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Interim report on Indigenous Voice “an astute next step”

Native Title & Public Interest Law
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In an opinion article published in The Australian, senior partner Mark Leibler writes that he is confident Prime Minister Scott Morrison remains open-minded on whether to take the question of a constitutionally enshrined Voice for Indigenous Australians to a referendum.

Responding to the interim report into how an Indigenous Voice might give effect to the principal recommendation of the Uluru Statement from the Heart, Mark describes the report as “an astute next step on the path towards the outcome I have no doubt our nation will ultimately achieve – constitutional recognition of Aboriginal and Torres Strait Islander Australians in the form they have nominated.”

“To succeed at a referendum, of course, the proposal must be broadly accepted by politicians and other influencers across the political spectrum (ideologically intransigent naysayers notwithstanding). In my view, the interim report has advanced the cause in a number of important ways.”

This includes specific and unambiguous clarification of what the Voice will not be, and was never intended to be.

“It will not have the power to veto laws made by the parliament nor decisions made by the government. It will not be in a position to obstruct or delay the workings of the parliament or the government. It will most certainly not constitute a third chamber.”

"In my view, the interim report has advanced the cause in a number of important ways.”

Mark Leibler AC, Arnold Bloch Leibler senior partner

Mark explains that his only real concern with the report is the “false divide” it draws between issues on which the government and parliament should be obliged to consult and those around which this would be an expectation.

“To limit the obligation to laws pertaining to race - laws under section 51(xxvi) of the constitution, special measures or laws which seek to suspend the Racial Discrimination Act, and laws under section 122 (the territories power) is both arbitrary, and reinforces the negative prism through which Indigenous policy and people have been viewed for too long.

“The counter argument to this is that widening the obligation to consult to include those described by the advisory group as “proposed laws and policies of general application which particularly affect, or which have a disproportionate or substantial impact on Aboriginal and Torres Strait Islander peoples” could be cumbersome and/or invite dispute.

“I see no basis for such a concern. Any failure to consult, irrespective of whether consultation was obligatory or expected, may have political ramifications but would be non-justiciable and could have no legal consequences. The processes of the parliament and/or the government could neither be interfered with nor delayed.

“So why not oblige policy makers to take advice on a scope of matters of real concern to Indigenous Australians?”

Click here to read the full article and here to read further news coverage. 

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