Author: Megan Davis
Publisher: Black Inc. (imprint of Schwartz Publishing)
Reviewer: David Topp
Your present reviewer has evaluated three titles for Hearsay during 2023, of which this is the third. Unintentionally, these three reviews have formed links in a chain: The White Elephant Stampede {“WES”} in June 2023, a compendium of case studies of policy and project management failures; New Directions in Royal Commissions & Public Inquiries {“New Directions”} in September 2023 and now Megan Davis’s Quarterly Essay of earlier this year, ‘Voice of Reason on Recognition and Renewal‘ {“Voice of Reason”}.
The exact linkages will be explained at the conclusion of this review. Necessarily, I start with Voice of Reason, itself. Voice of Reason is volume 90 of the highly successful Quarterly Essay series of 25,000 words ‘significant contributions to the general debate‘.
Consistently with the ‘general debate‘ ethos, Voice of Reason was released in mid-2023, timed to coincide with the ‘business end’ of the campaigning both for and against the 14 October 2023 Voice referendum, the result of which is now well and truly certain.
Indeed, with the benefit of knowing the outcome and having taken in the vast quantity and quality [sometimes dubious] of the arguments ventured by both sides in what became the debate of 2023, Voice of Reason is even more worthy of being read now, post-referendum, than by the pre-referendum audience towards whom it was undoubtedly directed.
University of NSW Professor of Constitutional Law, Megan Davis, will be well known to most readers of this review, having been one of the five most prominent Indigenous proponents under the official ‘Yes23’ campaign banner along with Noel Pearson, Marcia Langton, Thomas Mayo and Dean Parkin. Prof Davis was the first person to read out the Uluru Statement from the Heart in May 2017[1] when the concept was nascent. Voice of Reason begins by describing the genesis of the Voice as a ‘culmination of a twelve year project that commenced with … Julia Gillard’s Expert Panel on Constitutional Recognition of Indigenous Australians’ in 2011[2]. “Culmination” is an apt descriptor for the ‘form of recognition proposed … a constitutionally enshrined … Voice to the Parliament’[3].
Getting the government to listen, the lack thereof being ‘one of the most acute challenges for Indigenous Australia‘[4], is a primary theme of the Essay. From here, Prof Davis bases her advocacy for the Voice proposal: ‘Parliaments do not listen because they do not have to. Governments do not listen because they do not have to. Bureaucrats do not listen because they do not have to‘[5]. Prof Davis cites, as examples, the 1998 post High Court Wik decision native title negotiations, 2004 abolition of the Aboriginal and Torres Strait Islander Commission and the 2007 Northern Territory Emergency Response[6], adding that ATSIC was in fact one of many consultative bodies that emerged between the 1967 referendum {which conferred legislative power to make laws for Aboriginal people} to the present, only to have been abolished in the meantime. The National Aboriginal Consultative Committee, the National Aboriginal Conference and the Aboriginal Development Commission[7] are three others.
An identical argument, in reverse, was applied by Prof Davis to the creation, rather than removal, of a body: the May 2014 announced Indigenous Advancement Strategy, explained as an asset transfer of $534 million from the Indigenous Affairs budget to a new strategy body formed under the auspices of the Department of Prime Minister and Cabinet during Tony Abbott’s 2 year term as prime minister. A concomitant lack of requirement to consult before either abolishing and replacing or creating such bodies from scratch means, according to Prof Davis, that a ‘Voice cannot be truly independent or offer frank advice if it lives with the threat of abolition. It alters the efficacy of communication and dialogue if the existence of the mechanism is predicated on obsequiousness towards the state‘[8].
What then are the consequences of all, as Prof Davis described it, the ‘chopping and changing of such mechanisms’? A ‘destructive impact upon communities: their funding, short-term and long-term planning, quality of health, social cohesion and hopes for the future’ is her answer[9]. Quite a strong critique: epithets like ‘destructive’ and ‘the exhausting of all hopes for her people’s future purely as a result of non-consulted removals of federally created administrative bodies seems a stretch. Even more so where, under a heading of ‘Child protection’, Prof Davis devotes 7 pages of her Essay to the multitudes of problems she personally reviewed over a number of years[10], none of which she attributed to abolition or creation of governmental bodies at the federal level, instead accepting that ‘child protection is a state responsibility’[11]. As to that seat of responsibility, Davis’s view, based on her having been commissioned by both the Queensland and NSW governments to independently review their own systems[12], was that ‘[T]here is no effective regulator. It is a closed system. There is no genuine consultation with the Aboriginal family or community’[13]. From which flowed a hope that an ‘enshrined Voice, one that is elected by communities, would have the status and power to paint a more fine-grained picture from the ground’[14]. With the Voice proposal on which we all, ultimately, voted on 14 October 2023 being expressly predicated on representations to the Parliament and executive government ‘of the Commonwealth’, the hope that a Voice could correct failures in state based and, therefore, not nationally uniform child protection schemes, was exactly that – a hope and, to be sure, a most heartfelt one – rather than a guaranteed result.
