Anthony Albanese seeks to place legal limits on Aboriginal voice amid debate over Australia Day
The PM has sought to place limits on the voice, saying it would be restricted to issues which ‘specifically or differently’ affect Aboriginal people.
Anthony Albanese is seeking to place legal limits on the scope of the Indigenous voice to parliament and executive government by assuring Australians its remit would be restricted to issues that “specifically or differently” affect Aboriginal people.
The Coalition accused the government of “desperately trying to retrofit its narrative” as the Prime Minister attempted to turn the political attack on the opposition, amid a divisive debate over whether the voice could advise on changing Australia Day.
With falling support for the voice in the polls and confusion around how it will work and what it will advise on, Mr Albanese said Attorney-General Mark Dreyfus’s second reading speech on the government’s Constitution Alteration Bill would have “legal consequences” for any High Court interpretation of what the voice can advise on.
“I urge people to look at the words that are being put forward that make it clear the primacy of the parliament,” the Prime Minister said.
“I urge people to have a look at the second reading speech of the Attorney-General that has legal consequences, speaking about matters that affect Indigenous Australians differently.
“And I urge people as well, those opposite, to listen to the words of the person that this Leader of the Opposition appointed as shadow attorney-general (Julian Leeser): the voice is advisory. It won’t be Moses handing down the tablets from the mountain. The parliament will still be the democratic centre of our national life. The parliament will still be supreme in matters of policy and law.
“I say to all Australians, parliaments pass laws but it’s people that make history and we have an opportunity to advance reconciliation in the last quarter of this year. I sincerely hope and call for Australians to vote Yes.”
If a legal case is brought against the voice, the High Court may consider materials such as the Constitution Alteration Bill’s explanatory memorandum or Mr Dreyfus’s second reading speech, as well as the parliamentary debate and various opinions on the proposed amendment.
In March, when introducing the Constitutional Alteration Bill to parliament, which outlines the government’s referendum question and constitutional amendment establishing the voice, Mr Dreyfus provided more detail on the matters on which the advisory body could make representations to parliament and executive government.
“‘Matters relating to Aboriginal and Torres Strait Islander peoples’ would include: matters specific to Aboriginal and Torres Strait Islander peoples; and matters relevant to the Australian community, including general laws or measures, but which affect Aboriginal and Torres Strait Islander peoples differently to other members of the Australian community,” Mr Dreyfus said.
The law on its own – passed by parliament this week – says only that the voice may make representations on “matters relating to Aboriginal and Torres Strait Islander peoples”.
Constitutional law experts said the voice’s scope could not be restricted to matters that directly or differently affected Aboriginal people and it could in fact advise on a broader range of topics.
University of Sydney constitutional law expert Anne Twomey said the Prime Minister was correct to say the High Court could take into account Mr Dreyfus’s speech, but it was impossible to say definitively how the court would interpret the wording.
“It will look at the second reading speech but it’s not conclusive,” Professor Twomey said. “It will go beyond that. The fact that it has the word ‘include’, it does include those two phrases (specific and differently) but it is possible it could mean something further.
“In the second reading speech, when the Attorney-General described what would make up matters relating to Aboriginal people he did so in an inclusive way, but he didn’t exclude the possibility of other things falling in that category. So the High Court would take into account that word ‘include’.”
University of NSW constitutional law expert George Williams said the second reading speech was unlikely to limit the scope of the voice, noting it would ultimately be up to the High Court to interpret the wording.
Both Professors Williams and Twomey said the broad scope of the voice would make High Court challenges less likely.
“It is much better to be broad than end up with legalistic distinctions,” Professor Williams said. “It is a political body, it is only advisory and it has a broad remit to make decisions."
Opposition legal affairs spokeswoman Michaelia Cash said any suggestion the High Court would be constrained by a second reading speech was “highly optimistic”.
“Extraneous materials can only provide guidance if the meaning of the words on the statute are unclear,” Senator Cash said.
“The words set out in the legislation that will be inserted into our Constitution are very clear.
“The Albanese government is desperately trying to retrofit its narrative as they realise Australians are working out what is being foisted upon them – a risky, unknown, divisive and permanent body that will do nothing to improve the lives of Indigenous Australians.
“This shows why Mr Albanese should release the three secret pieces of legal advice provided to the government by the Australian Government Solicitor rather than the single piece they have released, purely for public consumption.”
In parliament, Mr Albanese accused Peter Dutton of using the same playbook on the Indigenous voice to parliament as he did before Kevin Rudd’s apology to the Stolen Generations.
After being asked by his own side in question time why it was important people avoided false campaigns designed to create fear on the voice, the Prime Minister quoted Mr Dutton from 2008: “In January 2008, the Leader of the Opposition said this: ‘I think the Australian people deserve to know the full details of the implications of this policy, including the financial ones. It would beggar belief that they’ll be contemplating an apology that could open the government up to serious damages claims without knowing what those claims would be.”
Mr Albanese said those comments were “nonsense then” and they were “nonsense now”.
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