1 00:00:00,080 --> 00:00:02,000 Speaker 1: You know that there has been a lot of discussion 2 00:00:02,120 --> 00:00:04,920 Speaker 1: about the proposed Voice to Parliament and I'm sure that 3 00:00:04,960 --> 00:00:06,920 Speaker 1: there will continue to be as we head to a 4 00:00:06,960 --> 00:00:10,760 Speaker 1: referendum later in the year. Now we've spoken to just Enterprise, 5 00:00:10,840 --> 00:00:14,120 Speaker 1: who doesn't support the voice. We've also spoken to Thomas Mayo, 6 00:00:14,200 --> 00:00:17,479 Speaker 1: who sits on the Yes campaign. But there is indeed 7 00:00:17,560 --> 00:00:19,680 Speaker 1: a lot of detail which remains to be seen, and 8 00:00:19,720 --> 00:00:23,040 Speaker 1: many people questioning the impact that the Voice to Parliament 9 00:00:23,079 --> 00:00:26,759 Speaker 1: could have well in a legal sense. Now joining me 10 00:00:26,800 --> 00:00:29,640 Speaker 1: on the line is Chris Merritt. He is the vice 11 00:00:29,680 --> 00:00:33,720 Speaker 1: president of the Rule of Law Institute of Australia and 12 00:00:33,800 --> 00:00:37,360 Speaker 1: also a regular contributor to the Australian newspaper. Good morning 13 00:00:37,360 --> 00:00:42,600 Speaker 1: to you, Chris, Good morning, Thanks so much for your time. Now, Chris, 14 00:00:42,600 --> 00:00:44,839 Speaker 1: you penned a piece in the Australian Newspaper on the 15 00:00:44,840 --> 00:00:47,960 Speaker 1: weekend which talked about some changes which could be made 16 00:00:48,000 --> 00:00:50,479 Speaker 1: to the way in which this proposal will by the 17 00:00:50,479 --> 00:00:54,640 Speaker 1: Prime Minister for the Voice is being brought forward, which could, 18 00:00:54,640 --> 00:00:57,400 Speaker 1: in your view, ensure that the Voice to Parliament is 19 00:00:57,480 --> 00:01:00,920 Speaker 1: indeed well, it does indeed go ahead. Can you talk 20 00:01:00,960 --> 00:01:03,720 Speaker 1: to me about sort of some of the concerns that 21 00:01:03,760 --> 00:01:06,800 Speaker 1: you've got, I guess firstly, and the way forward or 22 00:01:06,840 --> 00:01:09,200 Speaker 1: the way we might get to a national consensus. 23 00:01:10,480 --> 00:01:16,640 Speaker 2: Sure. Look, right now, the draft proposal which is before 24 00:01:16,720 --> 00:01:21,880 Speaker 2: the nation, I think suffers from a couple of fundamental flaws. 25 00:01:22,920 --> 00:01:26,039 Speaker 2: That's right now. It's not that big a problem because 26 00:01:26,040 --> 00:01:28,679 Speaker 2: the Prime Minister has said made it very clear that 27 00:01:28,760 --> 00:01:33,240 Speaker 2: this is preliminary. He hasn't sought legal advice from the 28 00:01:33,280 --> 00:01:37,360 Speaker 2: Solicitor General on this proposal, and it hasn't been the 29 00:01:37,400 --> 00:01:44,880 Speaker 2: subject of wide ranging involvement by the general community. But 30 00:01:44,920 --> 00:01:49,440 Speaker 2: the problems, as I see at two fold. One, the 31 00:01:49,560 --> 00:01:53,520 Speaker 2: jurisdiction of the Voice is unlimited. It would be completely 32 00:01:53,560 --> 00:01:59,840 Speaker 2: different if the Voice were empowered to provide advice only 33 00:02:00,080 --> 00:02:04,200 Speaker 2: on matters that concern indigenous people. That's not the case. 34 00:02:05,160 --> 00:02:10,280 Speaker 2: That gives it reach into laws and policies of general 35 00:02:10,280 --> 00:02:15,160 Speaker 2: application that could affect or would affect the entire community. 