Henderson, Genevieve --- "President's page: Where have we been and where are we going?" [2023] PrecedentAULA 2; (2023) 174 Precedent 3

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WHERE HAVE WE BEEN AND WHERE ARE WE GOING?

By Genevieve Henderson

I acknowledge that the land on which I live and work is and always has been the land of First Nations peoples. I pay my respects to Elders past, present and emerging throughout Australia.

A great strength of the Australian Lawyers Alliance (ALA) is the enormous breadth of issues, both macro and micro, that we champion and go into battle for.

In every state and territory there is an active ALA branch committee working hard on local issues. And the National Council draws on the strength of the branch committees and individual ALA members to tackle important national issues that impact us all, along with the people we represent. In the past year, the work of the branch committees and National Council has included agitating Medicare and Centrelink to speed up their processes, obtaining ATO clarification that essential client tax documents can still be obtained lawfully and easily, advocating for a Human Rights Act in SA and the right to protest in NSW, campaigning to raise the age of criminal responsibility, and lobbying government (state and federal) for beneficial civil and criminal law reform. This work is constant and will continue throughout 2023.

Nationally, there is no doubt that the coming year will be dominated by the referendum on a constitutionally enshrined First Nations Voice to Parliament, with a vote predicted as early as August 2023.

The Albanese Government has put forward a simple question for Australians to vote on: ‘Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?’^[1]

The suggested three sentences to be added to the Constitution are:

‘

1. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.

2. The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples.

3. The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.’^[2]

For some, the simplicity of the referendum question and proposed constitutional amendments is a cause for concern, leading to calls for greater detail.

Anne Twomey, Professor of Constitutional Law at the University of Sydney, has succinctly and powerfully argued in support of the ‘simple’ approach, stating that if a ‘constitutional change empowers parliament to make certain types of laws in the future, you only need to know the scope of the power – not every law that will be made under that exercise of power’, with the detail of how the power is exercised for future parliaments to decide. Further, ‘When a referendum campaign descends to fights about detail, it is almost invariably lost. It needs to focus on the principle and purpose of the amendment. Detail is rightly left to parliament to decide and for the democratic process to control. It puts democracy, not the devil, in charge of the detail.’^[3]

As to the risks, Linda Burney, Minister for Indigenous Australians, has countered concern that a referendum loss would set back reconciliation, saying ‘if we do not try, then we have already lost’.^[4]

I wholeheartedly agree with both Anne Twomey and Linda Burney! In order for the referendum to succeed, it is clear we need to: focus on the principle; focus on the purpose; and be confident that the approach is constitutionally sound.

The ALA certainly knows how to advocate, educate and persuade. We will battle for a positive outcome in the Voice referendum.

Watch this space.

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] Prime Minister Anthony Albanese during a landmark speech at the Garma Festival in Arnhem Land (30 July 2022). A transcript can be found at <https://www.pm.gov.au/media/address-garma-festival>.

^[2] Ibid.

^[3] A Twomey, ‘Parliament, not the devil, should control the detail of the voice’, The Sydney Morning Herald (1 January 2023) <https://www.smh.com.au/national/parliament-not-the-devil-should-control-the-detail-on-the-voice-20230101-p5c9pe.html>.

^[4] ‘Linda Burney reveals draft timing for Indigenous voice to parliament vote’, The Guardian (1 January 2023) <https://www.theguardian.com/australia-news/2023/jan/01/linda-burney-reveals-draft-timing-for-indigenous-voice-to-parliament-vote?CMP=oth_b-aplnews_d-3>.