Symbolic intent not enough to change nation’s rule book

Attorney-General Mark Dreyfus reads the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 bill.

Anthony Albanese has made a referendum on the national voice a signature policy. He mentioned it at every campaign stop and on election night. There was nothing hidden in what he wanted to do. But the deliberative process of the past decade has been abandoned. It’s now top down.

This approach has discarded one of the guiding principles Pat Dodson and I wrote about in 2018, namely balancing the urgency of a voice against the likelihood of referendum success.

The Prime Minister has set the timetable. He has chosen the wording, first released at Garma. Those words were not tested or checked with the Attorney-General’s Department or the Solicitor-General. Then he amended those words in a letter to Peter Dutton. And then he amended them a third time 11 days ago.

Anthony Albanese at the first meeting of the Referendum Working Group and the Referendum Engagement Group in Parliament House in Canberra. Picture: NCA NewsWire / Gary Ramage

Related article: What is the Indigenous voice to parliament

He has chosen not to legislate the body so consensus could be built in the parliament and Australians could see how his national voice would work. Many people, who share the deep conviction about the need to see change in the circumstances for Aboriginal people in this country want to know what the voice will do, and whether it will be meaningful.

The Prime Minister discarded the deep bipartisan engagement that has characterised at least the last decade. Neither Peter Dutton nor I have had any substantive engagement with the government on how we can achieve consensus.

I look at where we are, compared to where we could have been on this journey, and I lament it. In abandoning this approach of working to find common ground, the government has been forsaking a vital ingredient that has been instrumental in building public support and confidence, as well as developing a model that has the best chance of moving.

In the Constitution, every word, comma, and even capitals matter. The beauty and strength of our Constitution is that it is a mechanical, sparse rule book for the nation. And symbolic statements made with the best of intent, leave room for clever lawyers to egg on an activist judiciary to imply all sorts of things that were never intended.

To argue for changes to the government’s amendment does not mean you oppose the voice, it means you want to ensure it doesn’t detract from a system of government that is world best.

We have already heard much debate about the inclusion of “executive government”. I believe the voice should be engaging with decision-makers. It should be contributing to policy development, warning of problems emerging and engaging in thoughtful debate. In that sense, it should be engaging with the executive government because it’s common sense that if you want to improve outcomes, you should have a hand in developing the policies that produce those outcomes.

Peter Dutton in question time. Picture: NCA NewsWire / Gary Ramage

One of the key issues relates to proposed clause 129 (ii). “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.” That raises three immediate issues. First, who can the voice talk to? Which agencies are “in” and which are “out”, when it comes to being part of the executive government? Second, what can it talk about? What are the “matters relating to Aboriginal and Torres Strait Islander peoples”? Third, what does it mean to “make representations”? Does it imply or leave room for reciprocal constitutional obligation on the parliament or the executive?

This clause will be the rallying point for the No campaign. For those that want the referendum to succeed, it puts the broader constitutional question at risk.

If the parliament has the power to establish the voice, and define its powers, why does the power to make representations need to be in the Constitution? I believe this clause will be at the centre of the No case. The constitutional alteration can work without it.

Julian Leeser is opposition Indigenous Affairs spokesman. This is an edited extract of his National Press Club address.