The Hollow, Illogical Case for a Voice

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The Hollow, Illogical Case for a Voice

Peter O’Brien Quadrant Online 25th September 2022

Professor Greg Craven of the Catholic University has a piece in the Weekend Australian (paywalled) posing ten questions for opponents of the Voice. I will attempt to answer those questions. What follows is the text of Professor Craven’s article with my responses indented after each question. Referendums are much like marriages. Sooner or later, romance is confronted by reality.

In the lead-up to a referendum campaign, both sides revel in their own rhetoric, the wickedness of their opponents and the certainty of victory. Then the grinding slog of the campaign begins.

We have now fully entered the campaign phase over an Indigenous voice.

The fondest hopes of both sides have evaporated. On the Yes side – my side – the notion there would not be an organised No case, that it would all be a romp in the park, has collapsed. This will be as much a fight as any other referendum.

On the No side, the idea this referendum might be strangled before birth, that it could be argued away before even being put, is over. There really will be a titanic clash of constitutional wills.

I don’t believe the more informed opponents of this proposal wanted the referendum strangled at birth. Most want the referendum to go ahead so we can, hopefully, put this issue to rest. Unfortunately, we know that if the proposal gets up, its proponents will not regard the issue as settled. We will then move on to demands for treaties, ‘truth telling’, compensation and Aboriginal sovereignty. Opponents will likely accept the result. But if the proposal fails, the activists will not accept the will of the people, so expect them to double down on their claims that Australia is a racist country. So, either way, the issue will not be settled.

Being positive, this clash could at least be civilised. There will be good people on both sides. Debate certainly can be sharp but it should not be jagged.

More challenging, this is a debate that matters profoundly, not a tiff about my symbolic republic. Particularly for Indigenous Australians, someone could get seriously hurt by both campaign and outcome.

Oddly, few people realise there is not really a No side in any referendum. Rather, there are two Yes sides for different constitutional visions. In this case, one is for constitutional recognition, the other for a Constitution free of Indigenous emphasis.

Critically, each group bears the same onus of proof in demonstrating their proposal is cogent, compelling and will not harm the Australian polity. There is no such thing as “Just vote No”. You vote Yes to one or the other.

On this I agree with Professor Craven. We often hear the simplistic refrain ‘if you don’t understand it, don’t vote for it’. That is not a valid basis to vote No. If you don’t understand it, then you should find out about it.

It is not enough that this referendum should fail. In the interests of good governance and a united Australia, it should fail convincingly. And it should do so on the basis of a thorough understanding by all voters of its inherent dangers and weaknesses. It should neither succeed nor fail on the basis of emotional feel-good rhetoric on the one hand, or intuitive distrust on the other.

If its supporters believe it failed because people did not understand the detail, they will simply try again later, and this issue will remain a festering sore in our public discourse for years to come. It must fail on principle, not detail.

So, it is entirely reasonable for each side to ask genuine questions of the other.

This is not insult but engagement. Until now, it has been those against constitutional amendment doing the interrogating.

But here are 10 fair questions for these opponents.

1/ Most basic, why do you think the subject of a voice is not important enough to be in the Constitution? What is your principled criterion for any inclusion? If it is indeed one of basic importance – like the founding fathers – how does the position of Indigenous people not pass the test? If you are worried about repealing the voice, that is always open to the Australian people through further referendum.

The Constitution says nothing about our history, our values or our aspirations. It says nothing about our rights as individuals. It says nothing about the ‘founding fathers’. It is, in fact, a very prosaic document. It is not like the American Declaration of Independence. It does not hold any truths to be self-evident.

It is not, as is often claimed, the ‘birth certificate’ of our nation. If you are looking for a slick but specious analogy, a better choice would be the ‘pre-nuptial agreement’ of our nation. But, in fact, it is neither of those things.

Firstly, our Constitution is a power-sharing agreement between the Commonwealth and the states and, secondly, it is an operating manual for our Parliament. Nothing more. It is, in effect, a contract – one which is subject to the jurisdiction of the High Court. As a contract, it is not an appropriate vehicle for emotional or feel-good rhetoric. That would introduce ambiguities that can, and probably will, have unintended consequences.

