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"As close to no risks as a lawyer can ever tell you": Former Chief Justice backs voice proposal during final days of campaign

Dechlan Brennan -

Former High Court Justice Kenneth Hayne has defended the Voice proposal, labelling it "important" and quashing any belief it may impact the future sovereignty of First Nations People.

In a discussion with First Peoples' Assembly Co-Chair, Gunditjmara man Reuben Berg, Mr Hayne said criticism of the Voice was rarely backed up with reasoning or facts, and there was no risk to it being implemented.

"There are as close to no risks as a lawyer can ever tell you 'There are no risks,'" Mr Hayne said.

"What you'll notice when people say, 'oh look you've got to be very worried about this there are all sorts of things, (the) government might come to halt', they never tell you how or why…it's just a scare campaign."

He said the proposal, far from being risky, was a simple proposition that he would be voting Yes for.

"The thing to notice is how simple the wording is because it says what it means and it means what it says," he said.

"It is (simple) and what it establishes is the principle there shall be a body to be called the Voice. It doesn't go into the detail of how that body is to be constituted or constructed; that is something that Parliament will later decide.

"It is very important, it's the first recognition of any kind in our constitution of the undeniable historical fact that the Aboriginal and Torres Strait Islander peoples are the First Peoples of this land - and these Waters - and they have been here for thousands and thousands of years."

Mr Hayne becomes the second High Court Justice in a week to back the validity of the Voice, with former Chief Justice Robert French telling the National Press Club last week that the Voice was "constitutionally sound".

The Voice campaign has entered its final week, with polling suggesting it will likely fail. The Liberal party has argued variously that the voice campaign and the Prime Minister has divided the country, that it's a voice for 'elites,' and there is a lack of detail in the proposal.

The last point was refuted by Mr Hayne, who noted that the details would be worked out by Parliament afterwards - something all parliamentarians have been aware of since the proposal was first released.

"All that we have heard about 'what about the details', are all entirely premature. Constitutions are where you put matters of principle, matters of Machinery. How things work, they change over time and Parliament can respond to those changes over time as it sees fit," he said.

As recently as September, Liberal Senator and Arrernte woman, Kerrynne Liddle, told the conservative think-tank, The Sydney Institute, that the Voice was "risky" and that its details were "unknown."

"No issue is beyond its scope and no issue is off limits. Everything is, in fact, at large," she said.

The comments mirror those made by the coalition throughout the year, asking Labor MPs in parliament if the Voice would have input in energy policy or interest rates. At the time, Prime Minister Anthony Albanese said, "The voice is not about defence policy. It's not about foreign affairs policy."

"The voice is about matters that directly affect Aboriginal and Torres Strait Islander people."

Mr Hayne, despite noting the proposal "The Voice may make representations to the Parliament and the executive government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples," was "quite broad," it will also allow First Nations people to give advice on things that impact them directly.

"The fact is that the Voice will focus on issues that affect Aboriginal and Torres Strait Islander peoples, that are of real concern to and of real importance to Aboriginal and Torres Strait Islander peoples," he said.

"(Representation) means that the voice would have one power a power to speak a power to give advice, to suggest - as the proposal says - to make representations, just to speak is the power that the voice would have."

He also confirmed that the Voice wouldn't need to just be asked before giving advice but could be "proactive" in offering it.

Senator Liddle was critical in her speech of the inclusion of the term "executive government" in the proposal, but Mr Hayne argued it was important that both parliament and the executive were included.

"Parliament makes the laws, but the executive government formulates the text of the laws and formulates policy," he said.

"If the voice is going to be able to make representations relating to our original Aboriginal and Torres Strait Islander people, it's got to be able to speak not only to Parliament but also to the executive.

"The Voice should have the ability to speak to the executive and say 'look, have you thought about this aspect of policy, have you thought about if you did this, that would be a better outcome?'"

Mr Berg asked Mr Hayes if the Voice proposal in its current form would impact sovereignty.

Politicians, including independent senator and Djab Wurrung, Gunnai and Gunditjamara, Lidia Thorpe, have campaigned on sovereignty, and the fact it was never ceded by First Nations people.

Dhudhuroa, Yorta Yorta, Barapa Barapa, Dja Dja Wurrung, Wamba Wemba, Wergaia, Wiradjeri and Waywurru man and First Peoples' Assembly member, Gary Murray, expressed his concerns to National Indigenous Times around the Voice and its relation to sovereignty.

However, Mr Hayes was definitive in his belief the Voice wouldn't impact sovereignty.

"I think it has no effect, and I mean no effect, on the sovereignty of Aboriginal and Torres Strait Islander peoples. That is completely unaffected by this, and I would have no concern about that. Zero," he said.

Pre-polling has opened and will close on October 11th. More than 2.2 million people have cast an early ballot while a further 1.9 million applied for a postal vote ahead of polling day on October 14.

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