Two legal academics spoke with Flow News 24 in the lead-up to Saturday's referendum, which will send Australians to voting booths across the nation to determine whether Indigenous people will be recognised in the constitution with the establishment of a "voice" to parliament.
While possible legal ramifications of a potential yes vote have been consistently referred to in mainstream media cycles, Flow News 24 opted to unlock more answers to a complex subject matter by airing the views of two Australian public law teachers and constitutional experts.
Associate Professor Madelaine Chiam from La Trobe Law School and Professor Gabrielle Appleby from the School of Global & Public Law at UNSW both ultimately agreed that 'the vast majority of expert legal opinion agrees that this amendment is not constitutionally risky', though both conceded that it is impossible to guarantee no degree of 'risk'.
Chiam said legal precedents show that there is a high likelihood the risk of Australians voting yes on Saturday was low but that it was impossible to deal in absolutes.
"To be very clear we can't say for certain, we can't predict for certain what the High Court would say but that's the same for all law, that's the same whether the law is about what what your neighbors say is going wrong with your fence and for the Constitution," Chiam said.
We can't say for certain what the High Court would say but we have a good idea, we have a really good idea of what the High Court is most likely to say because of the way the High Court has made these decisions in the past, on that basis and on a careful reading of the proposal for the constitutional change, we can say that the most likely outcome is that the High Court would find that the proposal is consistent with our constitutional system.
Chiam confirmed there has been no pushback from the legal community since she and her colleagues formed their interpretation of whether a yes vote was constitutionally risky.
"No pushback from any public or constitutional law teachers...in fact, when we released the letter first last week, we had 70 signatories and since then we've had at least 10 more, so what we've had at this point is more support for the position that we've taken, which is to emphasise that the vast majority of legal opinion is that the proposed voice to Parliament is not constitutionally risky," said Chiam.
Chiam's associate, Gabrielle Appleby, also offered her take on how voters should interpret the Voice to Parliament proposal from a legal perspective.
"I would say we can't predict with absolute confidence what a future High Court will do but there are legal arguments that have greater strength and there are legal arguments that have less strength and this particular issue, the idea of constitutional risk, the risk of government delay and dysfunction from the proposal has been poured over by legal experts in Australia, those with constitutional experience, High Court experience and the overwhelming majority of opinion is that this poses very little constitutional risk," said Appleby.
"It is highly unlikely that a future high court will draw an implication that will grind government to a halt.
"In fact, the vast majority of opinion is saying this is actually going to be coherent with our constitutional system, our Parliament, our government and improve the way it operates."
However, the Nationals' Member for Mallee, Dr Anne Webster, who also appeared on the same program, staunchly disagreed with Chiam and Appleby, arguing that High Court judges making potential interventions as "unelected bureaucrats" is an unfavourable outcome for all voters.
"The fact is that if you've got the High Court being the ones who determine outcomes for policy and legislation...then it means that unelected officials I.E judges, determining the future for Australia - that's not okay," Webster said.
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