THE HON MARK DREYFUS KC MP
ATTORNEY-GENERAL
CABINET SECRETARY
MEMBER FOR ISAACS
E&OE TRANSCRIPT
RADIO INTERVIEW
6PR MORNINGS
FRIDAY, 24 MARCH 2023
SUBJECT: The Voice to Parliament.
GARY ADSHEAD: There's a bit of an old saying that if you put a couple of lawyers in a room, you'll probably end up with six different legal opinions. And that seems to be what's happening already following the announcement of the question that will frame the Voice to Parliament referendum. Now, Emeritus Professor Greg Craven, he's also a constitutional expert law expert, he says the inclusion of executive government in the Voice framework is now a problem and he said it leaves the Constitutional change open for legal challenges about executive decisions by people, including the Voice members. Here's a little bit of what Greg Craven has had to say this morning.
PROFESSOR GREG CRAVEN: This is actually far worse than I had contemplated the worst position. So this actually takes the problems that people have identified with the preceding drafting and multiplies it.
ADSHEAD: Now, the Federal Attorney-General, of course, Mark Dreyfus, was there yesterday when the Prime Minister announced the question that we will all be asked to answer when the referendum happens later this year. And he joins me on the line. Thanks very much for your time Attorney-General.
ATTORNEY-GENERAL MARK DREYFUS: Very good to be with you, Gary.
ADSHEAD: Okay, your reaction to that because obviously, well, I'm assuming you had pretty sound legal advice before you came up with the question and the framework?
ATTORNEY-GENERAL: The Government's listened to the community and to First Nations leaders and most importantly, we've listened to legal experts. What we've got here is a Constitutionally sound amendment that's going to enshrine a Voice in the Constitution. It's going to be an unflinching source of advice and accountability to the Parliament and the executive government. And I think you said in the introduction then that, get two lawyers in a room or get six lawyers in a room, you're gonna get a range of different opinions. Well, surprise, surprise. What I can assure your listeners is that some of the best legal minds in the country have been working on this and that the Australian people can be confident that we've got this right.
ADSHEAD: Will you have to release the sort of detail you got from the Solicitor-General, as Peter Dutton is suggesting?
ATTORNEY-GENERAL: I can assure everybody that the Solicitor-General has been fully involved in this process, as you would expect. And we're not presently planning to release the Solicitor-General's advice. That had been consistent with the practice of successive governments over many years and Mr Dutton knows that the former government didn't make a practice of releasing Solicitor-General advice, and we won't be either.
ADSHEAD: Are you sensing that people will look for mischievous ways to try and derail this process now, including the hypothetical issue around the legal challenges?
ATTORNEY-GENERAL: I think we've seen that before. And I know it's a long time since Australia went to a referendum, you have to go back to 1999, so this is the first referendum in 23 years. But if you look at the history of referendums people who are trying to encourage Australians to vote no very often will raise irrelevant matters, they'll raise confusion, they'll raise all sorts of things. I'd be asking Australians to think about the real, immense significance, the historic significance of this referendum, the best chance we've had to address injustices of the past and create change that will deliver us a better future. And I can reassure listeners that we've had some of the best legal minds in the country looking at this and in the commentary today, you see quite a range of them coming out. Professor Anne Twomey, saying that concerns about the ability of the Voice to make representations to the executive have little or no substance. Professor George Williams stating that the updated wording strengthens the power of the Commonwealth. And I just heard about Greg Craven. Notwithstanding the concerns he's raised Greg Craven says that he will still vote Yes. And I think that's some understanding there on his part of the importance of this for our country. It's a unifying moment Gary.
ADSHEAD: He also says, and I don't know whether you want to comment on this, but he said that he expected that you, as the Attorney-General, would be trying to wind back the notion of the executive government being spoken to by the Voice and included in the sort of the decision making processes. Did you try to wind that back from the framing?
ATTORNEY-GENERAL: No. It's been quite a bit of misreporting. I'd say on this we've been very clear that we think that the Voice should be able to make representations both to the Parliament and the executive government. That's been our position from the start and it's certainly been my personal position as well.
ADSHEAD: One thing that comes through from listeners here on 6PR is this kind of quest for more information. We're hearing the line, and of course Peter Dutton has said it as well, that there needs to be more information around the Voice. What do you say to those people?
ATTORNEY-GENERAL: What we're concerned with here is Constitutional reform. Constitutions contain principles and the structure and form of institutions like the Voice. It's a bit like the High Court, you could say, they're left for the Parliament to legislate on. That's always been the approach that we've taken. So just as the Constitution of Australia says, "There shall be a High Court" but leaves the detail up to the Parliament, so too, with the Voice. The Constitution, if this referendum succeeds, and I very much hope that it will, you're going to say that there shall be a Voice to Parliament, an Aboriginal and Torres Strait Islander Voice to Parliament and then in the third paragraph, it gives the power to the Parliament to set out what should be the form and function and details. So after the referendum succeeds, next year, we'll be having a debate about what Mr Dutton might call the detail. I'd say about Mr Dutton though that he's looking for anything that he can do to raise doubt, which is a disappointment. I'm still extending the invitation to Mr Dutton to look into his heart and think about what's best for our country, because I'm certain that what's best for our country is that this referendum succeeds.
ADSHEAD: The Prime Minister is clearly not just politically invested, but he's emotionally invested in this process. If it fails, where will it leave him?
ATTORNEY-GENERAL: It'll leave him with his orientation being to make sure that we work in the interests of Aboriginal and Torres Strait Islander people and all Australians in everything we do as a government. It'll be a tremendous disappointment if this doesn't get up because we need to do something different in relation to policies for Aboriginal and Torres Strait Islander people. But we will keep working away.
ADSHEAD: My last question too, if you don't mind it, it's something that David Littleproud said on morning television. He said that it's time that the bureaucrats in Canberra just got off their arses and went out to the Aboriginal communities and spoke to the leaders in those Aboriginal communities as opposed to the Aboriginal leaders having to always go to Canberra. What do you say to that?
ATTORNEY-GENERAL: I think that Mr Littleproud needs to pay attention to what the request from the Uluru Statement from the Heart was. It was a very generous offer to the rest of Australia to establish a Voice in the Constitution. We know that when you listen to people who are affected you are more likely to get laws and policies right. So perhaps I'm not too far away from Mr Littleproud on that. But we want this Voice in the Constitution to make it a permanent Voice to the Parliament and the executive. We've too often in the past seen governments come in, particularly conservative governments, and abolish representative bodies for Aboriginal and Torres Strait Islander people. By putting it in the Constitution we put it beyond the reach of a future government. There will be, on a permanent basis, this Voice, and it will help governments, help ministers, help senior public servants listen to the people affected, because that's when you're more likely to get laws and policies right.
ADSHEAD: Attorney-General I appreciate your time today. Thanks very much.
ATTORNEY-GENERAL: Thanks very much, Gary.
ENDS
