Like most Australians, Family First supports recognition of indigenous people in the Constitution.
Failure to recognise was an unfortunate and unjust oversight by the founders of the Australian nation, who otherwise designed one of the world’s best Constitutions.
Proof of this is Australia’s political stability and achievement in comparison with so many other nations during the past 122 years.
This should be taught in schools and the likes of Sir Henry Parkes should be highly esteemed instead of virtually unknown as he is today.
Australians showed their overwhelming good will towards indigenous Australians in 1967 by righting the Constitutional wrong of them not being included in the census (indigenous people already had the right to vote and citizenship).
Far from seeking to entrench “white privilege”, the 1967 referendum to amend the Constitution was overwhelmingly carried.
Most Australian referenda fail.
However, Family First opposes the current referendum proposal for an Aboriginal and Torres Straight Islander Voice to Parliament.
Rather than a “modest advisory body” as asserted by Prime Minister Anthony Albanese, as more detail emerges it is clear the Voice represents a radical change to the constitution and a complete overhaul of the way we are governed.
Revelations in a submission by constitutional law experts Nicholas Aroney and Peter Gerangelos, professors of constitutional law at the University of Queensland and the University of Sydney, further heighten these concerns.
Aroney and Gerangelos submit to the Joint Parliamentary Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum that the Voice will have likely have the same status in the Constitution as the Parliament, the Executive, and the Courts.
This is extraordinary and something not contemplated or discussed so far.
It flies in the face of everything Australians have been told about the Voice.
If Aroney and Gerangelos are correct, it means that the Voice would be an important institution with significant powers and responsibilities, just like the other institutions provided for in the Constitution.
This is a million miles from an advisory body whose advice government could take or leave.
Furthermore, according to Aroney and Gerangelos, there is confusion about what constitutes representation to the parliament and the executive.
Is representation to entities or to individual parliamentarians and civil servants?
The proposal also requires all relevant information to be provided to the Voice which Aroney and Gerangelos suggest would mean the same information available to the Executive.
There is also the possibility of fiduciary duty applying, which could change the way parliament and government operate.
Fiduciary duty is a legal obligation to act in the best interests of another person or group.
That all sounds fine until the lawyers and the High Court get involved.
If Parliament decided not to act on the advice of the Voice, it would be a political decision and outside the scope of administrative law.
However, if a decision-maker exercising a power fails to consider a relevant representation made by the Voice, an aggrieved party with sufficient standing could initiate legal proceedings seeking judicial review of the decision.
In such a case, a court could set aside the administrative decision if it finds that the decision-maker failed to give adequate weight to a relevant factor of importance, or gave excessive weight to a relevant factor of little importance.
This would throw sand in the gears of government.
Special rights to one category of Australians based on their racial ancestry flies in the face of the idea of equality before the law and the Australian egalitarian ethos.
Australia’s settlement by Europeans and more recently by Asians and the dispossession of indigenous people is a fact of history.
What happened here has occurred throughout all of history on all continents.
It’s not possible to undo the past. It is possible to acknowledge wrongs and seek to right them where possible but there comes a point where forgiveness on both sides is required.
Urgent work needs to continue to restore law and order, protect children from sexual abuse, and alleviate poverty in indigenous communities (and in white communities where it is not as visible).
But dividing the nation by race with special Constitutional privileges for one race is not the way.
Indigenous Australians should be recognised in the Constitution but be equal under the law with every other ethnicity that now calls home what is arguably the best nation in the world.
Our past is not perfect but compared to most other nations, it’s been amazing – including for a great many indigenous Australians.
Despite our failings, Australia continues to offer hope for and enormous goodwill towards indigenous people for whom the gap still needs to be urgently closed.
A Voice which upends our Constitution and divides us by race won’t achieve that. It risks creating further acrimony.
The path forward is together as one, not separately.