Who we are as a nation – our values and aspirations – is reflected in the democratic traditions and institutions we inherited from Great Britain. And, more importantly, in our legislation, which has made us one of the most diverse, tolerant and generous nations on Earth. It is in our legislation that we must look to enrich all the people, to alleviate disadvantage, to unite us and to recognize past injustices.

2/ Why is it always wrong to have provisions about race in a constitution? Our own Constitution has always had race provisions. Why have you not demanded their repeal? How do you explain away race aspects of other constitutional settlements, including those of great functioning democracies such as the UK, the US and Canada?

The existing race provision (Section 51 (xvii) was included to advantage or advance Aboriginal people. It was not intended to give them rights or, more importantly, status that other Australians do not possess. In 1967, the vast majority of the Australian people believed that eventually this provision would become moribund because, if it were effective, Aborigines would all enjoy the same lifestyle as the rest of us. If Aboriginal people feel Section 51 (xvii) is now an unwelcome imposition that, in justice, mandates they should have a say in any legislation enacted under it, why would they not lobby for its repeal and have done with it?

3/ Is the definition of “Indigenous person” really such a problem? Why will it matter? The voice amendment would confer no new rights of benefits. If you really are worried, why not have a suitable definition in the supporting legislation?

This is a major problem because even Aboriginal people themselves cannot agree on it. There is a de facto definition now – a person must be of Aboriginal descent, must identify as Aboriginal and be accepted as such by his community. The most fundamental of these three elements – without which the other two are meaningless – ‘Aboriginal descent’ is never tested. Aboriginal academics themselves, such as historian Victoria Grieve-Williams recognize the problem this has already caused and has allowed grifters such as fauxborigine charlatan ‘Professor’ Bruce Pascoe to flourish. If this is a problem now, how more problematic will it be when there are, presumably well remunerated, seats to fill in a network of alternative parliaments?

4/ Indeed, why are we talking only about the constitutional amendment but not the surrounding legislation? The legislation will be completely under the control of parliament, and this is where multiple guarantees and failsafes could be placed. These could cover composition of the body, its powers, procedures and priorities, just as examples.

A provision in the Constitution should be not over-prescriptive – Parliament should be able to fine tune it over time. But neither should it provide carte blanche to the Parliament. The multiple guarantees and failsafes, if they are in the legislation, can be changed by further legislation at any time. Guarantees, including a failsafe definition of who is an Aborigine, must be in the Constitution itself.

5/ How could the Voice ever actually be a third chamber of parliament? It cannot initiate, amend, reject or pass laws. It may well be influential, but that is a different thing. We would want that. Many bodies are influential: lobby groups, parliamentary committees, business, unions and so forth. None dictates.

As Voice supporter Chris Kenny puts it, “The recommendations of an Indigenous voice would carry great political weight, of course, but no constitutional power.” Proponents of the Voice set great store by this assertion, but it is by no means certain that this would continue to be the case. Australia has endorsed the UN Declaration on the Rights of Indigenous Peoples, Article 19 of which states:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

The Greens policy is that this should be enacted into legislation. If that happened, imagine what the High Court could do with that.

And carrying ‘great political weight’ can be a two-edged sword, given the propensity for modern governments to succumb to woke populism, irrespective of the consequences. What chance a Labor/Greens government (or even a Liberal one for that matter) accepting flawed advice rather than provoke a fight with the vocal activist class, given special Constitutional status and brandishing the provisions of the Declaration on the Rights of Indigenous Peoples? Odds on, I would think.

6/ Why does the election of Indigenous members of parliament invalidate the need for a Voice? Those members do not compose an internal Indigenous voice because they are not elected to represent only Indigenous people. On the contrary, they must represent all their constituents. Anything else would be a basic breach of representative democracy.

