The latest rift between critics and supporters of the Indigenous voice referendum is whether the consultation body should be able to advise the executive government or just the parliament.
Last year’s draft constitutional amendment suggested the voice may make representations to both parliament and the executive government, meaning cabinet and the public service could be advised by the voice.
Speaking to the executive arm of government would allow the voice to have input into administrative decisions, the development of laws and the work of public servants. Anthony Albanese said this would mean an “obligation” for parliament and the executive to consult the voice on matters directly affecting Indigenous people.
That executive government clause has come under criticism, with a small number of conservatives pushing for the government to scrap the power, warning that it could clog up government processes.
Albanese and supporters of the voice have rebuffed those concerns, with the attorney general, Mark Dreyfus, saying this week that potential high court litigation should not deter anyone from supporting the voice. Proponents say the voice’s ability to give advice to the executive is essential to improve outcomes for First Nations people.
What powers will the voice actually have?
The exact structure hasn’t been finalised but the draft constitutional amendment put forward by Albanese in July suggested the voice “may make representations to parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples”.
Advocates say making representations to both parliament and the executive has been a longstanding feature of voice proposals.
Advising parliament could be relatively straightforward. The 2019 co-design report from Tom Calma and Marcia Langton suggests the voice could table advice which would be considered by a parliamentary committee. Bills would include a statement explaining the consultation.
Advising the executive is broader, and could include advice to the federal cabinet and the public service, and on administrative decisions.
The high court justice Robert French wrote in the Australian Financial Review that the executive would have “no constitutional legal obligation to accept or be bound by” the voice’s advice, with “little or no scope for constitutional litigation”.
Why do proponents want to advise the executive arm?
Prof Megan Davis, a key member of the referendum working groups and co-chair of the Uluru statement from the heart, says advising both parliament and executive is critical.
“It must be able to speak to both,” she wrote in the Australian. “It must be at the table working with government as policies and proposed laws are being developed … Speaking only to one or the other is not enough.”
Why are critics worried?
Some critics claim the high court could rule the executive has an obligation to heed the voice’s representations.
The former high court justice Ian Callinan raised concerns that the provision could slow down or interrupt the executive if it went against voice suggestions.
The human rights lawyer Frank Brennan has flagged similar issues, claiming in an interview with the Conversation that the provision would create a responsibility for public servants to give notice to the voice before making decisions.
Prof Greg Craven, a member of the government’s expert advisory group and director of the Uphold & Recognise group of conservatives in favour of the voice, has concerns about the executive provision, although his comments were criticised by other working group members.
Warren Mundine, a leader of the no campaign, has also claimed the provision would cause delay in decision-making.
How have voice proponents responded?
Supporters say the voice wouldn’t be “justiciable”, meaning it wouldn’t be subject to judicial review if its suggestions were not heeded.
The Calma-Langton report stresses “all elements would be non-justiciable, meaning that there could not be a court challenge and no law could be invalidated” based on level of consultation with the voice.
The Indigenous leader Noel Pearson, a member of the government’s referendum groups, and the Macquarie University constitutional academic Shireen Morris said in the Australian that the criticism was “based on falsehoods” – and that critics of the executive government clause had helped design it in 2014.
Craven, the shadow Indigenous Australians minister, Julian Leeser, and the Australian Catholic University academic Damien Freeman were among the original drafters of an amendment that included the voice speaking to executive government, the pair said.
“Fickleness seems a common characteristic among those with political power to change Indigenous lives,” Pearson and Morris wrote, adding: “So why are some conservatives trashing their own proposal? Perhaps it is cowardice or tribalism: they have turned hostile because the voice referendum is being put by a Labor government.”
Davis called concerns about high court litigation “disingenuous and overblown”, claiming a narrowed remit would lead to more court challenges over what the voice’s powers were.
She said the “vast majority of legal opinion” believed courts would not rule the government was obligated to follow the voice’s recommendations.
On ABC radio this week Albanese said there would be “an obligation to consult the voice” on matters directly affecting Indigenous people, such as native title.
“None of that would be subject to the court,” he said. “Someone couldn’t say, ‘Oh, hang on, we haven’t been consulted about that issue. You need to stop the process.’ It doesn’t do that. The processes of the parliament can occur unimpeded.”
Dreyfus said the government was still consulting on the final wording but that concerns about high court litigation should not be a negative .
“People have been litigating questions about our constitution since federation … I don’t think [that] should deter anyone,” he told Radio National on Tuesday.
