As the Voice referendum approaches on 14 October, more than 80 public law teachers from universities across the country have come together in an open letter to the Australian people to help explain some of the legal and historical issues causing confusion about the proposed constitutional change. The Gilbert + Tobin Centre of Public Law, as co-organiser of the annual Public Law in the Classroom teaching workshop, is proud to host the letter on its website.
In the letter, public law teachers explain to Australians how to analyse and assess the stated concern that the proposal is constitutionally ‘risky’. The letter explains that the vast majority of expert legal opinion agrees that this amendment is not constitutionally risky. These views are supported by careful argument, drawing on precedent (that is, previously decided cases) and a deep understanding of the Court’s approach to constitutional interpretation. These experts also agree that the proposed Voice provision is consistent with the Australian constitutional system.
The letter also explains to the Australian people important historical context, because this reveals that the claims that the Voice will introduce ‘race’ into the Constitution are false. The concept of race was incorporated into the Australian Constitution from its first enactment back in 1901. Back then, the framers intended for the new Commonwealth Parliament to be able to pass laws that discriminated against people on the basis of race. Whether or not we agree that the Constitution should continue to embed this concept, it is wrong to frame the Voice as introducing a racial divide into the Constitution. The racial divide has always been there.
It is against this constitutional history that the Voice provides a mechanism for Aboriginal and Torres Strait Islander peoples to have an input into the laws and decisions that are made about them under this – and other – powers.
Importantly, the proposed constitutional amendment is based not on the outdated concept of ‘race’, but through recognition of Aboriginal and Torres Strait Islander peoples’ place as Australia’s First Peoples. This is consistent with contemporary understandings of the rights of Indigenous Peoples.