As reported by Lawyers Weekly, most BigLaw firms in Australia are backing the “Yes” vote for the proposed Indigenous Voice to Parliament — set to be decided by a referendum later this year.

Those firms are not alone: numerous member bodies across the profession are also pledging support, including the NSW Bar Association (which in mid-April called to “close the gap in our Constitution”), the Law Institute of Victoria earlier this month, and leading silks, who — as former presidents of the Australian Bar and Law Council — recently published a joint statement throwing their support behind the Voice.

Elsewhere, the Queensland Bar has opted not to take a position, and the Victorian Bar is currently having a vote on whether or not to issue a stance, following weeks of consternation among its members playing out across the media landscape — including suggestions that barristers voting in favour of the Voice are financially motivated (a claim rejected by Victorian Bar president Sam Hay KC).

Barristers who take a stance against the Voice will not suffer employment consequences from any member body that is in favour of the constitutional change. However, for lawyers within firms and in-house counsel within corporate entities that take a position on the Voice, it may be a different story — if one’s contrary stance is vitriolic or goes against the interests of that employer.

The dangers of contrary Voice stances

Speaking last week on The Lawyers Weekly Show, Swaab partner Michael Byrnes discussed the implications for one’s employment where an employer has taken a position on the Voice.

In conversation with host Jerome Doraisamy, Mr Byrnes said that as the referendum debate heats up as the year progresses, he is anticipating a potential “flashpoint in employment law on the horizon”.

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“I can see a source of potential tension between an employee’s right to express their view — whether that be for or against the Voice — and the position adopted by their employer,” he suggested.

The advent of Australian businesses — including law firms — expressing public positions on social issues is “relatively new”, Mr Byrnes reflected, partly driven by the increasing prominence of environmental, social and governance (ESG) considerations.

It is a “good thing”, he believes — however, he added that such public positions on issues could put some employees in a “potentially difficult position” if they hold and/or express differing views.

One potential consequence of law firms having adopted positions on the Voice, Mr Byrnes advised, could be a junior lawyer who has a different view to that of a managing partner’s public stance.

If that lawyer wanted to express an alternate view, he said, they should “proceed with some degree of caution”.

“I’m not saying they couldn’t express that view. Indeed, I think most people would accept that an employee in that position should have the right to express that view if they want to do so. This is an important issue. There is a legitimate debate to be had about the Voice, and in a democracy, people should be entitled to participate in that debate in a way that’s true to them,” Mr Byrnes outlined.

“That’s very important, particularly people in the legal profession who can make a very important and good-faith contribution to debates of this kind. But I think the employee in this situation would need to proceed with some degree of caution. In expressing that view, I think they would probably be best to do it in a way that doesn’t link their view to their employer.”

For example, he said, make sure your social media account/s (if that is where one’s opinion is published) can’t be connected to your employer and states that the views expressed are personal and not professional.

“Keep it separated. Have that delineation in place,” Mr Byrnes said.

How to (safely) express opposing views

Employees looking to publicly state their positions on the Voice, if those positions are in opposition to that of their employers, would do well to carefully choose their online medium, Mr Byrnes noted.

“With some platforms — Twitter, Facebook, Instagram — you are able to make that separation between your personal and private views and your work. You’re able to establish and maintain that delineation. LinkedIn, I think it’s fair to say, in most cases, is inextricably linked with your professional profile and your employment. So, expressing it on LinkedIn is, I think, riskier,” he said.

Any “open, vitriolic criticism” of one’s employer must absolutely be avoided, Mr Byrnes continued, and in its place should be respectful dialogue.

“[Vitriol would be] going beyond just expressing a view on the Voice. That’s expressing a view on the stance that the employer has taken on the issue and not doing it in a measured way. I think you should avoid that, and just express your view on the Voice and not use that as a catalyst or a basis for being critical of your employer for taking a different view,” he advised.

“In the same way that I think employees’ views should be respected and their right to express them should be respected (provided it’s done appropriately), the right of the employer to adopt its corporate position should be respected.”

Striking the right balance

If lawyers in firms or businesses do decide to state a public position on the Voice that is contrary to that of their employer, Mr Byrnes went on, they ultimately must ensure they do so in a way that does not bring discredit upon them.

“Do it in a dignified way. Just imagine yourself perhaps in the managing partner’s office with the managing partner, with your tweet or post in his or her hand and reading it out to you. Hopefully, you won’t feel, ‘Oh, I shouldn’t have written that. I shouldn’t have said that. I shouldn’t have expressed it that way’.

“Hopefully, at the end of it, you’d say, ‘That’s my genuinely held view. I think I expressed it in a reasonably articulate way, in a way that didn’t bring discredit on this firm. I didn’t mention the firm. I did it in a private capacity. I didn’t criticise the firm. I respect the firm’s right to have a contrary view. But this is my genuinely held view, and I’m a lawyer of this firm. I’m an intelligent person. I have an interest in politics to contribute to the debate, and that’s all I’ve done here’,” Mr Byrnes detailed.

“Put yourself in the strongest position possible if, indeed, the powers that be within your firm or organisation have a concern and raise it with you.”

Voice positions across the legal profession

The Law Council of Australia said, this time last year, that bipartisanship would be essential to the ultimate success of the Voice referendum, but the federal opposition is opposing it.

Speaking to Lawyers Weekly, two former Bar Association presidents pushed back on shadow attorney-general Michaelia Cash’s recent comments about the Voice to The Australian, calling Senator Cash’s comments “wrong” and “not correct”.

In April, Solicitor-General Stephen Donaghue KC produced advice noting that the Voice will bolster Australia’s system of government and poses no threat to democratic processes. The Law Council followed this by calling the Voice “just and legally sound”.

In October, Arnold Bloch Leibler senior partner Mark Leibler noted in that conversation that lawyers are “ideally placed” to ensure that the voting public understands the Voice, its capacities and how it will operate — something detailed in conversation with Lawyers Weekly by Professor Anne Twomey back in April.

The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Michael Byrnes, click below: