Brothers Tom Brennan SC and Fr Frank Brennan at legal odds over constitutional amendment for an Indigenous voice to parliament
Tom Brennan SC has endorsed the constitutional amendment for an Indigenous voice to parliament as ‘legally sound”, opposing his brother Fr Frank Brennan, who is a prominent critic of Anthony Albanese’s proposed model.
Leading litigator Tom Brennan SC has endorsed the constitutional amendment for an Indigenous voice to parliament as “legally sound”, differing from his brother and Jesuit lawyer Frank Brennan, who has emerged as a prominent critic of the model proposed by Anthony Albanese.
Tom Brennan has also rejected the changes to the constitutional amendment put forward by his brother, who has argued for the removal of the reference to “executive government” and its replacement with “ministers of state”, warning it would spark litigation across the “full spectrum of commonwealth administration”.
Father Brennan, rector at Newman College at the University of Melbourne and a long-time participant in the public discourse on constitutional recognition of Indigenous Australians, believes the Indigenous voice to parliament should be able to advise executive government via ministers only.
The words of the government’s proposed amendment state that the “voice may make representations to the parliament and the executive government of the commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples”.
Writing in The Australian on Monday, Tom Brennan warns that his brother’s proposal to confer on the voice the function of making representations only to “ministers of state” rather than “executive government” is “not legally sound”.
“Rather, his proposal would cause significant legal uncertainty, while it is impossible to identify what, if any, problem it would address,” he said.
“If limiting representations ‘to ministers of state’ only prescribes to whom a letter containing a representation can be sent, it will have no practical effect or legal consequence.
“The only practical or legal effect of the proposal will be if it limits the topics upon which the voice may make representations (which it may do).
“The immediate legal result of that limitation would be that some representations to government could be found by the courts to be beyond the voice’s constitutional functions.”
Tom Brennan said that any representation made by the voice to the executive government which was not made to “ministers of state” could be set aside by the federal courts.
“This may render legally insecure a vast array of administrative decisions,” he said. “Father Brennan’s amendment would not avoid litigation, it would cause it.”
Providing an example, Tom Brennan referred to the Registrar of Indigenous Corporations, an independent officer appointed by the Indigenous affairs minister, to regulate the governance of specialist Aboriginal and Torres Strait Islander corporations used by native title-holders.
He said the minister had no role in directing or setting policy for the registrar, warning that his brother’s formulation would “guarantee legal uncertainty”.
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