Indigenous voice a ‘safe and sensible’ legal option that will not impede parliament, experts say

Constitutional experts have backed the proposed Indigenous voice as a "safe and sensible" legal option, dismissing concerns that the advisory body would be too powerful.

Several advisers to the referendum process say a change to wording of the constitutional amendment confirms that parliament has power over the voice, and that the advisory body wouldn't be a so-called "third chamber" as opponents have claimed.

"It's actually strikingly modest. If other arms of government hear the voice's representations and aren't persuaded, they can continue on their course. There's no requirement to follow the advice of the voice," said George Williams, professor of law at the University of New South Wales.

The proposed constitutional amendment, announced on Thursday by the prime minister, Anthony Albanese, makes several changes from an earlier draft. The most consequential change relates to parliament's power over the voice.

The latest version states parliament will "have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander voice, including its composition, functions, powers and procedures."

An earlier version suggested parliament would "have power to make laws with respect to the composition, functions, powers and procedures" of the voice. The seemingly minor change has a major impact, according to Williams, a constitutional expert who advised the government through the referendum process.

"Parliament can legislate generally about the voice, as opposed to only being able to legislate the four matters listed," he said.

"It increases power of parliament over the voice. It should remove doubts that parliament is fettered or limited. It now has a general power to legislate about the voice, so if problems arise, parliament can legislate a response."

Williams called the amendment "safe and sensible".

"People are throwing up some horror hypotheticals but they're so unlikely," he said.

Asmi Wood, a constitutional professor at the Australian National University, is also on the government's expert legal group. He backed the change to the amendment.

"The word 'including' is indicative. It provides examples without being an exhaustive list. It confirms the supremacy of parliament," he said.

"The legislature should have that authority, we don't want to curtail the activities of parliament. People have used words like third chamber, and this clarifies this isn't a third chamber but purely an advisory voice that will provide an opinion."

The most prominent concerns have come from, constitutional lawyer Prof Greg Craven. He claimed the voice's power to advise executive government would spur ongoing court challenges, if its advice was ignored.

That view was rejected by other members of the constitutional expert group and the referendum working group, but opposition leader Peter Dutton on Thursday leaned on Craven's concerns as a reason for scepticism about the voice.

Craven told the ABC on Friday that the working of government would be "seriously and serially compromised" by the amendment.

"The result of that will be the voice will be able to legally intrude constantly on every possible decision and there would be every reasonable prospect that that would lead to multiple judicial interventions," he said.

Craven claimed the parliament would not be able to successfully legislate to limit the legal power of the voice's representations, calling it "a vague expression".

Former high court judge Kenneth Hayne, writing in Guardian Australia, said the voice "will not impede the ordinary working of government."

Prof Anne Twomey, from the University of Sydney, told the ABC there would be no legal obligation for decision-makers to respond to the voice's representations.

"The government's built into that legislation the ability for parliament to control that issue, so that means concerns about litigation can be allayed," she said.

"It's not the sort of thing that we're talking about thousands of cases blocking up the courts for ever. That is just unrealistic."

The Law Council of Australia said in a statement that it "unwaveringly" supported the constitutional recognition of Indigenous people, calling the voice "a modest step".

"The constitutional enshrinement of the voice is necessary to meet the aspirations of the Uluru Statement, and to respect the direct wishes of First Nations peoples," said president Luke Murphy.

Attorney general Mark Dreyfus said on Thursday that the amendment "put beyond doubt" the power of the parliament to legislate the functions and powers of the voice, saying some of the nation's "best legal minds" approved the change. On Friday, he labelled as "quite a bit of misreporting" earlier media reports that he had sought to wind back the power of the voice to advise executive government.

"We've been very clear that we think that the voice should be able to make representations both to the parliament and the executive government. That's been our position from the start and it's certainly been my personal position as well," he told 6PR radio.