In an interview with The Australian, published yesterday (10 May), Senator Michaelia Cash labelled the Voice to Parliament, set to be decided by a referendum later this year, “divisive” and argued it would give “paramount rights in favour of a certain group of people”.

Senator Cash, a former Attorney-General, recently became the Opposition’s shadow A-G following the resignation of Julian Leeser MP from that post one month ago in light of his decision to campaign in favour of the “Yes” vote.

The new shadow A-G told The Australian: “It is based on a particular person’s race, and they will have rights that no one else in Australia has.”

“So you are intentionally embedding in the Constitution, paramount rights in favour of a certain group of people.”

“These rights would in normal circumstances breach discrimination laws and be found to be unlawful, but as they are superior rights and are embedded in the Constitution, they will be an exception that the Parliament cannot override,” Senator Cash continued.

“So at its core, the Voice is divisive … and does nothing to help the most marginalised members of the Indigenous communities.”

In conversation with Lawyers Weekly, Fiona McLeod AO KC — a former president of the Australian Bar Association (ABA) and the Law Council of Australia — said that Senator Cash was “wrong, and as a former attorney-general, she would know this”.

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“This proposal is to create an advisory body in support of First Peoples’ pursuit of self-determination. It would not create special rights or privileges that could in any sense be considered discriminatory under law, but is rather a proposal to advance the fundamental rights to self-determination owed by each nation to its First Peoples. These are different concepts under international law,” Ms McLeod outlined.

“And in substance, there is no inequality. The Voice will work to ensure that the views of our First Nations’ representatives will be heard directly by government and members of parliament and build respect for their experiences, their needs, and their insight into solutions to longstanding thorny issues that impact their lives so profoundly and uniquely.”

Dr Matt Collins AM KC — also a former ABA president — added that it is “not correct” to say that the Voice would “in normal circumstances breach discrimination laws and be found to be unlawful”. 

Racial discrimination is governed federally by the Racial Discrimination Act, Dr Collins noted.

Section 9 of that act, he detailed, provides: “It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”

“The right of the Voice to make representations would not have the proscribed purpose or effect,” Dr Collins noted.

Ms McLeod and Dr Collins, together with fellow former ABA presidents Jennifer Batrouney AM KC, Matthew Howard SC and Noel Hutley SC, issued a joint statement in favour of the “Yes” vote in late April.

A spokesperson for Attorney-General Mark Dreyfus told Lawyers Weekly that the upcoming referendum “is about recognising, and it’s about listening”.

“Recognising Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia — with 65,000 years of history and continuous connection to this land. Listening to the voices of Aboriginal and Torres Strait Islander peoples when it comes to laws and policies that affect them,” the spokesperson said.

Listening to communities, the spokesperson continued, leads to better laws and policies,and better outcomes.

“As the Solicitor-General says, the proposal to enshrine a Voice in the Constitution is not only compatible with Australia’s system of representative and responsible government — it would enhance that system,” the spokesperson said.

In its submission to the joint select committee on the Aboriginal and Torres Strait Islander Voice Referendum, the LCA cribbed former chief justice of the High Court of Australia, Robert French, who opined earlier this year that the Voice “rests upon the historical status of Aboriginal and Torres Strait Islanders as Australia’s Indigenous people. It does not rest upon race. It accords with the United Nations Declaration on the Rights of Indigenous Peoples, for which Australia voted in 2009. It is consistent with the International Convention on the Elimination of all Forms of Racial Discrimination. Suggestions that it would contravene that convention are wrong.”

It is self-evident, Ms McLeod went on, that parliamentarians and an executive that are better informed about the potential impact of new laws, policies and programs will make better decisions.

“The proposed amendment is constitutionally sound and achieves the objects of express recognition and authorising Parliament to make laws with respect to matters relating to the Voice. It does each of these things in an orthodox manner,” she posted.

“Former president of South Africa Nelson Mandela said, upon the adoption of the new constitution for South Africa ‘this is our national soul, our compact with one another as citizens, underpinned by our highest aspirations and our deepest apprehensions’. I believe that a constitution that fails to recognise its First Peoples and advance their aspirations is a hollow document, adrift from the aspiration of its citizens. It is incumbent on us to put it right,” Ms McLeod concluded.