Top silk Brett Walker rebuked over ‘offensive’ voice defence by barrister Louise Clegg

A top barrister has issued a stinging rebuke to Bret Walker after the senior silk branded arguments against the proposed Indigenous voice model as racist.

Barrister Louise Clegg has written to NSW Bar Association president Gabrielle Bashir calling for the professional body to publicly reprimand Bret Walker, pictured, for his comments. Picture: AAP

A prominent Sydney barrister has issued a stinging rebuke to Bret Walker after the senior silk branded arguments against the proposed model of the Indigenous voice as racist.

Barrister Louise Clegg has written to the NSW Bar Association, labelling the accusations as “grotesque and offensive”, and called for Mr Walker to be publicly reprimanded.

Ms Clegg also indicated she was considering her legal options, declaring she was “giving consideration to what private action I should take against this appalling slur”.

Mr Walker, who has appeared before the High Court more than any other serving silk, and who successfully exonerated the late cardinal ­George Pell – on Sunday denied any attempts to bully Ms Clegg, saying he was calling anti-voice arguments racist rather than any individual delivering them.

In the midst of the battle over the voice between the senior lawyers, Gilbert + Tobin senior partner and voice supporter Danny Gilbert has denied claims made by Ms Clegg that he was involved in Mr Walker’s intervention on the referendum debate and said he had ­always been polite to Ms Clegg and other critics of the Yes campaign.

The Australian Financial ­Review reported comments made by Mr Walker in an interview last Friday, where the leading constitutional silk took aim at lawyers for presenting “doomsday scenarios” concerning whether the High Court might get involved in litigation concerning a constitutionally entrenched Indigenous voice.

“My view is that this justiciability scare is really nothing more than that, and that lawyers should think carefully before they lend themselves to it,” Mr Walker said.

Louise Clegg. Picture: Supplied

“Some have gone so far as to enlist that figure of speech and talk about the voice as an abomination because it would be a fourth arm of government …

“The notion that the voice is to be abominated because it may have moral force is, I’m sorry, I believe it to be racist.”

In the email to bar association president Gabrielle Bashir, Ms Clegg ­described Mr Walker’s ­racism claim as “shocking” and asked the professional body to “issue a public rebuke to Bret ­personally for bringing the profession into disrepute and for the unacceptable moral bullying towards lawyers who may wish to openly engage in this monumentally important public debate”.

Ms Clegg said she felt “compelled to draw your attention to the comments by Bret Walker … where Bret says that lawyers who are complaining about the power of the voice are racist”.

“This comment is a grotesque and offensive thing for any barrister to say, let alone such a senior barrister.

In my opinion this comment undermines the integrity of the entire legal profession,” she wrote.

“It certainly is a shocking ­comment to come from a ­distinguished member of the NSW Bar.”

Ms Clegg said Mr Walker’s comments were “clearly directed” at her.

“I am currently the most vocal lawyer speaking publicly about this issue,” she said.

Mr Walker denied he labelled any individual as a racist over the voice or that he had bullied Ms Clegg.

Danny Gilbert

“My words – as opposed to those chosen by a subeditor, I ­assume – do not brand anyone as a racist, let alone those inclined against the Constitutional Voice,” Mr Walker said in a statement.

“The analysis of arguments that identifies a notion entailed in an argument as racist is not the wholesale condemnation of any individual as simply racist for putting that argument.”

The inapt “fourth arm of government” critique of the Voice cannot, I think, accord any more power to the Voice than that of moral and intellectual force in its representations.

“To discriminate between the First Nations’ Voice and all the other many group voices properly able to be heard making representations does seem to me to deny potential force to the Voice on a basis necessarily involving race.

“Ms Clegg should be more careful about allegations of ‘bullying’ … I deny that any of my conduct in this area has been bullying or pressuring (assuming that ­implies something pejorative, going beyond mere contested ­arguments).

“I also deny the outrageous suggestion that I have threatened any of my colleagues as alleged. Again, without any facts, this lacks any factual basis.”

