It’s time for some straight answers on the voice, PM

There is no doubt as to Anthony Albanese’s sincere commitment to a successful referendum outcome later this year on the Indigenous voice to parliament. The issue was front and centre of his victory speech on election night. It would be regrettable, however, if the referendum went down due to poor tactics, a possibility that is beginning to loom large. In a radio interview on Wednesday, the Prime Minister could not answer basic questions about the voice, such as whether members of the body would be appointed or elected. That was one of 15 questions put to him in a letter by Peter Dutton a fortnight ago. Those questions need to be answered before the debate can proceed in any meaningful way. The Opposition Leader’s other questions included: Who will be eligible to serve on the body? How many people will make up the body? How much will it cost taxpayers annually? What are its functions and powers? Who will oversee the body and ensure it is accountable? If needed, can the body be dissolved and reconstituted in extraordinary circumstances? How will it interact with the Closing the Gap process? And will the government rule out using the voice to negotiate any national treaty?

The latter question raises a significant issue. The Uluru Statement from the Heart, to which Mr Albanese is committed, seeks “a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history’’.

While Mr Albanese says the government has not sought advice from the Solicitor-General on legal issues that could arise from enshrining an Indigenous voice in the Constitution, he has hosed down suggestions that the voice could take matters to court should the government disagree with its advice. Former attorney-general and Indigenous affairs minister in the Howard government Philip Ruddock has raised concerns that the High Court may produce an interpretation related to the voice “that has unforeseen consequences that lead you down paths you’ve never contemplated”. Former High Court judge Ian Callinan believes a voice could lead to “a decade or more of constitutional and administrative law litigation”.

That would “not be the case”, Mr Albanese said. The Calma-Langton report, which the government has not officially endorsed, ‘‘ makes very clear that they do not want the body to be justiciable – that is, able to go to court to say ‘We weren’t asked about X policy, we should have been’. That will not be allowed,” he said. He needs to explain why and how. The High Court is the guardian of the Constitution. Its role is ‘‘to interpret and apply the law of Australia; to decide cases of special federal significance, including challenges to the constitutional validity of laws’’. Those who do not fear a spate of litigation from a voice, such as former High Court judge Kenneth Hayne, acknowledge ‘‘anyone can start litigation, including constitutional litigation, so long as their claim is not frivolous or vexatious’’.

Supporters of the voice, such as Chris Kenny, look to it not as a means to confer special privileges on Indigenous Australians, but to help redress serious disadvantage by giving Aboriginal people a non-binding, advisory say on matters that affect them. If implemented well, it should help make a difference by providing ground-up advice to government on seemingly intractable problems. It should encourage responsibility and accountability among Indigenous communities. It is a sincere attempt to give the First Australians the constitutional recognition so many of them long for, and in a way that is geared to improving practical outcomes, not mere symbolism.

Mr Albanese, Indigenous Affairs Minister Linda Burney and other champions of the voice regard it as a potentially unifying step in the nation’s story. Such unity, and the potential of the body to assist practical reconciliation at a time when key gap measures are widening rather than closing, puts the onus on the government to give the public confidence in supporting it. The problem, as constitutional lawyer and former ACU vice-chancellor Greg Craven wrote recently, was the ‘‘absolute refusal of the Albanese government to provide details’’. As a director of the pro-voice organisation Uphold and Recognise, Professor Craven has made numerous attempts to “bring out wise, respected, moderate Australians in favour of the voice. Much less than a handful have agreed … the polite refusals are all the same; eminent Australians will not back the voice until they know what it is.”

The anger and broken morale among many, though not all, Indigenous people in the event of a No vote would leave pieces to be picked up that could make Closing the Gap, desired by all Australians, even harder. Mr Albanese’s refusal to take a position that assumes a loss of a referendum by committing to legislating a voice in the event of a No vote is understandable. Opinions about that option are divided. Mr Dutton wants a voice legislated before the referendum to show how it would work. That said, the government could amend legislation after a Yes vote, as could future governments, to alter the body’s function and composition. Mr Albanese needs to take voters into his confidence and provide details, before the nation’s 45th referendum becomes the 37th referendum to be defeated.