October 6, 2023

Former chief justice backs Voice, dismisses fears of legal disputes

By David Crowe
October 6, 2023 — 3.57pm
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Former High Court chief justice Robert French has urged Australians to value the practical gains from the Indigenous Voice against the risk of any legal dispute over how the new body would work, taking on a key warning from No campaigners about years of uncertainty about its power.

French countered predictions about years of legal argument, even though he acknowledged some litigants would take “quixotic and hopeless” cases before the courts.

Robert French, former Chief Justice of Australia, during an address to the National Press Club of Australia in CanberrCredit: Alex Ellinghausen

The comments came after a speech to the National Press Club that endorsed the Voice as a new mechanism to produce better outcomes and achieve the recognition of the first people of Australia, emphasising that would not mean recognising a separate race.

But the No campaign has gained ground this year by telling Australians the Voice will divide the country by race, with Fair Australia leader Warren Mundine also pointing to different opinions among judges to warn about the risk of legal uncertainty.

French, who was chief justice from 2008 to 2017, said the change to the constitution would not force parliament or government officials to tell the members of the Voice about decisions before they were made and would not put any obligation on parliament or the executive to act on any advice from the Voice.

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He also rejected the repeated claim by the No side that the Voice would add to bureaucracy in Canberra, saying a key feature of the constitutional change was that the group would sit apart from the public service and the parliament to offer advice.

Another former High Court judge, Ian Callinan, has opposed the Voice and warned earlier this year that it could be clouded by legal uncertainty.

“Stretching my imagination only a little, I would foresee a decade or more of constitutional and administrative law litigation arising out of a voice whether constitutionally entrenched or not,” he wrote.

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Asked about this, French said: “I wouldn’t think that that gloomy prognosis is a probable one.”

French acknowledged, however, that some litigants might challenge decisions by the Voice in the courts.

“I wouldn’t say that there won’t be litigation in somebody’s mind. And sometimes there’s litigation which is quixotic and hopeless, sometimes there’s litigation which has a reasonable point,” he said.

“As a former judge, I would never promise absolute certainty. If you have a lawyer who says to you, ‘we are certain to win,’ you must change your lawyer because there are often reasonable arguments on both sides.

“But for me, it’s a matter of assessing the risk against the return. I see the risk as low, very low, compared with the potential benefit of the outcome.”

Pointing to Australian history and the crafting of the constitution in the 1890s, French compared some of the arguments against federation – including that people did not understand the proposal – with the claims made against the Voice.

French rejected the attack line from the No side that “if you don’t know, vote No”.

“The Australian spirit evoked by the ‘don’t know’ slogan is a poor shadow of the spirit which drew up our constitution,” he said.

Former High Court chief justice Robert French delivers an address to the National Press Club.Credit: Alex Ellinghausen

“It invites us to a resentful, uninquiring passivity. Australians, whether they vote Yes or No, are better than that.”

Asked about his use of the word “weaponisation” to describe some of the argument against the Voice, he said many of the debates about the proposed body were about personal attacks rather than the substance of the change.

“We have a political system which has a natural adversarialism built into it, but I feel we are moving into a deeper polarisation, not least social and social media space, which really does change the nature of our discourse,” he said.

“On one end of the spectrum, you might have people who feel that their first order interests are not being addressed, and that the great and the good are engaged in debate about second order interests.

“And the last thing that will succeed in engaging those people is what I call the unctious judgmentalism of the progressive.

“And the problem is that once that sets in it tends to become a bit entrenched, and I think we’re seeing that in spades in the US, and I think it does erode our democratic fabric in a way – that we lose our capacity to disagree reasonably.”

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David Crowe is chief political correspondent for The Sydney Morning Herald and The Age.Connect via Twitter or email.
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