Labor is privately urging Indigenous leaders to back a compromise deal that would change the wording of the Voice constitutional amendment proposed by Prime Minister Anthony Albanese, in a bid to win over conservatives and boost the chances of a referendum win.
Attorney-General Mark Dreyfus last week presented members of the referendum working group with an additional set of words to guard against potential High Court challenges, the risk of which has become a key sticking point for some conservative legal thinkers and Coalition MPs whose support could avert a devastating setback for reconciliation.
This masthead can reveal the seven extra words proposed by Dreyfus and the government’s lawyer, Solicitor-General Stephen Donaghue, KC, would come after the third clause proposed by Albanese.
The original third clause stated: “The parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice”.
The words proposed to be added to the end of this draft constitutional amendment clause are, “and the legal effect of its representations”.
The Dreyfus proposal drew criticism from members of the powerful government referendum working group, which has for months been debating the wording of the amendment, which will be put to the Australian people to establish an Indigenous Voice to parliament.
Some Indigenous leaders in the working group believe the new wording could allow the government of the day to water down the power of the advisory body and limit its ability to advise the executive branch of government, according to two sources familiar with the group’s deliberations who requested anonymity because the talks are confidential.
For that reason, it was broadly rejected in the meeting last week, which was attended by Dreyfus, Indigenous Affairs Minister Linda Burney and Foreign Minister Penny Wong, who was representing Albanese while he is overseas. This pushback highlights the difficulty the government faces in trying to secure bipartisan support while maintaining the backing of strong pro-Voice Indigenous leaders.
The group – which includes prominent Indigenous figures Noel Pearson, Megan Davis and Marcia Langton – will decide its final recommendation in a meeting on Thursday. The government is not bound to follow the precise recommendation of the group, but its wishes carry significant weight.
Constitutional expert Anne Twomey rejected concern about the new wording. She said its purpose was to confirm the ordinary position that it is a matter for parliament to decide how the executive, which includes the cabinet, treats the Voice’s representations, just as parliament currently decides how the executive treats the representations of all other bodies.
Twomey said while it was extremely unlikely that the High Court would interpret the proposed amendment as obliging the executive to consider or give effect to the Voice’s representations, there was no harm in making this even clearer by adding the proposed words.
By vesting this power in the democratically elected parliament, Twomey said the new wording helped close the door on potentially disruptive legal challenges.
“It is definitely a good compromise that takes nothing away from Indigenous people. At the same time, it responds to the genuine concerns of some people [about court challenges],” Twomey, a member of an expert legal group advising on the referendum, said.
“It takes away the fundamental concern about the word ‘executive’ and allows that word to remain … The key difference is in the end it’s a democratic process where parliament decides the consequences.”
Twomey said the new words would allow the parliament, for example, to pass a law forcing the government to consider the Voice’s representations on policy issues relating specifically to Indigenous affairs, including things such as preserving cultural heritage and native title.
Twomey said she believed there might have been confusion about the effect of the new wording, stemming from the fact it was proposed as an alternative to entirely removing the executive from the draft amendment. She said this might have given rise to a perception that proponents of the new wording were driven by an intent to curtail the Voice.
Langton, a respected Melbourne University academic who co-authored the report underpinning the proposed Voice, attacked conservative critics of the Voice who she said were fearmongering about the potential legal risks posed by High Court challenges. She was not discussing the proposed new wording and was speaking generally about Voice opponents.
Langton cited prominent barrister Bret Walker, who took aim at “doomsday critics” of the Voice who do not believe it should advise executive government for fear of court challenges.
“Yes, there are legal issues that need to be considered, and we have considered them. None of them are strong enough reasons for muting the Voice,” Langton told this masthead.
“As Walker says, it is racist to exclude one body from the sunlight of the law.
“We have to listen to nonsense like, ‘What if the Voice had to consider a road?’ and ‘What would happen if the Voice rejected a road?’ The Voice won’t be considering roads and bridges, it will be concerned with policy development.”
Dreyfus’ spokesman said the working group was finalising its advice to the government, which would make the final wording clear when the Constitution Alteration Bill was introduced later this month.
Shadow attorney-general Julian Leeser demanded the government make public any new advice it might have received from the solicitor-general. He argued that the government’s handling of the constitutional proposal had been poor and said the negotiations over wording highlighted the flawed process.
“I cannot think of a more shambolic approach to a piece of public policy than the government’s approach to this referendum,” Leeser said.
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