In response to this I quote no less an authority than Professor Craven himself from question five: “Many bodies are influential: lobby groups, parliamentary committees, business, unions and so forth.”

Most legislation relating to Aborigines is what I call ‘enhancing legislation’, which dispenses grants, protects Aboriginal culture and heritage and promotes education and advancement. No Aborigine is compelled to accept any of this largesse if they find it inadequate or wrongly targeted. But they are free to lobby to have it changed or expanded. They can do this through their Parliamentary representatives or through their own activist groups. In exactly the same way that, for example, farmers have a say in the formulation of laws that affect them via the National Farmers Federation.

7/ Why would the High Court run amok with an Indigenous voice? The constitutional provisions would be mechanical, not thematic. They would be very like the 1967 referendum insertions, which in 50 years have never excited the court. What would be dangerous in the Constitution are broad, sweeping values. This is where amending the preamble is dangerous. How can this be advanced as an alternative to recognition?

‘Why would the High Court run amok with an indigenous voice?’ Because they can. Think Commonwealth vs Love and Thoms for a start.

8/ Why must every Aboriginal body end up as a repetition of the Aboriginal and Torres Strait Islander Commission? We have absorbed ATSIC’s painful lessons. This is where legislation can deal comprehensively with qualification, membership, terms, accountability and removal. Let’s talk.

We already have evidence that this type of representation has failed in the past. If we have really learned our ATSIC lesson, let’s legislate it first to make sure before embedding it in the Constitution.

9/ Why are we so sure a Voice would make no difference “on the ground”? On the face of it, a body specially centred on Indigenous issues should at least focus attention. But again, what about the legislation? This is where practical inquiries, processes and outcomes can be mandated for the voice. This is a better debate than a battle of cliches.

When seeking to amend the Constitution, we must take into account unintended or unforeseen consequences. We don’t need to be ‘sure’ about these consequences, just aware they may happen and gauge whether the putative benefit outweighs these risks. ATSIC suggests not, in this case.

10/ Finally, what will be the consequences if the referendum fails? This really is a question for each of the two Yes cases. The bottom line is that Indigenous souls would be broken. This is not an argument to pass a bad proposal. But those putting up a plan bear a huge responsibility in bringing it to a referendum. Those opposing it carry an at least equal responsibility in seeking to defeat it.

This referendum, if it is successful, will be divisive. But even by virtue of the fact that it is being put, it is also divisive. Referenda are notoriously difficult to achieve in Australia. In 120 years, only 8 of 44 referenda have succeeded. The last significant proposed change – the so-called Australian Republic – bolstered by apparent widespread support, failed spectacularly. It’s supporters, although disappointed, accepted the result and quietly got on with working towards a new attempt, as is their right.

There is every chance this one will also fail. But this failure will not be accepted with quiet resignation and a determination to simply legislate the Voice as a consolation prize. It will be attended by shrieks of racism, protests and possibly violence. That would be a regrettable situation, but preventing such an outcome would be a very flimsy reason to simply go with the flow and vote Yes.

On the other hand, we often hear the simplistic refrain ‘if you don’t understand it, don’t vote for it’. That is not a valid basis to vote No. If you don’t understand it, then you should find out about it. That is the purpose of a No Case. To provide voters the information you need to make an informed decision and to be able to defend it.

I believe it is not enough that this referendum should fail. In the interests of good governance and a united Australia, it should fail convincingly. And it should do so on the basis of a thorough understanding by all voters of its inherent dangers and weaknesses. It should neither succeed nor fail on the basis of emotional feel-good rhetoric on the one hand, or intuitive distrust on the other.

If its supporters believe it failed because people did not understand the detail, they will simply try again later, and this issue will remain a festering sore in our public discourse for years to come. It must fail on principle, not detail.

The bottom line is that opponents of the voice face as many – or more – pointed questions as those favouring constitutional recognition. It would be good if we could engage around some convincing answers.

Published by Nelle

I am interested in writing short stories for my pleasure and my family's but although I have published four family books I will not go down that path again but still want what I write out there so I will see how this goes

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