The solicitor-general was asked to provide guidance on two questions: whether the proposed s129 of the Constitution is compatible with Australia’s system of representative and responsible government established under the Constitution, and whether the power to legislate “with respect to matters relating to the Aboriginal and Torres Strait Islander Voice” in the proposed s 129(iii) of the Constitution will empower the Parliament to specify whether, and if so, how, executive government decision-makers would be legally required to consider relevant representations of the Voice.

The answer to both of those questions was, “yes”.  

As reported by Lawyers Weekly, most BigLaw firms across the country have already pledged support for the Voice.

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Earlier this week, Professor Anne Twomey spoke with Lawyers Weekly about the capacities and operation of the Voice.

Solicitor-General’s advice

With regard to the question of compatibility, Mr Donaghue wrote that the proposed constitutional amendment “is not only compatible with the system of representative and responsible government established under the Constitution, but it enhances that system”.

“First, and most significantly, the introduction of proposed s 129 into the Constitution would not alter the existing distribution of Commonwealth governmental power. Second, the Voice’s function of making representations will not fetter or impede the exercise of the existing powers of the Parliament,” the S-G outlined.  

“Third, the Voice’s function of making representations will not fetter or impede the existing powers of the executive government. Fourth, and finally, the question whether proposed s129 is compatible with the system of representative and responsible government mandated by the Constitution closely resembles the second question that is required to be asked under the structured analysis that has come to be accepted by the High Court when assessing whether a law infringes the implied freedom of political communication.”

On that latter point, Mr Donaghue continued, “no express or implied constitutional limitation that has so far been identified by the High Court would invalidate a law specifying the legal effect of representations of the Voice”.

“The validity of such a law will therefore depend upon whether any express or implied limitation drawn from proposed s 129(ii) confines the power that would otherwise have been conferred by proposed s 129(iii),” the S-G posited.

Further, Mr Donaghue went on, “nothing in proposed s 129(ii) expressly addresses the obligations of the executive government once it receives a representation from the Voice”.

“For that reason, a law that purports to regulate the legal effect of such representations would not be contrary to any express constitutional requirement,” he said.

“The critical question is, therefore, whether proposed s 129(ii) governs the legal effect of representations to the executive government by implication, thereby taking that subject beyond the reach of laws passed pursuant to proposed s 129(iii). In my opinion, it is clear that it does not.”

Ultimately, Mr Donaghue wrote, a core rationale underpinning the proposed amendment is to facilitate more effective input by Aboriginal and Torres Strait Islander peoples in public discussion and debate about governmental and political matters relating to them.

“Insofar as the Voice serves the objective of overcoming barriers that have historically impeded effective participation by Aboriginal and Torres Strait Islander peoples in political discussions and decisions that affect them, it seeks to rectify a distortion in the existing system,” the S-G opined.

“For that reason, in addition to the other reasons stated above, in my opinion, proposed s 129 is not just compatible with the system of representative and responsible government prescribed by the Constitution, but an enhancement of that system.”

The A-G’s comments

In publishing S-G Donaghue’s advice, A-G Dreyfus stressed that the Voice is “an important reform, and it is a modest reform — one that would complement the existing structures of our democratic system and enhance the normal functioning of government”.

“Since the Prime Minister released draft text for a possible amendment at the Garma Festival on 30 July 2022, there has been considerable public debate about the proposal to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice in the Constitution. Much of that debate has focused on the ability of the Voice to make representations to the executive government under paragraph (ii) of the proposed constitutional amendment,” Mr Dreyfus detailed.

“It has 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 always been my personal view.”

It is self-evident, Mr Dreyfus went on, 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,” he wrote.

“For those reasons, in addition to reviewing the Solicitor-General’s opinion and the evidence of the other eminent constitutional experts who have appeared before the committee, I urge the committee to consider the importance of the Voice being able to make representations to the executive government.”

Dutton and Cash’s response

In a statement released shortly after the publication of the S-G’s advice, Opposition Leader Peter Dutton and shadow attorney-general Michaelia Cash said it was “not the advice which the Opposition has repeatedly called for”.

Instead, the pair wrote, it 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.”

“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 23 January this year,” Mr Dutton and Senator Cash continued.

“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.”