Referendum contest for hearts and minds strays into territory of thoughtless fear-mongering, contradiction

By Melissa Coade

September 27, 2023

Warren Mundine
Nyunggai Warren Mundine. (AAP Image/Lukas Coch)

The referendum ‘No’ camp’s obsession with what they claim is the legal risk of amending the constitution has more to do with spooking voters about the Voice than the actual law.

On Tuesday, ‘No’ campaign spokesperson Nyunggai Warren Mundine struggled to articulate exactly what legal risk changing the constitution to recognise Indigenous Australians posed.

“The ‘Yes’ campaign is built on a pack of lies. One lie is that Indigenous people don’t currently have a voice, that Indigenous people aren’t listened to in making laws and policies. It’s the opposite,” Mundine said.

“Indigenous Australians have many voices. Hundreds of Indigenous organisations are immersed in policymaking affecting Indigenous Australians, corporations, sporting codes, religious groups, unions — every arm of local state, territory and federal governments.

“Every agency and bureaucracy have Indigenous advisory bodies or other formal consultations. Nothing happens on Aboriginal land without consultation with traditional owners through native title and land rights legislation; there are more indigenous parliamentarians today than ever before, including the minister for Indigenous Australians [Linda Burney]; and there’s no door in Canberra that isn’t wide open for Indigenous Australians who want their voice heard,” he said.

There are many things that campaigners against the proposed Voice to Parliament do not believe or accept to be true. This is apparently because some facts do not accord with the ‘No’ narrative that change — and particularly changes to the constitution — is bad.

The problem with the way those arguing against the merits of the Voice make their case is that it takes issue with perceived elitism, complaints about viewing the plight of First Nations people through a victimhood lens, bureaucracy and legal risk all at once.

This tends to lead to circular debates, often confuses ideas and further stokes fear through ignorance in the public discourse. It is a trick that is a disservice to democracy. And it is unhelpful to any person wanting to learn more about the proposed amendment almost two weeks out from the referendum.

Conflating the issues means many of the ‘No’ campaign arguments are not about persuading undecided voters based on a contest of ideas or the merit of arguments. Instead, they serve to encourage digging into confirmation bias and play into identity politics.

Australia is one of the most successful countries in the world with respect to how it has reconciled with its Indigenous people, according to Mundine, and the nation should focus on the work of forgiveness rather than dwelling on matters of sorry business.

“I can’t think of any nation that has overcome the conflicts and injustice of its past, better than Australia,” Mundine said.

“The referendum will be a choice between two opposing visions for Indigenous Australians. One is a vision of segregation, bureaucratic control, and dependency, and a mindset focused on the historical grievance in identity politics. The other is a vision of economic participation, financial independence, and self-determination, and a mindset focused on jobs, education, social stability, and practical initiatives.”

He later went on to make a contradictory observation:

“I wouldn’t go [so far as to say bureaucrats] are completely ignoring them [Indigenous voices] — they are listening to us.

“The issue for me is about enthusiasm. How do we take the ‘Closing the Gap’ report and the Productivity Commission report that go to parliament every year, which points out where the gaps are, what’s happening, what’s working, what’s not working — we should be then utilising those reports and moving forward.”

Mundine used his Press Club address to complain that concepts of fairness and dispassionate truth, underpinning the fundamental principles of justice, were at odds with what the Voice represented.

Citing the symbolism of lady justice representing the impartiality of the courts as an unbiased arbitrator of facts and the law, he strayed into explaining justice meant that if a person was charged with a crime, their case should be determined without prejudice and based on whether they committed the offence or not.

“[Amending the constitution is] about our legal system — if people remember, outside our courts and everything there is a statue of a woman who is blind-folded … she dispassionately is dealing with the evidence — it’s got nothing to do with race, nothing to do with religion or anything like that,” Mundine said, alluding to another ‘No’ position that accuses the Voice as being racially divisive.

Mundine said he did not believe any lawyer’s view that the proposed amendment to the constitution was safe or modest could be apolitical.

To back this conclusion, he pointed to various law societies who had articulated support for the Voice to Parliament.

The ‘No’ campaigner argued this was grounds to suspect that people who did not support the referendum would themselves struggle to find legal representation for an ordinary matter before the courts with a practitioner who could deal with their client objectively and without prejudice.

“This is the insanity of the law societies and them… to actually take a position on this [referendum],” Mundine said.

“Because, if I get in trouble with the law — how do I know I’m going to get a fair trial from those lawyers? How am I going to know if I’m going to be treated decently [as a ‘No’ supporter] because they signed up to the ‘Yes’ campaign?,” he said.

“How can the law societies, quite frankly, who are the guardians of our legal system, sign up to one side of politics?”

