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

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.

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.

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.

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.

“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.

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.

( Information from politico.com was used in this report. Also if you have any problem of this article or if you need to remove this articles, please email here and we will delete this immediately. [email protected] )

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