The Voice

[rederob]

The Voice is likely to be dominated by city dwelling elites who can't possibly represent all the tribes of the ATSI population

That's your opinion, and it is baseless.
In any event, it's local representation that will be key to providing input. Have you read any of the hundreds pages of input to get where we are now?
I daresay there will be some smart people on the Voice who can present decent policy options from the ground up processes that will be in place. When I worked with ATSIC in Townsville the first nations people in the agency were every bit as competent as the better educated non indigenous folk I worked with in Canberra.

 

[SirRumpole]

That's your opinion, and it is baseless.
In any event, it's local representation that will be key to providing input. Have you read any of the hundreds pages of input to get where we are now?
I daresay there will be some smart people on the Voice who can present decent policy options from the ground up processes that will be in place. When I worked with ATSIC in Townsville the first nations people in the agency were every bit as competent as the better educated non indigenous folk I worked with in Canberra.

ATSIC was a representative body.

What happened to it and why ?

 

[Sean K]

ATSIC was a representative body.

What happened to it and why ?

Let's hope The Voice does not follow this path.

Aboriginal and Torres Strait Islander Commission - Wikipedia

en.wikipedia.org

 

[Sean K]

Where is any of that in the constitution proposal?

Are you not describing how the voice will work or operate?

How it will operate is decided by the parliament subject to changes from the government of the day.

Are you saying that any high court action won't result in changes by government?

Just to add to the litigation issue which the legal people call 'justiciable' here's a piece from what I believe was an ABC interview with Marcia Langton, one of the architects of the Voice.

MOORE: So does the executive government mean advice to department heads, advice to Cabinet, advice to bureaucrats?

LANGTON: Well, obviously it’s going to mean advice to department heads. That’s how government works. And one of the problems that has been raised – and I don’t accept it but I’m just explaining it to you – by Greg Craven is the view that nothing that the Voice advises should be justiciable – or be able to be taken to court. So, I ask, why would we restrict the Voice to making representations that can’t be challenged in court and how could we ever predict whether some vexatious litigant mightn’t take a matter to court? So, you know here’s the problem. This is what really shocks me about Craven’s view on this. People want a fair process but then they don’t want anything that indigenous people say to be subject to Australian laws in the same way that every matter is. Coming from a lawyer I find that really odd.

MOORE: The point from Greg Craven, who we should point out is an adviser to the referendum working group, he gives legal advice and what he’s saying is if the Voice is making representations to the Executive government, his concern is it could be challenged. If a government decision is made without listening to the Voice it could be challenged in the High Court and potentially stopped from being implemented until the Voice had been heard.

LANGTON: That is a possibility and why would we not want that to be the case?

Thank You, Marcia Langton, for Your Candour - Quadrant Online

While the PM has made obscurantism his watchword when pressed for details of his beloved Voice, how it will work and how far its authority will extend with the government and public service, the co-author of the referendum's core document isn't anywhere near so circumspect. Indeed, as she...

quadrant.org.au

 

[IFocus]

Just to add to the litigation issue which the legal people call 'justiciable' here's a piece from what I believe was an ABC interview with Marcia Langton, one of the architects of the Voice.

MOORE: So does the executive government mean advice to department heads, advice to Cabinet, advice to bureaucrats?

LANGTON: Well, obviously it’s going to mean advice to department heads. That’s how government works. And one of the problems that has been raised – and I don’t accept it but I’m just explaining it to you – by Greg Craven is the view that nothing that the Voice advises should be justiciable – or be able to be taken to court. So, I ask, why would we restrict the Voice to making representations that can’t be challenged in court and how could we ever predict whether some vexatious litigant mightn’t take a matter to court? So, you know here’s the problem. This is what really shocks me about Craven’s view on this. People want a fair process but then they don’t want anything that indigenous people say to be subject to Australian laws in the same way that every matter is. Coming from a lawyer I find that really odd.

MOORE: The point from Greg Craven, who we should point out is an adviser to the referendum working group, he gives legal advice and what he’s saying is if the Voice is making representations to the Executive government, his concern is it could be challenged. If a government decision is made without listening to the Voice it could be challenged in the High Court and potentially stopped from being implemented until the Voice had been heard.

