How many readers managed to watch recently a short segment on the The Bolt Report on Sky when host Andrew Bolt interviewed opposition leader Peter Dutton? It was close to excruciating. Here’s the gist of it. Bolt: ‘Why can’t you and the Liberal party come out on principle against the Voice because it divides Australians based on race?’ Dutton: ‘Andrew, let’s look at Australia Day and the way Labor is … blah, blah, blah.’ Bolt: ‘Back to my actual question, Mr Dutton, why can’t a party committed to treating individuals the same come out against a Voice that divides Australians based on race?’ Dutton: ‘Andrew, we are waiting for more details. We are forcing the Prime Minister to give us details… blah, blah, blah.’ Bolt: ‘Why do you need details when this is so clearly wrong on principle?’ Dutton: ‘Once we’ve seen the details, Andrew, I can assure you we will take a position… blah, blah, blah.’

And so it went. Never would Mr Dutton actually answer Bolt’s question. Evasion. Prevarication. It was painful to watch. It was almost as though Mr Dutton were trying to hold together a deeply divided party room, some Liberal MPs wanting him to take a stand on principle and others with sympathies more in keeping with, well, the inner-city, Green/Teal, woke worldview. Look, I understand that in terms of the many careerist MPs Mr Dutton has inherited in a political party that seems to be in near-terminal, principle-free decline (want to bet against the Libs’ well-deserved annihilation next month in NSW?) he has been caught on the horns of a dilemma. To some extent you don’t want the ‘wets’ breaking ranks and openly scheming to do to you what they did to Mr Abbott (to such magnificent effect that those MPs who defenestrated Abbott have put the Liberal party on a decade-long trajectory of decline with no signs of improvement because back then they reckoned Malcolm Turnbull should lead their party – the same Malcolm Turnbull who went on to set up the Guardian in Australia, support the Teals, never seemed to hold a single conservative view that I could see, and whose elevation makes one wonder what ABC-worldview-laced cannabis Liberal MPs were smoking back then).

But I digress. My point is that Mr Dutton surely is in a less than comfortable position what with the party room MPs he has inherited. And it is also true that on the plane of pure tactics, and nothing but tactics, there is something to be said for the ‘let’s just sit back, take no clear view on this Voice monstrosity, demand that Mr Albanese give us more than the pathetic paucity of detail we’ve seen so far, and hold the party room together that way’. From the start I’ve believed, and written in these and other pages, that this Voice referendum would fail. As conservative commentators go that puts me on the optimistic wing, call it the Pollyanna wing if you wish, of the anti-Voice forces. This Voice proposal is so bad that Mr Albanese can’t really give too many details. If he does, he’ll lose more and more voters as they see what’s actually on offer. And if he doesn’t reveal much at all he’ll be chipped away at as voters come to realise that no democratic country on earth has ever asked its citizens to approve a constitutional amendment – not a statute, be clear, but a constitutional amendment – in which the detail and substance of that constitutional innovation are kept secret and behind closed doors. It beggars belief, even with one of the world’s fastest declining school systems in hock to wokery and low expectations on every front, that voters will give a ‘Yes’ to the blank cheque being asked of them.

Put bluntly then, I think either approach to this woeful Voice referendum would see it defeated. Take the principled approach that ‘the Liberal party of Australia does not support any constitutional provision that treats differently citizens based on characteristics they were born with and over which they have no control’ and Dutton would win.  He’d be hated by the great and the good but he’d win.

Nor would that option prevent him from pointing to the awful consequences of this Voice based on what we do know. For instance, it certainly will be justiciable and in my view every lawyer with a functioning brain, those on the government’s Constitutional Expert Group included, know that’s the case. And it will lead to rampant judicial activism. I’ve said that for ages but it’s even worse than I’ve been suggesting so far. You see a top lawyer friend last week pointed out to me that this Albanese Voice amendment, if passed, is to be given its own chapter in the constitution. So not as with past successful amendments a new section or revised head of power. Nope, a whole new chapter. Mon Dieu! The worst two bits of massive judicial activism we’ve seen in this country in the last half-century have been premised (implausibly, but there you are) on the separate chapters of our constitution. Firstly, there’s the separation of powers jurisprudence that strikes Canadian, New Zealand and British-trained constitutional lawyers like me as incredibly implausible. Secondly, there’s the ‘made-up out of thin air’ implied freedoms that give our judges a chance to decide on any challenged piece of legislation whether they, not us but the judges, think it’s proportionate and justifiable. This too was premised on vague genuflections in the direction of our constitution’s structure though truth be told the rationale is woefully thin. Still, give our top court a Voice constitutional amendment with its own chapter and it will be like manna from heaven to judges who gave us the Love case and other stunning bits of judicial usurpation of Parliament’s law-making authority.

And you know who knows enough constitutional law to know this is correct? It’s Julian Leeser and Greg Craven, both one-time critics of Australia’s High Court adventurism. Know what else they know? That on this so-called Constitutional Expert Group that PM Albanese uses as his sole intellectual crutch there is not one single sceptic of this Voice proposal. It’s like working at the ABC and looking for a conservative. Even if you define the term as widely as possible and look on the Expert Group for a conservative the only remotely plausible candidate on that front would be Greg Craven. But he is a core architect of this Voice proposal. Read Daniel Kahneman. The sunk costs fallacy makes it hard for everyone, all of us, to throw in the towel on something we’ve invested heavily in.  What we’re seeing out of this Expert Group has thus far been embarrassing if we’re talking about constitutional analysis.

But I finish where I started. Long term the Liberal party needs to rediscover the ability to stand for values and principles, not try to broker intra-party feuds between careerist MPs in some cutesy, adviser-clever way. The best opposition leader of the last half century was Mr Abbott. He stood on principle and opposed what needed to be opposed – even if the ABC and chardonnay-sipping class loathed him for it. That, Mr Dutton, is the way to approach this Voice proposal and everything else.