Constitutional lawyers remain divided over the potential for the Voice to Parliament to lead to government decisions being caught in a quagmire of High Court legal challenges.
- The inclusion of “executive government” for the proposed constitutional amendment has prompted concerns
- An expert says the current draft constitutional amendment leaves room for the “No” campaign to capitalise on uncertainty
- Referendum Working Group member Megan Davis says the concerns are “disingenuous and overblown”
The Albanese government’s preferred wording for the proposed constitutional amendment to enshrine an Aboriginal Voice to Parliament, unveiled on Thursday, retains the words “executive government”.
Those two words have prompted concern from several eminent legal experts, including constitutional lawyer and Jesuit priest Father Frank Brennan, former High Court justice Ian Callinan and Emeritus Professor Greg Craven, a member of the government’s Constitutional Expert Group.
Their concerns have related to the potential for the High Court to determine that the executive government — including the public service — could be legally obliged to consult and consider the recommendations of the Voice on a range of issues before making a decision, and a failure to do so could lead to High Court action.
Other constitutional experts have labelled that argument implausible, commenting that the High Court was extremely unlikely to take such a broad view of the amendment.
Those queries had prompted a proposal from the Attorney-General to add the words “and the legal effect of its representations” to the third line of the proposed constitutional amendment as it then read.
That would have amended the line to “The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice, and the legal effect of its representations.”
After that suggestion was rejected by the Referendum Working Group, the updated draft reads: “The Parliament shall, subject to this Constitution, 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.”
Emeritus Professor Greg Craven said the change failed to remove the possibility of High Court challenges.
“They preserve the problems that were already there and leave open the possibility of legal challenge to the whole range of executive decisions,” Professor Craven said.
“That exposes, as a possibility in that, if the Voice has not already given a representation, then there may be court action to hold that decision up until such time as the Voice gives that representation.
“I think the words make it clear themselves … When you give parliament powers with respect to composition and so forth, it’s pretty obvious that it doesn’t give powers in relation to the legal effect of representations.
“Attorney-General Mark Dreyfus wanted to add the words ‘the legal effect of representations’ that parliament could make laws with respect to them and that was rejected by the working group and then the Albanese government.
“Those words would indeed have solved the problem.”
University of Sydney Professor Emerita Anne Twomey — who was also appointed a member of the Constitutional Expert Group — said the new wording would allow parliament to legislate the effect of representations to it, achieving the same result as the earlier set of words proposed by Attorney-General Mark Dreyfus.
“It’s a wider power and that’s also helpful from the government’s point of view, because they take the view that it would then allow parliament to legislate the effect of representations to it,” she said.
“Now it doesn’t say you can only deal with functions, powers, procedures and composition.
“Here the government is trying to make sure that it’s clear that the original intent is that it’s not a legal obligation on the executive to take this into account unless parliament says so.”
Professor Emeritus Craven — who has long supported an Indigenous representative body — said the current draft constitutional amendment left room for the “No” campaign to capitalise on uncertainty.
“If this referendum is not already dead — and it’s very close to terminal — then one of the best arguments the “No” case would have is your own Attorney-General and solicitor-general said there were problems and tried to fix them and you refused to do it,” he said.
Professor Anne Twomey said the introduction of the Constitutional Alteration Bill to parliament would provide an opportunity for the government to provide further clarity.
“Once we actually have the explanatory memorandum and the second reading speech, which makes clear what the intent of the provisions are, that may resolve a lot of the concerns and, so, there is no need for making any kind of further amendments,” she said.
The government has said it intends to introduce the Constitutional Alteration Bill — which would include the wording unveiled yesterday — to parliament next Thursday, with a vote expected in June.
On Thursday, the Law Council of Australia backed the revised wording, offering its “unwavering support” for the referendum to create a Voice to Parliament.
Professor Megan Davis — a constitutional lawyer and member of the First Nations Referendum Working Group — has previously labelled concerns over the potential for High Court challenges “disingenuous and overblown”.