LANGTON: That is a possibility and why would we not want that to be the case?

Thank You, Marcia Langton, for Your Candour - Quadrant Online

While the PM has made obscurantism his watchword when pressed for details of his beloved Voice, how it will work and how far its authority will extend with the government and public service, the co-author of the referendum's core document isn't anywhere near so circumspect. Indeed, as she...

quadrant.org.au

Totally irrelevant anyone can approach the high court for any reason whether they will hear and consider the case is another matter, if its a problem the government of the day can legislate.

 

[IFocus]

The Voice is likely to be dominated by city dwelling elites who can't possibly represent all the tribes of the ATSI population

Like it happens now though parliament and academic's?

 

[wayneL]

Like it happens now though parliament and academic's?

Yep, which is why we don't need yet another layer of that nonsense.

 

[IFocus]

Former High Court justice Kenneth Hayne backs Voice to Parliament details​

"A lot of people have spent a long time trying to think 'well, what possible quirks, [legal] minefields, could there be?' I think there are none," Hayne tells ABC RN's Law Report.
Hayne, who is part of an expert legal panel that has been advising the Indigenous working group on the Voice, also hit back at calls for more detail.

"It will be the parliament that decides the details about how the Voice is set up. It will be the parliament that decides how its representations are dealt with … And to my mind, that is exactly how it should be," he says.

"It should be like that, because the constitution sets out principles. It does not set out machinery. Machinery can and should change as times change. And it's parliament that will do that, not the referendum. So I think asking for details is a distraction."

'The fear is misplaced': Why this former High Court justice is backing the Voice

Kenneth Hayne backs the details of the proposed referendum on a Voice to Parliament.

www.abc.net.au

 

[IFocus]

Look out they will be coming for your back yard next... remember that little beauty with the rise of land rights?

Land returned to Eastern Maar people in Victoria’s first native title decision in a decade​

Traditional owners granted right to access land stretching from Ararat to Warrnambool, encompassing much of the Great Ocean Road and Great Otway national park

Land returned to Eastern Maar people in Victoria’s first native title decision in a decade

Traditional owners granted right to access land stretching from Ararat to Warrnambool, encompassing much of the Great Ocean Road and Great Otway national park

www.theguardian.com

 

[mullokintyre]

They are not first nations and have not been systemically disadvantaged for over 2 centuries.
The unique cultures of the various indigenous groups are seldom considered in broad brush policies.
The idea that each distinct culture forms a lobby group is beyond silly.

And the idea that each distinct culture group is represented by "The Voive" is also beyond silly.

Successive governments have not been effective in "closing the gap" and the Voice ensures that there is a pre-emptive and proactive process to policy.

And the Voice will magically close the gap?
it will be like a;ll the other great burecratic ideas, another way to water money.

In the case of existing policies that are not well targeted the Voice may directly advise the executive of potential changes.

And all the other myriad of Aboriginal groups cannot do that now?

The Voice does NOT affect you unless you are a first nations person.

What a stupid statement. You or any body else have no idea what changes will or will not be required due to representation of the voice.
Non Aborignal people have already been locked out of some areas of Australia, and need permits for other areas. Some fishing grounds have been closed, some national parks closed , all in the name of protecting Aboriginal culture. All of these affect non Aboriginals to varying degrees.
And finally, neither you or any of the other fervent supporters have explained yet why we need to entire system enshrined in the constitution. The whole voice thing could have already been enacted and be up and running should the government have decided to do so, regardless of the population's opinions.
Mick

 

[mullokintyre]

Totally irrelevant anyone can approach the high court for any reason whether they will hear and consider the case is another matter, if its a problem the government of the day can legislate.

To get a bit of an understanding of the Justiciable concept , this abstract from the Adelaide Law review is a bit heavy, but it makes the legal case for why is is more than difficult for a legislative body to make a law that is non Justiciable.
It is not a proof or binding legal precedent by any means, but short of a complete breakdown of society and executive Government, it is hard to see a scenario where the outcome would be any different.
mick

 

[Sean K]

Totally irrelevant anyone can approach the high court for any reason whether they will hear and consider the case is another matter, if its a problem the government of the day can legislate.

