Much of the advocacy opposing the voice is articulated in the deplorable language of “race”.
In my view, any parliamentarian who characterises the proposed reform in terms of “race” should be censured.
The insistence of some in casting the debate in terms of “dividing us by race”, or “special treatment for one race”, is race-baiting or, in the vernacular, “dog-whistling”. Furthermore, it appears to be premeditated, strategic and wholly intended to appeal to racists and play on Australians’ conscious and unconscious biases.
Those who characterise the proposed recognition as favouring one race over others are, from my observations, the same people who speak of a unitary, egalitarian society in which we are all equal.
They are the people who continue to deny the special status First Peoples have in our own territories, even though the General Assembly of the United Nations and the Australian government recognised that status more than a decade ago.
In my view, it is the responsibility of all of us who understand the law to call out those who attempt to drag this reform debate down the low road of race politics.
In making this observation, I am reminded of the famous Martin Luther King Jr quote: In the end, we will not remember the words of our enemies but the silence of our friends.
It is said that spending money on the voice referendum and establishment of the consultative body will take money from desperate communities. This complaint is difficult to accept, coming as it does from members of the LNP who were in government and oversaw the failure of the Closing the Gap initiative for a decade. Critics who say the money is better spent elsewhere are either wilfully blind or ignorant to the fact that the legislative and policy frameworks across the country are designed to support governments’ control and delivery of services, and that communities and families see very little of the resources. This is the very ailment the voice is designed to combat.
The racism and segregation policies that were in place in this country until the 1975 Racial Discrimination Act ensured all First Nations people and their parents and grandparents were impoverished and had no generational wealth.
Every First Nations person who grew up in a First Nations community understands that disadvantage, and it is clear that all the First Nations advocates agree that the reform must ensure nobody will be left voiceless.
There is criticism that the voice is inappropriate because it is unnecessary. First Peoples, it is argued, are already represented. Ironically, the falsehood in this proposition is demonstrated by the LNP, which appears to prefer the views of a first-term CLP senator over the views of the many people who have supported the reform, including those people of knowledge and stature appointed to the Referendum Working Group and the Engagement Group.
LNP posturing shows it is possible for those engaged in control of Australia’s law and policy to pick their own spokesperson and reject the more difficult propositions put forward by many others.
The gaping hole in the fabric of our civil society created by the absence of a nationally representative body is clear when matters of national importance require attention: when the 46,000-year-old caves at Juukan Gorge were destroyed in 2020, a national body was needed.
When the former commonwealth attorney general sought an expedited appeal to overturn the decision in Love and Thoms, a national body was needed.
When the former attorney general mainstreamed Aboriginal and Torres Strait Islander legal service funding, notwithstanding a report he commissioned recommending otherwise, a national body was needed.
When the council of attorneys general considered whether there should be a nationally consistent approach to raising the minimum age of criminal responsibility, a national body was needed.
When federal parliament passed laws establishing a stolen generations reparations scheme for the Northern Territory, a national body was needed.
Now, the federal government is considering reform of the Aboriginal Torres Strait Islander Heritage Protection Act, and a national body is needed.
When the Native Title Act is next amended, we will need a national body.
Whenever the next attack on sections 18C and 18D of the Racial Discrimination Act occurs, a national body will be needed.
When it comes time for broad-scale structural, economic and social transition due to climate change, we will need a national body.
And, when it finally comes time to implement the Declaration of the Rights of Indigenous People domestically, we will need a national body that can speak for us, without fear of reprisal.
Objectors also say the proposal is unworkable because it will interfere with parliamentary and government processes and carry a risk of judicial intervention. Thisis entirely without foundation.
There are no grounds on which it can be said that the obligation to receive a representation creates any obligation to make decisions consistent with it. At its highest, there will be an obligation to receive a representation.
The other complaint is that it will make those decisions subject to judicial review by the high court.
My response to that is: why shouldn’t the ordinary law apply to such representations?
Just as any other decision of a minister may be reviewed in the federal court, so too could a decision to which a voice representation was made.
It is also worth noting that the high court has rejected all invitations to engage in a merits reviews of government decisions, and this proposed amendment to the constitution will not provide a fundamental change of heart or legal decision-making.
In layperson’s terms, the high court has refused to overturn government decisions on the basis that the government got it wrong.
So, for absolute clarity, a minister who has given notice to the voice of an intention to make a decision about a matter cannot have that decision delayed if the notice is reasonable, or reconsider merely because the decision is inconsistent with the representations of the voice.
In a liberal democracy, every constitutional amendment, legislative enactment and policy position is a compromise at some level, and this proposed reform of the constitution is no different.
The art in this particular compromise will be to ensure that the outcome remains faithful to the agreed principles, in the knowledge that the operation of the body will be open to the parliament to determine.
I can comfortably say that I am not satisfied that there are any legal issues arising from the words which cause the amendment to be inappropriate or unworkable. It comes down to a willingness to accept the underlying principles and for all of us to work towards the development of a mature relationship.
Tony McAvoy SC is a Wirdi man, the first Indigenous senior counsel and member of the government’s Referendum Working Group and senior counsel to the Yoorrook Justice Commission. He has expertise in land and native title matters, and was acting Northern Territory treaty commissioner from December 2021 to June 2022
This is an edited extract from a speech given to the Uphold and Recognise Forum in Sydney on 28 February
