Dow Jones Factiva Dow Jones Opinion We need a minimalist Voice the whole country can support Louise Clegg 877 words 9 February 2023 The Australian Financial Review AFNR First 39 English Copyright 2023. Fairfax Media Management Pty Limited. .....The tiny club of academics and lawyers who are the custodians of the crucial but hugely ambitious project that is the Indigenous Voice in the Australian Constitution must now face reality: they need to convince the Australian people. So, what is wrong with the current model? Well, let's be clear up front that this is not a merely symbolic exercise in Indigenous recognition. What is proposed is seriously substantive. There is no precedent for it in any comparable country. The four new sentences are to be located in an entirely new chapter of the Constitution. This is unheard of since Federation. Given the importance assigned to text and structure in constitutional jurisprudence, and given the language used in the sentences, it is not overreach at all to say that the Voice currently looks like - and therefore may well act like - a novel fourth advisory arm of government. ....But don't take my word about the enormity of this project. In 2021, Professor Gabrielle Appleby - who for many years, with Professor Megan Davis, has led the drafting work out of the Indigenous Law Centre at the University of NSW which culminated in the prime minister's Garma model - blogged that "the [Voice] would ... provide an important reordering of the hierarchy of the State [and] ... provides a form for the transformation in Australia's established constitutional institutions". The very worst feature of the current model is that the representative body - which is unwisely mandated in perpetuity to be called "the Voice" - has jurisdiction over not just laws and policies with respect to Indigenous affairs or people, but in respect of laws and policies of general application. This means the Voice could have a say about anything. Appleby again, just last month: "Across myriad lawmaking subjects - such as allocations of public resources; design of civil and criminal justice systems; fairly managing resource extraction, tourism and other uses of traditional Indigenous lands and waters; and responsible environmental stewardship - the Voice may help to develop workable legislated solutions." Therefore, the body has the potential to, and likely will, put a brake on the operations of parliament and the executive government in respect of very many aspects of our polity..... ....It is entirely possible to design a much safer yet still substantive Indigenous representative body in the Constitution. For example, a modest, minimalist version could be crafted in a refurbished s. 51(xxvi), together with a beautiful new preamble. It would meet the requirement of an entrenched "voice" to parliament and also provide significant recognition. Such an amendment would limit constitutional entrenchment to laws that are specifically about Indigenous peoples - but would not prevent a much bigger Voice being legislated. Because it's remit would be so confined, a minimalist model would not look like, nor could it act like, an advisory arm of government. Nor could it be said to be akin to a third chamber of parliament. A minimalist model that suits our Constitution and our culture might be something the whole nation could get behind, giving the referendum a much greater chance of success. And it would still be a massive achievement for Indigenous and non-Indigenous Australia. There are many well-intentioned people who genuinely see what is currently proposed as benign. But they are nave about the fact that a big, experimental model in any era, let alone a populist era, is dangerous.... ......The model currently on the table is too audacious and radical. Instead of exposing the model to scrutiny - by conducting a public forum or constitutional convention to thrash out the pros and cons of the many available models - its proponents appear hell-bent on crashing, or crashing through. In doing so, they will take the whole country with them. Win or lose, it is a portent for disaster. Louise Clegg is a barrister. 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