This is a response to the blog post on the Indigenous Constitutional Law blog by Sean Brennan titled – “NAIDOC Week 2021: The Wording is Not the Problem“.
In summary, Brennan says there does not need to be any detailed wording for the reforms if a well-defined purpose has been established. And a purpose is clear, that is to give First Nations a guaranteed say in laws made about them. The wording can be deffered until later, this is totally normal constitutional practice.
I don’t mean to pick on this article specifically, but the article is a short’n’sweet summary of this argument that has come up a lot recently. But there is a reason why this argument is flawed.
It is to do with the laws of contract formation and contra proferentem. I have already posted about this in more detail here.
Shortly after the Uluru Statement offer was made – Turnbull claims he received it as a take-it-or-leave-it offer from the Referendum Council. In the true spirit of colonial trickery, we don’t know if this claim is true or not as the Referendum Council has left no record either way. Even if it is true, the Referendum Council no longer exists, so they will never be held accountable for this blunder.
This matters – because if detail is insufficient, and the offer really is take-it-or-leave-it, it is almost guaranteed that we will be screwed over.
Normally when take-it-or-leave-it offers are made they are very detailed. Think of a contract for a car hire for example – they are typically pages and pages of fine print. There’s a good reason for that, because the drafter must cover their own arses by minimising ambiguity in every which-way possible due to contra proferentem.
Contra Proferentem: A Latin term used in contract law referring to the principle that a judge will construe an ambiguous term against the party that imposed the inclusion of the term in the contract during negotiation or drafting.
https://www.law.cornell.edu/wex/contra_proferentem
But the lawyers on the Referendum Council have – at least according to Turnbull, drafted a complete take-it-or-leave-it offer with ambiguity. This is not normal. The concept of constitutional deferral is being used as an attempt to explain this anomaly, because people out there instinctively know something’s not right.
One major ambiguity in the offer is the meaning of “the constitution“. Another ambiguity is the request for a referendum, as it is not certain that a section 128 amendment is being requested.
We have been set up to fail. And once all is done, we won’t even know who is responsible. It’s either Turnbull for falsely claiming it’s take-it-or-leave-it, or it’s the lawyers behind this who will be sitting by a pool somewhere sipping cocktails at our expense.
Yeah it’s true, the wording is not the problem. Laywers who are not acting in our interest purporting to do us a favour are the problem.