Member for Isaacs

3AW Neil Mitchell 27 March 2023

27 March 2023

SUBJECT: The Voice to Parliament.



SUBJECT: The Voice to Parliament.

NEIL MITCHELL: Now the Voice, the Voice, we talked about this at some length last week. I spoke to Professor Greg Craven about his concerns and Warren Mundine. I wanted the other side and I appreciate he's found time before Cabinet. The Attorney-General Mark Dreyfus, good morning.

ATTORNEY-GENERAL MARK DREYFUS: Very good to be with you Neil and thank you for the opportunity.

MITCHELL: Thanks for your time. Does Australia's Solicitor-General have some concerns about the wording of this?

ATTORNEY-GENERAL: No and he's been very clear about that.

MITCHELL: Will you release, given the public interest, his advice?

ATTORNEY-GENERAL: No. Because as I've said quite a few times now it would be inconsistent with long standing practice of successive governments, including the government for the last nine years of which Mr Dutton was a part, to release Solicitor-General advice. But I can also be clear Neil that this has been a very comprehensive and rigorous process. The Solicitor-General's been closely involved in the process. Many other Constitutional experts have been involved in the process and the words that we announced on Thursday are the outcome of that process.

MITCHELL: A few months ago your own Prime Minister said about releasing Solicitor-General's advice, quote, "politeness and proper process says the public should have access to this". He was referring to when you made the decision to release the Solicitor-General's advice on Scott Morrison having half a dozen portfolios. Why is this different? This is of even more public concern than Scott Morrison? If it was important for the public then, why is it not now?

ATTORNEY-GENERAL: It's a fair question Neil but I think most listeners would be aware that unlike Mr Morrison's secret ministries this proposed amendment to the Constitution is public.

MITCHELL: Yes, but the advice isn't. You have secret advice, which we can't hear, that has been released, advice has been released by your government in the past as recently as a few months ago. This is even more in the public interest than what Scott Morrison did. Why not release it?

ATTORNEY-GENERAL: It's a very, very, very different situation, Neil, to have Mr Morrison’s secret ministries, which needed to be exposed and did warrant that very unusual step of the Solicitor-General's advice being made public. The long-standing practice of successive governments is that we don't make public Solicitor-General's advice. That's our system. And I'd say, again, we've gone through a very comprehensive and rigorous process, the overwhelming consensus from Australia's top Constitutional lawyers is that this provision is constitutionally sound.

MITCHELL: So, you're telling me the various reports of both you and the Solicitor-General had concerns about this and had gone to the advisory group to debate it, that's untrue?

ATTORNEY-GENERAL: It's been a very complete process. It's been exactly the kind of process that it should have been. I'm proud to have been part of it and we've now landed.

MITCHELL: So, are those reports untrue?

ATTORNEY-GENERAL: There have been quite a lot of misreporting, I'll put it like that, over the last couple of weeks.

MITCHELL: But specifically, it was reported that both you and the Solicitor-General had concerns about the High Court implications and you took it to the advisory panel where it was debated at length. Is that untrue?

ATTORNEY-GENERAL: Of course there was debate about the final form of the words but I'm not going to comment on private discussions.

MITCHELL: Fair go, the Solicitor-General's advice is secret, your discussions are secret. The public needs to know on this. They want to support it, they desperately want to support it.

ATTORNEY-GENERAL: The Australian people are going to vote on this. That's the key to this.

MITCHELL: But they're voting blind if you won't tell them this sort of thing. You seriously won't tell me whether there was a level of disagreement from yourself and the Solicitor-General on the issue of the High Court?

ATTORNEY-GENERAL: I'm telling you there's been a lot of misreporting. I'll say one thing very directly to Neil that it was misreported that I was opposed to the reference in the Constitutional amendment to the Voice making representations to the executive government.

MITCHELL: Well, what was your position?

ATTORNEY-GENERAL: That that is absolutely the right thing. That has been, that has always been my position. That has always been the Government's position. And for some reason, some journalists got hold of the idea that that wasn't my position. So, there's an example of misreporting.

MITCHELL: But a moment ago you added to that by saying you wouldn't tell us what was discussed and you won't tell us what the Solicitor-General's advice is.

ATTORNEY-GENERAL: I'm giving you an example Neil of the misreporting. But where we're now at is that I will be introducing in the Parliament this Thursday a Constitution Alteration Bill. It'll be accompanied by legal documents like the explanatory memorandum, then we'll go to a Parliamentary committee. Then there'll be debate in the Parliament and this is coming at the end of 10 years of discussion and public consultation about this.

MITCHELL: That's why it concerns me. I mean, I think most people want to support it but they have concerns. Are you willing, I know you won't release the Solicitor-General's advice, will you tell me whether he did have any concerns or he was entirely supportive, as you are?

ATTORNEY-GENERAL: I've just told you that the Solicitor-General supports this Constitutional amendment. That should be enough.

MITCHELL: Well, no, it's not. Did he put any contrary argument to the advisory group?

ATTORNEY-GENERAL: I'm not going to go into what the Solicitor-General said and nor should I because it's long standing practice.

MITCHELL: Can I take that as confirmation?

ATTORNEY-GENERAL: It's a long-standing practice of successive governments not to release Solicitor-General's advice. I can assure your listeners that this is Constitutionally sound and that Constitutional lawyers across the country agree that it is Constitutionally sound. That's the view of the former Chief Justice of the High Court Robert French, former High Court Justice Kenneth Hayne, someone appointed by the Howard Government and who sat on the High Court for almost two decades. It's the view of Constitutional law academics across Australia.

