Voice to Parliament fraught with pitfalls, says Ian Callinan

An eminent Queensland jurist and former High Court judge has made a searing critique of the proposed Voice to Parliament.

An eminent Queensland jurist has invoked the spirit of Joh Bjelke-Petersen in warning of the unforeseen impacts of a yes vote in the Voice referendum.

“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,” Ian Callinan said.

A High Court judge for more than nine years, he added: “All of the indications are that the Voice will be made up of a hand-picked Canberra cadre.

“In short, it is probable that the representations will not be made by a truly representative body.”

Former premier Joh Bjelke-Petersen died in 2005 aged 94 after a tumultuous era in Queensland politics.

Callinan suggests the stubborn refusal (my words, not his) of the Albanese government to explain the legal impacts of a yes vote are troubling.

He wonders how a yes vote can produce an operational and stable government amid legal challenges, and questions how it can truly represent the voice of Indigenous Australians.

Callinan’s searing critique is contained in his submission to Federal Parliament’s joint select committee on the Aboriginal and Torres Strait Islander Voice Referendum.

Ian Callinan

It comes as prominent Victorian ­lawyer Stuart Wood says barristers supporting a yes vote for the Indigenous voice to Parliament are commercially motivated and will reap a financial windfall for doing so.

Referendum voters will be asked to endorse a new chapter in the Australian constitution formally recognising Aboriginal and Torres Strait Islander people.

In that chapter, section 129 attempts to put meat on the bones of recognition while struggling to deal with the mechanics of setting up the Voice bureaucracy.

The proposed section reads: “In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia: there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice; the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples; the Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.”

Even lawyers seem confused on how a new constitutionally mandated body known as the Voice will exercise its new constitutional rights for the benefit of the Indigenous.

Ipswich-born barrister David Jackson goes so far as to question the validity of the Voice.

Jackson speaks with authority as the nation’s pre-eminent constitutional silk.

Sir Joh Bjelke-Petersen

“In contrast to many other lawyers parading in this debate as constitutional law experts, Jackson is the real deal,” lawyer Janet Albrechtsen wrote in The Australian.

“Jackson advised the inquiry that the words ‘subject to this Constitution’ that appear in the third sentence – where Parliament is given powers in respect of the Voice – mean if Parliament passes a law to neuter the Voice’s ability to make representations, then that law would be invalid.

“That means the courts, not Parliament, will have the last say about what is needed in practice
to ensure the Voice is not an empty vessel.”

Callinan seems similarly sceptical.

“Proponents say that all that the Voice demands is that Indigenous Australians have the right to make representations (only) to both the executive government and the Parliament,” he wrote.

“But yet there would hardly be a lawyer, or any interested member of the community who did not believe and expect that every representation had at least to be given consideration.

“In other words, already, one implication is universally being read into language which says nothing in terms of what is to happen when a representation is made.

“There is a real possibility that courts will in future read into a new section 129 further implications.

“The second incongruity, largely overlooked so far, is that the proposed Voice makes no provision at all, unlike the Constitution itself, for the composition of the Voice as a constitutional personality.

Prime Minister Anthony Albanese is advocating for a Voice to Parliament.

“The Parliament, the House of Representatives and the Senate, must be ‘directly chosen by the people’, but yet there is to be no constitutional insistence that the members of the Voice will be directly chosen by the Indigenous people.

“So far, there is not even a proposal for a franchise of the kind to be adopted for the election of a South Australia State Voice.’’

Callinan’s submission discusses in depth the legal complexities surrounding the constitutional interpretation of recognition.

“Neither the explanatory memorandum nor the Bill for the referendum is any more a guide to the construction of the Constitution than the result of the referendum itself.”

Callinan raises “uncertainties” in how the Voice can function.

“Sub-section 129 (2) would empower the Voice to make representations on matters relating to Aboriginal and Torres Strait Islander peoples.

“What does ‘relating to’ mean? There was discussion in the hearings to date about ‘core’ matters.

“The proposed subsection does not make any reference to ‘core’ matters.

“The words ‘in relation to’ are words of the broadest possible import.

“Again, in the end, the High Court will decide what matters relate to Aboriginal and Torres Strait Islander Peoples.

“Everything is at large.”

The Coalition, led by Peter Dutton, will oppose the Voice.

Callinan adds: “Concerns that the Voice as propounded would delay and disrupt government and business activity cannot be brushed aside.

“It would be an unwise businessperson or a naive politician who would not be soliciting in advance of any project or program the views of the Voice.

“And when the Voice speaks, who is to receive its words? Will there not need to be established a recipient of representations by the Voice, a new bureaucracy in a new building in Canberra?”

He warns a massive bureaucracy will be needed.

“There is a possibility also of interference with state government and intrastate business activity.

“Take for example a project, say a fully compliant solar-panel-powered factory on freehold land making wind turbines for sale and consumption entirely within a state and therefore hitherto not a matter for Commonwealth intervention.

“But say the factory is near land of cultural significance to Indigenous People and that the Voice makes a representation that the size, shape and general nature of the factory are offensive to that culture and that the Commonwealth, either at an executive or parliamentary level, should take steps to veto the project.’’

Even if the High Court did not confer a legal right to veto a project, “there would likely still be delays and additional cost to the project”.

AND ANOTHER THING..

I fear the Voice referendum will divide the nation for generations, regardless of the outcome.

And I suspect the vote will be a win-win for Labor regardless of the outcome. I’m tipping the No campaign spearheaded by PeterDutton and Jacinta Price to be successful.

This will unleash a bitter campaign by Labor trolls and their media cheer squad in the ABC who will attempt to portray Duttonas hard-hearted, perhaps even racist.

A victory for the Yes case will boost Albanese’s re-election hopes.

The PM will be able to exert some authority in demanding Dutton vacate the LNP leadership because a key policy was rejectedby the majority.