High Court action shouldn’t deter Yes vote on Voice: Dreyfus

Former Liberal minister for Indigenous Australians, Ken Wyatt, also a member of the working group, said that while he had initially supported “executive government” being dropped from the amendment if it meant boosting a Yes vote at the referendum, he had since shifted his view and now believed it is essential.

“The more I reflect on it, the more important it is that executive government consults with Indigenous Australians. It should remain [in the proposed amendment],” Wyatt said in an interview.

“By the time a bill is tabled in the house, which is the parliament, then it is too late for Aboriginal people to influence legislation.

“The only time that Aboriginal people were consulted over the first seven years of my time in parliament, were on Aboriginal-specific bills, but not always.”

Jesuit lawyer and priest Frank Brennan said in a speech on Tuesday to conservative pro-Voice group Uphold and Recognise that the referendum should only be about a Voice to parliament and the government should provide legal advice justifying any expanded scope.

“The government should publish competent legal advice assuring voters that the constitutional change will not risk ongoing judicial review of administrative decisions likely to clog the working of good government,” Brennan said.

The issue has split former High Court judges, with former chief justice Robert French and Kenneth Hayne holding the view that there is little scope for litigation arising out of the current proposed amendment.

However, fellow former justice Ian Callinan has foreshadowed that the Voice would give rise to “a decade or more of constitutional and administrative law litigation”.

Liberal backbencher Andrew Bragg said in a speech to the conservative forum that the Voice’s interaction with the executive was a legitimate concern as he repeated calls for a bipartisan parliamentary committee to tackle the issue.

“The concern is that if left open to judicial review, the High Court could stipulate the process of consultation between the parliament, the executive and the Voice, or invalidate proposed legislation or executive decision-making if it believes that the Voice’s representation has not been given proper consideration,” he said.

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