Why wouldn’t you vote Yes?

Firstly, may I acknowledge the Traditional Custodians of the land to which I am writing from today, and I pay my respects to Elders past and present.

The words in the headline of my article are not mine, but I do embrace them from both the social and legal context in which they were spoken. I shall return to these words at the conclusion of this article, as they continue to resonate in my mind with clarity and conviction.

My opinion so scribed today is not emanating from the province of politics, which regrettably seems to be playing out in all forms of media about the proposed referendum to the Constitution of the Commonwealth of Australia (‘Constitution’) “to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice” (‘Voice’). The pollution of politics regarding the assessment of any legal implications of the Voice are too parochial in their scope. Regrettably the modern Australian media as always miss the answer to the question of any legal implication of an amendment to the Constitution, even if the answer was tattooed on the rear end of a 100-foot-high vehicle. Also, my words do not carry with them the imprimatur of the Bar Association of Queensland, rather they are my own.

So that those of you who are reading this article understand the words of the proposed amendment, I set out immediately below the link to the Voice:

Further, so that you may consider the various arguments being agitated by either side of those campaigning for or against the Voice, I set out immediately below the links to the websites for the proponents of the yes vote and no vote:

Vote Yes for the Voice

First Nation’s Voice to Parliament: The Argument for Voting NO

I am voting yes. I do not profess to be an expert, as such, in constitutional law, but I do rely upon the erudite analysis of the Voice by the Hon Mr. Kenneth Hayne AC KC (‘Justice Hayne’) as he is a jurist in whom I do hold my confidence regarding an analysis of any supposed legal implication. That is not because Justice Hayne aligns with my views about the Voice, rather it is because after having read his judgments for the past 20 or so years I have always considered his reasons regarding constitutional law to be those of pure theory of ‘what is the law’ as opposed to ‘what the law or ought to be’.

Last Monday evening, 15 May 2023, I attended a seminar organised by the Australian Institute of Administrative Law- Queensland Chapter, and Justice Hayne presented his spoken analysis about the Voice, during which he opined:

1. at the commencement of his speech there is no legitimate fear or concern for implementing the Voice into the Constitution.
2. the central words of the proposed subsection 129(2) notably state “may make representations”; those words are just that, representations, and they only provide for speaking to, not speaking in, Parliament.
3. the provisions could not be understood to mean any changes to the Parliamentary or Executive powers. The words are spare and lacking in complexity.
4. there is no power of veto, nor is there a power to interrupt or delay the Parliamentary or Executive powers.
5. the words do not require the Executive or Parliament to seek out the Voice, because it is entirely up to the Parliament or the Executive to take into the account the Voice.
6. if Parliament did legislate to take into account the Voice, it would only be a matter of judicial review to challenge a law which is no more than the normal application of the rule of law. If there was a ground of judicial review all that would be required of the Parliament or Executive is to take into account the representation, but they are not bound by it.
7. regarding the two points frequently being raised by some people the High Court may draw inferences from the Voice or the Voice may entrench division, Justice Hayne said regarding:

(a) legal implications, what would be implied? How could any implication be made? The words could not be construed to interrupt, hinder or prevent the ordinary working of government. The statement “the courts are coming”, are we to fear the courts doing their work? It is an ill based contention.

(b) racial implications, it has been received law since Mabo this land did not start with the arrival of the First Fleet. It was not terra nullius. Approximately 65,000 years of custom were not extinguished. We cannot ignore the early settlers took the land without consent. As Sir Gerard Brennan said in Mabo about Aboriginal and Torres Strait Islander people, “their dispossession underwrote the country.” The legal and historical facts explain the disadvantage to First Nations. Further, regarding the equality argument the law has always strived to like cases to cases and to distinguish cases from cases; the appeal to twentieth century Europe is without foundation as the equality contention adopts an argument of race and there is no discernible content of any utility.

8. the Voice does not take away any right, and it does not hinder Parliament. To ameliorate the torment of powerlessness the Voice seeks reform to empower. Rejecting the call would further injure First Nations for decades.

Justice Hayne’s analysis is not one of politics. Justice Hayne’s analysis is in my opinion pure theory of what is the law of the Voice. Justice Hayne’s analysis informs the scope of the Voice, and his analysis is not posited from a place of fear or emotion.

I now turn to the words contained within the headline to my article, as they are not my words but those of Justice Crowley who also spoke during the seminar last Monday night. Justice Crowley is the first Aboriginal or Torres Strait Islander person in Australia to be appointed as a Supreme Court justice. His Honour is an impressive person, not only because he displays erudition, but there is also a dignity to his manner which emanates from a place of compassion which is untrammeled by any matters of the racism he endured during his early life. As I stated at the outset of this article, Justice Crowley so eloquently stated last Monday evening, “Why wouldn’t you vote yes.” It is a yes from me, as I hope it is from all of you.

 

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