Has there ever been a more flagrant attempt to deceive the Australian people than the Albanese government’s effort to force-feed the voice into our Constitution?
Aided and abetted by an army of activist advisers and cheerleaders, Anthony Albanese and Indigenous Australians Minister Linda Burney lead what can only be described as the great deception. The root cause of this deception is that the objective of this campaign is to enact a massive change to our constitutional arrangements, namely to begin the process of replacing our long-treasured sole and exclusive sovereignty of the crown with the form of co-sovereignty between the crown and Indigenous Australia demanded by the Uluru Statement from the Heart. This, in turn, is a first step to treaty and self-determination. This radical step could be implemented only by pretending the change was modest, encasing it with feel-good atmospherics, backed up with frequent browbeating.
What, for example, is law professor Megan Davis doing by demanding universities, including the peak body, Universities Australia, sing from her Yes song sheet? Universities are meant to encourage free thought, not foisted views, aren’t they?
The gamble by Yes activists that we would not look too hard at the proposed wording and its consequences, or stand up to bullying, has manifestly failed – to the point where even some voice supporters are now coming clean.
The result: the Yes campaign is now falling apart under the weight of its internal inconsistencies, dishonesties and division.
Who could forget that the Prime Minister’s much-quoted Calma-Langton report promised us, in section 2.9, that their Yes model would “reflect the need to respect parliamentary sovereignty and avoid causing unintended consequences. As a result, all elements would be non-justiciable, meaning that there could not be a court challenge”?
There was a time when many voice supporters recognised that non-justiciability was critical: to avoid opening a massive hole in parliamentary supremacy and creating a huge transfer of power from our elected parliament to unelected courts.
Not so any more. Now, Langton admits the voice is a matter for the courts. On ABC radio recently she said: “Why would we restrict the voice to representations that can’t be challenged in court?” Asked about whether High Court challenges could be used to delay government decisions until the voice had deliberated on the matter, Langton said, “That’s a possibility … why wouldn’t we want that to be the case?”
Many curiously minded and in some instances legally trained commentators have consistently warned the voice would be able to use leverage extracted by lawsuits to gum up the processes of government, and thereby hand vast negotiating power to the voice and its supporters. We were naysaid and insulted by a phalanx of activist lawyers. Constitutional lawyer Greg Craven said “this legal fright-fest is bizarre” as he assured us that the High Court would not, for example, impose legal obligations around consultation with the voice.
The gap between then and now is remarkable and of concern. Since then, former High Court justice Kenneth Hayne admitted the voice could be the subject of litigation, but he told us to trust the courts. Then fellow former High Court justice Ian Callinan confirmed the voice could be the subject of a decade of litigation. He appeared less trusting of the courts. Now, even ardent voice supporter George Williams has admitted what he should have told us upfront. “Courts will play a role in the operation of the voice,” he said recently.
Last December, Williams wrote: “There is no requirement the voice be listened to before a decision” was made. Last week, Williams admitted: “Courts may be asked to rule on the … the consequences of a minister failing to listen when the voice has spoken.”
Other leading figures in the Constitutional Expert Group such as constitutional lawyer Davis, as well as Craven, have also recently acknowledged what was long denied or dismissed – namely that the courts will play a significant role in determining the powers, processes and functions of the voice.
Why didn’t all these lawyers tell us this earlier? Why did this entirely logical consequence of a constitutionally entrenched voice have to be effectively flushed out of them? What else are they not telling us? Are they saving future surprises for us, to be revealed only if a Yes vote is successful?
Craven is at least honest about the political power handed to the voice by the possibility of lawfare. He now publicly admits to the legal issues rising from the voice. “Politically and practically, delay (from litigation) often means death to proposed action,” he conceded recently.
It’s high time the PM came clean, too, and admitted what Williams, Davis, Craven, Langton and a couple of High Court judges now tell us: the power of the voice, at law, to delay, hinder and litigate gives it a potent veto in practice.
Given the sudden shifts from high-profile voice activists saying one thing last year, then another more recently, we have every reason to ask: when will the con job on the Australian people end?
For many years, constitutional lawyer and academic Shireen Morris has assured us that “a First Nations voice was specifically designed to be non-justiciable”.
That became a fiction the moment the Prime Minister released the words of his Albanese amendment at Garma last July. Surely it is time that Morris too admits that non-justiciability is a myth.
Likewise, we could ask the well-regarded constitutional lawyer and academic Anne Twomey whether she has done enough to ensure the Australian people are fully informed about the legal impact of the voice on parliamentary sovereignty.
Perhaps most disappointing among this cast of Yes lawyers is opposition legal affairs spokesman Julian Leeser. If Noel Pearson is right that Leeser, along with Craven and other so-called constitutional conservatives, agreed the earlier wording on which the Albanese amendment is modelled, then Leeser has been guilty of naivety – at best.
Pearson is entitled to be miffed, and so are Liberals who are deeply opposed to a race-based constitutionally entrenched body that would up-end our governance.
Let’s return to the fundamental problem. This is no “modest proposal” but a carefully crafted attempt to replace crown sovereignty, the sovereignty of all of us, with the co-sovereignty demanded by the Uluru statement. Armies of activists and academic lawyers have been beavering away for years trying to find ways of inserting into our Constitution the wedge that leads to this co-sovereignty. Either Leeser is a fool or he understands this.
It has become crystal clear that deception, dissembling and intimidation have been key to the whole campaign. Now, with significant parts of the great deception exposed, unwittingly, by these same voice activists, we are entitled to ask: what more haven’t they told us?
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