Solicitor General's Opinion
Since 2022 there has been a substantial public debate about the impact of the proposed changes on our existing constitutional practices. There have been suggestions that the proposed alteration would represent a dramatic change to Australia’s system of government. There has been a particular focus upon the relationship between the function of the Voice in making representations to the Government of the Commonwealth and the power of Parliament to determine the legal implications of those representations.
To address these concerns, the Federal Government sought legal advice from the Solicitor-General, which it released to the public in April 2023.
To address these concerns, the Federal Government sought legal advice from the Solicitor-General, which it released to the public in April 2023.
The full text of the Opinion is available here:
This page contains a summary of the key findings and approach of the Solicitor-General's Opinion
The Solicitor-General’s Opinion
The Solicitor-General of Australia is the country's second highest-ranking law officer (after the Attorney-General for Australia, which is now a largely political role). The current Solicitor General is Stephen Donaghue KC, who took office in January 2017.
The Solicitor-General gives the Federal Government legal advice, including formal opinions on questions of law referred to him by the Attorney-General. The Solicitor-General also represent the government as counsel (barrister) in important legal proceedings, particularly in the High Court.
The Solicitor-General’s opinion addresses the key legal issues that have arisen in the course of the public debate on the Constitution including:
In both cases the Solicitor-General confirmed that the proposed amendments are entirely consistent with the existing system of government.
The Solicitor-General gives the Federal Government legal advice, including formal opinions on questions of law referred to him by the Attorney-General. The Solicitor-General also represent the government as counsel (barrister) in important legal proceedings, particularly in the High Court.
The Solicitor-General’s opinion addresses the key legal issues that have arisen in the course of the public debate on the Constitution including:
- Whether the proposed amendment was compatible with Australia’s system of representative and responsible government; and
- Whether Parliament would retain the power to determine the way in which it responds to any representations made by the Voice.
In both cases the Solicitor-General confirmed that the proposed amendments are entirely consistent with the existing system of government.
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Question (1): Is proposed s 129 of the Constitution compatible with Australia’s system of representative and responsible government established under the Constitution? |
Question (2): Would the power to legislate “with respect to matters relating to the Aboriginal and Torres Strait Islander Voice” in proposed s 129(iii) of the Constitution empower the Parliament to specify whether, and if so, how, Executive Government decision-makers are legally required to consider relevant representations of the Voice? |
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Background Principles
In answering these questions, the Solicitor-General set out the basic principles that underly the existing system of government in Australia. He accepted that it is ‘well established’ that the Constitution (in both its explicit text and its structure) establishes a system of representative and responsible government.
The principle of representative government signifies:
government by the people through their representatives” and that, in the exercise of legislative powers, “the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act.
Similarly, the principle of responsible government signifies the:
system by which the executive is responsible to the legislature and, through it, to the electorate
Against this background, the Solicitor-General then examined the legal impact of the Voice and its implications for the existing system of government in Australia.
Legal Impact of the Voice
In his Opinion the Solicitor-General advised that it was his view that the proposed amendment is compatible with Australia’s system of representative and responsible government for the following reasons.
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First, and most significantly, the introduction of proposed s 129 into the Constitution would not alter the existing distribution of Commonwealth governmental power summarised above. Proposed s 129 does not confer legislative, executive or judicial power upon the Voice. That means that the Voice would have no power to make laws, to develop or administer policies or to decide disputes. Nor would it form part of either the Parliament or the Executive Government, instead operating only as an advisory body to those two branches of government. The Voice clearly has no power of veto. |
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That last point in particular is worth highlighting – this new body has no ability to veto or block any Government decision or Parliamentary action as:
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... the Voice’s function of making representations will not fetter or impede the exercise of the existing powers of the Parliament |
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The proposed amendment:
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would not prevent the Parliament from legislating until it receives a representation from the Voice … Nor would it require the Parliament to consult with the Voice before legislating |
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That is, the Parliament can continue to legislate on any topic, and in any manner, it sees fit (within existing constitutional constraints). Nothing in the proposed amendment will alter this. The general powers and conduct of Parliament will be unaffected by the proposed amendment.
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Nor would proposed s 129 impose any enforceable obligation upon the Parliament to consider representations from the Voice, let alone to follow such representations. |
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As a result of these considerations, the Solicitor-General was unequivocal in his assessment:
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In light of the above, if proposed s 129 is introduced into the Constitution, representative government will be unaffected. Members of the Parliament may give such consideration and weight to representations of the Voice as they consider appropriate, and they will be accountable to their electorates for their decisions in that regard. The influence of the Voice’s representations to the Parliament will be a matter to be determined by political considerations, rather than legal considerations. |
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Similarly, the Solicitor-General was unequivocal in his view that the proposed amendment will not fundamentally alter the powers of the Government:
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…the Voice’s function of making representations will not fetter or impede the existing powers of the Executive Government |
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This is because the proposed amendments do not impose any obligations upon the Executive Government to follow representations of the Voice, or to consult with the Voice prior to developing any policy or making any decision
Overall, therefore, the Solicitor-General had no doubt that the proposed amendment was compatible with Australia’s existing system of government:
Overall, therefore, the Solicitor-General had no doubt that the proposed amendment was compatible with Australia’s existing system of government:
In the Solicitor-General opinion the proposed amendment is clearly consistent with both responsible and representative government.
Enhancing Our System of Governance
Moreover, he went on to highlight that some laws pursue purposes that are not just compatible with the system of representative and responsible government, but indeed may be seen to enhance it. He gives the example of laws regulating political donations, which have been held to enhance constitutional governance. He was of the opinion that similar reasoning would apply to the Voice:
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In my opinion, a similar analysis can be applied to proposed s 129. That follows because a core rationale underpinning the proposed amendment is to facilitate more effective input by Aboriginal and Torres Strait Islander peoples in public. |
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In particular, the Solicitor-General highlighted that given the historical barriers that have excluded Aboriginal and Torres Strait Islander peoples from legal and political discussions regarding matters that affect them, the creation of a new platform may lead to a better system of governance:
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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. For that reason, in addition to the other reasons stated above, 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. |
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