Voice gets louder but still no clearer

It’s clear there’s a deliberate strategy at the heart of the voice proposal to confect consensus.

A big Australian law firm is the latest group to offer unconditional support for providing a voice for indigenous people in the Constitution. It is an especially daft move by lawyers. They don’t yet have a clue about the finer legal details. It amounts to signing a contract to buy land with the names of the parties, a few fluffy clauses, but no price, description of the property or other gritty details.

Worse than daft, it is also imprudent. If lawyers offered slipshod advice such as this to their clients, telling them to support something without knowing the legal consequences, the law firm would be up before a disciplinary board before its partners could join hands and sing Kumbaya.

To his credit, Murray Gleeson put some parameters around his support for a voice in a speech on Thursday evening. The former chief justice of Australia said the proposal for an indigenous voice would be acceptable to parliament only if it maintained parliamentary supremacy.

Unfortunately, one fundamental point raised by critics of the voice has not been sufficiently answered by Gleeson’s otherwise thoughtful contribution. If the proposal for a voice is simply to include a new power for parliament to enact legislation in respect of the voice — for example, a new subsection of section 51 of the Constitution, which says that parliament may provide for a voice to parliament on such terms as it from time to time considers appropriate — then parliamentary supremacy is maintained.

If, however, the aim is to entrench in the Constitution a permanent voice to parliament, mandating that parliament must legislate for an indigenous voice and maintain its existence, that is an entirely different matter.

The difference is critical. The latter proposal will mean while parliament can reform a body that provides a voice to parliament, parliament cannot abolish the voice. The acid test of parliamentary supremacy must be whether the parliament elected by all Australians can abolish a body that may go dreadfully awry.

And let’s not pretend this is not a possibility. While the Aboriginal and Torres Strait Islander Commission, the former represen­tative body for indigenous people, was created with the best of intentions by the Hawke government in 1990, it was dismantled with bipar­tisan support by the Howard government in 2004 after it proved to be ineffective and ­riddled with claims of internal corruption.

In 2019, there is another round of good intentions. But that is not enough. It is striking that indigenous academic Marcia Langton cited the Howard government’s decision to abolish ATSIC as a reason the proposed new voice to parliament must be cemented into the Constitution. The flaw at the centre of her argument is that there was overwhelming and bipartisan acknowledgment at the time ATSIC needed to be abolished. Langton’s insistence that the existence of a new voice should be able to resist the will of the parliament demonstrates why this debate is so divisive. It ele­vates a body chosen on racial lines for the benefit of a subset of Australians above the parliament elected by all Australians.

Of course, if a voice to parliament is a success, that could be a terrific way to give governments advice about indigenous policy. But what if such a body is not a resounding success? Parliamentary supremacy means that if an indigenous body is not effective or becomes unnecessary, or becomes corrupt, or suffers other problems we cannot predict now, then it can be quickly and effectively abolished by parliament.

The aim of advocates to enable the voice to resist abolition by parliament is also a reason comparing the voice with other advisory bodies to parliament, such as the Productivity Commission or the Parliamentary Budget Office, is entirely spurious. Other advisory bodies can be abolished by parliament at the stroke of the legislative pen.

These fundamental questions show why changing the Constitution on a wing and a prayer is reckless. Yet that is what supporters of the voice are asking us to do because they have not laid out the gritty details of what is proposed.

As Gleeson outlined, the Uluru Statement from the Heart recommends a referendum to provide a voice in the Constitution to parliament and legislation will then set out the precise functions of the body. But what about the precise words for this constitutional change? We are entitled to wonder why, two years after the Uluru statement, advocates are still talking in broad brushstrokes. And how can an esteemed lawyer and former judge provide the equivalent of a legal opinion in support of the voice without having the precise words of what is proposed? If Gleeson has seen proposed wording, can we please see it? Details matter.

Not for Laura Tingle. Last Sunday on Insiders, the ABC journalist said that doing something about the voice “shouldn’t be about the technicalities of a representative body”. “We’ve just had NAIDOC week — voice, treaty, truth,” Tingle said. As if that is enough to convince those outside her circles.

For many Australians, slogans are not enough. One might imagine details would matter at Herbert Smith Freehills, a law firm that used to market its expert legal skills. Now, by supporting a slogan, channelling Dennis Denuto and “the vibe of the thing”, Freehills has put those legal skills to shame. By supporting the voice with no ifs, no buts, no careful caveats either, Freehills has waded ignorantly or deliberately into a hotly contested social, political and legal issue about whether and how to alter the Constitution to provide for an indigenous voice to parliament. One wonders how the Freehills leadership team arrived at its position. Did it canvass clients? Or even partners?

Of bigger concern is how a firm of apparently clever lawyers signed on to a significant legal change without knowing the words proposed to change the Constitution, the powers to be given to the indigenous voice to parliament, whether that body can be dismantled if it proves to be a disaster, how its performance will be measured, and whether, by entrenching a voice in the Constitution, there is a risk that it becomes an effective third chamber if governments are too scared to challenge it.

KPMG is another prominent supporter of a constitutionally entrenched voice, as are other major accounting firms, the Law Council of Australia and several ASX-listed companies. Those trying to railroad their staff, and the rest of the country, into supporting an ill-defined voice to parliament are the new workplace bullies.

The Weekend Australian has been told there is dissent within the ranks, even outrage, that leaders of these bodies have hijacked this debate without agreement from clients, partners, members, shareholders and other constituents. Some have been put on notice that offering support for a fundamental change to Australia’s founding document without any meaningful details is tantamount to condoning constitutional sabotage.

It is clear there is a deliberate strategy at the heart of the voice proposal to confect a consensus. The aim is to convince people that if people of influence are supporting the voice as an act of morality, we must follow. Except that, minus details, this is the wrong thing to do.

Is this groundhog day, a rerun of the republican debate with elites signalling support while quiet Australians refuse to be told what to think? At least the republic referendum put forward a model for Australians to consider.

As Gleeson said on Thursday night: “I think it very likely that Australians, and parliament itself, would want to see what the body looks like, and hear what the voice sounds like, before they vote on it.” It is high time supporters of the voice reveal to the people who will decide this issue the details of what model they have in mind. Until that happens, this will remain a shallow, and devious, debate.