A group of Indigenous leaders will meet in Adelaide on Thursday to finalise advice to the government on the voice to parliament referendum, including what they want the constitutional amendment to say.
The voice referendum working group – which was set up by the government – will make recommendations on the referendum question that will be posed to Australia and the exact wording of the voice amendment.
Although the government doesn’t have to take the working group’s recommendations on board, Thursday’s advice will be another key step in determining what Australia ends up voting on.
What are the outstanding questions?
One crucial question is whether the government will propose the voice be allowed to talk to the executive arm of government – including the federal cabinet and the public service – as well as the parliament. That would mean the voice wouldn’t just be advising on bills as they were passed but potentially also on decisions by government departments.
The referendum working group says the voice needs to talk to the executive to be “as strong as possible”, while numerous esteemed constitutional experts on another government group say there are no legal issues raised through this power.
But with a small number of conservative critics raising concerns over the voice’s powers potentially giving rise to court challenges of government actions, it is unclear how the Albanese government will proceed.
The minister for Indigenous Australians, Linda Burney, said the referendum working group’s meeting would hear from South Australia’s deputy premier, Kyam Maher, about “the lessons that can be learned” from the state’s voice bill which was going through parliament.
“We want to build on the strengths of the South Australian model and make sure Indigenous communities have their voices heard,” Burney said.
What are the concerns about the voice advising the executive?
Concerns have been raised by some conservative critics about whether the voice’s proposed power to advise the executive government could lead to court challenges if the advice wasn’t followed. The attorney general, Mark Dreyfus, and the solicitor general, Stephen Donaghue, last week reportedly suggested adding words to the amendment which would allow parliament to decide the legal effect of the voice’s representations – an update seen by working group members as an attempt to skirt the concerns raised about court challenge.
Running alongside the referendum working group is the constitutional expert group, featuring numerous esteemed lawyers and legal academics, which has met occasionally to provide advice to the working group.
Prof George Williams, member of the constitutional group and the University of New South Wales scientia professor of law, said he did not believe the proposed change was necessary the voice’s work should not be exempt from court review.
“It’s not surprising that if the executive chose to ignore the voice, and not give consideration to its representations, that might lead someone to raise this in court,” he told Guardian Australia.
“The voice is something that should be considered, even if the executive chooses to disagree and take a different approach.”
He added: “This is the rule of law in action … It’d be unusual to put any part of the constitution beyond the audit of the courts.”
Prof Greg Craven, former Australian Catholic University vice-chancellor and another constitutional group member, called the Dreyfus proposal a “positive development” and denied it would “water down” the voice.
Craven, who has expressed concerns about the voice’s advice to executive government, said Dreyfus’ proposed amendment would bring “the provision back into the constitutional conservative sphere of acceptability”.
What happens next?
The referendum working group meets on Thursday to finalise its advice, which will later be presented to the government. The government will then decide on the ultimate wording of the referendum question and the constitutional amendment, with a parliamentary bill to that effect expected to be introduced in the week of 27 March.
The constitutional bill will be sent to a parliamentary committee for inquiry. The government hopes to finalise that bill by June, before a referendum expected in the final three months of 2023.
Many Canberra insiders are expecting a referendum day in October.
