Mundine's incongruity

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.
https://www.themandarin.com.au/231269-mundine-strays-into-territory-of-voice-fear-mongering-contradiction/?utm_campaign=TheJuice&utm_medium=email&utm_source=newsletter