Bendigo legal expert pushes back against Voice 'No' arguments

Reports of an increase in racist attacks against Aboriginal people in the Bendigo area, an organised campaign of misinformation and the most recent polling figures showing a surge in "no" voters across Australia are just some of the issues which have arisen in the national debate.

With Australian voters heading to the polls on October 14 for the first referendum in a generation, many people may still not know what they are voting for.

The Voice to Parliament will pose a simple question - "A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?"

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To help clarify some of the arguments being put forward by those against the Voice, the Bendigo Advertiser sat down with Bendigo-based legal expert Dr Madelaine Chiam.

Dr Chiam is an Associate Dean of Learning and Teaching at the La Trobe University Law School.

She is also a member of the La Trobe Law School International and Comparative Law Research Cluster and a regular member of the faculty of the Harvard Law School Institute for Global Law and Policy Scholars Academy.

Three of the major arguments being used by the No campaign were put before Dr Chiam for her to address.

These arguments are: 'if you don't know, vote no'; the Voice could overpower the Australian Parliament; and the Voice would create a divide in Australia.

Dr Chiam said if someone was unsure about what the Voice would entail for Australia, there was "more than enough" information available for people to answer the questions they have.

"I think if you don't know, your responsibility is to find out and to find out from reliable sources what the Voice referendum is actually about," she said.

"It is very easy to think 'it's all too hard to understand', 'I don't really understand it', 'I don't know what reliable sources are'.

"I would just recommend people look at the website The Conversation which university academics contribute to. It is a really reliable source."

The Associate Professor said rooted in the argument was a misunderstanding that there needs to be, to the letter, an outlining of what the Voice would look like, how many members it would have, state representation and so on.

"At the base of that - 'if you don't know vote no' - is this argument that there isn't enough detail about what the Voice will be," she said.

"It is really important in answering that question to understand that constitutions in general don't provide structural detail.

"Constitutions are documents that provide principles under which government works. The Australian Constitution sets up the structures of the parliament, the government and the High Court and it has basic features of each of those institutions but always so much of the detail is left to Parliament."

Dr Chiam said if the referendum were to outline the structural specifics of the Voice, any possible future changes to it could only be decided through another referendum and Australia could find itself gridlocked in referendum after referendum.

Dr Chiam pushed back the argument that the Voice could or would overpower the Australian Parliament in its function.

She said the wording of its proposed function clearly states the Voice would only advise the government just like any advisory group does.

"It is very clear from the proposed section 129 that all that the Voice will have power to do is to make representations to the Parliament and the government," Dr Chiam said.

"To give advice to the Parliament on matters that relate to Aboriginal and Torres Strait Islander peoples."

Dr Chiam said the Australian Parliament could also ignore any advice put forward.

"One of the reasons that people make that argument that (the Voice) is going to have more power is this concern that the High Court will interpret the words of this constitutional change to give the Voice more powers than it suggests in the wording," she said.

"There is an argument that it doesn't matter what the constitution says, the High Court will just go away and say no - the Voice must be consulted.

"Which is not what is says. It just says the Voice may give advice. There is no requirement that the government take on that advice."

The third argument put to Dr Chiam was the assertion that if the Voice ever became functional, it would divide Australia, especially along racial lines.

Dr Chiam said this was not true and the protection and recognition of Indigenous Australians was a part of International Law at the United Nations.

"Indigenous people, not just in this land but in all the territories of the world, they are distinct," she said.

"Not because of a question of race, but because they are the first peoples of the territory and as the first peoples of the land they are entitled to be treated differently because they are the first peoples."

Dr Chiam said the Voice was not a "question about race" and could not racially divide the nation given a racial divide already existed.

"The argument that this creates a divide is a false argument because that divide already exists," she said.

"I would argue what this change will do is by acknowledging the unique place of Aboriginal and Torres Strait Islander people in the constitution, it moderates the power (of the Australian Government to make laws specifically based on race).

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"There is an idea that somehow this introduces a racial divide into the constitution but actually the question of race already exists in our constitution," she said.

"The Federal Government already has the power to make laws with respect to people of certain races.

"Initially Indigenous peoples were excluded from (the constitution), that section was in essence the White Australia policy."

Dr Chiam said pre-1967 it was up to individual states to set laws about Aboriginal people in their territory but after that referendum the Federal Government was allowed to make laws in relation to Aboriginal people.

"This Voice is not about a question of race," she said.

"It's about a question of recognising the unique place of Indigenous peoples in this land and that is really important."

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