Legal concerns raised over Voice proposal to speak to cabinet, not just parliament

Indigenous leaders advising the Albanese government on the Voice referendum are adamant that the body should have the power to advise the cabinet as well as the parliament, despite warnings from a constitutional law expert that the broad scope will fail to win support among conservatives.

Giving the Voice a say on decisions of executive government is contentious in some legal and conservative circles, but members of the Indigenous referendum working group were quick to dismiss any suggestions of a split in their ranks after the issue was debated at a meeting this week.

Prime Minister Anthony Albanese addresses the Indigenous referendum working group at meeting earlier this month.Credit: James Brickwood

No member of the working group, or the panel of constitutional experts advising it, would publicly discuss what happened inside the closed-door meeting, but several attendees agreed to discuss the issues generally.

Working group member Marcus Stewart said there was a unanimous view among the Indigenous members that “executive government” must remain part of the constitutional amendment.

“It was not a contentious issue and the working group are not divided,” Stewart said.

The proposed amendment, which would be enshrined in the Constitution should the referendum be successful, says the Voice “may make representations to Parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander Peoples”.

Voice advocates argue the body must have the ability to provide advice to the executive branch of government – comprising ministers and decision-makers in the public service – in order to be able to influence the policy development process before a bill reaches the parliament. This, they argue, is in line with the Voice’s purpose to give Indigenous people a say over the issues and laws that affect them.

Conservative constitutional lawyer Greg Craven, a member of the panel of legal experts advising the working group, said there were growing concerns that allowing the Voice’s remit to extend to the executive would provide an avenue for government decisions to be challenged in the High Court if they were made without consulting the Voice.

“There’s now a coalescence of a view that you would be able to go to the High Court and stop the decision from being implemented until the minister had considered representations from the Voice,” he said.

“The political problem will be that no conservative party or person is ever going to agree to that because conservatives have a basic view of keeping unelected judges out of politics and policy.”

Craven, a Voice supporter and director of Uphold & Recognise, an organisation seeking to build support for the referendum in conservative circles, said the Coalition would be unlikely to support the draft amendment in its current form and the referendum is at risk without bipartisanship.

University of Sydney professor Anne Twomey, also a member of the legal expert group, said that while there was long-standing precedent that courts do not interfere in the workings of the parliament, the same was not true of executive decisions and there was a possibility of litigation.

“The interpretation that people are concerned about, seems an unlikely one for the court to take [but] it can’t be completely ruled out,” Twomey said.

However, she added the likely impact of a successful challenge would be a court finding that the decision must be remade, taking into the account advice from the Voice. That would cause a delay to government action which would likely only affect a very small category of decisions requiring urgency - an outcome she said was "extraordinarily narrow and unlikely".

She said one solution to protect against legal challenge, apart from removing the words executive government from the amendment, would involve the government setting up processes to ensure that the Voice’s representations were routinely taken into account.

“Just have some kind of practical system under which decision makers would routinely check to see whether there were any relevant representations to the decision-making, have the documentation that shows they took that into consideration, and then you wouldn’t have the problem of delay,” she said.

Indigenous Australians Minister Linda Burney declined on Friday to say whether she backed the Voice having a say over executive decisions, but said she would be guided by advice from the working group expected by the end of the month.

Prime Minister Anthony Albanese and Burney will address Voice supporters in Sydney on Saturday at a barbeque organised by Sydney’s inner west council, as part of the Yes campaign’s week of action to recruit volunteers and spread awareness about the referendum.

Meanwhile, Opposition leader Peter Dutton on Friday repeated his view that the referendum was on track to fail due to a lack of detail around how the Voice will operate.

“I think the Voice is not going to get up and I don’t think it’s going to be successful,” Dutton said.

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