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

You can say whatever you like. There is no duty to consult. There is no duty to obey. Ultimately, it is the High Court of Australia who will decide what the right to make representation means. At least two important matters should be evident from the discussion that we have just had. First, the right to make representations will not be treated by the High Court as a hollow right. If it's a hollow right, why we actually standing here tonight? There must, at the very least, be an obligation on the executive to hear and consider representations, otherwise the notion of the Voice would be utterly undermined and the right to make representation would be merely an illusory right.

Second, even the Solicitor General recognises—and you quoted selectively from his legal advice—in his written opinion that there is room for argument. He states that in his advice, as to whether decision-makers within the executive government would be required to consider representations of the Voice in certain contexts. That's paragraph 19(b) of the advice. The Solicitor General also recognises that it is possible, contrary to his considered view, that Parliament would not be empowered to legislate to specify the extent to which any consideration of representations by the Voice is required. That is the Solicitor General at paragraph 19(b) and (c).

I will actually therefore now make a third point that should become evident. If section 129 becomes part of the Constitution, then the only person or body expressly recognised by the Constitution as having a right to make representations to the parliament and the executive government would be the Voice. No express constitutional right of representation is afforded to any persons or bodies who are external to Parliament, including Australian citizens and corporate bodies. Hence conferral of an express constitutional right to make representations would be both special and significant and would necessarily have significant legal consequences, because the parliament's power under subparagraph 3 of section 129 to make laws with respect to matters relating to the Voice is expressed to be subject to the Constitution. In other words, the parliament cannot in any way diminish that special right to make representations.

Finally, it is one thing to say the proposed section 129 would not threaten representative and responsible government. But to say, as the Solicitor General does at paragraph 21, that it would enhance the existing system of representative and responsible government is actually a value judgment; it is not a legal opinion. The basis of that value judgment in that advice is simply that 'the Voice serves the objectives of overcoming barriers that have impeded effective participation by Aboriginal and Torres Strait Islander people in political discussions and decisions that affect them.' That's his opinion. That's his judgment. A reasonable contrary view is that giving one proposed body a special and preferred constitutional right to make representations to the Parliament and the executive is antithetical to our system of representative government under which all Australians have legal rights.

Ultimately I go back to what I said in the beginning. It is not you, Senator Watt, it is not the Solicitor General, it is actually the High Court of Australia that will decide what the right to make these representations means. And you are unable to give us any further guidance tonight in terms of what those implied duties may or may not be and what impact they will actually have on the operation of government in Australia.

It's a matter of the record from the third tranche of advice from the government's own constitutional expert group that there were differing views amongst the expert group as to whether or not the proposed amendment is likely to be interpreted by a court as giving rise to a constitutional obligation for government decision-makers to consider relevant representations by the Voice even if Parliament did not require this. There is another part of the constitutional expert group's advice that says 'there is no obligation to follow the Voice's representations, but it is possible that executive government decisions could be found invalid if the government failed to consider a relevant representation by the Voice.' That is the constitutional expert group's advice. For clarity, does that mean that if a government decision-maker did not consider the voice's representations, the decision may be invalid?