The Federal Government today released the long-awaited legal opinion on the Voice to Parliament from Australian Solicitor General, Stephen Donaghue.
In it, Donaghue states that the proposed model for the Voice “will not hinder or impede the exercise of Parliament’s existing powers”, adding that the proposal
is not only compatible with the system of representative and responsible government prescribed by the Constitution, but a strengthening of that system.
The advice makes it clear that The Voice is legally sound.
The vote to parliament
In the Uluru Statement from the Heart, Aboriginal and Torres Strait Islander people expressed the “torment of our powerlessness”. They explained that they do not feel heard in the design of legislation and policies that affect them. They called for a voice to be included in the constitution so that they can have a say.
In our system of government, bills are developed within the executive branch, which includes the cabinet and government departments. Then they are presented to parliament. This means that if an Aboriginal and Torres Strait Islander Voice wants to inform the law and policy, it must speak to both parliament and the executive.
The constitutional amendment proposed by the Albanian government recognizes this. Section 129(2) provides that the Aboriginal and Torres Strait Islander Voice may “protest” to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander people.
This language was developed with the advice of some of the country’s leaders state law experts. However, some concerns have been raised about the proposal.
Opposition leader Peter Dutton, for example argued that allowing the vote to present its views to the executive will represent a radical change in the Australian system of government. have conservative commentators suggested the Voice will delay or derail good administration. They argue that ministers and officials should give The Voice time and information to allow The Voice to make comments. Ministers may even be required to consult and approve those statements.
The Solicitor General has dismissed these concerns.
Read more: Why can’t we just legislate the Voice to Parliament? A state law expert explains
Who is the Solicitor General?
The Solicitor General is Australia’s second most senior barrister after the Attorney General. While the Attorney General is a political office held by a Member of Parliament, the Solicitor General is independent. Their job is to provide independent legal advice to the government and represent the Commonwealth in legal proceedings.
The Solicitor General was asked to advise the government on two questions.
whether the proposed change is compatible with the Australian system of government
and whether the proposed amendment gives parliament the power to decide the legal effect of any representation, or whether parliament and the executive must consider or follow those representations.
What does the advice say?
The Solicitor General was very clear. The Voice “would not pose any threat” to our system of government. In fact, it would “improve” our system.
Donaghue came to this conclusion for two reasons. Firstly, the Voice does not change the powers of parliament or government in any way. Rule 129(2) makes it clear that the Voice has no right of veto. Article 129(2) also does not impose an obligation on parliament or the executive to consult the Voice or follow its advice.
Second, more fundamentally, the Voice would remedy a “disturbance” in our system of government. The Solicitor General explained that the vote would help “overcome barriers that have historically hindered the effective participation of Aboriginal and Torres Strait Islander people in political discussions and decisions affecting them”. In short, it would improve our democracy by allowing indigenous peoples to have their voices heard.
The second question focused on the scope of the Voice’s power. It asked whether parliament or the executive should consider or follow the Voice’s comments.
Again the Advocate General was very clear: the answer is no. Donaghue explained that while it would be “clearly desirable for the executive government to consider any comments from the vote”, parliament has the final say.
This means that parliament could pass a law requiring ministers or civil servants to take the Voice’s advice into account when making decisions. However, parliament can always change or delete such a requirement. The Voice is subject to parliament.
What happens now?
The Voice is a proposal to ensure that Aboriginal and Torres Strait Islander people can participate”in the democratic life of the state”. It seeks to give them the opportunity to have their say in the design and implementation of legislation and policies that affect them.
Prime Minister Anthony Albanese has challenged the Solicitor General’s advice”puts to bedconcerns raised by Dutton and others. While the opposition may disagree, the advice reinforces the view that The Voice is legally sound.