‘No’ campaigners are officially supported by the Liberal and National parties; however, there are a number of prominent Opposition MPs who will be voting ‘Yes’ in October.

Notably, a number of Liberal party members with legal qualifications, such as former PM Malcolm Turnbull, former deputy leader and foreign minister Julie Bishop, former shadow attorney-general Julian Leeser, and ACT Liberal Opposition leader Elizabeth Lee have backed the Voice. They are joined by premier of Tasmania Jeremy Rockliff, and ex-premiers of NSW Mike Baird and Barry O’Farrell among several other party heavyweights who have joined a campaign group named ‘Liberals for Yes’.

Mundine insisted support for the Voice must be politically motivated rather than an endorsement of the proposal’s legal soundness. He did not substantively answer The Mandarin’s question about what legal risk he considered the Voice and constitutional recognition posed.

A follow-up question about what legal risk the proposed constitutional change actually embodied was met with the reply that consensus views were rarely shared by lawyers.

“Lawyers are like economists — you get two lawyers in a room and you get three, four, five different debates,” Mundine said.

“It’s amazing — I’ve got constitutional lawyers, professors of laws … who dispute that [the Voice is a safe and modest proposal] so this is where I know the law societies are getting themselves in big trouble.

“This idea that the law society can say, ‘This is the answer’ — is just fallacy, it’s nonsense, and it opens it up for a legal argument,” he said.

Architects of the Voice have spent the past 12 years refining the proposed amendment and testing it to avoid legal and technical risks. In a recent webinar hosted by the Law Council of Australia (LCA), an expert panel noted that legal drafting efforts after the Uluru Statement from the Heart had been pursued with a view to minimising risk.

Any so-called legal expert who does not regard the proposed constitutional amendment put forward in the forthcoming referendum is an outlier at best.

People who might ask why this is so, when ‘No’ proponents are so insistent any lawyer can argue any which way, need only look at the rigorous consultation process that led to the proposed amendment being put to the Australian public.

But when a chorus of legal experts makes an apolitical call that the proposed amendment is both “safe and modest”, explaining the original drafters of Australia’s constitution had never intended the framework to be forever fixed or incapable of evolving with society, the response from ‘No’ proponents is: “I don’t believe that”, along with variations of the argument that there is a credible diversity of opinion among experts.

Barrister Greg McIntrye SC stressed that informed ‘Yes’ and ‘No’ supporters in the legal community were in agreement and unanimity about what form potential Voice legislation would take should the referendum were to succeed. The proposed amendment was, in his view, an orthodox approach because it adhered to constitutional principles.

“Those that are informed are in agreement that whatever the parliament looks at after the referendum, it will be looking at a body which has local and regional representation, and will be providing information from local and regional people about their issues up to the parliament,” McIntyre said.

The essential problem with Mundine’s dismissal of the majority view of legal representative bodies, including the LCA, the Australian Bar Association, a long list of legal luminaries that includes former judges of the High Court of Australia chief justice Robert French, Justice Kenneth Hayne, constitutional law experts like Melbourne University’s Professor Cheryl Saunders or the University of Sydney’s Professor Anne Twomey, and the government’s solicitor-general Stephen Donaghue (who was appointed during the term of the previous Coalition government) is that these views are fuelled by cynicism for authority and expertise.

This cynicism is deployed only when it suits the ‘No’ campaign agenda. At other times in Mundine’s press club speech, he lauded government consultation with First Nations people, and also held up legal precedent and expertise as sacrosanct to liberal democracy.

It is hard to follow the sense of the ‘No’ case when its champions co-opt academic heft when they please, and just as swiftly wave it away as elitist claptrap when it does not suit their cause.

According to the ‘No’ campaign, the Voice runs the risk of being so legally unsound (whatever that means to them) that it is not worth entertaining, but should the referendum succeed it will be so ineffectual that it will also be a waste of money.

Those who oppose the model cannot use both of these complaints about the proposed amendment in the same breath.

To give an answer to the question Mundine could not provide at the NPC, former High Court Judge Kenneth Hayne said he saw no legal risk.

“The word ‘representations’ is very carefully and deliberately chosen. The Voice has a power to speak — that’s all. Parliament or the executive will decide what to do in response,” Hayne said.

“The Voice has no power of veto. The proposed amendment does not change, in any way, any power of the parliament or the executive. It does not impose any obligation to consult.

“I think it very telling that those who raise this issue seldom, if ever, go beyond saying that we should be afraid of what the High Court would do — but never go beyond to tell us what they think it is that the court could do.”

The former judge added some other ‘No’ advocates simply ignored the text of the proposed section 129, and deceitfully replaced the true words with different ones to concoct hypothetical scenarios. The text and structure of the proposed amendment was sound, he said.

“Legal risk? No,” Hayne said.

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