Later this year there will be referendum held for the nation to vote on a simple constitutional amendment, namely should there be a First Nations voice in Federal Parliament regarding legislation which affects them (‘the Voice’)?
I will be voting yes for the Voice. I implore all Australians to also vote yes so that we, as one country, can start chartering a final course into the future of proper reconciliation with First Nations Australians; a reconciliation our descendants may subsequently look back upon with pride in 100- or 200-years’ time to say “2023 is truly a year when our ancestors came together to put in place the first foundation stone of the Uluru Statement from the Heart (‘the Uluru Statement’).” The referendum will be a moment in time in which we, as a society from many different lands, may take responsibility as one people to make amends for the past acts of our ancestors for imposing a foreign system of law upon a 65,000-year-old society of people that was based on the pretence of a legal fiction these lands in 1788 were terra nullius.
Before embarking upon a short examination of our past history which informs the need for us vote yes at the referendum later this year, may I address a point of legal fiction that some the people in the dissent to the Voice continue to raise, namely the misconceived ‘Third Chamber’ argument. The ’Third Chamber’ argument has been previously dismissed by the erudite Professor Anne Twomey in 2019, as the Voice would have no power to initiate, pass or reject bills.
Professor Twomey quite properly refers to other bodies which already inform Parliament, that include the Productivity Commission, the Australian Law Reform Commission and the Auditor-General. These bodies are not a ‘Third-Chamber’, and the Voice’s role would be no different to these other bodies. I shall return to Professor Twomey’s article at a later stage of my discussion herein regarding the reasons why the Voice must be enshrined in the Commonwealth Constitution.
The High Court of Australia (‘the High Court’) in 1992 handed down its judgment in Mabo and Others v Queensland (No. 2)  HCA 23; (1992) 175 CLR 1 (‘Mabo’). The High Court’s reasons for judgment in Mabo awakened the nation’s mind from its slumber in relation to how European settlement of this country had not only dispossessed First Nations people from the use of their lands, but also imposing upon First Nations people the common law which so materially changed their lives.
I do not wish to address the land law components of the High Court’s reasons for its judgment in Mabo, as it would essentially require an essay to be drafted on my behalf which would be an unnecessary distraction from the subject under consideration. I do, however, wish to focus your minds on the passages of Mabo written by Brennan J (as His Honour Sir Gerard Brennan then was (and for the purposes of this article I shall, out of immense respect, refer to the late former Chief Justice of the High Court by his title of Sir Gerard Brennan)) and the joint judgments of Gaudron and Deane JJ.
In his elegantly written reasons for judgment Sir Gerard Brennan relevantly identified the injustice First Nations Australians suffered under the common law, namely at:
1) paragraph 28 in which His Honour stated, “According to the cases, the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the Imperial authorities without any right to compensation and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live. Judged by any civilized standard, such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned.”