MITCHELL: Okay, another one of your advisors Professor Megan Davis says this will be "a very, very powerful mechanism, which will have an extraordinary impact on the day to day work of government". Do you agree with that?

ATTORNEY-GENERAL: It's about having a Voice of Aboriginal and Torres Strait Islander peoples to assist the Parliament to make better laws and assist the executive government to make better policies. And we need to do this. After decades of failure. Neil, you've spoken on your program about the decades of failure, we need to do something different.

MITCHELL: Okay. And this will help that kid being raped in Alice Springs?

ATTORNEY-GENERAL: After decades of failure we need to have a system to listen to the voice of Aboriginal and Torres Strait Islander people. I am convinced and many people have said this, the Voice can do no harm, just good for Aboriginal and Torres Strait Islander people in the country more broadly.

MITCHELL: As you well know part of the argument is consulting the executive, not just the Parliament and the ministers, the executive. It's argued that that could even include the Governor-General, would the Governor-General need to be considered need to consult Indigenous groups?

ATTORNEY-GENERAL: The Governor-General acts on the advice of the government of the day, and he's not involved.

MITCHELL: So, he's not part of the executive?

ATTORNEY-GENERAL: He's, of course, part of the executive, he's referred to in the Constitution. I'm trying to indicate and I think your listeners are well aware that the head of state is a largely ceremonial position in Australia.

MITCHELL: Of course, but this change says "make representations to the Parliament and the executive government of the Commonwealth". Why would that not include the Governor-General?

ATTORNEY-GENERAL: In so far as it's ever relevant for the Governor-General, to need to receive a representation from the Voice, then, of course, he or she would do so. But we know very much that the Governor-General is largely ceremonial position and is not involved in day to day administrative decisions. Still less is the Governor-General involved in the work of the Parliament, which is about making laws. And what the Voice is going to do is make representations to the Parliament about the laws that the Parliament makes, and make representations to the executive about the decisions of the executive, which is decisions of ministers, decisions of senior public servants and the policies that they develop.

MITCHELL: But that's also argued that, in fact, they are required to be consulted before a decision, is that right?

ATTORNEY-GENERAL: The representation will be much more effective if they're made to the Parliament before it passes laws or made to the executive before it makes new policy or make decisions. So, of course, government should be talking to the Voice early in the policy and legislative process. And, look, I expect that we won't like some of what we hear because the truth is sometimes hard. And I expect that the Parliament won't always agree with everything that the Voice says. But I do know that it's going to strengthen our democracy without taking anything away from anyone.

MITCHELL: Can you think of a law or a policy which doesn't affect Indigenous people in this country?

ATTORNEY-GENERAL: I'd rather put it the other way and look at the laws which do Neil.

MITCHELL: The tax policy does, the welfare policy does, the foreign policy does. Indigenous people, thank God, are a very important part of this country. They're Australian citizens. Surely every decision made by the Parliament affects them?

ATTORNEY-GENERAL: Potentially that's so but I think you'll find over time that the Voice will be making representations about the matters which most affect Aboriginal and Torres Strait Islander people there's there'll be plenty to keep the Voice busy. Think about health, think about education, think about the incarceration rates of our First Nations people. Think about life expectancy, which for Aboriginal and Torres Strait Islander Australians is still around 10 years less than for non-Indigenous in this country.

MITCHELL: It's horrendous, I agree.

ATTORNEY-GENERAL: They've got plenty to do to make a practical difference.

MITCHELL: I agree, but you know lawyers far better than me, being a very well-respected lawyer yourself, but lawyers tend to find these loopholes and chase them down, which is why I'm trying to find the loophole and chase them down. There is not a policy in this country that wouldn't affect Indigenous people.

ATTORNEY-GENERAL: And as a practical people, I'm expecting that the Voice is going to focus its attention on the things that matter most, things like health, education, and incarceration rates.

MITCHELL: I hope so, I hope so. You need to go to Cabinet, I know, but in terms of how it'll work, will it be proactive? Can it make representations without being consulted?

ATTORNEY-GENERAL: Yes. And that's the power that's given by this change to the Constitution to the Aboriginal and Torres Strait Islander Voice. It will be able to make representations and I'm expecting that the Parliament will listen. I'm expecting that the executive government will listen. And I'm expecting that the Government will be talking to the Voice early in the policy and legislative process and I think that it will improve outcomes for Aboriginal and Torres Strait Islander Australians. This is a great opportunity for our country, Neil, and I think that's the way we should be viewing it. It's a chance to provide recognition, Constitutional recognition and it's a chance to provide, on a permanent basis, consultation, because we know that listening communities leads to better policies and better outcomes.

MITCHELL: Yeah, I wish we'd remember that in the superannuation debate, but never mind. Will you need extra public servants to deal with this?

ATTORNEY-GENERAL: There will, of course, be some support for the Voice.

MITCHELL: No, I mean, within departments. If the department of whatever suddenly has to consult or take representations from the Voice will they need extra public servants to deal with it?

ATTORNEY-GENERAL: I'm not expecting so. This isn't about a big bureaucracy, it's not about replacing government agencies or supplementing existing organisations. It's about advice and listening to Aboriginal and Torres Strait Islander people about laws and policies which affect them. It's not going to deliver programs, Neil, it's going to be providing advice to government.

MITCHELL: Thank you so much for your time. I appreciate it.

ATTORNEY-GENERAL: And I hope I get a chance to do this again, and I really appreciate you giving me this opportunity, Neil. Thank you.

MITCHELL: Always welcome on the program. Thank you very much Attorney-General Mark Dreyfus and I really do mean that.