I think there needs to be recognition in the constitution, which I think there already is, but the wording of the Albo Voice amendment is way too loose and will open the door for lawfare against parliamentary decision making. Things will end up in the High Court for adjudication and that's not how our democracy should work.
Indigenous voice to parliament referendum rewrite is a tragedy in the making
Good plays always contain both farce and tragedy. It provides balance. The referendum on an Indigenous voice to parliament follows this pattern. Anthony Albanese provides the comedy by being unable to understand his own referendum.
Tragedy comes from watching Noel Pearson reduced to rewriting history to cover his own disasters.
Comically, the Prime Minister has two problems selling the referendum. He cannot understand any question. He cannot give any answers.
He certainly must be well-briefed, but it does not help. When it comes to the voice, he is Anthony Albanesia. He has had at least two referendum brain snaps, both about the vital issue of the voice making representations to executive government
First, Albanese just cannot get the voice’s scope right. He is forever saying that this or that decision would never be covered and would be up to parliament.
So far, he has exempted Reserve Bank decisions on interest rates, decisions on national security, and carbon guarantees. But he is irretrievably wrong. The voice covers all executive action. Each of these is an executive act. Consequently, they would attract voice representations. End of lesson.
The Prime Minister’s second mind outage is when he confidently asserts that, in any event, parliament can overrule the voice.
Wrong. The only way representations can be proofed against being legal Exocets is if the constitutional amendment specifically allows parliament to define their legal effect.
That is what the highly sensible Attorney-General originally wanted to do. But a clueless Albanese, following a referendum working group whose strong point was not the law, overruled him.
What we now witness out-giggles Monty Python. A proposal nobody understands, led by a Prime Minister who does not know what it is.
Pearson is a much sadder case. He has fought nobly for Indigenous people all his life. But he cannot bear to accept he has catastrophically damaged his own referendum.
The sonorous Pearson is no political idiot. He knows the referendum is losing, for mistakes very much his own. He desperately needs whipping boys. He has picked constitutional conservatives, his former close allies. He argues they agreed to the controversial review of executive action all along and are now ratting on the deal.
This is sheer revisionism.
Pearson did indeed meet future opposition legal affairs spokesman Julian Leeser and conservative intellectual Damien Freeman in my office at the Australian Catholic University. All plots really do lead to Rome.
Pearson was desperate for a form of constitutional recognition that would satisfy conservatives. Mindful of the appalling treatment of Indigenous Australian, we were keen to help.
But one thing was carved in fluorescent stone. We would never accept any model that involved conferring power on the judges.
This is a basic principle of Australian constitutional conservatism. Unelected judges must never meddle in political or policy matters. These are for the democratically elected parliament alone.
I have spent 40 years as a constitutional lawyer defending this principle against judges, academics and the odd politician. I have lost appointments and friends for it. I would never betray it. Pearson knew all this as he left my office. He knew this was to be a voice to parliament. He knew this immovable reality through every subsequent moment of negotiating and designing. No judges.
Various drafts of the voice referred vaguely to representations to the executive. But no conservative ever believed this could involve the voice going to court. We had received our own promises and guarantees.
What changed was the election of the Albanese government. Pearson and other Indigenous leaders quickly decided constitutional conservatives were no longer important, even though they had done most of the drafting and designing. This led to what could be called Pearson’s mighty blunder. He agreed to be part of a four-person team to secretly draft the Albanese amendment. Critically, no constitutional conservatives were in the room or even consulted. When these conservatives saw the draft with its lackadaisical treatment of executive representations, they were amazed, horrified and furious.
I rang a voice apparatchik expressing utter disbelief. I predicted then the referendum would fail. Eventually, a barely functional relationship was restored on the understanding that a combination of constitutional text and legislation would give parliament control over executive representations. But now even that understanding has been ditched.
So, Pearson is not a sorrowful martyr. The imbroglio over executive government is very much his fault. In a state of political hubris, he excluded his conservative friends from the drafting room, and devised an amendment he knew they could not wear.
He also stood by as activists such as Megan Davis colonised the voice and turned it from a conservative model free of judicial activism into a judges’ junket. He never tried to stop them.
I quite accept that Pearson is heartbroken: because he is responsible for a bad draft; for excluding trusted colleagues who could have fixed it; and for totally underestimating the strength of conservative feeling that will preclude bipartisan support.
Pearson facilitated this whole disintegration of the referendum, actively or by silence. Well may he be horrified. I certainly am.
Emeritus professor Greg Craven is a constitutional lawyer.