The point is that the PM is saying it's just about recognition and that the Voice can make 'representations' and that's it. The AG is also saying it won't delay government decisions. This is tripe. The architects of the wording of the Voice have a clear plan. Change legislation to suite us or we take it to the High Court.

 

[Knobby22]

I thought the Voice was Johnny Farnham.

(boom boom)

 

[IFocus]

The point is that the PM is saying it's just about recognition and that the Voice can make 'representations' and that's it. The AG is also saying it won't delay government decisions. This is tripe. The architects of the wording of the Voice have a clear plan. Change legislation to suite us or we take it to the High Court.

Are saying previous high court judges involved with the planning and wording have a clear plan?

 

[Sean K]

Are saying previous high court judges involved with the planning and wording have a clear plan?

The Aboriginal activists in the Voice Working Group have. Greg Craven wrote a very good piece on the entire set up and who was driving what a few days ago. Not sure where it was published. Probably The Oz. Will try and find it for you. It's illuminating.

 

[Sean K]

@IFocus can you access this?

 

[IFocus]

@IFocus can you access this?

Nah let my subscription run out some time ago so I'll take your word for it.

Just weigh up Cravens comments with the fact a previous high court chief justice (a conservatives appointed by Howard) and high court judge have now come out clearly unambiguously backed the wording putting their reputations on the line.

 

[Sean K]

Nah let my subscription run out some time ago so I'll take your word for it.

Just weigh up Cravens comments with the fact a previous high court chief justice (a conservatives appointed by Howard) and high court judge have now come out clearly unambiguously backed the wording putting their reputations on the line.

Craven is voting YES for the moral imperative. But, he sees the wolf in sheep's clothing in what The Voice has morphed into. It's actually worth reading, will cut and paste it to you.

Well, I'll paste it here. It's long so in quotes.

I now know the meaning of excruciation. I am nailed between profound belief in the Indigenous voice and utter rejection of the constitutional device for its implementation.

This is made only worse by the fact I was part of the process from the beginning and watched all the main players act at close quarters. Now it is the classic train wreck, but in fast motion.

We should remember the voice was not always the favoured goal of Indigenous leaders. People such as Noel Pearson, Megan Davis and Pat Anderson all wanted rights to equality or against discrimination inserted into the Constitution.

These struck on the rocks of conservative opposition and legal implausibility. By around 2012, the formidable – and often mercurial – Pearson was looking for a more modest proposal that would garner vital conservative support.

He found it in my piously decorated office at the Australian Catholic University. Pearson, myself, Julian Leeser (later opposition legal affairs spokesman) and conservative intellectual Damien Freeman workshopped the concept of a constitutional voice.

The point of the voice was it would be conservatively acceptable. There would be no activist judges, as with constitutional rights. A voice to parliament would work with the Constitution, not against.

Pearson operated as a force of nature. Leeser, Freeman and I operated more sedately through the conservative body Uphold and Recognise. With estimable, selfless Indigenous leaders such as Sean Gordon, we developed endless reasoned papers justifying the voice and sketching its outlines. Sadly, the work of this boring, conservative body remains some of the only detailed thinking on the rationale and details of the voice.

Pearson’s interventions were dramatic. In his 2014 Quarterly Essay, A Rightful Place, he argued cogently for a constitutional voice. The essay was widely reported and quickly gained traction. During the following years, Pearson and his new conservative friends worked hard to promote the concept. We were not always popular.

More ideological Indigenous figures such as Davis, Anderson and their circle of admirers clung to a rights approach. They were as determinedly sceptical of the constitutional voice as they later claimed to have invented it.

But they were mugged by reality. The idea of a voice prevailed, through a combination of simplicity, symbolic and practical payload, and potentially bipartisan appeal. Critics climbed reluctantly aboard.

By 2017, the voice appeared in the sublime Uluru Statement from the Heart.

That year, the Referendum Council called for its enshrinement in the Constitution.

In 2019 the Indigenous Australians minister at the time, Ken Wyatt, commissioned a voice design process, culminating in the report by Tom Calma and the seriously intense Marcia Langton.

