The Commonwealth’s top legal adviser told a key referendum working group the constitutional wording for an Indigenous Voice to parliament posed limited legal risk as Prime Minister Anthony Albanese continues to resist calls to release his advice.
Solicitor-General Stephen Donaghue, whose opinion has become central to the political debate over the Voice’s scope, did not recommend removing the ability for the Voice to lobby the executive branch of government when speaking to members of the government’s powerful referendum working group.
Five members of the working group, who spoke on the condition of anonymity because of confidentiality agreements, confirmed Donaghue did not speak in favour of watering down the Voice when he presented to the group with Attorney-General Mark Dreyfus on March 9.
The solicitor-general’s written advice has only been seen by cabinet ministers and a small group of top Indigenous leaders, who were required to read it in a secure room and unable to keep the document.
Albanese has spent weeks repeatedly resisting the opposition’s demands to release the advice, spurring claims of secrecy and widening the partisan gulf over the referendum. Citing media reports, Opposition Leader Peter Dutton last week claimed Labor went against Donaghue’s advice to remove the words “executive government”, which would have stopped the Voice from providing advice to ministers and departments.
Former High Court judges Robert French and Kenneth Hayne and top silk Bret Walker all support the inclusion of executive government. But conservative jurists, including former High Court justice Ian Callinan and constitutional expert Greg Craven, had raised fears the ability to consult ministers and public service departments would give rise to waves of litigation prompted by claims the government did not properly listen to the Voice before making a decision.
Albanese, referring to changes made to the third clause of the proposed constitutional amendment, said on Tuesday the amendment was “consistent with the views put forward by constitutional conservatives” and was a “conservative modest proposal that has been made even tighter as a result of the additional words that were added between the Garma speech”.
Sources said prominent members of the working group pressed Donaghue on the risk of the High Court being forced to adjudicate on government decisions if someone argued the Voice body was not properly consulted. Donaghue responded, they said, by downplaying the risk.
Their recollection of Donaghue’s remarks in the March 9 meeting offer the clearest indication of his legal opinion to date.
At this same key meeting, the working group discussed with Dreyfus and Donaghue the political risks posed by not appeasing conservatives who do not support the Voice speaking to the executive.
Dreyfus proposed seven additional words that would address those concerns by empowering parliament to limit the legal power of the Voice’s advice. These words would have given the government of the day the power to potentially write into law that the government is not required to follow the group’s advice.
This proposal, aimed at reducing the likelihood of High Court intervention, was rejected by the working group that includes more than 20 Indigenous figures.
But weeks later the government negotiated a new set of wording that constitutional experts and Voice advisers Anne Twomey and George Williams said had the same effect as Dreyfus’ seven words.
Former head of the Victorian First Peoples’ Assembly Marcus Stewart, who is a working group member and attended the meeting with Donaghue, said the government and working group never considered removing “executive government”.
“I’m not sure what Peter Dutton’s imaginary friends are telling him, but executive government was never up for grabs,” he said.
Opposition Indigenous Affairs spokesman Julian Leeser said “the best way for the government to clear this all up is for the government to release the advice”. The office of Dreyfus, whose department includes the solicitor-general, declined to comment.
The technical debate over the words that would be inserted into the constitution after a successful referendum is crucial because it is fuelling the breakdown in bipartisanship. Additionally, conservative worries about what critics say could become an unwieldy, all-powerful body are underpinned by the remit implied through the constitutional wording.
Albanese faced a chorus of interjections from Coalition MPs in the House of Representatives on Tuesday demanding the release of Donaghue’s advice. Governments typically do not release the advice of solicitors-general. However, Labor did reveal his advice in relation to the multiple-ministries controversy surrounding former prime minister Scott Morrison.
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