‘Stark and confronting reality’: Judge speaks up over Indigenous voice to parliament rejection

The voice debate tore apart the country’s legal fraternity. Now Chief Justice Andrew Bell has spelled out what governments must do in the wake of its failure.

NSW Chief Justice Andrew Bell.

The Uluru Statement from the Heart accurately calls out the “obscene number” of young Aboriginal Australians in detention, the Chief Justice of Australia’s largest jurisdiction says, rallying governments to do more for Indigenous people following the voice referendum defeat.

Marking the first time a sitting judge has spoken to Australia’s rejection of the voice, NSW Chief Justice Andrew Bell said the loss should not “obscure the stark and confronting reality” of the gap between Indigenous and non-Indigenous Australians when it comes to the justice system.

“On the subject of Indigenous affairs, the defeat of last year’s referendum cannot and must not be permitted to obscure the stark and confronting reality, captured in the words of the Uluru Statement from the Heart, that ‘proportionally, (the Indigenous people of Australia) are the most incarcerated people on the planet’,” he said in a speech opening the 2024 law term on Wednesday night.

“The Uluru Statement laments that ‘our youth languish in detention in obscene numbers’. That language is strong, but it is not hyperbole.” The voice referendum debate tore apart the country’s legal fraternity, with some senior judicial officers believing it was constitutionally sound and would pave the way for better outcomes for Indigenous people, and others believing it would be unconstitutional and ineffective.

Chief Justice Bell told the crowd at the Sofitel in Darling Harbour that the loss of the referendum means governments and courts need to step up and assist Indigenous Australians, through initiatives such as specialist Aboriginal courts such as the Walama List court being piloted in NSW.

“The referendum’s defeat means that more, not less, needs to be done to address levels of Indigenous incarceration, especially amongst indigenous youth,” he said.

“Aboriginal Elders, themselves invariably members of the Stolen Generation, play important roles in the Walama List in the District Court, and circle sentencing in the Local Court and the Youth Koori Courts, together with many non-indigenous practitioners, in seeking to achieve diversion towards critical support services directed to underlying offending behaviour, enhanced respect for the legal system, and rehabilitative justice, especially for young offenders.

“It is my hope that, on the occasion of the bicentenary of the proclamation of the Third Charter of Justice, the Walama List Pilot in the District Court which has now been running for two years with notable success, is able to be placed on a more secure footing with the support of the government. This will be of advantage for the whole community.”

In giving his speech, Chief Justice Bell praised the “health” of the justice system, by commending the separation of powers in Australian jurisdictions compared to the US.

“Happily, and despite the unavoidable controversy which some decisions produce, and the great disappointment to at least one side of the record which all decisions produce, the quotidian work of the Supreme Court of NSW has been respected by the community and the executive over whose decisions the court exercises a supervisory jurisdiction,” he said.

“Such respect is in a very real sense a litmus test for the health of the rule of law.”

Taking a veiled swipe at former US president Donald Trump, Chief Justice Bell condemned anyone who believes the 2020 election was “stolen” and said it was an attitude Australians must guard themselves against.

“The reported continuing belief by tens of millions of Americans that the 2020 presidential election was stolen despite considered decisions of a series of superior courts throughout the United States, delivered by judges appointed by both Democrat and Republican administrations, accords with the reported decline in respect for institutions, including courts, in the United States,” he said.

“This is a disturbing trend which we must guard against resolutely in Australia.”