In her email to the bar association president, Ms Clegg said that Mr Walker’s comments cannot await a “lengthy internal Bar ­Association misconduct process”.

“I take the view that this conduct is so reprehensible that it ­demands a response from the ­Association,” she wrote.

“ If it is not addressed soon, and addressed firmly, it will lead to further poor conduct down the track on this and other matters of public importance.

“Almost all constitutional ­reform is by definition about power, or more accurately about reallocating power.

“This is precisely what this referendum is about and the architects of the Garma amendment have said so themselves.

“Bret seems to be saying that lawyers should not talk about the very thing they are uniquely equipped, and indeed duty bound, to talk about in public debates.

“ And he says quite plainly that if lawyers say that there might be unintended consequences as a ­result of that reallocation of power (which I am clearly saying) then they are racist.”

In her email to Ms Bashir, Ms Clegg recounted a conversation with Mr Gilbert, one of the country’s most vocal law firms in favour of a constitutionally entrenched voice, where she raised concerns with him about the current model and, as a matter of courtesy, informed Mr Gilbert that she was planning to publicly describe the voice as effectively a fourth arm of government.

“I explained to him the legal basis for saying this … In that conversation Danny said that if I said this publicly, then he’d have to ‘get Bret Walker on to this’ or words to this effect … it didn’t much bother me as I am very happy to engage in a public debate with Bret. So I was anticipating that Bret would make some remarks condemning the arguments I have been making. But I could never have imagined that he would make this kind of ­remark.”

Mr Gilbert on Sunday said he wasn’t present when Mr Walker made the remarks and had not seen text of the comments. He said all of his interactions with Ms Clegg had been polite.

“Louise Clegg contacted me in late January about the voice. We had a polite telephone conversation and exchanged polite texts. Yesterday she wrote to me again, by text, about an article in the ­Financial Review concerning ­remarks reported to have been made by Bret Walker SC. Again we exchanged polite texts,” he said.

“My view, which I have made public, is that open and respectful discussions about the voice are to be welcomed … have not seen the text of Mr Walker’s remarks, the subject of the Financial Review ­article, nor was I present when he spoke.’’

More modest model

In a column published in The Australian shortly after her conversation with Mr Gilbert, Ms Clegg – the wife of opposition Treasury spokesman Angus Taylor – wrote that the voice as currently drafted “will undoubtedly be characterised by scholars as a fourth, advisory, identity-based branch of government”.

“It is therefore fair to say without any histrionics that the model entrenches the politics of identity in a liberal democratic constitution,” she wrote.

“In all our history, and in all of the history of comparable liberal democracies, nothing even approaching the idea of a permanent, constitutionally entrenched advisory arm of government with jurisdiction over everything has ever been contemplated, let alone seriously proposed.”

Ms Clegg has spoken twice at the country’s major annual conference on constitutional law ­organised by the University of NSW Gilbert + Tobin Centre of Public Law, has been engaging with voice advocates, and most ­recently delivered a paper at the Uphold & Recognise conference in Sydney on February 28.

She is one of the few lawyers to speak up in favour of a more modest voice model, and told Ms Bashir that such a model would “be more unifying and have more chance of success”.

“So it is not as if we are against the voice. We are simply saying there are better, more modest and unifying ways to do this,” she said in her email to Ms Bashir.

‘Attempt to intimidate’

Ms Clegg expressed her concern about the effect of Mr Walker’s ­racism accusation to the broader public debate around the proposal to alter the Constitution.

“[T]his accusation of racism ­appears to be a tactic from those advocating for the Garma amendment, including Bret, to use the power of Bret’s standing in the legal community and send a message to me and to any other lawyers engaging (and importantly, who may wish to engage in the future) in this debate: ‘get on board with the voice precisely as we want it, or you will face professional ruin’,” she wrote.

Ms Clegg said it would silence any lawyer who might have misgivings about the voice from engaging in the debate. “It will almost certainly have a chilling effect on the ­debate. This is self-evidently not good for our polity as society relies on lawyers to inform it about many matters, but especially matters ­relating to constitutional reform.”