Human rights commissioner Lorraine Finlay has made a “serious error” that is “likely to mislead voters” by claiming that the Indigenous voice to parliament “undermines the foundational human rights principles of equality and non-discrimination” in Australia, according to five former human rights commissioners.
In an opinion piece published in the Australian on Thursday, Finlay wrote that as a former constitutional law academic, she did not consider the voice to be a “modest proposal”.
Finlay said the inclusion of “executive government” in the proposed wording of the amendment would increase the risks of “bureaucratic complexity, legal uncertainty and judicial activism”.
“The draft wording … inserts race into the Australian constitution in a way that undermines the foundational human rights principles of equality and non-discrimination and creates constitutional uncertainty in terms of its interpretation and operation,” she wrote.
In a joint statement, five former human rights commissioners – Edward Santow, Chris Sidoti, Cathy Branson, Brian Burdekin and Graham Innes – said they “unanimously disagree” with her view.
They said, in their opinion, Finlay’s view “is likely to mislead Australians” who will be required to vote on this proposal at a referendum.
“An Indigenous voice to parliament would be a powerful way of upholding human rights in Australia,” they said.
“Not only is the proposed voice to parliament consistent with international human rights law, the voice would improve the protection of human rights in Australia,” they told Guardian Australia.
“Recognising Aboriginal and Torres Strait Islander people in Australia’s constitution, and giving Indigenous people an effective say on issues that affect them, are ways of demonstrating Australia’s commitment to equality and the fair go,” they said.
“Each of the signatories to this statement has previously served as Australia’s human rights commissioner. We respect that incumbent human rights commissioners should have the opportunity to fulfil their responsibilities as they decide, provided it accords with international human rights law.”
They said they believed Finlay had made a serious error in stating that the proposed voice to parliament would somehow undermine human rights or the constitution itself.
“We unanimously take a different view regarding Australian and international law. Commissioner Finlay’s view is likely to mislead Australians who will be required to vote on this proposal at a referendum,” they said.
Following the publication of Finlay’s remarks, the Human Rights Commission president, Rosalind Croucher, said the proposal for an Indigenous voice was consistent with fundamental human rights principles, and with international human rights conventions that Australia has endorsed.
“There is clear international guidance that establishing representative structures to support self-determination and representation for Indigenous peoples is necessary to prevent and overcome discrimination,” Prof Croucher said.
“Aboriginal and Torres Strait Islander peoples have unique and inherent rights that arise from their distinct status as Australia’s First Peoples. The proposal for a voice is consistent with the realisation of these rights, and with the rights of all Australians,” she said.
Prof Croucher told the Guardian that Finlay “is entitled to hold a dissenting view, just as all Australians are entitled to their views about the referendum”.
A spokesperson for the Human Rights Commission said Finlay would “not be commenting further at this point”.
The United Nations Committee on the Elimination of Racial Discrimination (CERD) in 2017 recommended that Australia “accelerate its efforts to implement the self-determination demands of Indigenous peoples, as set out in the “Uluru statement from the heart”.
The UN said Australia should take steps towards “recognition of indigenous peoples, ‘establishing a meaningful mechanism that enables their effective political participation and entering into good faith treaty negotiation with them.”
