The Constitution Isn’t Broke, so Don’t Fix It

The Voice

Peter O’Brien

I am confounded by the increasing number of conservative commentators who preface their remarks in opposition to the Voice with words such as ‘Of course, I support constitutional recognition of First Nations people but …’.

Here for example is Peta Credlin in the most recent Sunday Telegraph:

But this Voice to both the parliament and to the executive government is so much more than the constitutional recognition that almost everyone supports.

Admittedly, Credlin does not specifically say she supports it, but the inference is there to be drawn.

Paul Kelly, admittedly no conservative, writes in The Australian, regarding the flawed Voice question, that:

It is a tragedy because the Australian Constitution needs to recognise the Indigenous people and what they rightly call the ‘torment of our powerlessness’. 

To begin with, Kelly, of all people, must know the Constitution is two things – a power-sharing agreement between the Commonwealth and the States, and an operating manual for our national governance.  It is effectively a contract – one that is subject to the jurisdiction of the High Court.  As such, it is not an appropriate repository for emotional or feel-good rhetoric such as ‘the torment of our powerlessness’.  That would introduce ambiguities that can, and almost certainly will, have unintended consequences.

Secondly, what is meant by ‘Constitutional recognition’? Does it mean simply mentioning the Aboriginal people in the preamble?  Tony Abbott certainly supports this concept.  He proposes inserting a preamble to the Constitution to the effect:

Whereas the people … humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble federal commonwealth under the Crown … to create a nation with an Indigenous heritage, a British foundation, and an immigrant character…

This is a paraphrase of the preamble to the Commonwealth of Australia Constitution Act of 1900, which is an Act of the British Parliament.  This new preamble is effectively a rewriting of history.  When the people agreed to unite, there was, for example, no question of Indigenous heritage or immigration.  And the original Act did not refer to the British people – it did not single them out.  It simply referred to ‘the people’.  So, the suggestion that it ignored Aboriginal people, who were classed as British subjects and were subject to the laws of the colonies, is specious at best. 

I would guess that, like the rest of the population, the overwhelming majority of Aborigines have never, and will never, read the Constitution.  They would not care either way if virtue-signalling elites, or even genuine democrats like Howard and Abbott, make themselves feel better by such a pointless gesture.

The above wording was devised as a half-smart device to apparently meet the demand for Aboriginal recognition and yet not single them out.  The sort of ‘every child gets a prize’ initiative that is crippling our education system.  In an otherwise incisive and comprehensive rebuttal of the Voice in The Australian, Abbott in talking about his proposed amendment, makes my point for me:

The advantage of doing this would be that it’s indisputably true, has something for everyone, and would become a good one-line description for the country we love.

Since the original Constitution never mentioned British people, Aborigines or immigrants – and has functioned perfectly adequately in the absence of such words – there is no practical purpose to be served by inserting them now.  And the Constitution is, above all, a practical document.  This type of recognition will not enhance it’s practical effectiveness one iota. 

Even Professor Greg Craven, a strong proponent of a (modest) Voice argues that putting words in the preamble is dangerous:

The constitutional provisions [of the proposed Voice] 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.

Tony Abbott’s alternative proposal strikes me as a good example of what Craven fears:

Another would be to insert an acknowledgment into the Constitution that the continent and islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples, using the words of the Recognition Act of 2013 that the parliament passed without dissent.

What could an activist High Court make of this sentiment?

Crucially, neither of these proposals will cut any ice with the vocal and influential cabal of Aboriginal activists who have read the Constitution.  To them ‘constitutional recognition’ doesn’t mean just getting a mention along with everybody else or even just their own mention. This sort of metaphorical pat on the head they see as patronizing, which is exactly what it is.  What they want is recognition as a distinct constitutional entity.  And that means power in their own right.

As Tony Abbott also says:

Let’s be clear that it’s no longer just constitutional recognition that many Indigenous leaders now want and that the government is proposing to give. They’re seeking a mechanism to overcome, in Senator Pat Dodson’s words, “the tyranny of our dispossession”, as if history can be undone.

As Keith Windschuttle made abundantly clear in The Break-Up of Australia, it was never about ‘just constitutional recognition’.

So, if this proposal succeeded in a referendum, it would be a big yawn for the vast majority of Aborigines and a provocation to the activist minority.  This issue will not go away.

Abbott also says, in relation to his two proposals:

Something with a touch of poetry would be better than a dry acknowledgment of the facts, but either would well round out an otherwise serviceable Constitution.

A serviceable Constitution, not a poetic one, is what we need.

As I say in my new book, The Indigenous Voice to Parliament –  the No Case, 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.  All that we require from the Constitution in this respect is that it offers no impediments to such legislation.

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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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