Henderson, Genevieve --- "President's page: Towards a referendum" [2022] PrecedentAULA 47; (2022) 172 Precedent 3

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TOWARDS A REFERENDUM

By Genevieve Henderson

I come from the lands of the Gadigal people of the Eora nation and I pay my respects to Elders past, present and emerging of all First Nations peoples of Australia.

The ALA seeks to provide access to justice and equality before the law for all individuals, regardless of their wealth, position, gender, sexuality, age, race or religious belief.

The articles in this edition of Precedent go the heart of our association’s mission.

The rules of evidence exist to ensure that each party to the action has a reasonable chance to be heard. Although increasingly, in many jurisdictions, the need for speed and value for money have been emphasised, with the rules of evidence set aside in the interest of getting the job done.

The authors in this edition examine how the rules that govern the way we determine ‘truth’ in a contest of fact and law play out for the individual. They also illustrate just how fragile access to justice, even in a mature parliamentary democracy with a functioning legal system, truly is.

This brings me to my focus for 2022–2023.

REFERENDUM ON A FIRST NATIONS VOICE TO PARLIAMENT*

A First Nations Voice to Parliament would provide an avenue through which First Nations peoples could submit advice to the Parliament about the policies and initiatives that impact First Nations groups. The Voice was first proposed in 2017 through the Uluru Statement from the Heart, which also calls for a Makarrata Commission to supervise a Treaty process and establish a space for truth-telling.

The Albanese Labor Government has promised a referendum during this parliamentary term on enshrining the Voice in the Constitution, and recently announced the draft wording for both the proposed new provision of the Constitution, and the referendum question.

The ALA has publicly endorsed the Uluru Statement from the Heart, and recently called on the new Federal Government to move quickly on holding a referendum.

This policy area must be a national priority for the ALA in the next 18 to 24 months. This is part of the ALA’s DNA.

Australia's track record on successful referenda is not strong – the last successful referendum was in 1977. Although no two referenda are the same, there is an understandable fear of failure.

Advocates are calling for a referendum process that is ‘participatory, deliberative, inclusive and fair’,^[1] where community debate about constitutional reform is encouraged.

This is where the role of lawyers becomes important.

The broader Australian public will rely on those who understand the Constitution and public law reform, as well as those who can clearly explain the technicalities and intricacies, to assist them to understand what they will be asked to vote on and how.

Professor Megan Davis has further articulated the specific role for lawyers, including in the legal education around the referendum by answering questions from clients and other members of the public about the referendum.^[2] In order to do this, lawyers must be well-informed about the Voice, the wording, why it needs to be enshrined in the Constitution, and how the referendum will work.

In summary, the ALA should be immediately engaged with any public consultation process, including about the draft wording, and should take an active role in campaigning towards a successful outcome for the referendum through education and clear messaging about the legal processes involved.

POLICY MATTERS

Promoting justice for First Nations peoples is in among the other important work we continue to do on a host of policy matters including establishing a federal independent anti-corruption commission, the NDIS, criminal justice issues (including raising the age of criminal responsibility), compensation and personal injury, aged care reform, systemic issues (Centrelink and Medicare), health services advertising regulation and many others.

I look forward to tackling the challenges ahead and seeing the ALA do its part to generate historic change.

*Special thanks to Eli and Nadia from the ALA Policy team for their contributions to this page.

Genevieve Henderson is Senior Practice Leader, Work and Road Claims NSW and ACT Central and North, at Slater and Gordon. PHONE [phone] EMAIL [e-mail].

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^[1] P Kildea, ‘Getting to “Yes”: Why our approach to winning referendums needs a rethink’, Australian Public Law (12 December 2018) <https://www.auspublaw.org/blog/2018/12/getting-to-yes-why-our-approach-to-winning-referendums-needs-a-rethink>.

^[2] For more see <https://www.auspublaw.org/blog/2022/05/a-first-nations-voice-constitutional-law-reform-and-the-responsibility-of-lawyers>.