Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

Senator Watt just referred to and summarised some of the opinions that he states former High Court justices had. So let's now work through what those opinions were.

In relation to the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum, the Liberal senators' dissenting report made this observation in paragraph 1.37, and it goes to the issue, Senator Watt, that you just raised:

If proposed s 129 is interpreted by the High Court in a way that imposes on the Executive either a duty to consult the Voice or consider its representations, this will have profoundly disruptive effects on the operation of government. This is not a rhetorical flourish on our part. This was the undisputed evidence presented to the Committee, including from witnesses who were intimately involved in the government's design process.

The dissenting report then refers to the assessments made by former justices of the High Court Robert French and Kenneth Hayne. It's worth reading Mr French's comments in full, because this is what Mr French actually stated:

Given the immense range of matters in which there might be an interaction between a proposed policy or practice and impacts on Indigenous people in one way or another, to imply a duty to consult across all of that range would really make government unworkable.

He then said, though: 'I don't think the High Court is in that business.' Mr Hayne made similar observations. In other words, former justices Hayne and French agree that, if a future High Court decides there is a constitutional duty to consult the Voice, it would be catastrophic for government. They say it would be catastrophic for government.

They then went on to say, just as you have today, Senator Watt, that we should take it on trust that a future court would never do that. But, you see, the issue that that raises is: predicting what a High Court will do is precisely the risk that many other eminent former justices, eminent lawyers and prominent academics have themselves warned against. You see, even eminent former justices of the High Court cannot themselves agree on the legal implications of what the government is putting forward. We all know that no-one can say what a future High Court will decide, and that is exactly the point made by Mr French's former colleague on the Federal Court bench, the Hon. Roger Gyles AO, KC. His submission is quite frankly extraordinary and it should be mandatory reading for those who make bland assertions that the legal risks are low. As Mr Gyles said, 'neither the government nor any expert can give those unequivocal assurances'. So, Senator Watt, despite what you've said, unfortunately, Mr Gyles said: 'neither the government nor any expert can give those unequivocal assurances'. His damning submission says that assertions that a future High Court will not apply a duty to consult are misleading and that those assurances 'should not be relied upon by those considering the proposed constitutional change'.

The point is just as forcefully made by one of Mr Hayne's former High Court colleagues. Former justice Callinan AC rejects the blindness to the risk that seems to afflict those opposite. He said: 'It would be imprudent to underestimate the capacity of any future High Court for ingenuity or originality.' I have to say, though, that it's this next paragraph which does sum up what we are hearing tonight:

It is an irony that so many of the proponents of the Voice, well-intentioned and highly regarded as they are, should be echoing the language so often and infamously used by the late Sir Johannes Bjelke-Petersen to reporters seeking information about government, "don't you worry about that".

So where does that leave the rest of us? The thing these distinguished jurists agree on is that the duty to consult with the Voice would make government unworkable. The thing they disagree on is whether a future High Court could decide if there was such a duty. The only thing we have left is that the government's Voice proposal confirms significant risk. The answers that you are giving tonight, Senator Watt, do exactly that. They confirm the significant risk in changing our Constitution based on the proposal that this government is putting forward. It is uncertain how the High Court would interpret it, but, if carried out at a referendum, it would be permanent. So what I ask you now is: will the government guarantee that a decision whether to make a representation on an issue will not be a decision under an enactment that is reviewable by the AAT?