Finally, last year, the voice became government policy when adopted by Anthony Albanese at the Garma Festival.

It was a heady rise. Like any success, it quickly had a thousand fathers, particularly among the left Indigenous leaders. But they were always resentful the voice predated Garma by many years and was a conservative artefact.

Consequently, it would require proper, progressive sanitisation. Davis and acolytes from her Indigenous Law Centre – such as Gabrielle Appleby – began to ideologically colonise the voice from the left. Meanwhile, conservatives tried to deliver centre-right bipartisanship. They had a hard time. A meeting with Tony Abbott ended in comic confusion. Malcolm Turnbull mistrusted the voice. Scott Morrison was not interested.

Which left Peter Dutton. Not absolutely unsympathetic, the federal Opposition Leader was still dubious, conceptually and politically. In the event, he never had to commit to anything, instead watching Labor performing parabolas.

But this was a serious constitutional mistake. Dutton should have given something for pro-voice conservatives to trade with the government. Empty-handed, they were increasingly outflanked by Indigenous activists.

This left decent moderates within the government’s Indigenous working group, such as Gordon and Wyatt, floundering. It placed Dutton’s pro-voice colleague Leeser in an invidious position. Dutton may yet rue his strategy. If (improbably) the referendum gets up, it will be in the worst possible form. Dutton has guaranteed this.

As conservative efforts faltered, Indigenous activists laboured to hijack the voice. They wanted the divisive “First Nations” instead of “Indigenous peoples”. They demanded the voice make representations on every possible executive action and that legal intervention be a perennial possibility. They cynically insisted no detail be provided around the voice so they could dictate detail after the referendum.

On everything but the First Nations terminology, they succeeded.

Davis and co were greatly assisted by the capture of referendum financial processes by progressives such as lawyer Danny Gilbert. This made the campaign dependent on business allies from the left, giving extra leverage with the Labor government. The mesh of mutual congratulation, certainty and hubris led the government to make a series of disastrous process errors.

First, responsibility for the referendum was confusingly divided between Attorney-General Mark Dreyfus, an experienced lawyer and master of detail, and Indigenous Australians Minister Linda Burney, a big-picture abstract painter.

Second, the government had no principled process for developing its proposals. There was no parliamentary committee, constitutional convention or other inquiry around the proposed amendment.

Third, the amendment itself was developed in a sealed black box, with no external input. To this day, I still am not certain who drafted it. I think it was Davis, Pearson, Gilbert and former chief justice Bob French, but I do not know.

Finally, the government created a large, variously talented and uncontrollable Indigenous working group, theoretically to advise it. But it quickly seized the constitutional process, at one stage haughtily reproving the Attorney-General himself for “overreaching”.

The politics of the working group was always dominated by the invariably forthright Davis and a tight circle of activist allies such as Anderson, unionist Thomas Mayo and supposed campaign expert Dean Parkin. Reasonable voices such as Calma were much softer. The fact Pearson morosely supported the radical push removed a potentially balancing influence.

But decades of ill-treatment of Indigenous people did genuinely bite the constitutional process. Even the most conservative members of the group had dreadful memories of government persecution and naturally longed for executive action to be strictly controlled.

The government did create a constitutional experts group of eminent constitutional lawyers but, while amicable, members publicly expressed divergent opinions. Worse, it reported to the Indigenous working group, not the government, so its influence was minimal.

As Davis and Pearson remarkably were members of both the expert and the working groups, each group could be manoeuvred by reference to the positions of the other.

Yet all this intriguing completely ignored external realities. There was no recognition that conservative support was evaporating, the polls were in rapid decline and ordinary citizens were demanding detail. This was just “misinformation”.

Dreyfus made a late, heroic attempt to rescue the constitutional words by moderating the possibility of judicial intervention, a key concern of conservatives. To make his point, legal and political, he attended a working group meeting accompanied by Solicitor-General Stephen Donaghue and Senate leader Penny Wong.

The group rejected his intervention, with limited courtesy.

The government then was presented with what should have been a difficult choice.

It could accept the advice of its own law officers, incidentally garnering conservative support, but crossing the working group. Or it could support the working group, boosting elite Indigenous support, but dismissing its own legal advice and burning conservatives.

