Indigenous voice: Discretion key to retaining integrity

Members of the Indigenous voice must be subject to the same requirements as public servants to ensure they do not divulge or leak key details from con­sul­tations, experts say.

Constitutional lawyer and a member of the government’s constitutional expert group Greg Craven raised concerns that the voice would have a remit to ‘intrude’ into the ‘fundamental processes of government right from the very beginning’.

Members of the Indigenous voice must be subject to the same requirements as public servants to ensure they do not divulge or leak key details from con­sul­tations with the executive government and ensure public policy is not undermined, experts say.

Constitutional lawyer and a member of the government’s constitutional expert group Greg Craven raised concerns that the voice would have a remit to “intrude” into the “fundamental processes of government right from the very beginning” and compromise the development of public policy.

Design principles of the voice finalised by the referendum working group and released on Thursday say “parliament and executive government should seek representations in writing from the voice early in development of proposed laws and policies.”

Professor Craven, a former vice-chancellor of the Australian Catholic University, said this approach would “widen” the opportunity for legal challenges and expressed concern voice members would leak information following consultations with government and the public service.

“If you are relying on the voice not to leak, it’s slightly confronting that the Indigenous working party that designed all this has leaked like a sieve from the very beginning,” he told The Australian.

He said the failed attempt by Attorney-General Mark Dreyfus to water down the reference to executive government - a reference insisted upon by the referendum working group - now meant the constitutional amendment released on Thursday had “already been stigmatised as problematic” by the government’s chief legal officer.

“You can expect the No case to make merry hell with that,” he said.

Former public service commissioner from 2014 to 2018 John Lloyd told The Australian he had concerns around the voice providing written representations to government at an early stage of the policy development process. “I think it’s right that the requirement for confidentiality is quite an important aspect of the code of conduct and obligations on public servants,” he said. “The drafting and preparation of legislation generally requires a canvassing of various options and alternative approaches to a matter. It is crucial that is done with a high degree of confidentiality.”

Mr Lloyd said legislation was normally publicly ventilated when it was “introduced into the parliament” and it was “absolutely crucial” this arrangement was not altered by the voice.

Opposition legal affairs spokesman Julian Leeser told The Australian the voice “must work in with the existing system which works so well” and called for release of the Solicitor-General’s advice. “The advice will give greater clarity about his views in relation to the addition of executive government,” he said. “In the committee process that is ahead, I want to hear from constitutional lawyers about the wording so that the words can be tested.”

“In relation to the design principles released today, these are scant. They don’t answer many of the questions Australians have.

“I am a believer in the parliamentary system and cabinet government. Any advisory body must work in with the existing system which works so well.”

Warren Mundine, a key Indigenous leader behind the No campaign, said involving the voice at the early stages of policy development was “not going to work”.

“You look at any politicians in this country and ask them if they leaked anything. They’ve all done it … to manipulate the process to get them their outcome,” Mr Mundine told The Australian.

“There’s no doubt about that. All you are doing is adding another layer of complexity.”

Former Liberal attorney-­general Philip Ruddock thought the proposed constitutional amendment was “unexceptional” but warned there was a need to look “very carefully at what you put into the Constitution to understand whether there is the potential for the court to give advice that may be unexpected.”