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High Court action shouldn’t deter Yes vote on Voice: Dreyfus


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 * Indigenous Voice


HIGH COURT ACTION SHOULDN’T DETER YES VOTE ON VOICE: DREYFUS

BY LISA VISENTIN

February 28, 2023 — 5.27pm
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Attorney-General Mark Dreyfus has backed the need for the Indigenous Voice to
parliament to have the power to advise federal ministers and bureaucrats,
dismissing concerns it would lead to High Court litigation that would hamstring
government decision-making.

There has been a push within conservative and legal circles for the Albanese
government to scrap the ability of the Voice to speak to “executive government”,
instead limiting its power to advise only the parliament. This is driven by
fears about the role the High Court could play in interpreting the scope of the
body.



Attorney-General Mark Dreyfus says the Voice to parliament will be “effective”
if it speaks to both the executive and the parliament.Credit:Alex Ellinghausen

The draft constitutional amendment proposed by Prime Minister Anthony Albanese
empowers the Voice to “make representations to parliament and the executive
government” - including cabinet, ministers and public servants, on matters
relating to Aboriginal and Torres Strait Islander Peoples.

Dreyfus said on Tuesday that the prospect of High Court action should not be a
deterrent, arguing that people had been litigating questions of constitutional
interpretation since Federation.



“I’m convinced that the Voice will be effective if, as a Constitutional
requirement, it is able to make representations to the parliament and to the
executive,” Dreyfus told ABC Radio National on Tuesday.


RELATED ARTICLE

INDIGENOUS VOICE


LEGAL CONCERNS RAISED OVER VOICE PROPOSAL TO SPEAK TO CABINET, NOT JUST
PARLIAMENT

But he is open to changing the wording after the government’s final draft
amendment is introduced to parliament in March and sent to a committee for a
public inquiry.

“There will be public submissions as is appropriate and we’ll come to final
wording when the bill is debated in both houses of the Australian parliament,
which will be a process finalised, probably, in June.”

A working group of Indigenous leaders is expected to finalise its advice on the
wording of the amendment next week. One of the key architects of the Voice
proposal, constitutional lawyer Megan Davis, is among those who are adamant that
it must have a say on decisions of executive government.

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Former Liberal minister for Indigenous Australians, Ken Wyatt, also a member of
the working group, said that while he had initially supported “executive
government” being dropped from the amendment if it meant boosting a Yes vote at
the referendum, he had since shifted his view and now believed it is essential.

“The more I reflect on it, the more important it is that executive government
consults with Indigenous Australians. It should remain [in the proposed
amendment],” Wyatt said in an interview.

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WHAT IS A VOICE TO PARLIAMENT? JACK LATIMORE EXPLAINS

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WHAT IS A VOICE TO PARLIAMENT? JACK LATIMORE EXPLAINS

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WHAT IS A VOICE TO PARLIAMENT? JACK LATIMORE EXPLAINS

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CHANGES ANNOUNCED TO SUPERANNUATION

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The Age's Jack Latimore breaks down what's involved in a Voice to parliament.

“By the time a bill is tabled in the house, which is the parliament, then it is
too late for Aboriginal people to influence legislation.

“The only time that Aboriginal people were consulted over the first seven years
of my time in parliament, were on Aboriginal-specific bills, but not always.”



Jesuit lawyer and priest Frank Brennan said in a speech on Tuesday to
conservative pro-Voice group Uphold and Recognise that the referendum should
only be about a Voice to parliament and the government should provide legal
advice justifying any expanded scope.

“The government should publish competent legal advice assuring voters that the
constitutional change will not risk ongoing judicial review of administrative
decisions likely to clog the working of good government,” Brennan said.



Former High Court judge Kenneth Hayne says there shouldn’t be much litigation
arising out of the Voice constitutional amendment.Credit:Elke Meitzel

The issue has split former High Court judges, with former chief justice Robert
French and Kenneth Hayne holding the view that there is little scope for
litigation arising out of the current proposed amendment.

However, fellow former justice Ian Callinan has foreshadowed that the Voice
would give rise to “a decade or more of constitutional and administrative law
litigation”.



Liberal backbencher Andrew Bragg said in a speech to the conservative forum that
the Voice’s interaction with the executive was a legitimate concern as he
repeated calls for a bipartisan parliamentary committee to tackle the issue.

“The concern is that if left open to judicial review, the High Court could
stipulate the process of consultation between the parliament, the executive and
the Voice, or invalidate proposed legislation or executive decision-making if it
believes that the Voice’s representation has not been given proper
consideration,” he said.

Cut through the noise of federal politics with news, views and expert analysis
from Jacqueline Maley. Subscribers can sign up to our weekly Inside Politics
newsletter here.


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 * Indigenous Voice
 * Mark Dreyfus
 * Anthony Albanese
 * Julian Leeser

Lisa Visentin is a federal political reporter at The Sydney Morning Herald and
The Age, covering education and communications.Connect via Twitter.


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