Why the Voice Deserves our supportDr Matt Collins AM KC is Past President, Australian Bar Association and Victorian Bar
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In the debate about the Voice, we should be able to agree that:
If, as Australians, we are able to agree on those premises, then it follows that the gap between Indigenous and non-Indigenous Australians has a structural, Constitutional dimension. All Australians of goodwill, of course, want to see that gap closed.
That does not mean that the Voice proposal is the optimal answer. That is a matter upon which reasonable minds might differ. My vote is worth no more than that of any other Australian’s, but having carefully considered the proposal, and the competing contentions, I share the view of the Solicitor-General and many others—including the Law Council of Australia, the NSW Bar Association, the Law Institute of Victoria, a group of former Presidents of the Australian Bar Association and Law Council and a dominant majority of Victoria’s barristers who participated in a survey on the point—that the reform proposal is Constitutionally sound and would, if passed, enhance Australia’s system of representative government.
The Voice would have an entitlement to make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples, without imposing on the Parliament or the Executive Government an obligation to solicit, wait for or act in accordance with the wishes of the Voice. This is only fair. A persistent criticism of past policies that have failed to improve outcomes for First Nations Peoples is that they have been paternalistic or imposed by authorities who failed to listen. There is nothing to be feared from listening to the views of the very people who will be affected by changes to or the application of the law. Is that not what we expect those who govern us to do anyway?
The Voice proposal is orthodox, in that it would confer upon the Parliament the power to make laws with respect to the Voice, including its composition, functions, powers and procedures. Those laws will then be able to be calibrated as circumstances change, just as the Parliament does with respect to laws on the many other areas that are the subject of powers conferred by the Constitution. There is therefore no reason to fear that the Voice might clog up or otherwise undermine the efficient operation of government. To the extent that courts become involved, they will do so to ensure that any laws passed by Parliament are consistent with the will of the people expressed at the referendum, or that laws passed by Parliament in respect of the Voice are given their intended operation. This is what we expect of our courts.
The proposal is not being put on a whim, or without adequate consideration. It stemmed from the Uluru Statement from the Heart, a respectful request from Indigenous to non-Indigenous Australians to walk together for a better future, and the culmination of an exhaustive process of consultation.
In short, the Voice is a meaningful, substantive and proportionate proposal that should improve outcomes for Aboriginal and Torres Strait Islander peoples without undermining anyone else’s rights or compromising the integrity of our system of government. It deserves our enthusiastic support.
- Before Europeans set foot on this continent, it was home to the oldest, continuing civilisations on Earth, with their own laws and customs dating back millennia.
- The arrival of Europeans displaced those civilisations, laws and customs, in ways that have reverberating consequences in the present day.
- It was wrong upon the arrival of Europeans for Australia to be declared terra nullius—uninhabited—a legal fiction that was only corrected jurisprudentially with the Mabo decision in 1992.
- That fiction underlies our nation’s founding document, the Constitution, by which the ‘Australasian colonies and possessions of the Queen’ were united under the Crown of the United Kingdom, in that the Constitution neither acknowledged nor sought in any way to accommodate the history that predated the arrival of Europeans in Australia.
If, as Australians, we are able to agree on those premises, then it follows that the gap between Indigenous and non-Indigenous Australians has a structural, Constitutional dimension. All Australians of goodwill, of course, want to see that gap closed.
That does not mean that the Voice proposal is the optimal answer. That is a matter upon which reasonable minds might differ. My vote is worth no more than that of any other Australian’s, but having carefully considered the proposal, and the competing contentions, I share the view of the Solicitor-General and many others—including the Law Council of Australia, the NSW Bar Association, the Law Institute of Victoria, a group of former Presidents of the Australian Bar Association and Law Council and a dominant majority of Victoria’s barristers who participated in a survey on the point—that the reform proposal is Constitutionally sound and would, if passed, enhance Australia’s system of representative government.
The Voice would have an entitlement to make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples, without imposing on the Parliament or the Executive Government an obligation to solicit, wait for or act in accordance with the wishes of the Voice. This is only fair. A persistent criticism of past policies that have failed to improve outcomes for First Nations Peoples is that they have been paternalistic or imposed by authorities who failed to listen. There is nothing to be feared from listening to the views of the very people who will be affected by changes to or the application of the law. Is that not what we expect those who govern us to do anyway?
The Voice proposal is orthodox, in that it would confer upon the Parliament the power to make laws with respect to the Voice, including its composition, functions, powers and procedures. Those laws will then be able to be calibrated as circumstances change, just as the Parliament does with respect to laws on the many other areas that are the subject of powers conferred by the Constitution. There is therefore no reason to fear that the Voice might clog up or otherwise undermine the efficient operation of government. To the extent that courts become involved, they will do so to ensure that any laws passed by Parliament are consistent with the will of the people expressed at the referendum, or that laws passed by Parliament in respect of the Voice are given their intended operation. This is what we expect of our courts.
The proposal is not being put on a whim, or without adequate consideration. It stemmed from the Uluru Statement from the Heart, a respectful request from Indigenous to non-Indigenous Australians to walk together for a better future, and the culmination of an exhaustive process of consultation.
In short, the Voice is a meaningful, substantive and proportionate proposal that should improve outcomes for Aboriginal and Torres Strait Islander peoples without undermining anyone else’s rights or compromising the integrity of our system of government. It deserves our enthusiastic support.