed these concerns in a post on @auspublawblog in April.

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The High Court will do what it has done for the past 120 years. The major fear of an implied duty to consult is contrary to the Court's approach to const interpretation. It's perfectly normal for lawyers & judges to disagree about the amendment & the Court.

3. Many concerns relate to non-constitutional sources of uncertainty & risk. 4. Sect 75(v) & the High Court are the main constitutional risks. Sect 75(v) isn't a source of concern given its operation is primarily determined by statute & is primarily procedural.

In it, I make a few points. 1. We should focus on constitutional rather than non-constitutional uncertainty & risk. 2. Absolute certainty & no risk is not required for constitutional change. We should aim for an appropriate level of uncertainty & risk.

Is the Voice too uncertain or risky? Can we trust the High Court not to do something radical with the amendment? Should we worry that there isn't consensus among lawyers & judges on the Voice? I discuss these concerns in a post on @auspublawblog:

I defended this version of the wording against proposals to include express non-justiciability language in a paper forthcoming in the Public Law Review:

Welcome to see that the Commonwealth Government has retained the original proposed wording for the Voice. It aligns with the form of the existing Constitution, granting the Voice broad power to make representations & Parliament broad power to legislate with respect to the Voice.

And seeking to stop the Court challenges would be antithetical to constitutional principle & practice. The Court has supervised compliance with the Constitution — all of it — since federation. It would be a radical step to try to exempt part of it from judicial scrutiny.

Allowing the Voice to advise both Parliament and the Executive allows the Voice to work with the existing constitutional system for lawmaking, which involves both arms of government.

Contrary to suggestions by some Liberal MPs and others, the constitutionally conservative position on the model for the Voice is (1) to give the Voice the power to advise both Parliament and the Executive and (2) to leave the High Court’s supervisory jurisdiction intact.

Is the current proposal for the Voice constitutionally ‘radical’? Does it need to be changed to stop the Voice from advising the Executive? Does it need to be changed to stop Court challenge? The answer to all three is no, as I explain in @ConversationEDU.

You can read the full paper here

Due to justiciability's complexity, I also argue against trying to include explicit non-justiciability language in the provisions dealing with the Voice. It potentially raises the prospect of more, not less, litigation about the Voice.

I suggest it is unwise and unnecessary to attempt to render the Voice entirely non-justiciable, but that it is possible to craft the Voice in a way that responds to justiciability-related concerns.

justiciability has been a point of confusion in the debate because it is a complex subject, implicating multiple constitutional relationships. Some aspects of justiciability are closely connected to 'parliamentary supremacy', etc concerns, others are entirely unrelated.

Will the Voice undermine 'parliamentary supremacy' or act as a 'third chamber' with 'veto power'? I address that question in a short piece on justiciability and the Voice forthcoming in the Public Law Review. The short answer is no. The slightly longer answer is that . .

RT @WPartlett: What is the relevance of historiography to constitutional litigation? Should lawyers and judges care about the methods and….

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