Latest / 360 with Katie Woolf / Rule of Law Institute of Australia Vice-president Chris Merritt Vice explains the legal implications of an Indigenous Voice to Parliament in its current form

Transcript

Rule of Law Institute of Australia Vice-president Chris Merritt Vice explains the legal implications of an Indigenous Voice to Parliament in its current form · 360 with Katie Woolf

• 0:00
  Speaker 1: You know that there has been a lot of discussion
• 0:02
  Speaker 1: about the proposed Voice to Parliament and I'm sure that
• 0:04
  Speaker 1: there will continue to be as we head to a
• 0:06
  Speaker 1: referendum later in the year. Now we've spoken to just Enterprise,
• 0:10
  Speaker 1: who doesn't support the voice. We've also spoken to Thomas Mayo,
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  Speaker 1: who sits on the Yes campaign. But there is indeed
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  Speaker 1: a lot of detail which remains to be seen, and
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  Speaker 1: many people questioning the impact that the Voice to Parliament
• 0:23
  Speaker 1: could have well in a legal sense. Now joining me
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  Speaker 1: on the line is Chris Merritt. He is the vice
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  Speaker 1: president of the Rule of Law Institute of Australia and
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  Speaker 1: also a regular contributor to the Australian newspaper. Good morning
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  Speaker 1: to you, Chris, Good morning, Thanks so much for your time. Now, Chris,
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  Speaker 1: you penned a piece in the Australian Newspaper on the
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  Speaker 1: weekend which talked about some changes which could be made
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  Speaker 1: to the way in which this proposal will by the
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  Speaker 1: Prime Minister for the Voice is being brought forward, which could,
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  Speaker 1: in your view, ensure that the Voice to Parliament is
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  Speaker 1: indeed well, it does indeed go ahead. Can you talk
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  Speaker 1: to me about sort of some of the concerns that
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  Speaker 1: you've got, I guess firstly, and the way forward or
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  Speaker 1: the way we might get to a national consensus.
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  Speaker 2: Sure. Look, right now, the draft proposal which is before
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  Speaker 2: the nation, I think suffers from a couple of fundamental flaws.
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  Speaker 2: That's right now. It's not that big a problem because
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  Speaker 2: the Prime Minister has said made it very clear that
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  Speaker 2: this is preliminary. He hasn't sought legal advice from the
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  Speaker 2: Solicitor General on this proposal, and it hasn't been the
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  Speaker 2: subject of wide ranging involvement by the general community. But
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  Speaker 2: the problems, as I see at two fold. One, the
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  Speaker 2: jurisdiction of the Voice is unlimited. It would be completely
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  Speaker 2: different if the Voice were empowered to provide advice only
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  Speaker 2: on matters that concern indigenous people. That's not the case.
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  Speaker 2: That gives it reach into laws and policies of general
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  Speaker 2: application that could affect or would affect the entire community.
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  Speaker 2: That's the first problem. The second problem is that it's
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  Speaker 2: not simply a voice to Parliament. It's a voice to
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  Speaker 2: the executive as well. That's the Government i e. Every
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  Speaker 2: decision maker in the Commonwealth Public Service. Unless those decision makers,
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  Speaker 2: if the current proposal is enacted. Unless those decision makers
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  Speaker 2: take account of the advice from the Voice. They don't
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  Speaker 2: have to follow it, but they've got to listen to it.
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  Speaker 2: Unless they make a decision after considering the views of
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  Speaker 2: the Voice, they could find themselves drag into constitutional litigation
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  Speaker 2: in the High Court. Now, those are pretty important shortcoming
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  Speaker 2: reason unless they're remedy. The unlimited jurisdiction of the Voice
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  Speaker 2: would give this institution, or give the people represented by
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  Speaker 2: this Institution, two ways of influencing public policy and lawmaking
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  Speaker 2: in this country. That's one more than that enjoyed by
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  Speaker 2: every other citizen. That erodes the doctrine of equality of citizenship,
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  Speaker 2: and that by itself was enough to justify rejecting it.
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  Speaker 2: But if those two changes are made, I'm a lot
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  Speaker 2: more relaxed about it now. I'm just hoping that next
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  Speaker 2: mob or this month now, when the Parliament, through a
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  Speaker 2: committee process finally starts to have a look at this,
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  Speaker 2: that these shortcomings will be addressed. If they're not addressed,
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  Speaker 2: I would find it extremely difficult to support it. But
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  Speaker 2: if they are addressed and the scope of the Voice
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  Speaker 2: is confined, strictly confined to providing advice on laws concerning
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  Speaker 2: Indigenous Australians, I'd be far more relaxed now. The reason
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  Speaker 2: for that is that the Constitution already gives Parliament the
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  Speaker 2: ability to make laws for people of any particular race,
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  Speaker 2: and in practice that's Indigenous people, So that provision is
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  Speaker 2: already there. They're the only people who are affected by
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  Speaker 2: that provision. So it's only fair and logical that the
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  Speaker 2: advice of the Voice should be should match that provision
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  Speaker 2: and be strictly confined to Indigenous affairs.