36 00:02:16,080 --> 00:02:19,239 Speaker 2: That's the first problem. The second problem is that it's 37 00:02:19,320 --> 00:02:22,080 Speaker 2: not simply a voice to Parliament. It's a voice to 38 00:02:22,160 --> 00:02:26,959 Speaker 2: the executive as well. That's the Government i e. Every 39 00:02:27,240 --> 00:02:32,600 Speaker 2: decision maker in the Commonwealth Public Service. Unless those decision makers, 40 00:02:33,240 --> 00:02:37,200 Speaker 2: if the current proposal is enacted. Unless those decision makers 41 00:02:37,240 --> 00:02:41,519 Speaker 2: take account of the advice from the Voice. They don't 42 00:02:41,520 --> 00:02:43,880 Speaker 2: have to follow it, but they've got to listen to it. 43 00:02:44,560 --> 00:02:49,679 Speaker 2: Unless they make a decision after considering the views of 44 00:02:49,720 --> 00:02:53,920 Speaker 2: the Voice, they could find themselves drag into constitutional litigation 45 00:02:54,080 --> 00:02:59,560 Speaker 2: in the High Court. Now, those are pretty important shortcoming 46 00:03:00,080 --> 00:03:05,480 Speaker 2: reason unless they're remedy. The unlimited jurisdiction of the Voice 47 00:03:06,080 --> 00:03:10,639 Speaker 2: would give this institution, or give the people represented by 48 00:03:10,680 --> 00:03:17,440 Speaker 2: this Institution, two ways of influencing public policy and lawmaking 49 00:03:17,520 --> 00:03:22,040 Speaker 2: in this country. That's one more than that enjoyed by 50 00:03:22,080 --> 00:03:27,600 Speaker 2: every other citizen. That erodes the doctrine of equality of citizenship, 51 00:03:28,240 --> 00:03:33,080 Speaker 2: and that by itself was enough to justify rejecting it. 52 00:03:33,840 --> 00:03:39,640 Speaker 2: But if those two changes are made, I'm a lot 53 00:03:39,720 --> 00:03:43,400 Speaker 2: more relaxed about it now. I'm just hoping that next 54 00:03:43,480 --> 00:03:48,640 Speaker 2: mob or this month now, when the Parliament, through a 55 00:03:48,680 --> 00:03:51,280 Speaker 2: committee process finally starts to have a look at this, 56 00:03:52,240 --> 00:03:56,280 Speaker 2: that these shortcomings will be addressed. If they're not addressed, 57 00:03:56,600 --> 00:03:59,760 Speaker 2: I would find it extremely difficult to support it. But 58 00:03:59,800 --> 00:04:02,680 Speaker 2: if they are addressed and the scope of the Voice 59 00:04:03,280 --> 00:04:10,680 Speaker 2: is confined, strictly confined to providing advice on laws concerning 60 00:04:10,960 --> 00:04:15,360 Speaker 2: Indigenous Australians, I'd be far more relaxed now. The reason 61 00:04:15,400 --> 00:04:20,039 Speaker 2: for that is that the Constitution already gives Parliament the 62 00:04:20,120 --> 00:04:24,159 Speaker 2: ability to make laws for people of any particular race, 63 00:04:24,760 --> 00:04:28,719 Speaker 2: and in practice that's Indigenous people, So that provision is 64 00:04:28,760 --> 00:04:32,760 Speaker 2: already there. They're the only people who are affected by 65 00:04:32,800 --> 00:04:36,800 Speaker 2: that provision. So it's only fair and logical that the 66 00:04:36,880 --> 00:04:40,320 Speaker 2: advice of the Voice should be should match that provision 67 00:04:40,880 --> 00:04:44,520 Speaker 2: and be strictly confined to Indigenous affairs. 