Still a chance for political unity on voice question

For what is supposed to be a unifying act, it was sad to witness the political division reflected in the absence of key figures, including Peter Dutton, from federal parliament when the voice referendum legislation was tabled on Thursday. This is a result of mixed messages and confusion, short cuts and political opportunity, and a failure of leaders to negotiate a shared position for constitutional recognition of Indigenous Australians, something all sides claim to support. Anthony Albanese must accept his responsibility for failing to understand or properly explain how the voice would operate. The shaming of conservative voices for holding true to their values will not make the task of securing the community support required to pass a referendum any easier.

The breakdown in trust is highlighted by the war of words that has erupted between leading voice advocate Noel Pearson and constitutional lawyer Greg Craven, who can agree only that they were both there at the beginning with opposition Indigenous Australians spokesman Julian Leeser. Mr Pearson accuses Mr Leeser and Professor Craven of abandoning what was a conservative project at its inception. But Professor Craven insists that from the outset it was made clear to Mr Pearson that true conservatives would never accept any model that involved conferring power on judges. Professor Craven says it is a basic principle of Australian constitutional conservatism that unelected judges must never meddle in political or policy matters. Debate still rages over to what extent the voice will have access to the courts should it not be satisfied with the hearing its advice receives from parliament and the executive.

The Prime Minister remains a passionate advocate for the voice but has struggled to think beyond the superficial appeal of promoting a harmonious state. As Henry Ergas writes on Thursday, politicians must embrace, as Aristotle did, the virtue of prudence, of thinking about how to advance the good of the community while avoiding the hubris of demagogues and the arrogance of those who ignore the complexity, messiness and unpredictability of social life.

The Opposition Leader has staked his objection to the way in which the voice referendum has been worded in its potential to disrupt Australia’s “very stable system of government”. “We have a very stable system of government and if you seek to disrupt that, then it needs to be for a good reason and it needs to be properly considered,” Mr Dutton said.

Mr Albanese’s claim to have properly considered the issue is undermined by his inability to explain its operations. Many of his claims about the limits imposed on areas the voice would operate have been exposed by Attorney-General Mark Dreyfus as being wrong. Whereas Mr Albanese said the areas in which the voice could offer advice were strictly limited, Mr Dreyfus confirmed the broad scope that extended to all matters specific to Aboriginal and Torres Strait Islander people but also general laws or measures that affected them differently to other Australians. Mr Dreyfus also confirmed the voice would not have to wait for the parliament or executive to seek its views before providing them. But neither will the constitutional amendment oblige the parliament or the executive government to consult the voice before taking action.

Mr Dreyfus said it would be a matter for the parliament to determine whether the executive government was under any obligation in relation to representations made by the voice. And there will be no requirement for the parliament or the executive government to follow the voice’s representations. Mr Dreyfus said the constitutional amendment conferred no power on the voice to prevent, delay or veto decisions of the parliament or the executive government. The parliament and the executive government will retain final decision-making power over all laws and policies. But, despite the Attorney-General’s assurances, the current wording does not satisfy some experts who see invitations for judicial intervention as being inevitable.

With the legislation for the referendum now before parliament, a new parliamentary committee spanning both chambers and chaired by Labor has been established to scrutinise the government’s proposed constitutional amendment and referendum question during the next six weeks. There are expected to be several public hearings, with the committee due to report on or by May 15. Despite the Labor majority on the committee, support for the existing wording must not be seen as a foregone conclusion.

Many have seized on the words of Mr Pearson that now is the time to look forward and to act as Australians. “Not Labor people, Greens or Liberals, not as Indigenous or non-Indigenous, but as Australians because what we are trying to achieve here is unity, inclusion, and this will achieve it,” Mr Pearson said. This must be the mantra for committee members. The parliamentary committee represents the last best chance to deliver a referendum question that can find the bipartisan support that is needed to give it the best chance of success when put to a vote. Unity must first be achieved across the political spectrum and the parliamentary committee must seize the opportunity to find it.