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  Speaker 1: And Chris, I know that you have said that you
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  Speaker 1: believe the debate sort of now consists of three camps,
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  Speaker 1: the hard yes, the hard no, and the middle group
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  Speaker 1: that is best described as a yes but with safeguards.
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  Speaker 1: And I reckon that You're right. I reckon there's a
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  Speaker 1: lot of those people in the community. So do you
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  Speaker 1: feel as though you know from what you've just said
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  Speaker 1: to me, do you feel as though if those changes
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  Speaker 1: are made and if those safeguards are in place, or
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  Speaker 1: if it's made much clearer. I guess by the Prime
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  Speaker 1: Minister that you might have a situation with those that
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  Speaker 1: are described as yes with safeguards would become a hard yes.
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  Speaker 2: Look, I hope, so look in my heart. I would
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  Speaker 2: love to see Indigenous people recognized in the Constitution, but
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  Speaker 2: I think the procedure, the referendum procedure has been mishandled dreadfully.
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  Speaker 2: It's quite clear that details have been withheld from the community.
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  Speaker 2: There's been a form of words has been unveiled without
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  Speaker 2: proper legal advice from the Solicitor General or involvement by
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  Speaker 2: the general community. Those things together, I fear we'll have
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  Speaker 2: been having the effect of consolidating the hard no case
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  Speaker 2: and people will be suspicious now when a final form
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  Speaker 2: of words is determined by Parliament, and that's what's going
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  Speaker 2: to happen, There'll be a committee inquiry, there'll be submissions.
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  Speaker 2: Parliament will need to agree on a form of words,
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  Speaker 2: a final form of words to be included in the Constitution.
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  Speaker 2: But there's been so much detail with hell and so
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  Speaker 2: much information has been misleading. The initial argument about this
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  Speaker 2: was that, oh, it wouldn't it wouldn't cause litigation. Well
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  Speaker 2: that's just not correct. Of course, it would cause litigation,
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  Speaker 2: and the proponents of it are now being quite clear
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  Speaker 2: about that. That's the whole point of it. By extending
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  Speaker 2: its reach to the executive, the public service moments want
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  Speaker 2: to compel the public servants to listen to it. That's
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  Speaker 2: policy nostrums, which I think is a bridge too far well,
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  Speaker 2: and it.
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  Speaker 1: Also I guess the concern then that it sort of raises,
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  Speaker 1: you know, in my mind, is massive delays, you know,
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  Speaker 1: with some of the work that needs to get underway
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  Speaker 1: and some of the different things that need to happen
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  Speaker 1: right across Australia. And like, I just worry that when
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  Speaker 1: you reach that point where you're consulting with you know,
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  Speaker 1: with a whole extra sort of body, what kind of
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  Speaker 1: delays we would then see for different issues and different
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  Speaker 1: you know, different topics on various different things around Australia
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  Speaker 1: and indeed for us here in the Northern Territory where
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  Speaker 1: some of these issues are really pressing right now.
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  Speaker 2: Yeah, look, that's quite right, But I think what would
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  Speaker 2: happened in practice, because I mean, you've got to remember
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  Speaker 2: that millions of decisions made every day right around the
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  Speaker 2: country by the said bureaucracy. It's just not practical for
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  Speaker 2: bureaus to hold fire and wait for the voice to
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  Speaker 2: have it say. So, I think what will happen is
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  Speaker 2: that the voice, after those decisions are taken, if the
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  Speaker 2: provision is unchanged. The Voice would then have the ability
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  Speaker 2: to go through those decisions and identify those it doesn't
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  Speaker 2: black and say, well, look, unless you withdraw that decision
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  Speaker 2: and make it again after considering our views, will initiate
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  Speaker 2: proceedings in the High Court or whichever court has given
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  Speaker 2: particular jurisdiction for this to strike down that decision. Now
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  Speaker 2: that would incur legal fees. Both sides would incur legal fees,
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  Speaker 2: and both sides would be financed by taxpayers by itself.
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  Speaker 1: As a night me, I was going to say, it
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  Speaker 1: sounds like it's getting really messy. Then increase and that's
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  Speaker 1: you know, that's the concern I reckon that a lot
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  Speaker 1: of Aussies have got, particularly for us here in the
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  Speaker 1: Northern Territory. You know, we've spoken a lot about it.
