It was a moment of pure joy.
WARNING: This story contains images of Indigenous people who have died.
When the High Court delivered its 1996 Wik decision, recognising pastoral leases could co-exist with native title, Wik elder Gladys Tybingoompa took up her clap sticks and danced her way across the High Court forecourt in Canberra and into history.
Only four years before, the court had handed down the Mabo decision, changing the legal landscape for Indigenous Australians.
And now those behind the Indigenous Voice to Parliament are hoping for a new seismic shift, with a Yes vote in the coming referendum.
However, behind the scenes, there's an almighty battle, with claims of impending division in the community, concerns about the wording and suggestions that government policy could end up bogged in the High Court, leaving the country at the mercy of so-called "activist judges".
For those in the long game of politics — such as former deputy Liberal leader and former Native Title Tribunal Member Fred Chaney — it is all sounding a bit familiar, with the themes arising from the Mabo debate resurfacing in the Voice debate, particularly in relation to the High Court.
"In each case there were wildly exaggerated claims about the dramatic impact this would have on Australian society, on the Australian economy, on the mining industry, and all the rest of it," Mr Chaney said.
"These arguments were arguments of convenience and panic and they had no validity at all as history has now shown."
Perhaps the wildest exaggeration was the fear of a threat to backyards, stoked by leaders — including Victorian Premier Jeff Kennett, who told the Victorian Parliament every property in Australia could be at risk.
Mr Kennett later apologised and said he'd been wrong, but the fears had been magnified so effectively, the Aboriginal and Torres Strait Islander Commission set up a telephone hot line to quell any concerns.
And now-Professor Marcia Langton — a leading figure in the current Voice campaign — also had to launch a vigorous defence.
"We do not want your backyards. We want you happy and safe, on those titles which were validly issued by governments since 1788," she told the ABC's 7.30 Report at the time.
"We do not want to frighten any innocent titleholder."
In fact, the land available for native title claim was mostly Crown land, not freehold backyards.
However, Wiradjuri and and Wailwan woman Teela Reid — who is the inaugural First Nations lawyer-in-residence at Sydney Law School — said she was not surprised that the hype had returned in the Voice debate.
"When it comes to Indigenous issues, they are some of the most scrutinised issues in the nation," she said.
"It's no surprise to me that the Voice has attracted criticism and scrutiny, and straw man arguments in relation to its powers and functions."
Mabo 'naysayers' emerged after decision
The highest court in the land has been at the centre of both debates.
Greg McIntyre — the lawyer who prosecuted the Mabo case in the High Court — said there wasn't a great deal of concern at the time of the decision.
"The naysayers really only got hold of it about 12 to 18 months after the decision, and suddenly started saying, 'Hang on a minute. This is going to affect our backyards'," Mr McIntyre said.
"I thought it was pretty unfortunate, because it just wasn't an accurate portrayal of the consequences of the Mabo decision."
At the height of the Mabo debate, then-deputy prime minister Tim Fischer called for vacancies on the High Court bench to be filled with capital C conservatives while he took aim at so called "activist judges".
He was backed by state and federal colleagues, including then-Nationals senator John Stone.
"It is very important for courts, not just the High Court, to keep their noses out of politics," the former senator Stone.
That sparked a debate over the separation of powers, where the courts are supposed to remain independent of the executive government, and the parliament, with Mr Fischer rebuked by the then-chief justice of the High Court, Sir Gerard Brennan.
Dismissing fears that Voice will clog courts
Indigenous leader Noel Pearson says the suggestion the High Court might interfere in government if the Voice is included in the constitution is an affront to Australia's democracy and constitution.
"This hysteria about the role of the High Court I think is unjustified," he told a parliamentary committee looking into the looming referendum.
"The High Court has a role in relation to any legislation, and any citizen is allowed to go to court to test a provision, and to test the meaning of a provision."
Mr Chaney said he believed there was little risk of High Court action in any case.
