The Solicitor-General has found that the wording of the Indigenous Voice to Parliament is not only compatible with the constitution but actually enhances Australia's system of government, according to legal opinion released by the federal government.
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In the opinion, contained in a submission by Attorney-General Mark Dreyfus to the parliamentary inquiry into the Voice referendum, the Solicitor-General said the establishment of the Voice with capacity to make representations to both parliament and executive government "would not alter the existing distribution of Commonwealth government power".
"If proposed section 129 [the Voice proposal] is introduced into the constitution, representative government will be unaffected," the Solicitor-General's opinion said.
In his opinion, Solicitor-General Stephen Donaghue said the core rationale for the proposed amendment was to facilitate "more effective input" by Aboriginal and Torres Strait Islander people in public discussion and debate about government and political issues relating to them.
"Insofar as the Voice serves the objective of overcoming barriers that have historically impeded effective participation by Aboriginal and Torres Strait Islander peoples in political discussions and decisions that affect them, it seeks to rectify a distortion in the existing system," Mr Donaghue said.
"In my opinion proposed section 129 is not just compatible with the system of representative and responsible government prescribed by the constitution, but an enhancement of that system."
Prime Minister Anthony Albanese said the Solicitor-General's opinion should bring an end to the "absolute nonsense" claims of Voice critics.
"This puts to bed the absolute nonsense of Peter Dutton and Barnaby Joyce and all the nonsense that they have carried on with, saying that somehow recognising Aboriginal and Torres Strait Islander people in the constitution will lead to Anzac Day being abolished. It is complete nonsense - they are just determined to play politics with this," Mr Albanese said.
He said the Solicitor-General's opinion was consistent with that of legal experts including former chief justices French and Hayne, as well as "every common sense reading".
"The advice indicates very clearly that Parliament retains its primacy. There's no right of veto. There's no right of funding. This is a very modest request," Mr Albanese said.
The release of the advice has also been welcomed by the Uluru Dialogue, its co-chair Megan Davis stating that "the scaremongering about the scope of the Voice and its legal impactions can now cease".
The parliamentary inquiry, which received the Attorney-General's submission alongside others, has also heard from legal experts and Indigenous leaders from around the country this month, including Professor Davis.
"Many submissions to the committee express support for a Voice that will make the most difference on the ground," Professor Davis said in a statement.
"A Voice that has the ability to give Aboriginal and Torres Strait Islander People a say in the decisions being made by government which impact their lives - because they know that's how decisions will be improved. And that's how lives will be improved."
Critics of the Voice proposal have argued that it could alter the system of government.
Opposition Leader Peter Dutton has claimed it could lead to the creation of a large bureaucracy, interfere with government functions such as setting interest rates and trigger multiple High Court challenges while his deputy Sussan Ley has mooted that it could veto government decisions.
But in his opinion, the Solicitor-General explicitly rules this possibility out, saying that the Voice would not "form part of either the Parliament or the executive government, instead operating only as an advisory body to those two branches of government. The Voice clearly has no power of veto".
IN OTHER NEWS:
He said the proposed Voice would not impose any obligations on executive government or parliament to consult with it or follow its advice, and he dismissed concerns it would lead to blizzard of legal action.
"The suggestion that a consequence of empowering the Voice to make representations to the executive government will be to clog up the courts, or to 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 in his opinion.
The opinion released by the government on Friday is distinct from the Solicitor-General's advice on the Voice proposal that was presented to vabinet.
Shadow attorney-general Michaelia Cash this was not the advice the opposition has been asking for the government to release "but rather a cynical political tactic to confuse Australians".
She called on the government to release all of the Solicitor-General advice on the Voice, which includes advice given last September and in January this year.
"The government should not be hiding important information regarding the legal implications of the Voice from Australians. Australians are entitled to see all of the Solicitor-General's advice about the Voice," Senator Cash said in a statement.
"The government's refusal to release the earlier Solicitor-General advices only demonstrates that the Albanese Government is prepared to compromise the integrity of the office of the Solicitor-General by selectively releasing legal advice when it is in their political interests."
Leading Liberal moderate MP, Senator Simon Birmingham, has repeated his call for the government to release Mr Donaghue's advice to cabinet.
Senator Birmingham said the government had asked "the SG to consider obviously specific terms that the government was happy to have released rather than actually releasing the advice to government ... about whether there was a better way for the Voice to be structured and the proposal to amend our Constitution to be put forward".
"It would give far greater weight and credibility for the government to provide all of the advice."
The government has refused to release the Solicitor-General's advice to Cabinet, citing precedent around cabinet confidentiality and privilege.
Constitutional law expert Professor Anne Twomey told Sky it was "appropriate" for the government to ask Mr Donaghue to write a separate opinion rather than waive privilege on the advice presented to Cabinet.
"The point of it is, the Solicitor-General is still writing a legal opinion on the legal issues involved in this particular amendment," Professor Twomey said.
"The basis of reasoning in this opinion is very strong. It relies on a lot of prior High Court authority. And I think it can give comfort to people that the sorts of implications people have been talking about are not well grounded, and it is extremely unlikely that the High Court would take a different view."
Ms Ley echoed Senator Birmingham's call for the government to release the Solicitor-General's advice to cabinet.
"This advice was written, it appears, in the last couple of days. I would like to see all of the advice, including the initial advice, released. I would like to understand all of the perspectives from all of the expert opinions, because it varies," she said.
The release of the Solicitor-General's opinion comes as the "yes" and "no" campaigns on the Voice are cranking up ahead of the referendum to insert the Voice in the constitution, which is expected to be held between October and December this year.
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