The VOICE: Getting to Yes

Avoiding a divisive referendum by using a proposed Constitutional Amendment that is substantive, real and not merely symbolic

The latest news polls show that unless something changes, the referendum to change the constitution and establish an indigenous voice to parliament is heading either for defeat or for a narrow victory. Both those outcomes would be a disaster.

They would confirm that the push for this form of constitutional recognition of indigenous Australians, has divided the nation which is the reverse of what this project was supposed to achieve. So what’s to be done?

Chris Merritt interviewed Louise Clegg, Barrister at PG Hely Chambers about her proposed amendment to the Constitution.  In her paper to the Uphold and Recognise Conference, Louise says 

“I also come from middle Australia, where I live near Goulburn, and before that where I grew up in Western New South Wales, not that far from where some of the worst-off Indigenous Australians live. I have lived for more than half my life in places where referenda fail. We simply must not go through a referendum on indigenous recognition which is divisive, or worse still, sets the future up to fail. For six months I have been saying to anyone who would listen that the current Garma amendment is headed for failure because, well, to put it colloquially, it is simply too big and too radical.

I have also come to realise I am also in a unique position. If I were living in Sydney and practising in the way I used to, with a mostly Commonwealth government administrative law practice, and hoping for briefs from large law firms, I simply could not speak out. So I do this in the very best tradition of the bar which has probably seen better days.

I also come with my own proposed amendment, with which some of you are familiar. It offers up a smaller voice. But it is substantive, real and not merely symbolic”

Watch the Interview with Louise Clegg and Chris Merritt:

The VOICE: Hope for National Consensus

In this article, Chris Merritt suggests that if changes are made to the wording of the proposed constitutional provision then a YES vote is justified

28 February 2023

For months now, it looked as though the referendum on an indigenous voice to parliament was heading for a tight outcome that would leave the nation divided.

But there is now cause for hope that national consensus might be possible.  But only if the Prime Minister is open to adjusting his proposal.

The debate now consists of three camps: hard yes, hard no and a middle group that is best described as yes with safeguards.

This middle group is the one to watch: it has the potential to remake this debate by splitting the no vote, addressing weaknesses in the proposed new constitutional provision and arresting the slow slide in support for the voice.

In order to achieve that outcome, Anthony Albanese would need to take account of this group’s concerns and change the wording of the proposed constitutional provision he unveiled at last July’s Garma festival.

Keep in mind that the Garma provision is merely a preliminary form of words that was unveiled by the Prime Minister without input from the broader community or advice from the Commonwealth Solicitor-General, Stephen Donoghue.

The final wording is due next month.

Recent opinion polling shows support for the Garma provision has been steadily declining since August. Resolve Political Monitor shows support for Garma has slipped from 64 per cent in August to 58 per cent in January.

In order to halt that slide, and avoid a tight vote at the referendum, the Prime Minister might find it useful to address the concerns of those like me who favour constitutional recognition of indigenous people but could never support the over-reach that is built into Garma.

This is where the safeguards group might have the answers.

Yes, with safeguards

The two key proponents of this group are Jesuit priest and lawyer Frank Brennan and barrister Louise Clegg. They have developed separate proposals that address two main concerns about Garma:

1) Garma would empower the voice to advise the executive branch of government as well as parliament. That would impede public administration by exposing decision makers in the federal public service to the risk of constitutional litigation unless they considered the views of the voice before making a decision.

2) Garma is not focused on indigenous affairs and would give the voice authority to involve itself in debates over the development of public policy and laws that primarily affect the broader community.

The Brennan provision, like Garma, would still constitutionalise an indigenous voice. But unlike Garma its constitutional function would focus only on advice to parliament, not the executive.

That would eliminate the risk that public servants could become embroiled in constitutional litigation.

Under the Brennan provision the efforts of the voice would not be wasted providing advice about proposed laws of general application – which would be the case under the Garma provision.

Under Brennan the voice would focus only on providing advice to parliament concerning any special laws for Aboriginal and Torres Strait Islanders.

It would still be possible for parliament to vest the voice with additional functions. But because this would be done by statute, parliament could also remove or change those statutory functions.

