I have been asked to provide some further details regarding the referendum, particularly as it appears a lot of misinformation and disinformation is being fed to people by various forms of media.
Why the Voice
In his evidence submitted to the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum (‘Joint Committee’) the Honourable Ken Wyatt AM said (see page 17) that as the former Minister for Indigenous Australians, he was aware legislation is regularly drafted and passed without significant consultation with Aboriginal and Torres Strait Islander groups despite its clear effect on them. Mr Wyatt explained that he had conducted a review of Coalition party room papers to ascertain which entities had been involved in shaping the policy, and outlined his findings. In the period of 2022, the social services legislation amendments certainly had carers in the carers sector but there was no Indigenous representation to that legislation. The amendments to the Religious Discrimination Bill had many, many groups but not Indigenous people whose dreaming is their religion and their faith and their belief of our country and our Nation and our origins. The government amendments to the social security legislation amendments streamlined participation bill have some 20 organisations listed but not one is Indigenous, yet they have profound impacts on Indigenous families and communities.
How on earth is that fair?
Mr Wyatt’s evidence before the Joint Committee is also enlightening regarding how previous federal governments have dissolved First Nations committees out of political expediency:
“I would say to you that we have a history across this nation – every time a government changes, Indigenous advisory structures are abolished, and significant national bodies have been abolished when they have given advice that a government hasn’t liked. And our people have always been frustrated by abolition of any advisory mechanism which they see as an opportunity of sitting with governments and putting community perspectives into the mix of thinking. So the reason they want it enshrined is that they want it protected, so that no government can just come in – and I’ve sat on committees, by the way, where I’ve walked into a minister’s room, they’ve thanked us for the work done and they then finished by saying, ‘You’re now terminated as a committee,’ even though we were making improvements in education. This is the frustration that Indigenous Australians have had, and the Uluru Statement from the Heart was about enshrining a voice that would never be taken again.”
Mr Wyatt’s evidence also included his opinion ATSIC was a model which was delivering regional solutions.
Race and Division
Race is no longer recognised by academia: paper prepared by Sarah Pritchard at PDF (page 7 of 14). Sarah Pritchard’s paper is also a useful resource regarding the matters I am to subsequently discuss herein about s.51.xxvi of the Constitution.
It is a vile and misconceived argument about #TheVoice bringing race and division back to our Constitution. It is a vile argument because it is stroking a divisive sentiment which is neither true in its conception nor principled in its intention. It is misconceived because the words of s.51.xxvi of the Constitution already relevantly provide:
“s.51 The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xxvi.) The people of any race, (other than the aboriginal race in any State) for whom it is deemed necessary to make special laws…”
The text in brackets are the words removed by the amendments made to s.51.xxvi of the Constitution after the successful 1967 referendum so that the Commonwealth could make laws regarding First Nations. Racial division never left the Constitution but it should have. S.51.xxvi is the Commonwealth’s power to make laws about a race even though that term is an anachronism of nineteenth century ideology. As Bret Walker SC has recently stated this an opportunity to fix a social legacy.
Former High Court of Australia Chief Justice Robert French AC has stated this year regarding #TheVoice,
“…it accords with the United Nations Declaration on the Rights of Indigenous Peoples for which Australia voted in 2009. It is consistent with the International Convention on the Elimination of all Forms of Racial Discrimination. Suggestions that it would contravene that Convention are wrong.”
The Voice is Safe and Provides for Regional Voice
The Voice is safe and supported by:
1. Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum, particularly pages 38 to 53 within which retired High Court Justice Kenneth Hayne KC AC, Professor Anne Twomey, Mr Walker, Professor George Williams and French CJ quite emphatically say:
(a) the alleged backlog of judicial review is not only unlikely, but the wording of proposed s.129(iii) makes it clear that would be untenable;
(b) s.129(iii) provides for the regional or local voice because of the parliamentary power over #TheVoice;
(c)the Constitution still provides for race (i.e., s.51.xxvi) and it is an anachronism;
(d) the proposed s.129 is not about race; the proposal is responding to history and entrenched disadvantage;
(e) past High Court decisions have already limited the meaning of the ‘executive government’;
(f) there is no power of veto;
(g) parliament controls how the representations are made;
(h) within the country there are a very substantial cohort of Aboriginal and Torres Strait Islander leaders and persons closely engaged in their communities whose skills, experience with and knowledge of their communities and their challenges can be called upon to compose the Voice and the local, rural and remote bodies from which its members might be drawn;
(i) to say that somebody is empowered to do something and that a facility or mechanism is created by which they can do it does not then engender a whole lot of ancillary implied constitutional obligations;
(j) the Voice does provide us the opportunity for a mechanism that will enable us to develop more coherent and finely tuned policies and practices, as well as laws, in trying to deal with one of the most important and difficult areas of government that we have.
