Lawyers who tried to sell a maximalist Voice model as a modest one fell into abstraction, sophistry and legal fiction to do so.
Our systems of government and justice are adversarial for a reason. We worked out over centuries that the process of debate, scrutiny, interrogation and cross-examination gives us the best chance of getting to the right outcome, or to the truth where facts are contested.
For instance, knowing from previous referendums that Australians are averse to entrenchment of “rights”, the Yes lawyers insisted correctly that the Voice did not create a right for any individual. But in rejecting claims by No activists that the proposed section 129 would give special rights to one race of people, the Yes lawyers overlooked the fact that they were proposing a novel and globally unprecedented group or collective right for all Indigenous Australians.
A process of robust public scrutiny and debate prior to the Garma model being given to the prime minister on a silver platter would have exposed the proposal to the brutal arguments that fairly and squarely defeated it. Such a debate could have yielded a more modest, sensible model that would not have offended the common sense of the vast majority, and therefore one that political conservatives would have found hard to object to.
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