what was claimed
The Voice of Parliament will grant supreme rights in favor of indigenous peoples who would violate discrimination laws under normal circumstances.
our verdict
FAKE. The Voice would not grant any supreme rights. The representation it would provide to indigenous peoples would comply with discrimination laws and conventions.
Spokesperson for the opposition attorney general, Senator Michaelia Cash, said Voice to Parliament will grant indigenous peoples paramount rights that would, under normal circumstances, violate anti-discrimination laws.
this is false Experts say that the Voice of Aboriginal and Torres Strait Islander proposal confers no special rights and that the representation it would provide complies with national anti-discrimination laws and international conventions.
Senator Cash made the claim in an interview with the aussie.
“It’s based on a particular person’s race and they will have rights that no one else in Australia has,” he told the newspaper.
“So you are intentionally incorporating into the constitution, supreme rights in favor of a certain group of people.”
“These rights would under normal circumstances violate anti-discrimination laws and be considered illegal, but as they are superior rights and are built into the constitution, they will be an exception that Parliament cannot override.”
AAP FactCheck contacted Senator Cash to clarify the claim and provide evidence to support it. His office declined to comment.
Professor Gabrielle Appleby, a UNSW public law expert, said Senator Cash is wrong to say that the proposal is based on race and that it provides primary rights.
“It is a measure that is based on the collective identity of indigenous peoples,” he told AAP FactCheck.
“This recognizes the unique place of Aboriginal people and Torres Strait Islanders in Australia, as the original occupants of this land, whose legal and governance systems span millennia, whose connection to the country and culture continues.”
Dr. Jennifer Nielsen, an associate professor of anti-discrimination law at Southern Cross University, agreed.
“Senator Cash is wrong to suggest that Voice will create ‘supreme rights’ in favor of First Nations peoples, meaning rights and interests that are superior to those of other Australians,” he told AAP FactCheck in an email.
“At its best, Voice will create the right to be heard by Parliament, and it is really just a way for Parliament to have permanent access to an independent body capable of providing expert advice on matters affecting the people of First Nations and their communities.
The government’s constitutional think tank found that the Voice would give indigenous peoples the opportunity to make representations before Parliament and the executive, which is an opportunity available to any individual or organization.
“La Voz does not confer ‘rights,’ let alone ‘special rights,’ to Aboriginal and Torres Strait Islander peoples. La Voz would also not change or take away any rights, power or privileges of anyone who is not indigenous,” the advisory group said.
Several constitutional lawyers and experts have also reached the same conclusion, examples here, here and here.
It’s not clear exactly what Senator Cash means when she says that under “normal circumstances” the rights would violate anti-discrimination laws.
In addition to the experts telling AAP FactCheck that it would confer no special rights, they also said that nothing in Voice violates national anti-discrimination laws and international conventions.
Dr. Nielsen said the Voice proposal fully complies with the Racial Discrimination Act of 1975 (GDR) and Australia’s international law obligations under the United Nations Convention on the Elimination of All Forms of Racial Discrimination and the United Nations Declaration on the Rights of Indigenous Peoples.
He GDR declares illegal the performance of acts that make distinction, exclusion, restriction or preference for reasons of “race, color, ancestry or national or ethnic origin”, he explained, when said act has the “objective or effect of nullifying or impairing the recognition, enjoyment or exercise, under conditions of equality, of any human right or fundamental freedom in the political, economic, social, cultural sphere or in any other sphere of public life” (article 9).
Professor Appleby says that substantive equality “is not about treating everyone equally”.
“It is vital to note that the GDR it does not proscribe acts simply because they make a distinction, but rather prohibits acts that have a particular negative effect on a racial group,” added Dr. Nielsen.
Dr. Alice Taylor, an anti-discrimination law expert at Bond University, said Voice would not break anti-discrimination laws.
“Laws against discrimination, both at the national level and in international law, do not require that everyone receive the same treatment all the time,” he explained.
“Anti-discrimination laws have always allowed for different treatment based on different needs and different circumstances.”
Professor Appleby agreed, saying that Voice also supports the goals of national and international anti-discrimination law with respect to substantive equality.
“That is, equality that is not about treating everyone equally, but equality that recognizes valid differences,” he said.
Other experts, including Dr. Bill Swannie, Professor Paula Gerber and Professor Simon Rice, previously told AAP FactCheck that Voice’s proposal does not violate the GDR.
The director of UNSW’s Australian Institute for Human Rights, Professor Justine Nolan, also addressed Senator Cash’s claim in a Twitter thread. here.
Dr. Nielsen points out that section eight of the GDR allows “special measures,” also known as affirmative action, that favor one racial group to address past or present disadvantage and discrimination. The law states that the special measure must be removed when its objectives have been achieved, unless its removal would result in the target group being again at a disadvantage.
The experts AAP FactCheck spoke to had differing views on whether the voice would constitute a special measure. Regardless, Professor Rice explained in this article that if the Voice were to be classified as a special measure, it would not infringe discrimination laws or conventions.
“There is no need to discontinue a special measure if doing so would cause the items that warranted the special measure to fail in the first place,” he wrote.
“Voice’s goal is to ensure that the Australian parliament and government listen to the advice and perspectives of Australia’s indigenous peoples. If and when that is achieved, discontinuing the Voice would undermine the very goal that justified the Voice in the first place.”
The verdict
The claim that Voice will grant supreme rights in favor of indigenous peoples that would violate discrimination laws under normal circumstances is false. Experts told AAP FactCheck that the proposal does not grant ultimate rights and would not restrict or change the rights of anyone who is not indigenous.
Furthermore, they said there is nothing in the Voice proposal that amounts to a violation of national anti-discrimination laws and international conventions.
False: The statement is inaccurate.
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