Mark dissects recent commentary by former High Court judge Ian Callinan and newspaper columnists Chris Merritt and Janet Albrechtsen, each of whom he says has “misstated the effect of the proposal”.
In a piece published on 8 December, Chris Merritt describes the model outlined in the final report of the senior advisory body headed by Marcia Langton and Tom Calma as “an affront to democracy” and falsely asserts that if the referendum is successful, the model will be embedded in the Constitution.
“It should be crystal clear to anyone who has read the proposed amendment, put forward by the Prime Minister in August,” Mark writes, “that the only thing Australians will be asked to approve or reject at a referendum is the establishment of an Aboriginal and Torres Strait Islander voice.”
“The risks that stem from the electorate being misled that they’re voting for a particular model are serious and multi-layered. The obvious one is that people who might well support the principle of an advisory body being inserted into the Constitution may be given the impression that they are embedding a detailed model that will be set in stone, with no recourse by the parliament through legislation if and when circumstances change.
“But another risk is that if people actually vote Yes, thinking they are supporting a particular model, this expectation/misconception will muddy the important post-referendum phase of the exercise by making the parliament reluctant to deviate from that model, and/or adjust or update it from time to time.”
Janet Albrechtsen, Mark writes, used a recent Federal Court decision, based on the statutory right of consultation exercised by native title holders in the Tiwi Islands, to argue the “constitutional consultation right” afforded to First Nations people through the establishment of the voice would lead to all kinds of potentially devastating outcomes.
“Such representations will most likely lead to consultations. But there is no right to consultation that would be enshrined in the Constitution. Albrechtsen is comparing apples and oranges.”
Of Ian Callinan’s article, published in The Weekend Australian, Mark writes: “He imagined a decade or more of constitutional and administrative law litigation but quite what fear he sought to describe was not identified beyond suggesting the courts might give the voice a larger role than the Constitution would give it – the power to make representations on matters relating to First Peoples. His thesis seemed to be that Australians should be afraid of what the courts would do – a remarkable proposition for any lawyer to advance.”
Mark’s column is previewed in the news pages of today’s The Australian, with journalist Paul Garvey highlighting the main thrust of Mark’s argument: “Mr Leibler writes that it was wrong to argue that a particular model would be embedded in the constitution if the referendum was successful. Instead the referendum will measure public support for the concept of an Indigenous voice, with the exact characteristics and functions of the body to be determined subsequently. Future parliaments would be able to make changes to the body.”
To read Mark’s full column, click here.