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Anthony Albanese’s missed opportunity to modulate the voice

For almost a year, Anthony Albanese chose not to make the one change that could have handed him overwhelming support in the coming referendum.

The Prime Minister ignored repeated entreaties to change the scope of the proposed Indigenous voice so it would focus only on matters that affect Indigenous people – and them alone.

The fact that Albanese has now embraced this idea – or at least has given a public impression of embracing this view – shows that the government implicitly accepts its design for the voice is flawed.

But it was all for show. The reality is that this week’s talk in Canberra about imposing limits on the scope of the voice was of little consequence. It changes nothing.

Had the Prime Minister changed the words of his proposal before the referendum legislation was passed by parliament, things would have been very different.

He might have split the “no” vote and would now be cruising towards a successful outcome at the referendum.

It’s hard to avoid the impression that the government is merely attempting to change its sales pitch in order to paper over the fatal flaw at the heart of the voice: the threat to equality of citizenship.

This threat is based on the fact that the voice would give one group of citizens, based on their race, an additional say on all laws, all public policies and all administrative matters beyond that enjoyed by everyone else.

This is a central and unavoidable component of the scheme approved by parliament. It would create an institution motivated by racial preference that could have a say on everything – including Australia Day.

This jurisdictional overreach and threat to equality is now baked into the proposal that will go to the referendum.

It formed the main focus of a sold-out talk on Tuesday by barrister Louise Clegg in Sydney that was organised by the Samuel Griffith Society.

Clegg saw the debate over the voice as part of a broader malaise afflicting comparable countries.

“We in liberal democracies are in something of a rule of law crisis,” she said.

“Equality before the law is the central tenet of the rule of law. It sits at the apex, if you depict the rule of law as a pyramid.

“That idea is seriously under threat. This has come out of the academy and has extended to what I call apex elites.

“It is really only the elite of the elites who buy into this idea that equality before the law is no longer a good idea and we might, or could or should, in some circumstances have different laws and conventions for different ‘tribes’ or groups of people depending on gender, race, sex, the colour of their skin and other identity groups.

“This is a global phenomenon. Australia has not been spared.

“That explains why this amendment, which has been developed by a handful of apex elites, some of whom are my friends … overreaches and in a very clear way entrenches identity politics,” Clegg said.

Her remarks provide the real context for this week’s sham talk of reforming the voice. That horse has bolted.

It is now futile to pretend that if this referendum succeeds the new words in the Constitution could somehow be limited by the words of a speech by the Attorney-General, Mark Dreyfus.

Yet that is what the nation was subjected to this week.

Albanese told parliament: “I urge people to have a look at the second reading speech of the Attorney-General that has legal consequences, speaking about matters that affect Indigenous Australians differently.”

That speech does refer to giving the voice a say on general measures that affect Indigenous people differently, and on matters that specifically affect Indigenous people.

But these were not terms of limitation. Dreyfus cited them as examples of the sorts of issues that would be included in the jurisdiction of the voice.

When Albanese told parliament Dreyfus’s speech had “legal consequences” he neglected to outline the limited circumstances in which judges can legitimately refer to second-reading speeches.

This sort of “extrinsic” material is not of equivalent status to the plain words of a statute or a provision of the Constitution.

Judges can take account of this sort of material if a provision is ambiguous, obscure or its ordinary meaning would lead to absurd or unreasonable outcomes.

If the government had intended to focus the work of the voice on Indigenous affairs, or on matters that affect Indigenous people differently to the rest of the community, it could have done so when the referendum legislation was before parliament.

At its highest, Dreyfus’s speech reflects the intentions of the Attorney-General.

But the High Court is not concerned with the subjective intentions of politicians. It is concerned with the objective meaning of the Constitution.

The court made this clear in 1988 in a case known as Cole v Whitfield when it ruled that it was not legitimate to substitute the scope and effect of a constitutional provision with the scope and effect that was subjectively intended by the founding fathers.

The government had a chance to reform the voice and it failed to do so.

Instead, the unlimited scope of the proposed institution means one group of Australians, defined by race, would gain an additional method of influencing all public policies, all proposed laws and all administrative matters.

That makes the voice a threat to equality citizenship and the rule of law. And that is why it needs to be rejected. It is beyond redemption.