4 May 2023
If you had watched the final public hearing from the Inquiry into the Aboriginal and Torres Strait Islander Voice Referendum, you would be forgiven for thinking Tony Abbott, one of only three dissenting witnesses to the referendum and its wording of the 65 witnesses called, was on trial for his wrongthink; but Abbott may have been saved the trouble of coming to Canberra at all were it not for the Inquiry’s backflip on its decision to not have him appear. This is also hardly surprising when the Inquiry has also been stuffed full of Voice-supporters with only 3 ‘No’ supporters in the 13-member Committee.
What is clear from this Voice referendum is that it is a total sham; utterly repugnant to any good faith attempt at a respectable debate where reasonable minds may reasonably disagree on the most consequential legal and political issue of your lifetime – and Australia’s – potentially gagging anyone who dares speak out.
This referendum process – before we even get to the referendum – has been characterised by the ‘continual stacking of the deck’ by the Labor government against the ‘No’ campaign for false characterisations of racism, one-sided tax deductions, mega-donors, and lobbying for big business support – all before we even got to Abbott being allowed to appear before the Inquiry, then not being allowed, and then once again allowed.
Abbott, with a lifetime of experience in politics, was even shocked by the antics that ‘such a big change is being rushed through with so little scrutiny … [which] is becoming a kind of sneak attack on the Constitution’ which should ‘belong to everyone’, characterised by our national Parliament.
Abbott’s criticisms of the process were obvious and far from radical. He said that the process has been too quick to allow proper scrutiny of the wording of an issue which is ‘wrong in principle … and potentially quite dangerous in practice’. It would be hard to accuse Abbott of being an extremist on the Voice when he says that perhaps there is an issue of giving ‘4 per cent of the population more of a say over how our government and parliament works than everyone else’.
Indeed, Abbott, like many, recognised that the High Court will be called in to determine whether the Voice has a right not only to make representations, but to be heard. Accordingly, Abbott merely recommended that if this proposal goes ahead, the Parliament should amend the proposal to make it clear that the Voice will not be justiciable or have a veto power as to prevent an expansion of its powers like with the Waitangi Tribunal as explained by John Storey. New Zealand has experienced race-based policing, demands to preferential access to Covid resources such as vaccines which resulted in a change of policy by the Ardern government to prioritise Māori over non-Māori New Zealanders on race rather than age and need, an explicit veto power over certain legislation, and an almost limitless scope of issues to make ‘representations’ to the New Zealand government on.
After Abbott’s very reasonable concerns with the current proposal were made, we turned to the cross-examination of a not exactly sympathetic or understanding Committee. Sharon Claydon, Labor MP for Newcastle, began a line of questioning regarding the Solicitor-General’s publicised opinion on the Voice. Abbott told the Inquiry that the High Court’s ruling in Love was a drastic break from the orthodox view of the Commonwealth’s powers under the Migration Act that the Solicitor-General argued before the court. Solicitors-General are not infallible, and there are those that have some reservations about the Voice and its possible future implications.
What assurance could we have that the High Court wouldn’t expand the Voice’s powers if the Parliament refuses to amend the proposal to include specific provisions to make the Voice injustice label and make absolutely clear that it has no veto power?
Abbott was then criticised for the correct observation that like the British House of Lords, the Voice will be hereditary in nature as it will be an ‘entity within the institutionalised power structure of the country to which only people with some Indigenous ancestry can be admitted’. This point is deflected and Abbott was told that this isn’t an apt comparison because of the difference in life expectancy, child mortality, high school completion, and more. It was further argued all of this can be fixed by a mere advisory body that can be ignored should a government wish, though one has to ask what is the point of establishing a constitutionally enshrined advisory body if it can just be ignored?
Abbott explains that if you want to improve the quality of life for Aboriginals, you have to address the ‘large swathes of remote Australia are very substantially under policed and this, to be honest, is why there are so many issues of dysfunction in some of these communities’.
Lawlessness doesn’t improve communities, it harms them. And as Dutton said in his recent trip to Alice Springs, allowing ‘kids [to be taken] back into homes where they’ve been sexually assaulted’ isn’t a virtuous act to our most vulnerable Australians. It is, therefore, no surprise that ‘six-year-olds [grab] onto [the legs of police and social workers,] begging not to be left there’. Indeed, there can be no surprise that an alcohol ban is required – and has been reinstated – when crimes against persons and property rise by 35 per cent and 22 per cent respectively after the Morrison government lifted the ban.
It is therefore a strange criticism to say that Abbott’s was wrong when he supported the Howard-era alcohol ban, explaining to the Inquiry the reinstatement of the ban was necessary for these communities, and was achieved (and had previously been achieved) without a Voice supporting this policy.
Abbott explained that the best solution to ‘closing the gap’ was a change in attitude to end the feelings of Aboriginal separatism. And Abbott was right that neither Australia nor Australians have done badly by Indigenous or Torres Strait Islanders with a record 11 MPs and Senators in the 47th Parliament, almost doubling on the 46th Parliament’s 6 MPs and Senators ‘not because of quotas, not because of affirmative action, but because political parties and the people of Australia, in their wisdom, thought that Indigenous people had the qualities to represent all of us’. These are the Indigenous voices to Parliament that matter – not a federal bureaucracy. In fact, Indigenous Australians are over represented with nearly 5 per cent of the Parliament being among this group of a population making up only 3.2 per cent of our country’s population.
Furthermore, Abbott addressed the concerns many Australians reasonably have with the Voice; it will allow only ‘some people will be heard, via this Voice, not the people who really need to be listened to’. Abbott isn’t just speaking about Indigenous and Torres Strait Islanders, but as former Justice Callinan described them, ‘a hand-picked Canberra cadre’.
This turns to a crucial question. How do you become a member of the Voice? Elected? Appointed? But with so many things about the Voice – we don’t know. There is no framework either in the referendum bill, or its explanatory memorandum explaining how someone can become a member of the Voice or how long they can serve, leaving that to be determined at a later date after the referendum for the benefit of the Albanese government to decide. And, it is not clear if they can be removed like a judge by the Parliament for ‘proved misbehaviour or incapacity’, voted out like an MP, or even at all.
The Voice, before its referendum wording has even been finalised or voted on by the people is a first in Australia, it has been ‘an attack on an informed citizenry, on representative government’ which, if successful, will result in ‘endless litigation, creating a new and lucrative taxpayer-funded field of legal practice, enriching platoons of lawyers expert in the emerging body of judge-created law, while making the country close to ungovernable … [having] no effect whatsoever on the ‘gap’.’
Above all, one thing remains clear, whether the Voice succeeds or fails, it will leave us more divided than before.