Voice’s ability to lobby bureaucrats ‘crucial’ advocate says amid High Court challenge fears

The ability of the Indigenous Voice to parliament to lobby ministers and government departments has come into focus as opposition MPs push concerns about the prospect of High Court challenges.

The draft of the constitutional amendment, to be made if the referendum passes, states the Voice would make representations to the parliament and the executive, which includes the cabinet and public servants.

Uluru Dialogue leader and Referendum Working Group member Megan Davis.Credit: Natalie Boog

Leading referendum advocate Professor Megan Davis on Sunday said the Voice to parliament’s ability to lobby cabinet ministers and government departments is crucial.

“If we don’t have a voice to the bureaucracy, then we’re going to have the status quo, which is public servants making decisions about us from Canberra ... and not really understanding communities themselves. So, that’s not a legally fraught issue,” she told ABC’s Insiders.

But Liberal MPs have suggested narrowing the scope of the body’s advice to avoid the potential for High Court challenges could make the proposal more palatable to constitutional conservatives.

Two Liberal Party MPs, who requested anonymity to discuss internal party thinking, said it was likely more Liberals would support the Voice if it advised parliament alone and avoided dealing with the executive. They worry the High Court could, for example, rule on a case in which the cabinet did not properly consider the advice of the Voice body.

Liberal senator Andrew Bragg, the most vocal proponent of the Voice in the Coalition, said the Voice’s interaction with the executive branch of government, and whether this enlivened the jurisdiction of the High Court, was a pressing constitutional matter requiring consideration.

Liberal senator Andrew Bragg.Credit: James Brickwood

“No one wants a transfer of power from parliament to the High Court; we want to avoid becoming like the US. It’s an issue that needs further investigation and we cannot skirt or duck these issues,” Bragg said.

Bragg, one of a handful of Liberals who have publicly backed the Yes campaign, said an upcoming parliamentary inquiry should examine the issue of potential challenges to executive decision-making, which constitutional expert Anne Twomey said had been discussed in meetings of a panel of technical experts advising on the referendum, of which she is a member.

Twomey told this masthead some people had raised concerns with her about the Voice’s scope but warned critics against raising extreme scenarios about High Court interventions, arguing they were fanciful.

The academic put forward the possibility that the government could opt to move reference from the second draft referendum question to the third, enabling parliament to decide the circumstances by which the Voice would interact with the executive. She said she had not detected any appetite from the government to make this change at this stage, but noted it could help win the votes of constitutional conservatives.

“On the other hand it may lose the votes of some Indigenous people ... all of this is a balancing exercise,” she said.

Former High Court judges Kenneth Hayne and Robert French have both downplayed the risk of the Voice opening the government to legal challenges.

Coalition Indigenous affairs spokesman Julian Leeser said the question about High Court challenges underscored the need for what he described as a public-facing process in which lawyers could debate proposals and reach consensus.

“The complete lack of such a process has been a problem,” he said.

The Liberal Party will discuss the Voice at its party room meeting this week, but several sources said leader Peter Dutton would not announce a party position until a future date. The most likely end-point for the Liberals, according to sources, is the party opposes the referendum, though there remains a prospect Dutton will allow a conscience vote.

On the eve of a parliamentary sitting year likely to be dominated by the referendum, Prime Minister Anthony Albanese gave an impassioned pro-Voice speech on Sunday, arguing a successful referendum would engender goodwill between Indigenous and non-Indigenous Australians.

Anthony Albanese spoke ardently about the Voice’s potential to heal historical wounds on Sudnay.Credit: Alex Ellinghausen

He dismissed a Coalition push for public referendum forums and flatly rejected concerns, raised by the Greens, that the Voice would diminish First Nations peoples’ claims to sovereignty, which loosely refers to political rights associated with claims to ownership of land.

“The vote and referendum will have no impact on the issue of sovereignty. No impact. It is very, very clear,” Albanese said at an event hosted by the Chifley Research Centre think tank.

“The vote will give every Australian the chance to be counted and to be heard on the side of progress, on the side of fairness, on the side of a stronger, more equal and more reconciled nation.

“It will be a great democratic moment and a great Australian moment.”

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