2) paragraphs 36, 39 and 42 Sir Gerard Brennan explained the injustice of the early settlers of this nation relying upon on the legal principle of terra nullius to acquire these lands and impose the common law upon First Nations people:
a. “ The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory (though inhabited) could be treated as a “desert uninhabited” country. The hypothesis being that there was no local law already in existence in the territory … Thus the theory which underpins the application of English law to the Colony of New South Wales is that English settlers brought with them the law of England and that, as the indigenous inhabitants were regarded as barbarous or unsettled and without a settled law, the law of England including the common law became the law of the Colony (so far as it was locally applicable) as though New South Wales were “an uninhabited country … discovered and planted by English subjects.” (Abridged)
b. “ As the indigenous inhabitants of a settled colony were regarded as “low in the scale of social organization”, they and their occupancy of colonial land were ignored in considering the title to land in a settled colony. Ignoring those rights and interests, the Crown’s sovereignty over a territory which had been acquired under the enlarged notion of terra nullius was equated with Crown ownership of the lands therein, because, as Stephen C.J. said, there was “no other proprietor of such lands”… The theory that the indigenous inhabitants of a “settled” colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs.” (Abridged)
c. … The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration.” (Abridged)
The passages of Sir Gerard Brennan’s reasons for judgment in Mabo informs the nature of the injustice of the imposition of the common law on First Nations Australians. Indeed, the whole notion of our ancestors’ discriminatory denigration of First Nations Australians, their social organisation and customs to thereby impose the common law upon them is a factual matter of European settlement (and other cultures) since 1788 we cannot ignore when it comes to our contemplation as fair-minded people of affording First Nations Australians a proper voice to be heard regarding laws which affect them. Nevertheless, in Mabo the injustice of the imposition of the common law on First Nations Australians are also further informed by the joint judgment of Gaudron and Deane JJ, in which their Honours said at paragraph:
1) “ …As has been said, it is clear that the numbers of Aboriginal inhabitants far exceeded the expectations of the settlers. The range of current estimates for the whole continent is between three hundred thousand and a million or even more. Under the laws or customs of the relevant locality, particular tribes or clans were, either on their own or with others, custodians of the areas of land from which they derived their sustenance and from which they often took their tribal names. Their laws or customs were elaborate and obligatory. The boundaries of their traditional lands were likely to be long-standing and defined.” (Abridged)
2) “ 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…” (Abridged)
3) “ As has been seen, the two propositions in question provided the legal basis for the dispossession of the Aboriginal peoples of most of their traditional lands. The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices. In these circumstances, the Court is under a clear duty to re-examine the two propositions. For the reasons which we have explained, that re-examination compels their rejection. The lands of this continent were not terra nullius or “practically unoccupied” in 1788. The Crown’s property in the lands of the Colony of New South Wales was, under the common law which became applicable upon the establishment of the Colony in 1788, reduced or qualified by the burden of the common law native title of the Aboriginal tribes and clans to the particular areas of land on which they lived or which they used for traditional purposes.” (Abridged).
For the avoidance of doubt or opprobrium from those with mendacious intent towards the Voice (or indeed, me), their Honours Gaudron and Deane JJ did say within paragraph 78 of their joint judgment their use of emotive language was not for the purpose of trespassing into attribution of moral guilt, nor is that my intent in quoting the various reasons for judgment of Sir Gerard Brennan and Justices Gaudron and Deane. My purpose for raising these passages of the reasons for judgment in Mabo is to reawaken the collective conscious of this nation as to the injustice of the imposition of 234 years of common law on First Nations Australians when for almost 65,000 years they had developed their own system of law, a law which was relied upon as long ago as 1841:
In 1967 the Holt Government commenced the first steps for righting the wrongs of the past by succeeding with a referendum which included, inter alia, including First Nations Australians in the census. In 1975 the Whitlam Government enacted the Racial Discrimination Act 1975 (Cth) (‘the 1975 Act’), that not only provided redress for present abuses and past injustices, but also, as Mr Whitlam so put it “to build a climate of maturity, of goodwill, of cooperation and understanding at all levels of society”. The role of the 1975 Act in underpinning native title was confirmed in Mabo. However, the 1975 Act remains vulnerable to the whim of the Federal Parliament:
The High Court’s judgment in Mabo awakened the Australian public’s collective social conscious from its slumber, that we, as settlers from 1788 and the years which then followed, had unjustly imposed upon a civilised society of 65,000 years in the making the common law which so adversely impacted their lives thereafter. Subsequently Paul Keating’s ‘Redfern Speech’ stirred the nation’s emotions to embark upon the necessary steps of our journey towards proper reconciliation with First Nations Australians, and in 2008 we as a united country said sorry to the Stolen Generations of First Nations Australians.
Now we venture forward on our next step towards proper reconciliation with First Nations Australians, namely building a bridge between the common law and the 65,000 years of First Nations’ law and custom, by enshrining in the Commonwealth Constitution the Voice. Those politicians who have uttered their dissent, either expressly or by implication to the Voice thus far have not conveyed any compelling reasons for not voting yes. Those politicians uttering their dissent are various members of the federal opposition.
