Solicitor general’s opinion released, says no risk in ‘executive government’ clause

Long-awaited legal advice on the Voice to parliament has been revealed, but the Opposition claims it has been watered down.

The long-awaited advice from Australia’s top lawyer on the Voice to parliament has finally been made public, but the Opposition has claimed the advice has been watered down.

Issued as part of a submission by Attorney-General Mark Dreyfus to the parliamentary inquiry on the referendum, the Solicitor General’s opinion – dated April 19 – says the proposed Voice would not “fetter or impede the exercise of the existing powers of the Parliament”.

The Opposition has for months been calling on the government to release the advice. Peter Dutton had claimed the solicitor-general had advised against some of the proposed wording in providing his advice to the government.

The opinion released on Friday is not the same as the formal advice given to cabinet before the final proposed amendment was announced by Prime Minister Anthony Albanese.

This is because, as Mr Albanese said again on Friday, “we don’t release nor does any government ever release advice to Cabinet”.

Shadow attorney-general Michaelia Cash said not releasing the full advice the Opposition had been repeatedly calling for was “a cynical political tactic to confuse Australians”.

“The failure to release all of the Solicitor-General’s advice in relation to this matter yet again highlights the lack of transparency of the Albanese government regarding their Canberra Voice proposal,” she said in a statement.

“The Opposition will review this new advice from the Solicitor-General, but notes that the Solicitor-General has advised on proposals for the Voice on at least two other occasions – on 26 September last year and again on 23 January this year.

“If the Prime Minister and Attorney-General are going to be true to their word and be fair, open and transparent with the Australian people, they should immediately release all of the Solicitor-General’s advice about the Voice.

“The Government’s refusal to release the earlier Solicitor-General advices only demonstrates that the Albanese Government is prepared to compromise the integrity of the office of the Solicitor-General by selectively releasing legal advice when it is in their political interests.”

Solicitor-General Stephen Donaghue KC’s advice on the Voice has been released through the Attorney-General.

Mr Albanese said the opinion released on Friday would put to bed the “absolute nonsense” claims of Mr Dutton and Barnaby Joyce.

“All the nonsense that they have carried on with, saying that somehow recognising Aboriginal and Torres Strait Islander people in the constitution will lead to Anzac Day being abolished. It is complete nonsense,” he said.

“They are just determined to play politics with this.

“This is legally sound, and that is what the Solicitor-General’s advice, that is clear before the committee, has submitted.”

In his opinion, Stephen Donaghue KC told the government the inclusion of “executive government” in the proposed amendment would not impose any obligation upon the executive government to follow through on representations of the Voice or to consult with the Voice prior to developing any policy or making any decision.

Concerns had been raised by some constitutional conservatives in recent weeks over the inclusion of the term “executive government” in the proposed amendment.

Mr Donaghue said litigation about executive decision making already exists – and is commonplace.

The government has maintained there is no obligation on the executive government or the parliament to accept any representations made by the Voice, which the advice backs up.

Mr Donaghue said in his opinion the proposed amendment to the constitution is “not just compatible with the system of representative and responsible government prescribed by the Constitution, but an enhancement of that system”.

He also wrote the Voice would not clog up courts or slow down government decision making through its power to advise executive government.

Asked to consider whether the proposed s129 of the Constitution was compatible with Australia’s system of representative and responsible government, the solicitor-general answered: “Yes”.

The Opposition has been critical about the inclusion of the term ‘executive government’. Picture: NCA NewsWire / Martin Ollman

The government has maintained it is appropriate. Picture: NCA NewsWire / Martin Ollman

Asked to consider whether the power to legislate “with respect to matters relating to the Aboriginal and Torres Strait Islander Voice” in proposed s129 (iii) of the Constitution empowers the Parliament to specify whether – and if so, how – executive government decision makers are legally required to consider relevant representations of the Voice, he answered: “Yes”.

In his submission, Mr Dreyfus said it had “always been the government’s position that the Voice should be able to make representations to the executive government”.

“Despite assertions to the contrary from the leader of the Opposition, this has been my personal view.

“It is self-evident that, in order to improve the laws and policies that affect Aboriginal and Torres Strait Islander peoples and improve outcomes, the Voice must be able to make representations to the Parliament and the Executive Government.

“It is the Executive Government that makes policies, and develops proposed laws, about Aboriginal and Torres Strait Islander peoples. When the Parliament passes laws relating to Aboriginal and Torres Strait Islander peoples, it is the Executive Government that implements them.”

Julian Leeser - who quit the shadow cabinet in order to campaign for the Voice - said the best way forward was for the government to adopt his “Press Club model”.

“Much of the 24 pages of advice responds to arguments raised by the ‘No’ case in relation to executive government and making representations,” he said.

“The surer way to answer these arguments is simply to remove clause two, keeping with the Press Club model I proposed.

“(This) model would allow the Voice to do everything it should do – including talking to the Executive where appropriate – while preserving the power of the Parliament.”