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  Speaker 1: I am supportive of the Voice, but I think that
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  Speaker 1: there's still a lot of questions that need to be
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  Speaker 1: answered in terms of who's going to be represented on
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  Speaker 1: that Voice and whether we're going to have representation from
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  Speaker 1: communities in the Northern Territory, particularly, you know, from territorians
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  Speaker 1: that are vulnerable that need that representation. But then listening
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  Speaker 1: to what you've said when you sort of take into
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  Speaker 1: account the legalities and some of the concerns that will
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  Speaker 1: have later down the track or further down the track.
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  Speaker 1: If it's not sort of fixed before we get to
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  Speaker 1: that point, it's you know, it creates more doubt in
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  Speaker 1: people's minds.
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  Speaker 2: Look, I agree entirely. It's all very well for people
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  Speaker 2: to say they are they're in favor of the voice,
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  Speaker 2: but what sort of voice is the big issue. If
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  Speaker 2: it's the current proposal, If that remains unchanged, I think
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  Speaker 2: it's far too dangerous. I think it's an overreach. It
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  Speaker 2: would undermine a quality of citizenship. If, however, the Parliament
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  Speaker 2: has an open mind on this, and I'm particularly talking
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  Speaker 2: about the government, because the government's been making the running
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  Speaker 2: on this, If they're faired income about having an open
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  Speaker 2: mind and listening to community views, I think most people
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  Speaker 2: would be fairly relaxed about an Indigenous organization having a
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  Speaker 2: view on laws that only affect Indigenous people. I don't
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  Speaker 2: see that that's too much of a problem. The other
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  Speaker 2: problem that definitely needs to be addressed is the unjustified
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  Speaker 2: reach into the public service. That's too big a risk
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  Speaker 2: for public servants. I can't see any public or any
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  Speaker 2: decision maker in the public service being comfortable about incurring
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  Speaker 2: potential liability for any decision that the Voice doesn't like.
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  Speaker 2: That's not the way to.
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  Speaker 1: Go, Chris, do you reckon the Prime Minister's listening these
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  Speaker 1: concerns that are being raised? And do you think we'll
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  Speaker 1: see that change before we kind of see the proposed
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  Speaker 1: constitution or the proposed wording for the constitutional provisions?
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  Speaker 2: He would? I think he would be to take him
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  Speaker 2: at his word. He says he's got an open mind
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  Speaker 2: on this and he welcomes community feedback. And this is
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  Speaker 2: not just me putting these concerns. Father Frank Brennan as
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  Speaker 2: the Jesuit priest constitutional lawyer. He's written a book outlining
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  Speaker 2: these concerns, and his broad concern is in line with
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  Speaker 2: that of the Sydney barrister Lauiz Clig, who's also put
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  Speaker 2: forward very very similar concerns about those two key weaknesses
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  Speaker 2: in the current proposal. The current proposal can't fly. I
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  Speaker 2: think by allowing it to gain so much impetus, it's
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  Speaker 2: really fostered opposition. It's been totally counterproductive. There's still a
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  Speaker 2: majority support for the Voice. I think it's fifty eight
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  Speaker 2: percent on the latest figures, but the trend is consistently
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  Speaker 2: down from when the proposal was unveiled at July's last
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  Speaker 2: July's Garma Festival. It's been consistently slipping and we've got
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  Speaker 2: a fair way to go before the referendum, and unless
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  Speaker 2: there's a change made, it seems pretty clear to me
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  Speaker 2: that support will continue to slide. Now. That means that
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  Speaker 2: whatever the outcome at the referendum, that will probably be
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  Speaker 2: a type vote and that's not what we want when
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  Speaker 2: we're going to change the constitution. It would be preferable
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  Speaker 2: to have overwhelming support for a new provision in our
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  Speaker 2: founding documents. It's not desirable to have just squeak in
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  Speaker 2: because you'll then alienate around about half the community and
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  Speaker 2: that's not right.
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  Speaker 1: Yeah, you're sport on that in itself is a concern, Chris.
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  Speaker 1: I really appreciate your time this morning. I wish we
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  Speaker 1: had a bit more time because I know that I
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  Speaker 1: have read as well some of the stuff you've written
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  Speaker 1: when keeping a bit of an eye on the Northern
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  Speaker 1: Territory eye cack under our former commissioner. So I'd be
• 13:13
  Speaker 1: keen to chat to you about that at some point.
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  Speaker 1: But I've run out of time this morning. Thank you
• 13:17
  Speaker 1: so much for having a chat with me today. Thank
• 13:20
  Speaker 1: you Chris very much appreciate it.