Retired Australian top judge and lawyers rebut opponents of Indigenous Voice

A former High Court chief justice and dozens of legal academics are rebutting key arguments used in the public campaign against Australians creating an advocacy body for the Indigenous population

Rod McGuirk
Friday 06 October 2023 07:43 BST
Australia Indigenous Voice
Australia Indigenous Voice (AAP Image)

A former High Court chief justice and dozens of legal academics on Friday rebutted key arguments used in the public campaign against Australians creating an advocacy body for the Indigenous population.

Robert French, who retired as Australia’s most senior judge in 2017, used a speech to the National Press Club to urge Australians to vote to enshrine in the constitution a so-called Indigenous Voice to Parliament at an Oct. 14 vote, the nation’s first referendum in a generation.

The Voice is aimed at giving Australia’s most disadvantaged ethnic minority more say on government policies that effect their lives.

“A vote in favor of the Voice is a new beginning and something in which this generation and generations to come should be able to take justifiable pride,” French said.

Separately, 71 Australian university teachers of constitution law and other fields of public law signed an open letter published Friday that rebutted the argument that the Voice would be “risky.”

“We know that the vast majority of expert legal opinion agrees that this amendment is not constitutionally risky,” the letter said.

Peak legal, business, faith and sporting groups overwhelmingly support the Voice. But opinion polls suggest most Australians do not, and that the nation’s first referendum since 1999 will fail.

If the referendum does pass, it would be the first to do so since 1977 and the only one in the 122-year history of the constitution to be carried without the bipartisan support of the major political parties.

French said he rejected the “No” campaign's argument that an “over-speaking Voice might deluge all and sundry in executive government with its opinions.”

French said the Parliament could decide how the Voice made recommendations to government. He also rejected arguments that courts could force a government to act on the Voice’s suggestions or bind Parliament to take the Voice’s advice before making laws.

The “No” case cites another retired High Court Justice, Ian Callinan, who argues that legal uncertainty surrounding the Voice would lead to more than a decade of litigation.

French said Callinan’s “gloomy prognosis” was not probable.

“I couldn’t say there won’t be litigation,” French said. “It’s a matter of assessing the risk against the return. I see the risk as low — very low — compared with the potential benefits of the outcome.”

Legal risk and the potential for the constitution to divide Australians along racial lines are major objections to the Voice raised by conservative opposition parties.

Voice opponents include conservatives who argue the change is too radical, progressives who argue the change is not radical enough, and people who exhibit blatant racism.

A self-described progressive opponent of the Voice, independent Aboriginal Sen. Lidia Thorpe, circulated among the news media on Thursday an online white supremacist video that targets her by name.

In the video, a man disguised by a ski mask burns an Aboriginal flag before giving a Nazi salute.

Thorpe blamed Prime Minister Anthony Albanese for inspiring far-right extremists by holding the referendum.

“The referendum is an act of genocide against my people,” Thorpe told reporters Thursday.

Albanese said “there is no place in Australia” for such far-right demonstrations.

Indigenous Australians account for 3.8% of Australia’s population. They have worse outcomes on average than other Australians in a range of measures including health, employment, education and incarceration rates. Statistically, Indigenous Australians die around eight years younger than the wider community.

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