The Solicitor-General’s Legal Opinion on the Voice’s Effect on the Branches of Government
The proposed bill to put the Aboriginal and Torres Strait Islander Voice (the ‘Voice’) to a referendum is under the microscope by the Joint Select Committee on the Voice Referendum. If successful, the Voice would introduce s 129 into the Constitution, formally recognising Aboriginal and Torres Strait Islanders as the First Peoples of Australia, establish an advisory body named the ‘Aboriginal and Torres Strait Islander Voice’ that can make representations to Parliament and the executive branch on matters relating to First Nations people. Additionally, s 129 would create a new head of power for Parliament to legislate under, strictly on the composition, functions, powers and procedure of the Voice as an advisory body.
On 19 April, Stephen Donaghue, the Solicitor-General of Australia (who advises the Attorney-General of Australia on questions of law, among other things), provided his legal opinion on the Voice to the Joint Select Committee. Donaghue’s opinion primarily addressed the Voice’s compatibility with representative and responsible government and the Parliament’s power to legislate on the Voice to determine its effect on the executive. As Donahue is the Solicitor-General, his opinion on how s 129 will affect the three branches of government is highly regarded.
Donoghue opined that the Voice, being an advisory body, does not affect the operation of representative or responsible government. The Voice can only make advisory representations to the Parliament; hence, the Parliament is not enforceably obliged to even consider nor follow these representations. The executive branch’s accountability to the Parliament would be unaffected by the Voice. Parliamentarians would be held accountable by their electorate for how they apply the Voice. Consequently, Donoghue believes that the Voice would enhance representative and responsible government.
The Parliament would be granted far-reaching legislative powers to authorise the consideration of the Voice by the executive branch. Inherently, the executive needs only contemplate the Voice in administrative decisions if the Parliament legislatively assigns weight to it. Hence, there is no implied constitutional requirement for the executive branch to consider the Voice.
The introduction of wording s 129 leaves the judicial branch wholly unaffected by any constitutional condition to consider the Voice. Donaghue opposed the concerns of s 129, opening the floodgates to judicial review and placing further pressure on the courts. Instead, he posited that as judicial review exclusively concerns questions of law, courts would be unaffected as only the constitutional validity of legislation empowering the Voice could be challenged. Intriguingly, Donaghue neglected to consider the Voice’s impact on merits review. There would likely be an influx in merits review cases stemming from administrative decisions under the novel statutes requiring the executive branch to examine the Voice in decision-making.
Notwithstanding the significance of Donaghue’s opinion, it is only one of a multitude of opinions being considered by the Joint Select Committee. Ultimately, the decision to incorporate the Voice into the Constitution under s 129 will be in the hands of the Australian people sometime during the fourth quarter of 2023.
The Solicitor-General’s submission can be found here.