"Clearly what this constitutional amendment proposes is the right for a Voice to give its opinions to the parliament and to the government, that should in no way constrain the government from behaving in the way the government wishes to behave," he said.
Constitutional law expert Anne Twomey also said the risk was overblown.
"Ultimately, the point of the exercise is to ensure that the Voice is heard," Professor Twomey said.
"The obligation is really intended to be a political obligation, the intention was always to avoid litigation and not to make it a legal obligation."
Ms Reid agrees, saying those claiming a risk of High Court action are looking at it from the wrong perspective.
"What First Nations people wanted was, in fact, to try [to] avoid litigation," she said.
"We've been there before. We've done that, particularly in matters like Mabo [and] the Wik decision.
"The whole entire purpose of the call to action for Aboriginal and Torres Strait Islander people to have a Voice was to influence laws and create a positive relationship with parliament and the executive to influence decisions [and so] avoid the High Court."
Ms Reid also pointed out there were practical obstacles.
"You can't just automatically rock up and knock on the High Court's door and, suddenly, your matter gets listed," she said.
Mabo ruling different to Voice referendum
The High Court deals with the constitution, with each case having to seek special leave to appeal before it is heard.
It doesn't deal with trivial or day-to-day matters, but rather with principles.
The Mabo ruling was a decision of the High Court, based on law, but the Voice will be put in place, or not, by the people through a referendum.
Greg McIntyre said that, if there was litigation, it was most likely to be in situations where the government doesn't follow the rules.
"So there has to be a jurisdictional error … where the government has done something, which is contrary to proper procedure, which fails to take into account considerations, which the law says it must take into account."
"Those are bread-and-butter issues which happen every day in the courts in relation to government decision-making.
"So the Voice won't be any different from any other process of engagement with government."
Regrets about previous comments
The other thing the Mabo and Voice debates have in common is the division on the conservative side of politics.
On the Voice, the Coalition's former Indigenous Australians spokesman, Julian Leeser, quit the opposition frontbench to campaign for a Yes vote after the party adopted a No policy.
Former Indigenous Australians minister Ken Wyatt quit the Liberal Party entirely, while Tasmanian backbencher Bridget Archer, a moderate, has vowed she would vote and campaign for Yes.
The Coalition was similarly divided during the Mabo debate, with Tim Fischer drawing fire from his own side after he said Aboriginal people hadn't even invented a wheeled cart.
Then Liberal leader John Hewson declared a day of shame for the federal parliament after the passage of the Native Title Act, something Mr Chaney says he probably regrets.
"It was a stupid thing to say and Tim Fischer [was] equally culpable," Mr Chaney said.
When John Howard was elected prime minister in 1996, he set out his "Ten Point Plan", which sought to clarify where native title was extinguished in relation to all titles, an arrangement negotiated with the then-Nationals leader Mr Fischer.
He had quietened his own side, although the plan — which watered down some rights — was not universally welcomed by the Indigenous community.
However, there is one thing Teela Reid is clear about.
No matter how people vote in the referendum, they should know what they are voting for.
"Part of my campaigning and advocacy for the movement will always be about properly informing people, whether they sit on the No or Yes case … that they are making an informed decision."
Loading...https://news.google.com/rss/articles/CBMiWmh0dHBzOi8vd3d3LmFiYy5uZXQuYXUvbmV3cy8yMDIzLTA1LTE0L2hpZ2gtY291cnQtdm9pY2UtdG8tcGFybGlhbWVudC1yZWZlcmVuZHVtLzEwMjMwMjMyMtIBKGh0dHBzOi8vYW1wLmFiYy5uZXQuYXUvYXJ0aWNsZS8xMDIzMDIzMjI?oc=5
2023-05-13 18:44:42Z
2019124258
Bagikan Berita Ini
0 Response to "Voice to Parliament court saga offering echoes of the Indigenous rights battles around Mabo, Wik decisions - ABC News"
Post a Comment