Anthony Albanese and his acolytes have been cock-a hoop over the Solicitor-General’s opinion on the Voice. They are ecstatic that they have received his opinion because he is the commonwealth’s principal legal guru and whatever he says must carry weight. So you can understand their enthusiasm for flashing it around, even if it is clearly a truncated and sanitised version of his earlier opinion that the government brazenly refuses to release. So, even today, we do not know what his real opinion is. But anyone who thinks that the version the government has condescended to give us is unqualified in support of this radical and unprecedented proposal or that it gives it a green light or a stamp of approval, would be wise to do two things before they start jumping up and down with enthusiasm.

First, they should read it, which Albanese and his cheer squad plainly have not done. Secondly, they should think very carefully about what they are doing. Indeed, the opinion contains a very clear warning about what is in store for us if we go ahead with it, more akin to a red or an amber light than a green one. And it is a wonderful example of the warning given by that renowned legal scholar Gordon Brown, the then UK prime minister: ‘Once you open this Pandora’s Box, you never know what Trojan horses are goin’ to come flyin’ out.’

I have looked at the opinion closely and on my reading it contains enough of a caution to justify concluding that the proposal should be substantially amended or, preferably, abandoned.

The opinion is correct on the constitutional issues. That opinion in a nutshell is that the proposed structure is valid in terms of our constitutional structure and that it does not compel the parliament or the executive to implement slavishly the advice that the Voice would give. So far as I am aware, no one has ever suggested the contrary, but it is good to know.

But the Solicitor-General does not say anything even remotely along the lines that advice from the Voice to the executive government can just be ignored. It would be contrary to common sense and the whole reason for setting up the Voice if that were correct. So, something has to be done with this advice. And in that regard, don’t forget that the whole proposal is that the Voice can give advice to the executive, the government and its public servants, office-bearers and instrumentalities, on anything ‘relating to’ Aboriginals. The phrase ‘relating to’ is so broad that it means anything that a government can do, because anything that a government does relates to Aboriginals as much as it relates to anyone else. When that wide remit is appreciated, it is even clearer that it cannot be that the government can ignore advice on this potentially vast range of governmental decisions. In any event, the Solicitor-General does not say it can be ignored and it is mischievous to suggest that he does.

If the advice cannot be ignored, what then does the Solicitor-General actually say is to happen to it? He says that ‘it would plainly be desirable for the Executive Government to consider any representations that the Voice makes…’.  He even underlines the word ‘desirable’, unusual in an opinion and presumably done to emphasise just how serious he is about making the point and how desirable it is for government to consider representations made by the Voice.

Many of us have reservations about this proposal and how it has scope to rupture the whole basis of our democratic government, where the people vote for one government for all the people equally, of whatever class, race or group. Into this fabric would now be inserted a new government structure that would set up a parallel decision-making process to propose separate and potentially different laws to apply, not to all the people, but to one race alone.

The advocates who want this parallel government have made it plain that the advice will be on specific laws they want in all areas of government. It will be a log of claims more than ‘advice’. Undoubtedly, some will want to stop a mine, a dam or a development project. Others will want special laws on education, transport, health, social welfare and law enforcement. Others say that they want to have their own way on any proposed government decision that ‘relates’ to Aboriginals. They have already got a down payment on migration law via the Love case. They all require government action that will be the subject of advice from the Voice. They can scarcely mean or believe that considering the advice is optional, that it can ignored, avoided, or rejected on grounds that they find unacceptable. Their absolute priority is that advice should be sought from the Voice and, if given, should be accepted or, if rejected, then only for reasons given that they find acceptable. If that is not done, the advice has not been considered. After all, they will add, what is the point of the Voice and the divisive argument and its monumental cost, if its advice is not sought or, if given, is not considered and accepted? And how could it be ‘desirable’ if the advice is ignored or rejected?

The activists will claim in the inevitable court proceedings that as it is ‘desirable’ to consider advice given by the Voice, the courts should review government decisions where advice should have been given but was not, or where it was given but rejected on grounds that the Voice, its supporters or third parties find unacceptable. They have a fair to even chance of winning. Thus, the courts, not elected by the people, will have power to enforce the decisions of this parallel government for the benefit of one race. Now, I admit that I may be wrong. On the other hand, I may be right. But are we prepared to take that risk and let the Trojan horses of litigation come flying out?