Australia’s solicitor general says the Indigenous voice to parliament would not clog up the courts or slow down government decision-making through its power to advise the executive government, rebuffing a central claim of critics and the Coalition for opposing the body.
The proposed constitutional amendment “would not pose any threat to Australia’s system of representative and responsible government”, according to the legal opinion from Stephen Donaghue, released by the federal government on Friday. Donaghue said the voice would “enhance” the system of government.
The prime minister, Anthony Albanese, described criticisms of the proposal as “absolute nonsense” and “complete falsehoods”, challenging the Coalition to support the voice.
“The solicitor general’s advice makes it very clear that it is legally sound,” Albanese said.
A small number of conservative critics have raised concerns about the voice’s proposed power to make representations to the executive government, arguing it would impede decision-making or lead to excessive court cases. It has also been a key criticism from the Coalition opposition.
The executive government includes federal cabinet and the public service.
Donaghue’s opinion, dated 19 April, was released as a submission by the attorney general, Mark Dreyfus, to the parliamentary inquiry probing the referendum. It states the voice would not impose any obligations upon the executive to follow the voice’s representations, or consult with the voice before developing policy or making decisions.
“The text of proposed s 129 imposes no such requirements. Further, no such requirements can be implied,” Donaghue’s opinion states.
The solicitor-general says the voice’s power to make representations to executive government “does not impose any reciprocal requirement upon the Executive Government to consider or otherwise address those representations”.
Donaghue writes that the proposed constitutional amendment already gives parliament the power to set the legal weight of the voice’s representations, which would limit the potential for court challenges; and that litigation about executive decision-making would not be unusual.
“The suggestion that a consequence of empowering the Voice to make representations to the Executive Government will be to clog up the courts, or to cause government to grind to a halt, ignores the reality that litigation concerning the validity of decisions of the Executive Government is already very common, and that it does not have either of those consequences.”
Donaghue said the voice would “enhance” Australia’s system of government, because it is intended to help in “overcoming barriers that have historically impeded effective participation by Aboriginal and Torres Strait Islander peoples in political discussions and decisions that affect them” and to “rectify a distortion in the existing system”.
“The proposed amendment is not only compatible with the system of representative and responsible government established under the Constitution, but it enhances that system,” Donaghue wrote.
The Coalition had long called for the government to release the advice given by the solicitor-general on the voice. The opposition leader, Peter Dutton, has claimed – without evidence and without seeing the advice – that the solicitor general advised against some of the wording in the proposed constitutional amendment, and that the government had “rejected” the advice.
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The document released on Friday is not the advice that went to cabinet and the referendum working group. Instead, it is dated 19 April, and was produced for the purpose of the inquiry.
In a Sydney press conference on Friday, Albanese said: “We don’t release, nor [does] any government ever release, advice to cabinet.”
The prime minister said the opinion rebuffed concerns from critics that the voice would affect the day-to-day working of government. Albanese stressed that the voice would have no veto power over decision-making, and that the government would not be forced to implement its suggestions.
“This puts to bed the absolute nonsense of Peter Dutton and Barnaby Joyce and all the nonsense that they have carried on with, saying that somehow recognising Aboriginal and Torres Strait Islander people in the constitution will lead to Anzac Day being abolished,” Albanese said.
Asked if he would remove the executive government provision in a bid to win the support of the Coalition, Albanese claimed Dutton was “not interested in bipartisanship” and claimed the opposition would continue to raise complaints.
In a letter alongside the opinion, Dreyfus said the ability of the voice to speak to the executive government was a key part of the proposed body. He criticised “baseless claims made by some opponents of the voice”.
Dreyfus said the legal implications of the voice’s ability to make representations to the executive had been “rigorously scrutinised and tested by members of the constitutional expert group and other legal experts”.
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