In the event, the government with carefully orchestrated joy went with its Indigenous sounding-board, probably because it believed it could not win a referendum against its own beneficiaries. Certainly, activists had uttered some chilling threats if Labor did not play the game.

But that choice comes with its own painful consequences.

It produces a bad constitutional model. It protracts the enervating argument over executive action. It dynamites conservative support.

It takes all pressure off Dutton for bipartisanship. It gives the No case a powerful argument that even the government’s own law officers think this is a bad draft. In short, it almost certainly dooms an already sick referendum unless the vibe can rescue it.

Exactly why the Prime Minister is so emotionally fervent is a mystery. Perhaps he is just not over the detail and assumes that a referendum supported by Indigenous leaders guarantees victory. Perhaps he is dazzled by the prospect of Labor heroism, possibly as intense if he loses as if he wins.

Just perhaps, the possibility of a permanent wedge between Dutton and an increasingly progressive electorate has entered his mind.

Whatever, the real weeping will happen after a lost referendum, not a media event.

Selfishly, I am more interested in my own predicament. I have always supported the moral imperative for Indigenous recognition. I believe the voice to be the best way of meeting that obligation. But as a constitutional lawyer, I know this specific proposal to be constitutionally unsound.

What to do?

I will keep demanding change while there is any hope through the parliamentary process. At the end, I will still vote for the voice on the moral imperative.

But as for campaigning, once the alteration bill has been passed, I will simply shut up. Good for me, and everybody.

Emeritus professor Greg Craven is a constitutional lawyer.

 

[rederob]

And the idea that each distinct culture group is represented by "The Voive" is also beyond silly.

Except that is the purpose of the Voice, so your statement is baseless.

And the Voice will magically close the gap?
it will be like a;ll the other great burecratic ideas, another way to water money.

You overlook the fact that other agencies with an ATSI element will have the Voice as an advisory link on policy, so thee are potential savings.

And all the other myriad of Aboriginal groups cannot do that now?

I worked in ATSIC fo a while, and it is clear yo cannot distinguish what the respective roles of organisations are.

What a stupid statement.

Really?
Are you a first nations person affected by relevant policies?

You or any body else have no idea what changes will or will not be required due to representation of the voice.

A total irrelevance if you are not first nations.

Non Aborignal people have already been locked out of some areas of Australia, and need permits for other areas. Some fishing grounds have been closed, some national parks closed , all in the name of protecting Aboriginal culture. All of these affect non Aboriginals to varying degrees.

That has zip to do with the Voice.
The Voice is not in play so you are talking about existing legislation.

And finally, neither you or any of the other fervent supporters have explained yet why we need to entire system enshrined in the constitution.

There are literally hundreds of pages of relevant coverage on that topic in the public domain.
I am not hiding under a rock.

The whole voice thing could have already been enacted and be up and running should the government have decided to do so, regardless of the population's opinions.

That option remains.
However, there's more to it as the Uluru statement from the heart asks Australians to walk together to build a better future by establishing a First Nations Voice to Parliament enshrined in the Constitution, and the establishment of a Makarrata Commission for the purpose of treaty making and truth-telling.
Clearly if non-first nations people don't want this then we maintain that element of racism that keeps our original land owners in the place they were put a few hundred years ago.

 

[mullokintyre]

That option remains.

Well why did they not take it?
Your next statement explains why not.

However, there's more to it as the Uluru statement from the heart asks Australians to walk together to build a better future by establishing a First Nations Voice to Parliament enshrined in the Constitution, and the establishment of a Makarrata Commission for the purpose of treaty making and truth-telling.

And there you have it.
Its not really about having a voice to Parliament, its its for the purpose of a treaty and truth telling.
Its what a lot of people have been saying, there are ulterior motives.
Its part of an ruse to get something into the constitution that goes far beyond the voice.

Clearly if non-first nations people don't want this then we maintain that element of racism that keeps our original land owners in the place they were put a few hundred years ago.

Typical, If people don't agree, you bring out the racism card.
If having a special section of the constitution that applies only to a particular race of people is not racism, I don't know what is.
Mick