Former High Court justice Kenneth Hayne has backed the draft Voice to Parliament constitutional amendment, dismissing concerns that its wording could open a floodgate of protracted legal battles.
"A lot of people have spent a long time trying to think 'well, what possible quirks, [legal] minefields, could there be?' I think there are none," Hayne tells ABC RN's Law Report.
Hayne, who is part of an expert legal panel that has been advising the Indigenous working group on the Voice, also hit back at calls for more detail.
"It will be the parliament that decides the details about how the Voice is set up. It will be the parliament that decides how its representations are dealt with … And to my mind, that is exactly how it should be," he says.
"It should be like that, because the constitution sets out principles. It does not set out machinery. Machinery can and should change as times change. And it's parliament that will do that, not the referendum. So I think asking for details is a distraction."
Representations to both parliament and the executive
Last week, Prime Minister Anthony Albanese outlined details of the proposed referendum on a Voice to Parliament that is due to take place later this year, including the draft constitutional amendment that Australians will vote on. It reads:
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
- 1.There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
- 2.The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
- 3.The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.
After much deliberation, the amendment stipulates that the Voice can make representations not just to parliament, but also to "the executive government".
As Hayne explains, the executive government includes "government ministers … [and] in effect, the whole of the Australian public service, as well as a number of statutory office holders appointed under laws of the parliament".
It's prompted concern from some legal experts, who say that including the executive in the Voice process, especially in this current wording, could lead to drawn-out decision-making and even court battles.
As emeritus professor Greg Craven, another member of the expert legal panel put it: "[The current words] preserve the problems that were already there and leave open the possibility of legal challenge to the whole range of executive decisions".
But Hayne, who served on the High Court from 1997 to 2015 and also conducted the banking royal commission, defended both the idea and the wording.
He says by the time proposals reach Australia's parliament, much work has already been done and "minds and ideas have begun to solidify".
"One of the necessary elements of the Voice is that it is able to make representations at an earlier stage of the process."
And Hayne says the Voice should be able to suggest, "whether to senior public servants or to the cabinet, that 'you should be thinking of passing a law that will achieve these ends'."
He says including "the executive government" means the Voice has "the opportunity to offer views and representations at all stages of development of policy and ideas affecting or relating to Aboriginal and Torres Strait Islander peoples".
'The fear is misplaced'
Picking apart the wording of the draft constitutional amendment, Hayne also stresses the importance of another term: That the Voice may make "representations" to the parliament and the executive government.
"The word representation has been very carefully chosen," he says.
He says that if the Voice "does make a relevant representation to the executive, that may be one matter that the executive has to consider. But what the Voice has said in its representation does not dictate the outcome of those considerations".
Hayne does acknowledge that if the executive chooses to ignore (and the key word is "ignore") "a representation made by the Voice, that a court decided the executive should have considered, then the decision made by the executive may be reviewed by the courts".
But he plays down the significance of this.
"That is a common-or-garden application of rule of law. The courts routinely can, and do, review decisions made by the executive. But what the courts look at is only whether the decision was lawfully made."
Hayne paints a picture that if the Voice is up and running, it will become standard for the executive to consider whatever representations are made, and then either accept or reject them – and they can certainly reject them. He does not foresee many openings for judicial review or an ongoing set of legal bottlenecks.
But there is disagreement from at least one other former High Court justice, Ian Callinan.
"Stretching my imagination only a little, I would foresee a decade or more of constitutional and administrative law litigation arising out of a Voice whether constitutionally entrenched or not," Callinan wrote in The Australian.
But in this High Court alumni tennis match, Hayne hits back.
"I can't see any constitutional litigation coming out of it that is likely to be arguable. [As for] administrative law litigation, again, I can't see the likelihood of frequent or difficult litigation in that space," he says.
"I think that the prospect of 'a decade of litigation' is not right. It does create fear. I think the fear is misplaced."
'The virtue of simplicity'
Like many supporters of the Voice, Hayne speaks of its significance in both symbolic and practical ways.
"Recognition, I think, of the fact that the history of this land is so much longer, richer, deeper than the last 250 years or so, is fundamentally important," he says.
"At the practical level, administration of matters affecting Aboriginal and Torres Strait Islander peoples has, for so long, been a model of the settler group saying to the First Peoples 'this is what you should do, we know best'."
And Hayne is blunt – this simply hasn't worked.
"The current system has not yet delivered good outcomes. The outcomes it has delivered have been anything but good outcomes," he says.
"As a policy response, permitting Aboriginal and Torres Strait Islander peoples to make representations to the government is, I think, a marked step forward in the way in which public policy affecting those peoples will be formed and implemented."
Summing up, he says the current draft constitutional amendment has "the virtue of simplicity".
"It is simple. It is not hiding anything. It means what it says.
"What people are being asked to vote on is whether these are principles that should be incorporated into the constitution and parliament will then work out the machinery."
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