Barrister Clive Steirn’s stern criticism of NSW Bar Association for issuing its public support for an Indigenous voice to parliament

A barrister has fired criticism at the NSW Bar Association for issuing its public support for the proposed Indigenous voice model without consulting members.

Barrister Clive Steirn SC: ‘Embedding such a provision in the Constitution could lead to unintended consequences, starting with endless High Court applications by the voice where the government of the day does not accept its advice.’ Picture: Natalie O'Brien

A barrister has fired criticism at the NSW Bar Association for issuing its public support for the proposed Indigenous voice to parliament model and lambasted the Bar president for speaking on behalf of members without consultation, claiming the voice could open the floodgates to High Court challenges.

Clive Steirn SC has joined barrister Louise Clegg in lashing the Bar council for essentially claiming it has a mandate from its members to support the voice in the absence of debate. In an email to Bar president Gabrielle Bashir on April 18, obtained by The Australian, Mr Steirn outlined his key concerns, namely that he did not believe the voice had any relevance to the Bar’s charter to provide advice on “‘specific legal policy and practice issues as they arise’ directly affecting barristers”.

He referenced Ms Bashir’s opinion piece in The Sydney Morning Herald a week earlier in which she wrote that the NSW Bar supported the “second limb” of Anthony Albanese’s voice proposal, which empowers the Indigenous body to make represen­tations to executive government.

He questioned whether Ms Bashir had sought legal advice from appropriate parties before claiming that the prospect of legal challenges arising from this controversial limb was “low risk.”

“Embedding such a provision in the Constitution could lead to unintended consequences, starting with endless High Court applications by the voice where the government of the day does not accept its advice,” he wrote.

“Did the Bar council obtain its own independent legal advice as to the constitutional implications in relation to possible challenges by the voice to the High Court before it committed itself to unanimously supporting the second limb?” he asked.

“If not, what prevented the Bar council from doing so, given its significance and importance to all members as reflected in your letter to The Sydney Morning Herald? If such an advice was obtained, I respectfully request that the advice be made available to all Bar Association members?

“It is assumed that legal professional privilege would be waived in these circumstances, given it is in the interest of all … members to remain informed.”

Ms Bashir ignored Mr Steirn’s request to view any legal advice provided to the Bar: “We have expert committees that specifically look to and advise on law reform daily. This includes in relation to national laws and we also work with and are a constituent body on the Law Council of Australia.”

“I understand your views as to the second limb and those of others who do not support the second limb, however as you are aware from my article and president’s message, having considered alternative proposals, including as to deletion or alteration of this limb, the Bar council unanimously resolved against that position,” she wrote in response to the email.

“The process was thorough and we had all the available competing positions before us in the meeting, including the Leeser model which was announced that day and considered all of them and arguments for and against.”

Ms Clegg, the wife of opposition Treasury spokesman Angus Taylor, has exchanged numerous emails with Ms Bashir airing her concerns for the proposed constitutional amendments. She said the credibility of the NSW Bar Association was “in tatters”.

“This is a proposed change to the Constitution. It is the most radical and far reaching proposed since Federation. Indeed it is the most radical ever imagined by any comparable liberal democracy,” she told The Weekend Australian.

“Yet the NSW Bar Association is exposed as complicit in shutting down alternative views.”

In Victoria, the 21-member state Bar council met on Thursday to discuss whether the association would follow the lead of NSW and issue a public statement supporting the Indigenous voice to parliament. The meeting went for about four hours with no decision taken.

It is now expected a decision will be made at the council’s next meeting on May 9.

In the meantime, a motion for a special general meeting for all 2200 members to vote on whether the association should give a public statement of the voice at all has been circulating.

The motion requires 40 signatures to go forth, and is expected to receive those before the council’s upcoming meeting.