Conservatives who are adamant that enshrining the body in the Constitution runs the risk of clogging the courts and hamstringing government have been challenged by the Commonwealth’s top legal adviser, who believes that the federal cabinet and public service will not be required to consult with the Voice before making policy.
Labor and Voice supporters hailed the written opinion of Solicitor-General Stephen Donaghue, which was released on Friday, as additional evidence that the Constitutional change was legally sound. However, it did not allay the Coalition’s concerns, which demanded the release of the full legal advice given to cabinet.
Donaghue stated that the Voice “will not fetter or impede” the powers of the parliament or executive and will “enhance” Australia’s system of representative and responsible government in his advice that was included in a submission by Attorney-General Mark Dreyfus to a joint parliamentary inquiry into the referendum.
His opinion comes amid a heated debate over the Voice’s proposed right to submit representations to the executive branch of government, which some constitutional conservatives and politicians have argued would add another layer of bureaucracy and lead to a flood of High Court litigation if the Voice felt it had not been properly consulted.
Donaghue concluded that Australia’s democratic system of government was not in danger from the proposed language of the amendment to include the Voice.
He said that the Voice would not have the authority to create laws or create or implement policies, but would only serve as an advisory body to the executive and parliament.
It’s obvious that The Voice has no veto power, Donaghue stated.
In support of the submission, Prime Minister Anthony Albanese reaffirmed these words at a press conference in Sydney on Friday morning. He described the solicitor-general’s opinion as “very clear and it’s unequivocal” and said it should put an end to “nonsense and falsehoods” about the power of the Voice.
Michaelia Cash, the shadow attorney general, urged Labor to make all of the solicitor general’s earlier advice to cabinet available, asserting that the government had obtained the most recent opinion in order to make it public.
“This is not advice which Opposition has repeatedly called for Government to release, but it is rather a cynical political tactic to confuse the Australians,” Cash said in a statement.
“The Albanese Government’s lack of transparency regarding their Canberra Voice proposal is once again highlighted by the failure to release all of the Solicitor-General’s advice in this matter.”
The Voice would be established through the insertion of a new section 129 into a new Chapter IX of the Constitution, which is scheduled to take place later this year. According to the amendment’s second provision, which is up for debate, “the Aboriginal and Torres Strait Islander Voice make representations to Parliament as well as the Executive Government of Commonwealth on matters that relate to Aboriginal and Torres Strait Islander peoples.”
Former High Court justice Ian Callinan questioned the types of bureaucratic changes that would be necessary to receive the Voice’s representations in a different submission that was also published on Friday. He stated that concerns that the Voice would impede and disrupt government and business activity “cannot be brushed aside.”
In the submission, Callinan stated that “at the very least, there are bound to be numerous inter-departmental committees debating among themselves on how they should advise government to act and parliament to start the processing of an enactment.”
Although the former judges had differing opinions, according to Liberal MP Keith Wolahan, who served as the inquiry’s deputy chair, “neither they nor the solicitor-general will have the final say.”
The justices of a future High Court may be young enough to be at home watching Bluey. The Constitution must be risk-aversely drafted since it is meant to last forever, he remarked.
The Solicitor-General claimed in his submission that there was no implied requirement for the government to consult with the body before making policy decisions due to the phrasing of the text and the intended use of “representations” rather than “consults”.
Although he conceded there was “room for debate” regarding whether decision-makers within the executive branch would be obligated to take representations of the Voice into account “in certain contexts,” he insisted that this would not “in any significant respect” interfere with the executive’s routine operations.
Donaghue found that since the amendment provided the parliament authority to enact laws governing the Voice’s structure, responsibilities, and methods, such laws might stipulate how and when decision-makers are compelled by law to take the Voice’s representations into account.
He dismissed worries, meanwhile, that legal challenges might prevent the government from taking action, noting that disputes over the legality of ministers’ or public officials’ choices had been prevalent since the 1970s.
“The suggestion that empowering the Voice to make representations to the executive government will result in clogging up the courts or causing government to grind to a halt,” Donaghue wrote in the submission, “ignores the reality that litigation concerning validity of decisions of executive government is already very common, as well as that it does not have either of those consequences.”
The Voice proposal’s architect and UNSW Professor Megan Davis, a Cobble Cobble woman, claimed that the majority of legal opinion supported the amendment’s present wording.
She declared that the “fear mongering about the Voice’s reach and its legal ramifications can now end.”
In line with the Press Club model I suggested, he added, “the surer approach to counter these objections is to simply eliminate article 2 [the right to make proposals to the executive].
Strongly opposed to the Voice, former prime minister Tony Abbott said in his contribution that the Voice was flawed in theory because it would grant some citizens “a greater right to influence government than everyone else.”
