Indigenous voice to parliament referendum rewrite is a tragedy in the making

Noel Pearson. Picture: Sean Davey

Good plays always contain both farce and tragedy. It provides balance. The referendum on an Indigenous voice to parliament follows this pattern. Anthony Albanese provides the comedy by being unable to understand his own referendum.

Tragedy comes from watching Noel Pearson reduced to rewriting history to cover his own disasters.

Comically, the Prime Minister has two problems selling the referendum. He cannot understand any question. He cannot give any answers.

Marcia Langton speaks to the media during a press conference next to Anthony Albanese.

He certainly must be well-briefed, but it does not help. When it comes to the voice, he is Anthony Albanesia. He has had at least two referendum brain snaps, both about the vital issue of the voice making representations to executive government

First, Albanese just cannot get the voice’s scope right. He is forever saying that this or that decision would never be covered and would be up to parliament.

So far, he has exempted Reserve Bank decisions on interest rates, decisions on national security, and carbon guarantees. But he is irretrievably wrong. The voice covers all executive action. Each of these is an executive act. Consequently, they would attract voice representations. End of lesson.

The Prime Minister’s second mind outage is when he confidently asserts that, in any event, parliament can overrule the voice.

Wrong. The only way representations can be proofed against being legal Exocets is if the constitutional amendment specifically allows parliament to define their legal effect.

That is what the highly sensible Attorney-General originally wanted to do. But a clueless Albanese, following a referendum working group whose strong point was not the law, overruled him.

Pat Anderson, left, Noel Pearson and Megan Davis.

What we now witness out-giggles Monty Python. A proposal nobody understands, led by a Prime Minister who does not know what it is.

Pearson is a much sadder case. He has fought nobly for Indigenous people all his life. But he cannot bear to accept he has catastrophically damaged his own referendum.

The sonorous Pearson is no political idiot. He knows the referendum is losing, for mistakes very much his own. He desperately needs whipping boys. He has picked constitutional conservatives, his former close allies. He argues they agreed to the controversial review of executive action all along and are now ratting on the deal.

This is sheer revisionism.

Pearson did indeed meet future opposition legal affairs spokesman Julian Leeser and conservative intellectual Damien Freeman in my office at the Australian Catholic University. All plots really do lead to Rome.

Professor Greg Craven. Picture: Jane Dempster

Pearson was desperate for a form of constitutional recognition that would satisfy conservatives. Mindful of the appalling treatment of Indigenous Australian, we were keen to help.

But one thing was carved in fluor­escent stone. We would never accept any model that involved conferring power on the judges.

This is a basic principle of Australian constitutional conservatism. Unelected judges must never meddle in political or policy matters. These are for the democratically elected parliament alone.

I have spent 40 years as a constitutional lawyer defending this principle against judges, academics and the odd politician. I have lost appointments and friends for it. I would never betray it. Pearson knew all this as he left my office. He knew this was to be a voice to parliament. He knew this immovable reality through every subsequent moment of negotiating and designing. No judges.

Noel Pearson with Indigenous students at his old school, St Peters Lutheran College in Indooroopilly. Picture: Lyndon Mechielsen

Various drafts of the voice referred vaguely to representations to the executive. But no conservative ever believed this could involve the voice going to court. We had received our own promises and guarantees.

What changed was the election of the Albanese government. Pearson and other Indigenous leaders quickly decided constitutional conservatives were no longer important, even though they had done most of the drafting and designing. This led to what could be called Pearson’s mighty blunder. He agreed to be part of a four-person team to secretly draft the Albanese amendment. Critically, no constitutional conservatives were in the room or even consulted. When these conservatives saw the draft with its lackadaisical treatment of executive representations, they were amazed, horrified and furious.

I rang a voice apparatchik expressing utter disbelief. I predicted then the referendum would fail. Eventually, a barely functional relationship was restored on the understanding that a combination of constitutional text and legislation would give parliament control over executive representa­tions. But now even that understanding has been ditched.

So, Pearson is not a sorrowful martyr. The imbroglio over executive government is very much his fault. In a state of political hubris, he excluded his conservative friends from the drafting room, and devised an amendment he knew they could not wear.

He also stood by as activists such as Megan Davis colonised the voice and turned it from a conservative model free of judicial activism into a judges’ junket. He never tried to stop them.

I quite accept that Pearson is heartbroken: because he is responsible for a bad draft; for excluding trusted colleagues who could have fixed it; and for totally underestimating the strength of conservative feeling that will preclude bipartisan support.

Pearson facilitated this whole disintegration of the referendum, actively or by silence. Well may he be horrified. I certainly am.

Emeritus professor Greg Craven is a constitutional lawyer.