There are two words that seem innocuous on paper and yet in reality are causing Prime Minister Anthony Albanese and the looming Voice to Parliament referendum a whole lot of pain.
Albanese, on the advice of an indigenous working group and law experts, has proposed a form of words for the Voice referendum, which if successful would give the body the power to make representations to the parliament and “executive government”.
To most, executive government seems a pretty straight forward notion: government ministers and the departments they oversee.
But others are seeking to weaponise the phrase, using it to make claims that an Aboriginal and Torres Strait Islander Voice will spend its days making comments about nuclear submarine procurement and Reserve Bank interest rates.
The debate surrounding executive government has been simmering for weeks. If not handled well, it risks boiling over and splintering the Yes vote.
You need only look to the republic referendum to see what that will mean for the Voice vote.
Friday’s first parliamentary hearing into the Voice referendum made clear that those with concerns about the wording are far outnumbered by the other legal experts backing it.
Professor Greg Craven was a member of the constitutional expert group that advised the government about the wording. He’s been often cited by Opposition Leader Peter Dutton as having mounted comprehensive criticisms of the proposed wording.
Craven, along with Liberal MP Julian Leeser, who this week quit the frontbench to support the Voice, has concerns about the current wording. They want changes but both say they will ultimately vote Yes either way.
They fear the inclusion of the words “executive government” leaves open the prospect that the width and breadth of the federal government and its agencies would be obliged to consult the Voice. Taken further, they fear the wording leaves open the prospect whereby judges could make rulings about the nature of the Voice.
The Coalition has cause for concern about so-called “activist judges”, particularly when it comes to High Court rulings relating to indigenous affairs. Some are still smarting a 2020 High Court ruling that Aboriginal people held a special status and were exempt from deportation.
It was a ruling that stunned the then Coalition government. Often overlooked was that the fact the Coalition had appointed three of the four judges who delivered the majority ruling.
Two of the four remain on the High Court and were both appointed under the Coalition.
For constitutional conservatives like Craven, the prospect of activist judges being able to intervene is enough to keep them awake at night.
Sleeping soundly about the Voice are constitutional law experts Anne Twomey and George Williams, barrister Bret Walker and former High Court justices Kenneth Hayne and Robert French, the latter of whom is a former chief of the court.
The five gave evidence after Professor Craven.
In the straight-laced world of constitutional law, the group serve as the closest thing to pin ups.
They’re celebrities in legal circles and their names are never far from the lips of Labor politicians vowing the Voice is constitutionally sound.
Twomey, in a written submission to the committee, was quick to dismiss concerns about the inclusion of executive government and whether or not it would have an obligation to advise or consult the Voice in advance of making laws.
“No such obligation is contained or can find its source in the text of the amendment,” she wrote.
In her testimony to the hearing, she also cast doubts that executive government was as wide-reaching as some might seek to argue. She pointed to previous High Court rulings that found the term extended to ministers and government departments but not statutory bodies with their own legal personality.
Barrister doesn’t hold back
Constitutional law experts are measured with their words. Barristers, meanwhile, come bounding with dramatic flourish.
Enter Bret Walker.
“I really do think that we need to get a grip,” he said in response to the notion activist judges would wreak havoc.
He was also having no time for any suggestion there was a “magical process” in which courts interpreted texts of law.
But he wasn’t done there. Walker argued it was “too silly for words” to suggest the courts would be clogged with cases as a result of the Voice.
“It just seems to me that this notion that there is an implication threatened in the proposed subsection two, whereby the validity of executive action — multifarious decisions, great, small and middling, by officials great, small and middling — will be somehow jamming the courts from here to kingdom come as a result of this enactment is really too silly for words,” he said.
Hayne, when asked if the Voice would have the power to veto any government decisions on national days like Australia Day, as some have argued, insisted that there was nothing in the wording “that comes anywhere near providing anything like a veto”.
The government points to the speech Attorney-General Mark Dreyfus gave in the parliament when he introduced the referendum legislation as proof no obligations exist.
His speech and the accompanying explanatory memorandum, both of which the court would take into consideration in any legal challenge, make clear the constitutional change “would not oblige the parliament or the executive government to consult the Voice prior to enacting, amending or repealing any law, making a decision, or taking any other action”.
The trouble with the government yelling this from the rooftop is if you spend your days telling people there’s neither an obligation to consult nor listen, it risks undercutting the central argument for having a Voice.
The Voice needs to deliver
The whole point of the Voice is to allow Aboriginal and Torres Strait Islander people the chance to advise about matters affecting their lives.
Why? Because efforts to close the gap have largely been ineffective.
Indigenous Australians face shorter lives, poorer health outcomes and a greater likelihood of incarceration.
To suggest it would be a body that spends its time lobbying the Reserve Bank or Defence Department seems a distraction from the issues at the core of this debate.
“Is advice from me or Tom [Calma] a threat to civilisation, a threat to democracy? It’s a nonsense,” Professor Marcia Langton, an architect of the Voice, told the committee.
Twomey went further and argued that any Voice member that strayed into matters like the Reserve Bank and Defence procurement would be likely face a short tenure.
“Its constituency — Aboriginal and Torres Strait Islander people — will be utterly furious that it is not focusing on the things that are relevant and important to them,” she told the hearing.
“Remembering, that constituency is the body that will effectively choose who are its representations on the Voice.
“So a Voice that squanders its resources and squanders its influence by seeking to spread itself too thin over a wide area of matters will be a Voice that eventually ends up getting replaced by other people.
“Because its own constituency, as a matter of politics, will keep it directed and focused about the things that are of real and genuine importance to Aboriginal and Torres Strait Islander people.”
It comes down to politics
It remains unclear the extent to which people are engaging with the minutiae of the Voice debate.
The government is showing few signs that it has any plans to change its wording.
So it can only hope people like Craven and Leeser will ultimately come out and offer vocal support for the referendum from a conservative perspective.
Of greater concern within Labor is Peter Dutton’s ability to harpoon a central election commitment.
Dutton’s political attacks on the prime minister and Voice have grown sharper by the day. As has the hyperbole of his arguments.
A Yes vote likely puts Dutton’s leadership on thin ice, if not doomed completely.
But it would be foolish to think he will be anything other than dogged in his opposition in the months to come.
Albanese and Minister for Indigenous Australians Linda Burney offer some of the government’s most impassioned arguments for the Voice.
But they’re far from Labor’s sharpest attack dogs.
Labor’s election campaign gained an unexpected boost when a COVID-19 diagnosis sent Albanese into quarantine and allowed stronger campaigners to come to the fore.
There are early signs that for Labor’s referendum to be successful, the party will have to move to a campaign footing, where high-profile spokespeople are at the ready to come out and counter the opposition leader’s attack.
A failure to do so could well see the referendum doomed, not Dutton’s leadership.