The government’s top lawyer insists the proposed Indigenous Voice to Parliament would "enhance" Australia's system of government, arguing he does not believe it would "pose any threat" to the nation's parliamentary democracy.
Solicitor-general Stephen Donaghue KC has also dismissed suggestions the creation of the advisory body, enshrined in the constitution, would lead to a deluge of legal challenges.
Dr Donaghue's legal opinion was released as part of federal parliament's inquiry into the proposed wording of the referendum question and proposed constitutional amendment.
It is dated April 19, 2023, almost one month after the prime minister revealed the government’s final position on the Voice referendum proposal.
The federal opposition has been demanding the solicitor-general’s advice to cabinet, provided during the drafting process, be published.
That advice has not been provided to the committee.
The opinion picks apart the proposed section 129 of the constitution, which would be inserted into the nation's founding document if the referendum is successful later this year.
"A core rationale underpinning the proposed amendment is to facilitate more effective input by Aboriginal and Torres Strait Islander peoples in public discussion and debate about governmental and political matters relating to them," Dr Donaghue wrote earlier this week.
"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.
"In my opinion proposed s 129 is not just compatible with the system of representative and responsible government prescribed by the Constitution, but an enhancement of that system."
Dr Donaghue rejected concerns the High Court's workload would increase exponentially if the Voice to Parliament's advice was ignored.
"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," Dr Donaghue wrote.
"Accordingly, even if proposed s 129(iii) did not empower the Parliament to legislate to specify the legal effect of representations of the Voice (which in my view it clearly does), proposed s 129 would not pose any threat to Australia's system of representative and responsible government."
The prime minister said Dr Donaghue’s comments showed the proposal was "legally sound".
"This puts to bed the absolute nonsense of Peter Dutton and Barnaby Joyce and all the nonsense that they’ve carried on with, saying that somehow recognising Aboriginal and Torres Strait Islander people in our constitution will lead to ANZAC Day being abolished," Anthony Albanese said.
"It is complete nonsense. They are just determined to play politics with this."
Coalition adamant PM must publish original advice
Opposition frontbencher Simon Birmingham said the government would be better off releasing the solicitor-general's formal advice to government, rather than opinion crafted for release.
"It would give far greater weight and credibility for the government to provide all of the advice," Senator Birmingham said.
"And if all of the advice backs their case, then that of course, would be a stronger position for the government to stand on."
Nationals MP Barnaby Joyce said the government had been comfortable to release advice by the solicitor-general related to former prime minister Scott Morrison's secretly obtained ministry powers, and not doing so with the Voice was "sneaky".
"This is not the baby in the bassinet that was born, this is a different one," Mr Joyce said.
"What he's offered is a sort of amended, redacted version from later on, this is not the advice he was given, and if he wants to be straight with the Australian people then give us what we actually asked for, which is the original advice.
"When he offers something else it raises our suspicions further."
Mr Albanese confirmed Dr Donaghue’s opinion had been prepared for the parliamentary committee, and was not the solicitor-general’s legal advice presented to his cabinet prior to the wording being released.
"We don’t release, nor does any government ever release, advice to cabinet," the prime minister said.
