Australia’s former chief justice will describe the core argument of the anti-voice campaign – that “if you don’t know, vote no” – as “resentful” in a major speech in Canberra on Friday.
Robert French will describe the no campaign tactic as an invitation to “resentful, uninquiring passivity”, arguing Australians “are better than that”.
The former high court chief justice argues that the “Australian spirit evoked by the ‘don’t know’ slogan is a poor shadow of the spirit which drew up our constitution” in a speech to be delivered to the National Press Club on Friday, a week and a half before the 14 October referendum.
He refutes many common arguments against the Aboriginal and Torres Strait Islander voice, including that it will constrain executive decision-making, create a “Canberra bureaucracy” or divide Australians by race.
With the exception of a few conservative retired judges, the overwhelming weight of legal opinion is that the referendum amendment is consistent with Australia’s constitutional architecture and would “enhance” the system of government, as the solicitor general concluded in his advice.
Members of the no campaign, including the opposition leader, Peter Dutton, have argued that the prime minister, Anthony Albanese, has deprived Australians of detail on the design of the voice and urged “if you don’t know, vote no”.
In an advance copy of his speech, seen by Guardian Australia, French says Australians can “take pride in the history of our First Peoples as part of ours, recognise it and give it voice – not as a matter of apology or reparation, but as an act of celebration”.
Three weeks after the shadow minister for Indigenous Australians, Jacinta Nampijinpa Price, said there were “no ongoing negative impacts of colonisation”, French will state “it does not require a black armband view of history to conclude that colonisation did not bring unalloyed benefits to our First Peoples”.
“Nor does it require rocket science logic to conclude that we live today with the cross-generational effects of that collision.”
The voice will “provide a new impetus and new mechanism to better address the generational effects of the collisions of our histories”, he says, by giving Indigenous Australians more input into policies designed to close the gap in outcomes.
The practical benefit of the voice, French says, is that “it will provide an opportunity for coordinated, national advice from a First Peoples’ body”.
Analysing the words of the proposed constitutional amendment, French says that “on no view can they give rise to any constitutional legal obligation for the parliament or the executive to accept or be bound” by the voice’s advice.
French notes the “ultimate form and functions [of the advisory body] will be in the hands of the elected parliament”.
Advice “would generate a democratic mandate” but that would not be “enforceable by the courts” and it is “improbable” that courts would imply that executive decision-makers must have regard to its representations.
He says the “parliament itself” can decide whether the decision-maker should invite representations from the voice and “determine the extent, if any, to which any legal duties might be imposed on executive decision-makers”.
The parliament could also direct the voice to make representations to a particular minister or agency, meaning it won’t necessarily be able to speak to a “vast array of public officials”.
French rejects the argument, deployed by Dutton and Price among others, that the voice “would entrench a race-based division in the constitution” by noting “the voice is not a race-based institution”. French says that race is a “scientifically meaningless linguistic usage, sometimes called a cultural construct”.
“It would not matter whether Aboriginal and Torres Strait Islander peoples were one race or dozens of different races … The unifying characteristic which underpins the voice is their history as our First Peoples.”
French says “the use of the term ‘bureaucracy’ to describe the voice proposal reflects a fundamental misunderstanding of its place in the constitution”.
Although French does not name Dutton, he laments the use of “Canberra bureaucracy”, a term the opposition leader has used several times, as well as “Canberra voice”. He says weaponisation of words “by distorting their meaning in a way which is unhappily characteristic of public, political discourse today”.