Clegg’s proposal is even more cautious.

Instead of constitutionalising a new entity, her provision would mean parliament could only make laws for indigenous people after first receiving representations from a body representing Aboriginal and Torres Strait Islanders.

The way would be open for parliament to create a new advisory body by statute or to vest that function in one of the existing indigenous bodies.

Like the Brennan provision, Clegg’s proposal would leave room for parliament to enact laws enabling it and the executive to receive advice from such a body on matters that go beyond indigenous affairs.

But those additional functions would not form part of the Constitution and could be changed or removed by parliament.

The Role of Parliament

The most significant feature of both proposals is that parliament would have far more control than under Garma.

Their schemes would not give an indigenous-only body the constitutional authority to involve itself in debates that do not concern indigenous affairs.

This would eliminate one of the greatest impediments to voting yes: Garma would create a race-based lobby group that would give indigenous voters a second say on public policy issues of general application – something that is not available to other Australians.

That amounts to a direct attack on equality of citizenship – the principle that the views of every citizen are of equal value when it comes to governing this nation.

Reforming Garma by adopting the ideas of Brennan and Clegg would inevitably boost the yes vote by reassuring the community that equality of citizenship was safe and parliament had more control.

The overall impact of constitutional change based on the ideas of Brennan and Clegg would be to complete the Constitution, not change it. It would provide a mechanism by which parliament could consult indigenous people before exercising its existing power under section 51(26) of the Constitution to make special laws that affect them – and them alone.

Because section 51(26) is already part of the Constitution it is only fair and logical for such a power to be matched by a method of consultation that is also confined to indigenous affairs.

Such a clearly defined role would make it more likely that any new institution would develop policies aimed at improving the lives of indigenous people – something that is less likely under the diffuse jurisdiction for the voice proposed under the Garma provision.

A referendum based on the ideas of Brennan and Clegg would eliminate the risk, inherent in Garma, that the voice would conduct itself as a form of shadow government – empowered to develop policies and enter public debates on everything.

An unreformed Garma provision is not worthy of anyone’s support. Brennan and Clegg, however, have handed the government a pathway to national consensus. If their ideas are presented to the nation at the referendum, a yes vote would be justified.

Chris Merritt outlined the Case for Voting No and stated ‘This referendum should be rejected – not just because it is wrong in principle but because the proponents of this change have declined to provide the community with enough information to make a fully informed decision…

We are being asked to abandon equality of citizenship – one of our most important values – in order to insert a divisive institution into our system of governance while having only a limited idea about its structure and powers, how it would change the business of government and the implications that could be read into the new provision by the High Court.

This referendum should be rejected – primarily because it is wrong in principle but also because the proponents of this change have failed to provide the community with enough information to make a fully informed decision”

Click here to read the whole paper.

Further Commentary by Chris Merritt on the Voice

24 February 2023: Chris Merritt on Sky News, How Brennan provision could make voice work

19 February 2023: Chris Merritt on Sky News, Voice to Parliament would have ‘moral and political suasion’ to get its way

01 February 2023: Chris Merritt on Sky News, There are problems in the NT ‘that need to be addressed right now’

02 February 2023: Chris Merritt article in The Australian, Why we shouln’t give voice to ‘crackpots of history’

31 December 2022: Chris Merritt on Sky News, Indigenous Voice to Parliament violates principles of democracy

30 December 2022: Chris Merritt on Sky News, Democracy requires equal treatment by the Government

30 December 2022: Chris Merritt on Sky News, No Need for the Voice to be in the Constitution

30 December 2022: Chris Merritt article in The Australian, Indigenous voice: A race based Constitutional body would undermine democracy

23 December 2022: Chris Merritt on Sky News, Voice to Undermine Equal Rights of Citizens and Fair Go

08 December 2022: Chris Merritt article in The Australian, Indigenous voice to parliament is an affront to democracy

01 December 2022: Chris Merritt article in The Australian, Proposed Indigenous Voice to parliament is more than symbolism

03 November 2022: Chris Merritt article in The Australian, ‘Proposed Voice change to Constitution too vague’

02 June 2022: Chris Merritt article in The Australian ‘High Court to control the Indigenous voice’