Indigenous voice to parliament should only have the power to advise ministers, says Fr Frank Brennan

Jesuit priest and author Frank Brennan has told a joint select committee the Indigenous voice to parliament should be able to advise executive government via ministers only.

Jesuit priest Frank Brennan says ‘process and wording matter if we are to get to ‘Yes’ as resoundingly as possible’. Picture: Ryan Osland

Jesuit priest and author Frank Brennan has told a joint select committee the Indigenous voice to parliament should be able to advise executive government via ministers only.

Words of the proposed amend­ment agreed to by the Albanese government and Indigenous leaders in the referendum working group on March 22 include 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”.

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, has made his suggested change as the joint select committee on the voice prepares to begin public hearings on Friday.

“Process and wording matter if we are to get to ‘Yes’ as resoundingly as possible,” Father Brennan writes in his submission.

“Given the lack of bipartisanship in the parliament, it is all the more necessary that the wording of the proposed constitutional change, in the words of the late Robert Ellicott KC, ‘contain no element of possible substantial confusion on legal or other grounds’.

“For that reason, I urge the committee to recommend that the words ‘executive government’ be replaced with ‘ministers of state’.”

However, two constitutional experts who advised Indigenous leaders on the voice question and amendment – George Williams and Anne Twomey – have written to the parliamentary inquiry giving reasons the amendment is sound in its current form.

In her submission to the inquiry, Professor Twomey, professor emerita at the University of Sydney, writes that the proposed amendment does not oblige government or parliament to consult the voice before making a law or policy as had been suggested in robust public debate. “It is ­impracticable to draw such implications from a provision of such breadth,” she writes.

Professor Twomey says the amendment is worded in such a way that parliament can decide how the voice’s advice is received.

“For example, parliament could legislate to require that all representations from the voice to parliament are to be sent to the presiding officers and tabled in parliament, or sent to a specific parliamentary committee to be considered by it,” she writes.

“Parliament could also legislate to require that all representations to the executive govern­ment are to be sent to one office – eg the National Indigenous Australians Agency, which could then refer them as appropriate to other agencies or officers. Alternatively, it could legislate to require that representations be sent to the relevant minister. Such legislation would avert concerns that have been expressed about representations being sent to individual public servants, agencies and commonwealth entities.”

Professor Williams writes in his submission that the proposed voice amendment strikes “an ­appropriate balance between establishing the constitutional param­eters of the body while leaving key design features to parliament”.

He says in relation to parliament there is little or no prospect of a successful High Court challenge.

“The court has said repeatedly that it will not intervene in the internal workings of parliament. This is a key aspect of the separation of powers in Australia, and is not something the voice would change,” Professor Williams writes.