Beware of entering a binding agreement without specifics

With the voice referendum, politicians are counting on this apathy in the hope that Australians will ask fewer questions, and demand fewer answers.

Imagine being asked to swap your present car for a brand new vehicle. Some would jump at the opportunity, figuring that anything would be better than a jalopy which they have grown to dislike and distrust. But most would want to ask a few simple questions: What model are you offering? How many seats will it have? How powerful will it be? How reliable? How economical? Will it be configured for speed, utility, efficiency or luxury? Will it be expensive to repair if it breaks down? Does it come with any form of warranty? Will it be easy to offload if it proves to be unfit for purpose?

Now, imagine if the response was: We will not give you any of these details, and you will only ever find out if you accept the offer. This is what is known in the vernacular as “buying a pig in a poke”.

For most Australians, the family car is one of their most valuable assets. Only the desperate would even consider such an offer.

But then imagine something ­almost unimaginable. The person spruiking this offer, when pressed to (at least) identify the model, tells you: If any details were disclosed, a “devastating” proportion would reject it; indeed, anyone who wants to know anything about the model is “motivated by a desire to sabotage the process”.

Now, for many Australians, voting in a referendum is a relatively trivial matter, certainly when compared with the important business of trading in their old car. Some convince themselves this is because they are “apolitical” (although they aren’t); some argue that they cannot understand the issues (although they can); some pretend that they trust politicians to sort out such issues (although they don’t trust politicians in any other respect). With the voice referendum, politicians are counting on this apathy in the hope that Australians will ask fewer questions, and demand fewer answers, than if the decision was one directly affecting their family finances, or even their personal comfort and convenience.

The idea of posing a referendum question in a form which asks voters merely to embrace or reject a “motherhood statement” – not accompanied by any details – is unprecedented, but not entirely original. The republican movement has long sought a referendum, or at least a non-binding plebiscite, which simply asks whether Australia should become a republic, trading on the fact that (as they believe) most Australians agree in principle with the concept of a republic, even though they may not agree on what the republic should look like. Likewise, it is difficult to disagree with the notion that Indigenous Australians should have a voice to the parliament, even if that voice is exercised in the traditional way of joining with all other eligible Australians to elect members of the parliament.

Any competent commercial lawyer – and few are more competent than Mark Leibler, leading tax lawyer and co-chair of the Referendum Council on Constitutional Recognition of Aboriginal and Torres Strait Islander Australians – will confirm the dangers of entering into a binding “agreement in principle” before the fine details are resolved. Invariably, and even with the best will in the world, all parties with read the “agreement” as confirming their own hopes, expectations and aspirations, without regard to those of any other party. At best, it is a recipe for frustration and disappointment. At worst, the parties may find themselves locked into an interpretation, laid down by a court, which is inconsistent with the intentions on all sides.

But at least parties to a commercial “agreement in principle” can renegotiate when they find out what they have “agreed”. Constitutional amendments don’t work that way.

In the US, where constitutional amendments are ratified by the states rather than popular referendum, the “prohibition amendment” of 1919 is the only instance of a constitutional amendment being repealed (as it was in 1933). In Australia, on the only occasion when voters were given two opportunities to approve substantially the same amendment (the “conscription amendment” during World War I), it was rejected on the second occasion even more emphatically than it was on the first.

When it comes to the voice referendum, we should take Leibler fully at his word in proclaiming last year that “the development of a more detailed model would lead to only one eventuality – a devastating No vote”. Nobody could be better placed than Leibler to anticipate what the government is proposing. According to Leibler, if the government were to foreshadow what it is proposing, it would be anathema to a “devastating” majority of voters. Why is this so? Perhaps Leibler fears a tokenistic model, which will not provide Indigenous Australians with the meaningful and influential voice for which many are hoping. Perhaps he fears a more powerful model, which will enable a small proportion of the electorate to dictate to the overwhelming majority. Perhaps he fears that the criteria of indigeneity will be cast too wide, including those who merely “identify” as Indigenous, or too narrow, excluding some who have a genuine but remote attachment to an Indigenous heritage. Sadly, Leibler doesn’t say what he expects or fears; merely that its potential repugnance to mainstream voters is such that, were it disclosed, it “would lead to only one eventuality – a devastating No vote”.

Leibler may possibly be excused for some rhetorical licence when he adds that those who argue for voters being given more details “are, consciously or unconsciously, motivated by a desire to sabotage the process”. It is not clear how a person’s motivation can be “unconscious”. But, when a wordsmith of Leibler’s calibre accuses others of being motivated to commit sabotage, either consciously or unconsciously, this implies they are either mendacious (pretending to seek a more transparent referendum process when their real intention is to wreck the process), or delusional (unable to discern their own motives for their destructive behaviour).

If that is not what Leibler really thinks, then he owes an apology to the likes of Marcia Langton, Tom Calma, Noel Pearson, Pat Turner, Nyunggai Warren Mundine, Tim Rowse, Jacinta Nampijinpa Price, Lidia Thorpe, Greg Craven and Henry Ergas – as well as countless correspondents whose letters have appeared in the columns of Australia’s major newspapers – all of whom have, at different times, and with different degrees of stridency, called for greater details of the proposed model to be divulged, if not legislated, prior to the referendum.

It is one thing to disagree with this viewpoint; it is another to accuse those who advance it of being disingenuous.

In any event, I, for one, will not be “buying a pig in a poke”. Everyone should think carefully before doing so.

Anthony J.H Morris is a Brisbane-based barrister.