In his own quite robust at times critique of Voice of Reason, Victorian silk, Stuart Wood, went further than pointing out a mere demarcation of federal and state responsibilities so far as the Voice’s reach was concerned. Rather, Mr Wood KCs’ rejoinder to the ‘chopping and changing’ to which Prof Davis objected was that this is and always has been an ordinary incident of Australia’s democratic system, risking the placing of future generations into a ‘legal straitjacket’: ‘[F]uture parliaments should be able to abolish or amend special interest bodies as a matter of intergenerational equity and fairness … [and] implement the societal architecture appropriate to that generation’. Mr Wood goes so far as to argue that entrenchment of the Voice into the Constitution would deprive ‘future generations of the freedom to easily frame the country’s governance as they see fit’, making the proposal ‘intergenerationally inequitable and unjust’[15].
Respectfully to Mr Wood KC, clause {iii} of the proposed Section 129 to be inserted into the Constitution was ‘The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the … Voice …’. Including its ‘functions, powers and procedures’. Accordingly, the deprivation of ability to, in the future, frame and reframe the country’s governance, of which the Voice would have been but one of many myriad parts, seems quite illusory.
This having been said, constitutional entrenchment is exactly that: once voted into existence by a successful referendum, only a referendum of rescission could thereafter see the Voice abolished. Prof Davis recorded her participation in meetings with then newly minted Prime Minister Malcolm Turnbull, who ‘set up a new process, led by what he called the Referendum Council’ in late 2015 and early 2016 ‘to undertake deliberative dialogues on recognition’[16]. Those processes led to the National Constitutional Convention at Uluru in May 2017[17] which led to the ‘sequence’ of ‘Voice, Treaty, Truth’[18]. The Referendum Council summarised as ‘the logic’ of constitutional entrenchment over mere creation by legislation as ‘reassurance and recognition that this new norm of participation and consultation would be different to the practices of the past’[19], with a legislated version only being ‘subject to the whims of politicians who hubristically believe they know better and can speak on behalf of Aboriginal people’[20].
It is therefore appropriate at this stage of the review to cite Turnbull’s own perspective, albeit, prepared with the benefit of post-referendum 20:20 hindsight. Turnbull rhetorically asked did Yes23 lose because Opposition Leader Peter Dutton opposed? Or because Anthony Albanese failed to secure bipartisan support or provide a detailed design of the Voice beforehand? Or was ‘the result a testament to the power of misinformation in the social media age?’[21].
In answering no to all of these, Turnbull returned to the same constitutional entrenchment ‘logic’ Prof Davis quoted in her Essay and, in so doing, countered with some realpolitik logic of his own:
‘… I did not support entrenching a voice in the constitution in 2017 when it was formally proposed … by the Referendum Council and neither did anyone else in my cabinet. We said the proposal was not “desirable or capable of winning acceptance in a referendum”… for those like me of an essentially republican, egalitarian mindset, having any institution in the constitution the qualification for which was other than Australian citizenship was hard to accept. After all, wasn’t that our case against the monarchy?’[22].
Adding that ‘the most fundamental objection’ was a lack of belief that the proposal was capable of being carried in a referendum, Turnbull bemoaned the ways in which Voice ‘advocates[’] … confidence in its success was uncluttered by the slightest practical experience of conducting a referendum or election campaign’[23].
Turnbull, nonetheless, agreed with Prof Davis about the ‘objective of placing a Voice in the constitution’ being ‘to ensure that it could not be abolished … nor could the scope of its advice … be curtailed’[24]. Turnbull also cited the cessation of ATSIC. Additionally, Turnbull spoke, perhaps not identically but congruently with Davis’s anti-legislated only Voice concept, by opining ‘I very much doubt establishing the Voice first would have made the critical difference. After all, once established, it may not have been successful or effective. And it would have meant any referendum would have to wait for a second, or even third term, given the time it would take to negotiate and legislate the form of the Voice’[25].
Though, in what appears to be a subtle dig against Prime Minister Albanese’s constant and consistent eschewing of any need to provide ‘detail’ of what the Voice would look like, Turnbull ended his above-cited criticism of the legislate first notion with the following ‘but’:
‘But once it was set up, at least yes campaigners would have been able to point to an existing institution when they were asked what the Voice would look like’[26].
