It’s bizarre Australia is being frogmarched into an Indigenous voice to parliament without any practical details on how it will work

Anthony Albanese, Linda Burney, Mark Dreyfus, Malarndirri McCarthy, Patrick Dodson and members of the Referendum Working Group hold a press conference at Parliament house in Canberra. Picture: NCA NewsWire / Martin Ollman

For a people who are supposed to be deeply scornful of politicians and officials, we Australians now take a helluva lot on trust.

During the past few years we’ve been told by government that we had to drastically reduce carbon dioxide emissions, transforming our economy in the process, because experts said we’d risk climate apocalypse otherwise.

We had to lock ourselves into our country, and often enough inside our houses, for the best part of two years because otherwise, experts said, we’d risk tens of thousands of Covid deaths.

Right now we’re expected to believe the Indigenous voice to parliament is nothing to worry about, on the say-so of the Solicitor-General – the same expert who was wrong with his earlier advice about the legal import of indigeneity in the recent Love case in the High Court, and who gave different public advice to the committee inquiring into the voice than the private advice he’d reportedly given to the government earlier.

Labor MPs following the reading of the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 is introduced to the house of representatives on March 30, 2023 in Canberra, Australia.

Isn’t it time to stop being deferential to officials with no electoral skin in the game, ministers who just want to climb the greasy pole and please their factional masters, and to stop taking the left establishment, government and elites, on trust?

It really is bizarre that our country is being frogmarched into giving the Indigenous voice the constitutional right to make representations to everyone on everything without the government being expected to provide any details on how this change might work in practice.

Nothing to see here, insists Anthony Albanese; it’s just respectfully giving Indigenous people what they asked for in the Uluru Statement from the Heart. Even though that statement, which the Prime Minister says the government will implement in full, also says Indigenous people never surrendered sovereignty and demands not just truth telling about the past but also treaties (almost certainly including compensation) between the federal government and the up to 500 First Nations that existed in 1788.

The Uluru Statement from the Heart on display at the National Press Club in Canberra. Picture: NCA NewsWire / Martin Ollman

Yet here we are. So, square this circle for me. We’re about to amend our Constitution so Aboriginal people will finally be listened to, after more than two centuries of supposedly not being listened to, despite the fact we’ve had a dedicated federal government Aboriginal portfolio for 56 years, 109 official Aboriginal agencies already, 11 Aboriginal people in the federal parliament and $30bn a year spent trying to alleviate disadvantage and dysfunction.

The Prime Minister says it won’t have a veto – it’s just advisory – at the same time insisting only a very brave government could ignore it. And ignoring it would mean taxpayer millions, and time lost in the High Court, as lawyers for the voice and government faced off. It won’t take long before the voice advice is seen inside the system as a diktat because to challenge it would delay the processes of government and cost plenty, in financial and PR terms, for those in power. Just imagine the sort of outcry a Liberal government, having rightly opposed the voice, would receive if it rejected its advice?

You can see why the Prime Minister doesn’t want us to ask too many questions or give much detail on his voice before we vote, can’t you? But even though the voice is supposedly just about being polite to Indigenous people, the government is still proposing to spend millions to counter misinformation about it, is demanding that every sporting code officially declare itself in favour of the voice, and is encouraging public companies to educatestaff about it.

This week the Victorian Bar Council officially reprimanded a prominent Melbourne barrister for observing that lawyers were lining up to be in favour of the voice because they were scared of losing federal government work.

Contemplating this campaign of official moral pressure, it really feels like our national debate is taking on echoes of North Korea. Just approve the amendment, creating a special new chapter of the Constitution for a voice with a right to make representations not only to the parliament but also to the executive government, and we’ll work out the details later, says the Prime Minister.

We don’t know how the voice will be chosen: by election, nomination or tribal lore? We don’t know which entities it will be able to advise and the extent to which its advice will or will not be binding.

We don’t know how it will be resourced to give effect to the rights conferred on it but, you can take it from me, they will demand the same staff and salaries of backbench MPs.

There are rumours in Canberra that activists are working with public servants on plans for a specially built voice chamber inside Parliament House with its own entrance because they cannot use one of the existing “Westminster, colonial” entrances (house, Senate or ministry), if you can believe it.

This has got to be one of the most brazen attempts ever to bluff Australians into doing what we’re deliberately being kept in the dark about, yet polls say a (dwindling) majority is still inclined to vote Yes, presumably because no one wants to feel like a racist pariah.

Luckily, the government hasn’t been able to shut down dissenting voices on the voice, even though it has tried. Despite most lawyers’ reluctance to jeopardise their careers, some very senior lawyers, in submissions to the voice inquiry, have contradicted the Solicitor-General.

Former High Court judge Ian Callinan said: “There would hardly be a lawyer who did not believe and expect that every representation had at least to be given consideration.” Former NSW Court of Appeal judge Terry Cole said the voice would “split the Australian people permanently into two groups based solely on race”.

Justice Ian Callinan in robes after being sworn in as a High Court judge in 1998.

Two highly regarded professors of constitutional law, Nicholas Aroney and Peter Gerangelos, said “while distinct from the parliament, the executive and the courts, the Indigenous voice would be accorded a similar constitutional status”. This is lawyer-speak for saying it would be a fourth arm of government.

And the person the government tried to stop from giving oral evidence, who knows more about the practice of government than anyone else appearing before the inquiry, former prime minister Tony Abbott said: “The first time the voice makes representation which is, in its view, inadequately heeded, it will be off to the High Court … which will find that the voice has an implied right to be heard and that the government … has an implied obligation to listen.”

As things stand, a referendum that’s carried will have far-reaching ramifications for our system of government. A referendum that fails will leave the country divided and embittered.

Given the previous consensus that a successful referendum requires bipartisan support, Albanese should put this one on hold, recalling the words of the Labor prime minister he calls his role model, Bob Hawke, who said on Australia Day 1988: “In Australia there is no hierarchy of descent; there must be no privilege of origin.”

At the very least, given Albanese’s repeated insistence that the voice won’t be whatever the High Court says it is and won’t have a veto over government, he should make that explicit in the express words of the constitutional amendment. If he’s not prepared to do that, his assurances are hollow and voters won’t forgive him for trying to con them.