68 00:04:45,279 --> 00:04:47,120 Speaker 1: And Chris, I know that you have said that you 69 00:04:47,240 --> 00:04:50,160 Speaker 1: believe the debate sort of now consists of three camps, 70 00:04:50,200 --> 00:04:53,359 Speaker 1: the hard yes, the hard no, and the middle group 71 00:04:53,440 --> 00:04:56,600 Speaker 1: that is best described as a yes but with safeguards. 72 00:04:56,600 --> 00:04:58,279 Speaker 1: And I reckon that You're right. I reckon there's a 73 00:04:58,320 --> 00:05:02,159 Speaker 1: lot of those people in the community. So do you 74 00:05:02,279 --> 00:05:04,880 Speaker 1: feel as though you know from what you've just said 75 00:05:04,880 --> 00:05:07,280 Speaker 1: to me, do you feel as though if those changes 76 00:05:07,400 --> 00:05:10,920 Speaker 1: are made and if those safeguards are in place, or 77 00:05:11,040 --> 00:05:13,160 Speaker 1: if it's made much clearer. I guess by the Prime 78 00:05:13,160 --> 00:05:16,719 Speaker 1: Minister that you might have a situation with those that 79 00:05:16,839 --> 00:05:21,200 Speaker 1: are described as yes with safeguards would become a hard yes. 80 00:05:22,480 --> 00:05:29,159 Speaker 2: Look, I hope, so look in my heart. I would 81 00:05:29,200 --> 00:05:34,479 Speaker 2: love to see Indigenous people recognized in the Constitution, but 82 00:05:35,160 --> 00:05:40,440 Speaker 2: I think the procedure, the referendum procedure has been mishandled dreadfully. 83 00:05:40,680 --> 00:05:45,640 Speaker 2: It's quite clear that details have been withheld from the community. 84 00:05:47,120 --> 00:05:50,880 Speaker 2: There's been a form of words has been unveiled without 85 00:05:51,000 --> 00:05:56,920 Speaker 2: proper legal advice from the Solicitor General or involvement by 86 00:05:56,960 --> 00:06:04,279 Speaker 2: the general community. Those things together, I fear we'll have 87 00:06:04,480 --> 00:06:08,440 Speaker 2: been having the effect of consolidating the hard no case 88 00:06:08,520 --> 00:06:13,520 Speaker 2: and people will be suspicious now when a final form 89 00:06:13,560 --> 00:06:17,320 Speaker 2: of words is determined by Parliament, and that's what's going 90 00:06:17,360 --> 00:06:21,360 Speaker 2: to happen, There'll be a committee inquiry, there'll be submissions. 91 00:06:22,279 --> 00:06:25,640 Speaker 2: Parliament will need to agree on a form of words, 92 00:06:25,640 --> 00:06:29,400 Speaker 2: a final form of words to be included in the Constitution. 93 00:06:29,680 --> 00:06:35,520 Speaker 2: But there's been so much detail with hell and so 94 00:06:35,680 --> 00:06:40,520 Speaker 2: much information has been misleading. The initial argument about this 95 00:06:40,720 --> 00:06:44,200 Speaker 2: was that, oh, it wouldn't it wouldn't cause litigation. Well 96 00:06:44,560 --> 00:06:47,720 Speaker 2: that's just not correct. Of course, it would cause litigation, 97 00:06:47,839 --> 00:06:51,360 Speaker 2: and the proponents of it are now being quite clear 98 00:06:51,400 --> 00:06:56,040 Speaker 2: about that. That's the whole point of it. By extending 99 00:06:56,080 --> 00:07:00,680 Speaker 2: its reach to the executive, the public service moments want 100 00:07:01,680 --> 00:07:05,560 Speaker 2: to compel the public servants to listen to it. That's 101 00:07:05,600 --> 00:07:09,040 Speaker 2: policy nostrums, which I