Senator Price has provided two reasons for not voting yes which are counterintuitive or incompatible with the step of ameliorating the legal injustice of the imposition of the common law upon First Nations Australians since 1788. Senator Price’s first argument is the Voice will not address the economic indifference in society between First Nations Australians and those Australians who have settled here. The argument is incompatible with the historical facts of Mabo referred to herein, as it was the unjust imposition of the common law on First Nations Australians which has led to the current economic disparity in our society between First Nations people and settlers from 1788 and thereafter. Notwithstanding any federal or state laws which have been passed since the 1967 referendum, we as a nation have not properly recognised the laws and customs of First Nations Australians which existed up to 26 January 1788, and it is the constitutional consultation with First Nations Australians by virtue of the legal recognition of the Voice in the Commonwealth Constitution which then consequently leads to the restoration of legal, cultural and economic equanimity for First Nations Australians. The restoration of economic equanimity for First Nations Australians is not to be judged on European standards alone, as First Nations law and custom had a far more refined and civilised measure of achieving economic equanimity which included, inter alia, an environmentally friendly use of resources.
Senator Price has subsequently adopted a different argument in opposing the Voice, namely that it may create a division in society, an argument which quite rightly attracted the appropriate response of rejection from Noel Pearson. Mr Pearson is one of the drafters of the Uluru Statement. Senator Price’s argument the Voice is divisive is, as Mr Pearson so precisely stated, the same divisive rhetoric previously resorted to by Senator Hanson. I shall add my two bob’s worth to Mr Pearson’s sound response, namely it is misconceived logic for Senator Price to argue the equanimity of constitutional consultation which the Voice achieves as being a source of social division. Senator Price’s resort to the extremist argument of ‘division’ is simply a hollow argument of last resort and it deserved the appropriate words of rejection Mr Pearson spoke in response.
The Federal National Party’s premature and poorly thought through opposition to the Voice is now their own self-inflicted political wound. No more needs to be said about that erroneous decision. However, I note the approach by some members of the Liberal Party to the Voice appears to be one of passive opposition, which is implied by their conduct. On 28 December 2022, the Shadow Minister for Indigenous Australians, Julian Leeser MP, requested the machinations of the Voice be discussed first, which in logic is putting the cart before the horse. It is in my view an exercise in obfuscation of the referendum issue by Mr Leeser and the Liberal Party, because the issue is simple- 65,000 years of First Nations society deserves to be properly heard about the common law imposed upon them for the past 234 years. In any event, the Minister for Indigenous Australians, Linda Burney MP, has subsequently dismissed Mr Leecher’s comments, and she has likened the referendum to government “effectively asking do we need a bridge to cross the Sydney harbour: yes or no”; with legislation to follow amounting to the parliament deciding “how many lanes on that bridge”.
I return to Professor Twomey, and I shall allow her astute words to speak for themselves:
“But it must be remembered that it is already the case that Indigenous Australians form the only racial groups about which special laws are made. This is because they are the only racial groups that lived in Australia prior to European settlement and accordingly have continuing legal rights, such as native title rights. Their continuing cultural heritage is also entitled to special legal protection and sustenance, as part of Australia’s national heritage. If they are the only racial groups subject to special laws, then it seems reasonable and fair that they should at the very least have a voice that can influence the body that makes those laws.”
As I stated herein, I will be voting yes for the Voice.
The Voice is an essential step in enshrining under the protective branch of the Commonwealth Constitution a First Nations Australians’ right to be consulted about legislation that affects them. The Voice is not just a constitutional step for First Nations people, it is one of the steps for Australia to also implement the Uluru Statement so that a genuine offer of reconciliation by First Nations Australians is embraced by us all, so that the words to the song “we are one, but we are many” may finally come true. How we proceed forward by voting yes to the Voice will positively define us in the history books. We’re the Voice, so please vote yes.
I hope you're excited to vote Yes for the Voice in 2023!
— Linda Burney MP (@LindaBurneyMP) January 1, 2023
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