KEY POINTS:
- The solicitor-general's advice on the Voice to Parliament has been released.
- Stephen Donaghue has no issue with Labor's referendum wording.
- The advice contradicts Opposition leader Peter Dutton, who said Mr Donaghue had been overruled.
The solicitor-general says the Voice to Parliament speaking to cabinet would enhance Australia's democracy, appearing to contradict Opposition leader Peter Dutton's claim that Labor had overruled his objections.
The Coalition has claimed the insertion of the phrase "executive government" in , allowing the Voice to make representations to cabinet, could force the government to act on its advice, and potentially spark a wave of litigation in the High Court.
Mr Dutton has claimed cabinet ignored objections from Solicitor-General Stephen Donaghue by including the phrase, demanding Prime Minister Anthony Albanese make his advice available to the public.
Attorney-General Mark Dreyfus released the advice on Friday. Source: AAP / Bianca De Marchi
But in separate advice written on Wednesday and published on Friday morning, the solicitor-general in fact rejected the Coalition's fears and insisted the Voice would not "fetter or impede the existing powers of the executive government".
"In my opinion, [it] ... is not just compatible with the system of representative and responsible government prescribed by the Constitution, but an enhancement of that system," Mr Donaghue wrote in part of the 24-page document.
"[That phrase] would not impose any obligations upon the executive government to follow representations of the Voice, or to consult with the Voice prior to developing any policy or making any decision."
Mr Donaghue said whether the executive would be required to consider Voice advice was more open to interpretation, but said that would be a matter for parliament to legislate.
He also rebuffed Coalition claims that the wording could spark a wave of , noting that government decisions had long been subject to legal challenge.
"The suggestion ... [it would] clog up the courts, or cause government to grind to a halt, ignores the reality that litigation concerning the validity of decisions of the Executive Government is already very common, and that it does not have either of those consequences," he said.
Anthony Albanese welcomes advice
Mr Albanese described the advice as “very clear and unequivocal” support for the government’s approach, but said the Coalition was “determined to play politics” with the Voice.
“This puts to bed the absolute nonsense of Peter Dutton and Barnaby Joyce, and all the nonsense that they've carried on with,” he said on Friday.
Asked whether the phrase "executive government" needed to be removed to ensure bipartisan support, Mr Albanese said Mr Dutton was not interested in acting constructively.
“A whole lot of nonsense arguments have been put up, including [about] the solicitor-general's argument. There'll be another one,” he said.
Deputy Liberal leader Sussan Ley stressed the advice was written within the last few days, but said she also wanted to see Mr Donaghue’s initial advice.
“Of course the solicitor-general's advice is important. Legal advice is always important, and it always varies,” she said.
Deputy Liberal leader Sussan Ley says legal advice 'always varies'. Source: AAP / Lukas Coch
Mr Dreyfus, who released the advice as part of a parliamentary inquiry into the Voice referendum, said the body needed to be able to speak to executive government.
Peter Dutton insisted Labor ignored advice on the Voice
Mr Dutton last month described the release of Mr Donaghue's advice as "absolutely essential", arguing Australians would be unable to make an informed judgement in its absence.
Earlier this month, Mr Dutton told ABC TV's Insiders Labor had "gone against" Attorney-General Mark Dreyfus and Mr Donaghue, whose advice he had not seen, by including "executive government" in the referendum question.
The Coalition had claimed the Voice making representations to executive government would cause legal headaches. Source: AAP / Mick Tsikas
He then appeared to concede the assessment was based on media reports.
"It has always been the government’s position that the Voice should be able to make representations to the executive government. Despite assertions to the contrary from the Leader of the Opposition, this has always been my personal view," Mr Dreyfus said.
"It is self-evident that, in order to improve the laws and policies that affect Aboriginal and Torres Strait Islander peoples and improve outcomes, the Voice must be able to make representations to the Parliament and the executive government."
SBS News has contacted Mr Dutton's office for comment.
Opposition calls for more advice to be released
Shadow attorney-general Michaelia Cash said the detail released on Friday was not the specific advice the Opposition had been calling to be made public.
She tweeted that the government needs to "release all legal advice about the Voice, rather than releasing only advice that they think is politically favourable."
In a statement, she referred to advice on proposals for the Voice provided by the solicitor-general on two occasions, 26 September 2022 and 23 January 2023.