think is a bridge too far well, 102 00:07:09,040 --> 00:07:09,320 Speaker 2: and it. 103 00:07:09,320 --> 00:07:12,160 Speaker 1: Also I guess the concern then that it sort of raises, 104 00:07:12,800 --> 00:07:16,560 Speaker 1: you know, in my mind, is massive delays, you know, 105 00:07:16,600 --> 00:07:18,600 Speaker 1: with some of the work that needs to get underway 106 00:07:18,680 --> 00:07:20,600 Speaker 1: and some of the different things that need to happen 107 00:07:20,680 --> 00:07:24,560 Speaker 1: right across Australia. And like, I just worry that when 108 00:07:24,600 --> 00:07:27,520 Speaker 1: you reach that point where you're consulting with you know, 109 00:07:27,560 --> 00:07:31,120 Speaker 1: with a whole extra sort of body, what kind of 110 00:07:31,160 --> 00:07:34,480 Speaker 1: delays we would then see for different issues and different 111 00:07:34,840 --> 00:07:38,520 Speaker 1: you know, different topics on various different things around Australia 112 00:07:38,520 --> 00:07:40,800 Speaker 1: and indeed for us here in the Northern Territory where 113 00:07:40,840 --> 00:07:43,480 Speaker 1: some of these issues are really pressing right now. 114 00:07:44,720 --> 00:07:47,560 Speaker 2: Yeah, look, that's quite right, But I think what would 115 00:07:47,560 --> 00:07:50,400 Speaker 2: happened in practice, because I mean, you've got to remember 116 00:07:50,400 --> 00:07:53,840 Speaker 2: that millions of decisions made every day right around the 117 00:07:53,880 --> 00:07:58,160 Speaker 2: country by the said bureaucracy. It's just not practical for 118 00:07:59,600 --> 00:08:03,400 Speaker 2: bureaus to hold fire and wait for the voice to 119 00:08:03,400 --> 00:08:05,520 Speaker 2: have it say. So, I think what will happen is 120 00:08:05,560 --> 00:08:10,680 Speaker 2: that the voice, after those decisions are taken, if the 121 00:08:10,760 --> 00:08:13,720 Speaker 2: provision is unchanged. The Voice would then have the ability 122 00:08:14,440 --> 00:08:17,880 Speaker 2: to go through those decisions and identify those it doesn't 123 00:08:17,920 --> 00:08:21,960 Speaker 2: black and say, well, look, unless you withdraw that decision 124 00:08:22,800 --> 00:08:28,160 Speaker 2: and make it again after considering our views, will initiate 125 00:08:28,480 --> 00:08:32,440 Speaker 2: proceedings in the High Court or whichever court has given 126 00:08:32,520 --> 00:08:37,200 Speaker 2: particular jurisdiction for this to strike down that decision. Now 127 00:08:37,200 --> 00:08:41,840 Speaker 2: that would incur legal fees. Both sides would incur legal fees, 128 00:08:42,160 --> 00:08:47,400 Speaker 2: and both sides would be financed by taxpayers by itself. 129 00:08:47,480 --> 00:08:49,720 Speaker 1: As a night me, I was going to say, it 130 00:08:49,720 --> 00:08:53,480 Speaker 1: sounds like it's getting really messy. Then increase and that's 131 00:08:53,720 --> 00:08:55,600 Speaker 1: you know, that's the concern I reckon that a lot 132 00:08:55,600 --> 00:08:58,360 Speaker 1: of Aussies have got, particularly for us here in the 133 00:08:58,400 --> 00:09:00,880 Speaker 1: Northern Territory. You know, we've spoken a lot about it. 134 00:09:00,920 --> 00:09:03,680 Speaker 1: I am supportive of the Voice, but I think that 135 00:09:03,720 --> 00:09:05,600 Speaker 1: there's still a lot of questions that need