Fight to challenge voice’s legal fictions isn’t over

Those in the legal academy driving the Albanese government’s voice proposal believe in shared sovereignty between Indigenous and non-Indigenous Australia. Though reflected in the Uluru statement, its radical nature is only just becoming realised.

The referendum has proved even more divisive than expected.

How did the voice model so rejected by an overwhelming majority of Australians make it to a referendum in the first place?

While the financial fuel for the voice was largely provided by corporate Australia, and legitimised by its standard setter, the Australian Institute of Company Directors, this radical model got its start and its intellectual fuel from the cloistered university world of legal academics, with more spruiking from the commanding heights of the legal profession.

It is now the turn of many within the Australian legal industry to stand in the dock, post referendum. Without a reckoning, we can count on the regurgitation of the same legal fictions by those in the legal industry who tried it on during the voice campaign.

Praise the Lord, they won’t have the voice to air the arguments at the heart of the Uluru statement. But that won’t stop them using other platforms to make the same claims – unless we keep exposing their work as the legal bunkum it is.

Given the Albanese government’s commitment to the other planks of the Uluru Statement from the Heart remains a distinct possibility, it is high time it started applying proper legal analysis to new rounds of demands.

The legal academy’s bedrock idea at the heart of the push for the voice is that Australia is illegitimate. It’s an idea ordinary Australians would find (to borrow from a quote attributed to George Orwell) so stupid only an intellectual could believe it.

If you believe the Australian state’s sovereignty is ultimate and exclusive, let alone legitimate, the academy has news for you. That belief is, in the words of an influential academic paper by prominent voice campaigner Gabrielle Appleby and her colleagues Ron Levy and Helen Whalan, a mere “assumption”. In fact, Appleby et al believe Australia suffers from a “constitutional legitimacy crisis”.

A Yes supporter reacts to her side losing the voice referendum.

Ordinary mortals among us may well believe Australia is a single polity, one indissoluble state with exclusive legal and political sovereignty. But no, those in the legal academy driving the Albanese government’s voice proposal believe in shared sovereignty between Indigenous and non-Indigenous Australia. Though reflected in the Uluru statement, its radical nature is only just becoming realised.

Never mind that the clear and unambiguous legal position as stated by the High Court in Coe v Commonwealth in 1993 is that there is no legal justification for “the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia”.

Legal academics didn’t hide their scorn for this High Court decision; they revelled in it.

As the paper by Appleby and her colleagues argued, a voice would have enabled a form of co-sovereignty. If it had passed, the proposed amendment would “allow the voice, working with parliament, to be an alternative site for decision-making about how settler and First Nations communities can manage their shared (or conflicting) resources, institutions and spaces in ways that accommodate each community to the other”.

The theory among legal academics that Australia is illeg­itimate also drives the demand for a treaty. In their book Treaty, George Williams and Harry Hobbs start by questioning Australia’s legitimacy, saying the “reality” requires us to recognise that “the Australian nation-state has a legitimacy problem that remains unresolved”.

From here it’s a short jump to treaty, the first requirement of which is that “it must recognise Indigenous peoples as a polity, distinct from other citizens of the state on the basis of their status as prior self-governing communities”. Williams and Hobbs proceed from this recognition of Indigenous people as a polity with some form of sovereign status to the need for any treaty to provide for substantial self-government and reparations.

Most ordinary Australians with no clue about the received wisdom inside academe would regard this theorising as barking mad. But Williams is not only a very prominent legal academic, he was also a member of the Constitutional Expert Group that advised the government on the proposed constitutional amendment.

This Constitutional Expert Group also included Megan Davis, another constitutional law professor who was co-chairwoman of the Uluru Dialogue, a significant force behind the Uluru statement and a fan of Indigenous sovereignty. This same legal cabal provided arguments to fight key No case concerns.

Leading No campaigner Warren Mundine is interviewed after his side succeeded.