Yep, people like Senator Jacinta Nampijinpa Price. An obvious ignorant racist. </sarc>So what it comes down to is that Ifocus and Red Rob reckons that anyone who disagrees with them either don't understand the facts as they see them, or are racist, or both.
Seems pretty clear cut then.
Not much point arguing with a galah and a Commie.
Mick
Black writing matters.Oh come on Mick don't go "snowflake" its just black wring on the screen.
I keep pointing out that you are not well informed as reflected by your comments.So what it comes down to is that Ifocus and Red Rob reckons that anyone who disagrees with them either don't understand the facts as they see them, or are racist, or both.
Where is your argument?Not much point arguing with a galah and a Commie.
Yeah, whatever.I keep pointing out that you are not well informed as reflected by your comments.
I have yet to see you raise a point that has not been covered in the copious material available to anyone who is interested.
The fact you don't seem to understand what racism involves has nothing to to with the Voice, but does suggest people objecting to it are likely to be doing so on poor grounds.
Where is your argument?
Anyone who opposes The Vouce is a racist ?I keep pointing out that you are not well informed as reflected by your comments.
I have yet to see you raise a point that has not been covered in the copious material available to anyone who is interested.
The fact you don't seem to understand what racism involves has nothing to to with the Voice, but does suggest people objecting to it are likely to be doing so on poor grounds.
Where is your argument?
The youth of Australia must be given more credit than most get these days. My 24-year-old daughter, with a Law & a Psychology degree, working for the Feds has come to me with some insightful and interesting ideas about what is going on with the Voice. Discussions are quietly going on, and it looks like the next generation of leaders are seeing gaping holes in what our current leaders are trying to sell to them.
The article below reminded me of the questions my daughter has brought up.
I'm not sure how anyone can read what Craven has been writing about this recently and not take pause. As one of the original architects and even still a YES voter, you just have to consider what he's saying.
He is still voting yes.
He is still voting yes.
I'm not sure how anyone can read what Craven has been writing about this recently and not take pause. As one of the original architects and even still a YES voter, you just have to consider what he's saying.
Craven sticks the boot into Pearson and others without explaining or putting Pearson's or others reasoning dramatizing and to some extent vilifying other players that don't agree with his views.
Hayne steps up to do so without all the dramatic story to explain.
Former High Court justice Kenneth Hayne has backed the draft Voice to Parliament constitutional amendment, dismissing concerns that its wording could open a floodgate of protracted legal battles.
'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
Because the ABC is the most trusted / balanced news source in Australia here is Cravens comments and the other counter arguments.
Legal experts worry the words 'executive government' could lead to Voice referendum court battles
Key points:
- The inclusion of "executive government" for the proposed constitutional amendment has prompted concerns
- An expert says the current draft constitutional amendment leaves room for the "No" campaign to capitalise on uncertainty
- Referendum Working Group member Megan Davis says the concerns are "disingenuous and overblown"
Concerns raised over possibility of High Court legal challenges to Voice referendum wording
Constitutional lawyers are divided on whether the proposed wording for the Voice could face a High Court challenge if it was written into the constitution.www.abc.net.au
Professor Davis and fellow constitutional law expert Gabrielle Appleby from UNSW, writing in The Weekend Australian, argue that the new body will not be “limited to matters specifically or directly related to Aboriginal and Torres Strait Islander peoples” and it will have the power to “speak on a broad range of matters”.
“That is the point,” the professors write.
I would be quite happy to vote for the proposal if the wording made it clear the the Voice was only required to be consulted on matters that solely affect ATSI people.
Why all the ad hominems?Yeah, whatever.
It must be devastating for you that other mere mortals without the superior and infinite wisdom you possess would have the temerity to question anything you say when it is patently obvious that your mere utterances are inviolate.
As the blokes at the pub might say, you're just another elitist onanist.
Mick
It's quite clear that this is what Aboriginal activists want, ie to have a say in everything that they deem to be relevant to them.For example, we still have the likes of @SirRumpole thinking the Voice can advise on matters affecting non first nations.
That's irrelevant as it has nothing to do with the Voice unless it is a matter of policy affecting them as made clear in all material to date.It's quite clear that this is what Aboriginal activists want, ie to have a say in everything that they deem to be relevant to them.
Numerous examples can be given of policies that affect Atsi people that also affect non Atsi people. In which case Atsi people get consulted and others don't. Why can't you see that ?That's irrelevant as it has nothing to do with the Voice unless it is a matter of policy affecting them as made clear in all material to date.
How many times does need to be spelled out?
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