to be 136 00:09:05,679 --> 00:09:09,480 Speaker 1: answered in terms of who's going to be represented on 137 00:09:10,400 --> 00:09:13,920 Speaker 1: that Voice and whether we're going to have representation from 138 00:09:14,520 --> 00:09:19,880 Speaker 1: communities in the Northern Territory, particularly, you know, from territorians 139 00:09:19,880 --> 00:09:23,840 Speaker 1: that are vulnerable that need that representation. But then listening 140 00:09:23,920 --> 00:09:26,679 Speaker 1: to what you've said when you sort of take into 141 00:09:26,760 --> 00:09:29,319 Speaker 1: account the legalities and some of the concerns that will 142 00:09:29,400 --> 00:09:32,640 Speaker 1: have later down the track or further down the track. 143 00:09:32,679 --> 00:09:34,840 Speaker 1: If it's not sort of fixed before we get to 144 00:09:34,880 --> 00:09:38,320 Speaker 1: that point, it's you know, it creates more doubt in 145 00:09:38,360 --> 00:09:39,280 Speaker 1: people's minds. 146 00:09:40,080 --> 00:09:43,640 Speaker 2: Look, I agree entirely. It's all very well for people 147 00:09:43,679 --> 00:09:46,079 Speaker 2: to say they are they're in favor of the voice, 148 00:09:46,080 --> 00:09:49,480 Speaker 2: but what sort of voice is the big issue. If 149 00:09:49,559 --> 00:09:53,840 Speaker 2: it's the current proposal, If that remains unchanged, I think 150 00:09:53,840 --> 00:09:57,080 Speaker 2: it's far too dangerous. I think it's an overreach. It 151 00:09:57,160 --> 00:10:03,079 Speaker 2: would undermine a quality of citizenship. If, however, the Parliament 152 00:10:03,800 --> 00:10:06,520 Speaker 2: has an open mind on this, and I'm particularly talking 153 00:10:06,559 --> 00:10:09,960 Speaker 2: about the government, because the government's been making the running 154 00:10:10,000 --> 00:10:12,959 Speaker 2: on this, If they're faired income about having an open 155 00:10:13,040 --> 00:10:16,960 Speaker 2: mind and listening to community views, I think most people 156 00:10:17,000 --> 00:10:23,160 Speaker 2: would be fairly relaxed about an Indigenous organization having a 157 00:10:23,240 --> 00:10:27,880 Speaker 2: view on laws that only affect Indigenous people. I don't 158 00:10:27,880 --> 00:10:31,480 Speaker 2: see that that's too much of a problem. The other 159 00:10:31,559 --> 00:10:36,240 Speaker 2: problem that definitely needs to be addressed is the unjustified 160 00:10:36,320 --> 00:10:41,560 Speaker 2: reach into the public service. That's too big a risk 161 00:10:41,679 --> 00:10:46,080 Speaker 2: for public servants. I can't see any public or any 162 00:10:46,120 --> 00:10:51,319 Speaker 2: decision maker in the public service being comfortable about incurring 163 00:10:51,360 --> 00:10:54,880 Speaker 2: potential liability for any decision that the Voice doesn't like. 164 00:10:55,840 --> 00:10:56,800 Speaker 2: That's not the way to. 165 00:10:56,760 --> 00:11:00,400 Speaker 1: Go, Chris, do you reckon the Prime Minister's listening these 166 00:11:00,440 --> 00:11:02,760 Speaker 1: concerns that are being raised? And do you think we'll 167 00:11:02,760 --> 00:11:06,760 Speaker 1: see that change before we kind of see the proposed 168 00:11:07,040 --> 00:11:11,280 Speaker 1: constitution or the proposed wording for the constitutional provisions? 