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Chris Merritt
Legal Affairs Contributor
24 February, 2023
How Frank Brennan provision could make Indigenous voice work

If Anthony Albanese is truly open to making concessions about the proposed Indigenous voice to parliament, there is still hope for this referendum. But without change, it is a recipe for disaster.

Even if the referendum succeeds, the current proposal would divide the nation by race, feeding resentment about a system of governance that embraces racial preference.

That catastrophe can be avoided if the Prime Minister acts now and brings this project back from the precipice. Here’s how.
The suggestions that follow are heavily influenced by the thinking of Jesuit priest and constitutional lawyer Frank Brennan, who has developed a much safer proposal for constitutional recognition for Indigenous Australians.

There would still be an Indigenous voice to parliament, but it would not disturb two principles that are fundamental to Australian egalitarianism: fairness and equality of citizenship.

Many people have no objection to constitutional recognition, but they oppose the proposal unveiled by Albanese at last year’s Garma festival.

This is because the Garma provision has too many unintended consequences. Garma would establish an Indigenous voice in ways that would undermine equality of citizenship, and expose every single decision maker in the executive branch of government to the risk of constitutional litigation.

It would mean Indigenous people – and their descendants forever – would have a race-based constitutional lobby group that would give them an additional method of influencing legislation and public policy affecting all Australians, not just Indigenous affairs.

Brennan has outlined a compromise that deserves serious consideration by the whole community – not just by the insiders who found nothing objectionable in the Garma provision’s embrace of racial preference.

The Brennan provision is outlined in his new book, An Indigenous Voice to Parliament: Considering a Constitutional Bridge (Garratt Publishing). He addresses two big problems with the Garma provision: its unlimited scope and its intention to extend the voice not only to the parliament but to decisions of the executive branch of government.

Brennan would constitutionalise a far more targeted role for the voice. Its constitutional role would be limited to providing advice on proposed laws on Indigenous affairs.

That advice would go to parliament. Not the executive.

Other roles could be added and removed by statute as determined by our elected parliamentarians. The reduced scope of the voice would dramatically reduce Garma’s very real risk of constitutional litigation, High Court tinkering and delays to the work of parliament.

Because the voice would be required to focus on Indigenous affairs, there would be no need for extensive bureaucratic support. Its efforts would not be wasted on matters that primarily affect the broader community. Brennan’s provision is a logical and measured response to the fact that the Constitution, in section 51 (26), enables the government to make special laws for Aboriginal and Torres Strait Islander peoples.

The rest of the community would not be affected by the constitutional role of the voice under Brennan’s plan, which would be confined to providing advice on those few special laws affecting Indigenous people – and them alone.

The Garma provision would give the voice unlimited scope beyond Indigenous affairs. It could involve itself in any decision within the executive branch of government and any law being made by parliament.

The Garma provision would establish the voice as a shadow government. Brennan’s provision would not. It says: “There shall be an Aboriginal and Torres Strait Islander Voice with such structure and functions as the parliament deems necessary to facili­tate consultation prior to the making of special laws with respect to Aboriginal and Torres Strait Islander peoples, and such other functions as the parliament determines.”

If Albanese wants to save this project, he should abandon Garma and send the Brennan compromise to a constitutional convention involving the broader community.

The Constitution, after all, is owned by all Australians – not just those who would benefit from a particular change.

At the moment, it looks like the community will be sidelined until the final form of the proposed constitutional change is presented to parliament next month and is examined by a parliamentary committee.

So unless something changes, the insiders who saw nothing wrong with the Garma provision could help determine the fate of the Brennan compromise.

Albanese told the National Press Club on Wednesday he was not being prescriptive about the wording of the proposed change.

If that is the case, why not involve the broader community now by convening a constitutional convention, something that was first suggested by Sydney barrister Louise Clegg.

If the PM wants to make this a bipartisan project, endorsement of the Brennan provision by a constitutional convention might be enough to persuade Peter Dutton to endorse the yes case.

Garma is tainted. It would give one group of citizens a publicly funded lobby group that would have an extra say on laws and public administration affecting the entire community.

It is also unworkable. If federal bureaucrats failed to consider the views of the voice before making a decision, they would be at risk of being dragged into court.

Taxpayers would pay the legal costs incurred by both sides.

Consider what Marcia Langton, a member of the referendum working group, had to say about this on Monday. She was asked on ABC Melbourne radio if government decisions could be delayed by legal action if the views of the voice were not considered.

Langton’s response: “That’s a possibility … why wouldn’t we want that to be the case.”

Federal public servants are at risk under Garma. That is not the case with Brennan.