Their arguments were woeful. For example, at one point the Constitutional Expert Group provided an opinion that the voice model did not confer special rights on any Indigenous person. Since providing special benefits for Indigenous people seemed the very purpose of the amendment, most Australians found this argument risible.

Yet another very prominent legal academic on the Constitutional Expert Group, Anne Twomey, professor emerita of constitutional law at the Univer­sity of Sydney, kept putting ever more elaborate and intricate arguments in support of this proposition on YouTube. The evidence of the final vote suggests whatever legal firepower Twomey brought to this question was completely wasted – voters clearly thought it was ludicrous to suggest the proposal did not privilege Indigenous people on the basis of race, and voted accordingly.

Twomey now consults to Danny Gilbert’s firm, Gilbert + Tobin. Which bring us to the practising arms of the legal profession. Along with a few former judges, they were all equally vociferous, and pivotal, in supporting the referendum question.

The Law Council of Australia offered its “unwavering support”. So did various bar associations and law societies. Former judges Kenneth Hayne, Robert French and Tom Bathurst were all vocal supporters, too. Of course, when judges tell you not to worry about constant lawfare, judicial activism or “maverick judge risk” but simply trust them, it’s hard not to take that advice with a grain (or perhaps a tonne) of salt.

Leading silk Bret Walker SC made a splash in the debate by describing arguments by No advocates as racist. Not quite as colourful as Marcia Langton calling Jacinta Nampijinpa Price the “coloured help” or Noel Pearson saying Price and Nyunggai Warren Mundine were “punching down” on Indigenous people, but for the legal profession Walker’s comments were intimidating.

Former chief justice Murray Gleeson was an early supporter of a voice to parliament. Once the more radical model was settled, he was routinely verballed by the Yes case as a supporter of the voice.

We know Gleeson may well have had reservations because at a Gilbert + Tobin function just before the vote, Pearson said this of the former judge: “There have been many Peters in Gethsemane in this hour of need.” (Peter, one of Christ’s apostles, denied three times that he had been seen praying with Jesus in the Garden of Gethsemane.)

It’s a shame that having stated his position early in this debate, Gleeson did not offer his wisdom later. Our Constitution, after all, was at risk. But if Gleeson copped a serve from Pearson for staying quiet, perhaps standing up would have attracted even more vitriol.

Let’s not forgot the solicitors branch of the legal profession. They distinguished themselves with emotional, irrational, downright careless contributions. My old law firm Freehills, now Herbert Smith Freehills, nailed its colours to the mast with strident support for the voice before any of us had any idea what the powers, aims, functions or objectives of the voice would be, let alone the wording of the constitutional amendment. Talk about signing a blank cheque.

Many firms did the same, proving that law firms are full of mindless sheep. Not to mention grossly out of touch with mainstream Australia. No doubt all these firms are now having some full and frank internal discussions about the wisdom of relying on the zeitgeist instead of careful thought, analysis and diligence. That last sentence was a joke. Instead, some firms apparently are offering counselling to staff to process last weekend’s result.

Finally, to linkages between academe and the practising profession. Enormous efforts went into harnessing all arms of the legal profession, and indeed corporate Australia, into a single machine. No informed observer of the legal profession doubts Gilbert was a key player, perhaps the key player, in pulling many of the strings together. Playing maestro must be appealing if successful, but a disastrous failure does little for one’s legacy.

Where does this leave us? We had a radical referendum proposal foisted upon us and comprehensively rejected by the good sense of the Australian electorate.

However, it is disturbing that this radical theory of sovereignty driven by academic lawyers and heavily supported by an out-of-touch and elitist legal profession got as far as it did.

Even more worrying, this fight is not over. The overreach of the voice looks set to be repeated by continuing claims for various treaties and truth telling mechanisms As Victoria’s Yoorrook Justice Commission warned this week, it is only now warming up.

Is it too much to hope that next time there will be less focus on emotion and legacy, and more on sound and sober legal advice?