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The duty of lawyers to inform and be informed on the proposed constitutional Voice to Parliament

As lawyers, we should not shy away from the difficult discussions to be had in the months to come. We should accept the duty to self-inform and inform, and we should relish the opportunity to hear from a diversity of views, writes Marie Iskander.

user iconMarie Iskander 06 April 2023 Politics
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As lawyers, one of our primary roles is to give our clients a voice and ensure they are heard, particularly in a legal system, which can, at times, be profoundly unfair and inaccessible to those caught in it. From a very young age, the mantra of giving a “voice to the voiceless” was what impelled me towards a career in the law. Then, when I was 18 to 19 years old, while visiting family abroad, I had a brief experience where I was able to directly witness what life may have been like living in a country as a member of a targeted minority group without a voice.

The experience came when I was with a family member visiting his university campus, and due to not having the appropriate identity documentation or cultural dress, I was subsequently separated from my family member and held in an administrative office with security staff for two to three hours.

I couldn’t clearly communicate in the foreign language with the guards, and for that brief period, I was held like a prisoner, with no voice, at the whims of authorities who had already noted that my lack of cultural dress made me at risk of attack and sexual violence. This is how they justified my continued detention for those brief hours.


Thankfully, I was fortunately released without any further incident, but I will never forget the vivid visual flashes I had while I sat in that small room thinking of the open gates of my own university back in Sydney, Australia, and the freedoms and liberties I am privileged to have and enjoy by virtue of my status as an Australian-born citizen.

But the privileges and liberties I have enjoyed are not universally shared among all Australians and non-Australians living in this great country. Indeed, as a lawyer, I have seen firsthand the disproportionate impact that certain laws and policies have had on marginalised communities, particularly our First Nations peoples. Whenever I have read the beautifully written Uluṟu Statement from the Heart, I have, without fail, choked up at the following excerpt:

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future. These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.” (emphasis in original)

Not all lawyers would have seen these injustices firsthand, and some lawyers would have seen it even more profoundly than city-based lawyers like me — particularly those practising in remote and regional communities. When I think back to the mantra of giving a “voice to the voiceless”, I now realise how misleading that mantra is. Our clients, and more importantly, our First Nations peoples are not voiceless. What is missing is the appropriate platform for that voice to be heard.

The proposal to enshrine a First Nations Voice to Parliament in the Australian Constitution will not be a panacea for all the system’s injustices. But it should be seen and understood to be a step in the right direction for all Australians to walk alongside our First Nations peoples in this long path towards healing.

Unfortunately, there are still significant gaps in the public’s understanding of what the Voice is or what they will be inevitably invited to vote for when the referendum is called. My discussions with other lawyers and professionals have been telling on this point, with some indicating that they are going to vote “no” because they “need more details” and others who indicated that they thought that the “Voice” referred to a more broadly known reality television singing competition.

As lawyers, we owe a duty to the courts, and to our clients, but we also arguably owe a duty to the public at large. We are in an enormously privileged position, having all had a legal education and having practised in the legal system to have discussions and conversations with friends, colleagues, and family members about what the proposal for the Voice to Parliament is about.

To have these conversations, we are required to take active steps to ensure we are adequately self-informed so that we can, in turn, have those informed discussions. Relying on the representation of the Voice by the media or politicians is unlikely to be sufficient. All lawyers should have at least read the beautifully written Uluru Statement from the Heart and should take some steps to engage with material that adequately sets out the details of the proposal. The duty to self-inform and inform others on the Voice does not necessarily mean that lawyers need to advocate for or against the proposal.

What it does at least ensure is that we are approaching the question, which will soon be put to us for a vote, with an open but informed mind — rather than relying on the views of politicians or the media to shape our vote. The vote is too important to be driven by the baseless or floury of commentary being disseminated by shock jocks.

Inevitably the closer we get to voting on the proposal, the more we will see and hear discussions and debates that will be offensive to some and shocking to others. There will be dissidents who will focus on whatever imperfections they think they can find with the proposal to vote or advocate for a no vote. There will also be others, most pertinently, First Nations peoples who have used their voice to highlight some of the gaps in the proposal.

As a democratic society, we should advocate for these discussions to occur in the public domain as part of our “free” marketplace of ideas. While media platforms should rightly continue to regulate misinformation or expressions that amount to hate speech, a free and open discussion about the Voice is essential to ensuring that the everyday Australian can cast an informed vote at the referendum poll. These kinds of vibrant discussions are also essential to any democratic society, as the European Court of Human Rights has regularly said that the right to freedom of expression applies “not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population”.

To this end, they have said that these are “the demands” of “pluralism, tolerance and broadmindedness without which there is no ‘democratic society’” (Handyside v The United Kingdom). So rather than dismiss the views and voices that are different to our own, we should take the time to listen to the diversity of views being shared and try to engage in these discussions to ensure we are all better informed.

As lawyers, we should not shy away from the difficult discussions to be had in the months to come. We should accept the duty to self-inform and inform, and we should relish the opportunity to hear from a diversity of views. It is this diversity of voices in Australia that makes this the lucky country that it is. What I hope is that with time, all Australians and non-Australians living here will have a platform to have their voices heard too.

Marie Iskander is a public sector lawyer and advocate. She is a teaching fellow at the University of NSW, teaching federal constitutional law and public law. All views are her own.