3. Former CJ French joins discussion on the Voice, Proctor.
5. Law Council backs Voice referendum, Proctor.
8. Voice to Parliament, Queensland Law Society.
It is perhaps worth considering the misconceived idea that Non-First Nations’ rights are imperilled by #TheVoice or the Uluru Statement from the Heart (‘Uluru Statement’). That deliberate feed of disinformation by any form of communication is wrong, both in law and morally.
Since Mabo v Queensland (No 2)  HCA 23; (1992) 175 CLR 1; (1992) 107 ALR 1 (‘Mabo’) it has been received law Australia did not commence with the First Fleet. However, non-First Nations rights and interests, whether they have recently migrated to Australia or, in the majority of cases, by way of being a descendant from those in whom the colonies and then the Commonwealth originally saw fit to permit them to live here, are protected regarding a valid grant of land to them (Mabo at ALR pages 50 and 51). It was the enlarged version of terra nullius that First Nations were too low in the scale of social organisation to be acknowledged as possessing rights and interests in land (Mabo at ALR 41).
Brennan J (as Sir Gerard then was) expresses (see Mabo at ALR at page 50):
“First Nations were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement. Their dispossession underwrote the development of the nation.”
18 years before the First Fleet arrived in 1788, Captain Cook, Joseph Banks and other members of the Endeavour had established enough contact with First Nations to understand they were a civilisation of continuous possession inhabiting the southern continent; diary of Joseph Banks diary 12 to 19 July 1770 cited at pages 88 to 91 of ‘The Ship, Retracing Cook’s Endeavour Voyage’ by Simon Baker; pages 69, 85, 116 to 125, 130 to 140, 191 of The Ship; ‘James Cook, The Story Behind the Man Who Mapped the World’ by Peter Fitzsimons at pages 278 to 315 and 333 to 365). Indeed, Joseph Banks’ evidence before the House of Commons had been misleading about the numbers of First Nations inhabiting the southern continent (Mabo at ALR 74 per Gaudron and Deane JJ). First Nations had a system of finance and trade with Indonesia and other countries long before Captain Cook declared the misconceived and enlarged terra nullius over Australia.
In Mabo, Gaudron and Deane JJ (see  of their joint judgment) considered the erroneous use of the declaration to be:
“Inevitably, one is compelled to acknowledge the role played, in the dispossession and oppression of the Aborigines, by the two propositions that the territory of New South Wales was, in 1788, terra nullius in the sense of unoccupied or uninhabited for legal purposes and that full legal and beneficial ownership of all the lands of the Colony vested in the Crown, unaffected by any claims of the Aboriginal inhabitants. Those propositions provided a legal basis for and justification of the dispossession. They constituted the legal context of the acts done to enforce it and, while accepted, rendered unlawful acts done by the Aboriginal inhabitants to protect traditional occupation or use. The official endorsement, by administrative practice and in judgments of the courts, of those two propositions provided the environment in which the Aboriginal people of the continent came to be treated as a different and lower form of life whose very existence could be ignored for the purpose of determining the legal right to occupy and use their traditional homelands.”
Claims made by the No campaign suggesting some great risk arises from #TheVoice or the Uluru Statement are just plain nonsense, and it ignores the manner in which First Nations were dispossessed of their rights.
Membership of First Nations
Undoubtedly the most egregious form of disinformation being spread by some people regarding #TheVoice, and about First Nations, is the somewhat puerile allegation anybody can claim to belong to First Nations. That is simply untrue. It is a sensitive matter, both for the applicant and the particular First Nations elders considering the ancestral heritage.
Membership of First Nations depends on biological descent from First Nations and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people (Mabo at ALR pages 44 and 51).
The slighting contention anyone could claim to be First Nations is wrong in law, including First Nations law. It is also insulting to First Nations. If you consider you have a First Nations heritage, here is some more information for you to consider:
The 26 pages are a record of the dialogue; they are not the Uluru Statement.
The Sky News presenter Peta Credlin decided to embark upon a freedom of information application for a document already available to the public. This risible notion of there being another 26 pages to the Uluru Statement has been given too much attention by some members of our media. To his credit, the Sky News presenter Chris Kenny has called this nonsense out.
I am currently writing a paper about the United Nations 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (‘Convention’). The Convention is 56 pages in length. The background record of dialogue between the member nations before finalising the Convention, the travaux preparatoires (preparatory work), is 246 pages long. The travaux preparatoires does not form part of the Convention. The same is true about the 26 pages of dialogue and the Uluru Statement.
For more information about the 26 pages of dialogue refer to these websites:
By now you should have received in the mail your Australian Electoral Commission (‘AEC’) referendum pamphlet. The AEC is not responsible for factchecking the facts or matters contained within the pamphlet.
The pamphlet contains information contended by the Yes and No campaigns. The Guardian Australia has specifically fact checked the Yes and No arguments contained within the pamphlet. It is apparent the No campaign information contained within the pamphlet is highly misleading:
Hopefully, I do not have to repeat these facts and matters again. #TheVoice is a simple amendment.
You’re #TheVoice, Australia. History is waiting. #VoteYesAustralia
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