Last week the New South Wales Bar Association announced that its governing body, the Bar Council voted unanimously ‘to endorse the proposed wording for the Constitution alteration to enshrine a First Nations Voice as sound and appropriate, and to support public advocacy in support of a “Yes” for this substantive form of Constitutional recognition’. This unanimous vote it said took place ‘having considered other publicly available alternative proposals and arguments for and against the wording, and for and against a “Yes” vote, including those suggesting more limited forms of recognition and consultation’. I wonder who spoke for the “No” case at the meeting of the Bar Council or was that side’s argument just given “on the papers”?

The fact that the vote was unanimous does not suggest, contrary to the spirit of fearless advocacy, much of a debate in the deliberations of the Bar Council. The unanimous vote does not reflect the views of a substantial number of members of the Bar Association. The unanimous vote perhaps is symptomatic of a wider malaise in the ranks of barristers. The unanimous vote does not reflect much diversity of opinion being vigorously exchanged or at all. This Bar Council elected last year had one of the lowest turnouts of voters for many years. The electoral system of ‘first past the post’ assists the election of winner-take-all of a well organised team. Such a system militates against the election of a wider selection of opinion and can lead to ‘groupthink’.

One of the key objectives of the NSW Bar Association is the promotion of equality and diversity. The Bar’s Diversity and Equality Committee pursues policies it claims so that the Bar ‘reflects the wider community it serves’. With a substantial part of the community opposed to the current wording of the change to the Constitution the Bar Council with its unanimous vote is already looking a bit silly .

Notwithstanding the Bar’s support of ‘diversity’, lawyers who have publicly disagreed with enshrining the Voice in the Constitution have been derided. The eminence rise of multiple Bar Councils, Bret Walker, SC has labelled legal critics of the Voice as recorded in the Australian Financial Review in early March this year, inter alia, as “purveyors of doomsday scenarios” and warned those lawyers who engage in the ‘justiciability scare’ ought to think carefully before they lend themselves to it. So much for diversity of opinion. Professor Greg Craven, an original architect of the First Nations’ Voice has said that the proposed question on the Indigenous Voice “is far worse than I had contemplated the worst position being.” One silk I have spoken to who supports the “No” case will not say so publicly for fear of being cancelled by the big firms and their big corporate clients. Another silk who supports the “Yes” case has said to me that the Bar Council by entering the arena on this vexed topic will diminish itself amongst a substantial section of the community.

Aspects of the work of barristers are under challenge. The Bar Council’s decision actively to take sides in this contentious debate may not assist its members’ best interests.

Jeffrey Phillips,

SC a Sydney barrister