Prof Davis was firmly in support of ‘deferral of detail’ to Parliament as ‘a normal approach to constitutional amendment … because principle is for the Constitution and detail is for the Parliament’[27]. In light of the no campaign not only prevailing, but ‘winning’ with 60.06% of the national vote[28], that otherwise accurate statement of principle made by Prof Davis in mid-2023 has been rendered very contestable, now, especially, given this rejoinder by Turnbull:
‘It is a perfectly good lawyer’s answer to say that Parliament can be trusted to establish the Voice, and you can point to other provisions of the Constitution which give the Parliament power to legislate on numerous subjects without spelling out what that legislation should say. But we live in a time when trust in politics and politicians is low. Nobody seemed to remember how effective the “you can’t trust politicians” campaign was against the 1999 proposal to have a president chosen by a two-third bipartisan majority of parliament.’[29]
A similar practical difficulty point was made pre-poll by Andrew Lynch, Dean of Law at UNSW: ‘…getting a grip on the conflicting messages in the [Voice] debate is made harder by the fact Australians are rarely encouraged to engage with our Constitution’[30]. The rarity of which Professor Lynch spoke now appears, following the 1999 and 2023 outcomes, more likely to turn into an extinction.
In concluding her Essay, Prof Davis implored ‘[D]espite all that has happened to our people, we must dream of a better day’[31]. Turnbull’s final words were ‘Hope is inspiring, but unaccompanied with careful calculation, it is danger’s comforter and more often a signpost to glorious defeat than a hardscrabble victory.’[32]
Turnbull is correct. Hopes and dreams are one thing. Reality is often cruelly different.
Finally, turning to the links which commenced this review. Link 1: WES despaired the proliferation of white elephant projects having arisen reflexively in response to clamours made to western governments to ‘do something’ about almost every issue because governments can, supposedly, ‘fix’ everything. Link 2: A cognate theme arose in Dr Margaret Cook’s New Directions chapter critique of the Qld Floods Commission of Inquiry of 2011 & 2012, namely, ‘[W]hat society wanted was for science and government to remove the risk altogether, an unattainable goal‘[33], the ‘risk’ being a catch-all descriptor to encapsulate the myriad risks involved in basing a city on the banks of the inherently flood prone Brisbane River. Link 3: Voice of Reason. Professor Davis opined that ‘Australians have low levels of trust in their politicians, seeing them as too absorbed by adversarial parliamentary politics, internal leadership quarrels and internecine pre-selection spats‘[34], a point also made by Turnbull in his Guardian piece: ‘…we live in a time when trust in politics and politicians is low’[35]. These themes sharing New Directions’ editor’s citation of the potential of inquiries to overcome public distrust of government as an affirmative answer to that work’s sub-title of ‘do we need them? [public inquiries]’[36].
In truth, referenda are the ultimate public inquiry – the voting public has been inquired of, and their recommendation [or, in this case, lack thereof], quite unambiguously made in the case of the Voice:
‘….while tonight’s result is not one that I had hoped for, I absolutely respect the decision of the Australian people and the democratic process that has delivered it’[37].
[1] Voice of Reason, back cover blurb
[2] Voice of Reason, at 2
[3] Ibid
[4] Voice of Reason, at 5
[5] Voice of Reason, at 9
[6] Voice of Reason, at 9-10
[7] Voice of Reason, at 11
[8] Voice of Reason, at 11
[9] Ibid
[10] Voice of Reason, at 13-19
[11] Voice of Reason, at 18
[12] Voice of Reason, at 13
[13] Voice of Reason, at 15
[14] Voice of Reason, at 19
[15] Stuart Wood KC ‘Voice locks up future generations in legal straitjacket’ The Weekend Australian 7-8 October 2023, at page 15
[16] Voice of Reason, at 50
[17] Voice of Reason, at 53
[18] Voice of Reason, at 54
[19] Voice of Reason, at 57
[20] Voice of Reason, at 58
[21] Malcolm Turnbull ‘Australia’s constitutional history told us the voice referendum was unwinnable. Sadly, that was right’ The Guardian Australia, Mon 23 Oct 2023 01.00 AEDT
[22] Ibid
[23] Ibid
[24] Ibid
[25] Ibid
[26] Ibid
[27] Voice of Reason, at 57
[28] https://tallyroom.aec.gov.au/ReferendumNationalResults-29581.htm
[29] Supra, fn 21
[30] Professor Andrew Lynch ‘Inform yourself; vote with reason, not in ignorance’ The Australian 18 September 2023, at page 11
[31] Voice of Reason, at 66
[32] Supra, fn 21
[33] New Directions, at 142
[34] Voice of Reason, at 5-6
[35] Supra, fn 21
[36] New Directions, at 393
[37] LinkedIn page of Anthony Albanese, ‘Prime Minister of Australia at The Australian Government’, 14 October 2023