169 00:11:11,360 --> 00:11:13,600 Speaker 2: He would? I think he would be to take him 170 00:11:13,600 --> 00:11:17,679 Speaker 2: at his word. He says he's got an open mind 171 00:11:17,720 --> 00:11:21,640 Speaker 2: on this and he welcomes community feedback. And this is 172 00:11:21,640 --> 00:11:26,240 Speaker 2: not just me putting these concerns. Father Frank Brennan as 173 00:11:26,280 --> 00:11:32,200 Speaker 2: the Jesuit priest constitutional lawyer. He's written a book outlining 174 00:11:32,240 --> 00:11:37,360 Speaker 2: these concerns, and his broad concern is in line with 175 00:11:37,400 --> 00:11:42,600 Speaker 2: that of the Sydney barrister Lauiz Clig, who's also put 176 00:11:42,640 --> 00:11:46,960 Speaker 2: forward very very similar concerns about those two key weaknesses 177 00:11:47,760 --> 00:11:53,360 Speaker 2: in the current proposal. The current proposal can't fly. I 178 00:11:53,400 --> 00:11:59,400 Speaker 2: think by allowing it to gain so much impetus, it's 179 00:11:59,480 --> 00:12:05,560 Speaker 2: really fostered opposition. It's been totally counterproductive. There's still a 180 00:12:05,679 --> 00:12:09,040 Speaker 2: majority support for the Voice. I think it's fifty eight 181 00:12:09,080 --> 00:12:12,880 Speaker 2: percent on the latest figures, but the trend is consistently 182 00:12:13,040 --> 00:12:18,680 Speaker 2: down from when the proposal was unveiled at July's last 183 00:12:18,720 --> 00:12:23,000 Speaker 2: July's Garma Festival. It's been consistently slipping and we've got 184 00:12:23,000 --> 00:12:26,480 Speaker 2: a fair way to go before the referendum, and unless 185 00:12:26,920 --> 00:12:29,360 Speaker 2: there's a change made, it seems pretty clear to me 186 00:12:30,280 --> 00:12:33,600 Speaker 2: that support will continue to slide. Now. That means that 187 00:12:33,960 --> 00:12:37,520 Speaker 2: whatever the outcome at the referendum, that will probably be 188 00:12:37,559 --> 00:12:41,160 Speaker 2: a type vote and that's not what we want when 189 00:12:41,160 --> 00:12:44,559 Speaker 2: we're going to change the constitution. It would be preferable 190 00:12:44,679 --> 00:12:49,120 Speaker 2: to have overwhelming support for a new provision in our 191 00:12:49,160 --> 00:12:53,720 Speaker 2: founding documents. It's not desirable to have just squeak in 192 00:12:54,280 --> 00:12:57,480 Speaker 2: because you'll then alienate around about half the community and 193 00:12:57,520 --> 00:12:58,200 Speaker 2: that's not right. 194 00:12:58,880 --> 00:13:02,160 Speaker 1: Yeah, you're sport on that in itself is a concern, Chris. 195 00:13:02,240 --> 00:13:04,400 Speaker 1: I really appreciate your time this morning. I wish we 196 00:13:04,440 --> 00:13:06,520 Speaker 1: had a bit more time because I know that I 197 00:13:06,559 --> 00:13:08,400 Speaker 1: have read as well some of the stuff you've written 198 00:13:08,720 --> 00:13:10,280 Speaker 1: when keeping a bit of an eye on the Northern 199 00:13:10,360 --> 00:13:13,360 Speaker 1: Territory eye cack under our former commissioner. So I'd be 200 00:13:13,440 --> 00:13:15,280 Speaker 1: keen to chat to you about that at some point. 201 00:13:15,280 --> 00:13:17,480 Speaker 1: But I've run out of time this morning. Thank you 202 00:13:17,559 --> 00:13:20,800 Speaker 1: so much for having a chat with me today. Thank 203 00:13:20,840 --> 00:13:22,560 Speaker 1: you Chris very much appreciate it.