If you’re anything like me, you have been watching The Voice debate intensify and draw nearer to a vote with a sense of guilt that you haven’t properly thought through your position on the topic. Worried that you will make an uninformed decision, you dip occasionally into the newspaper or social media commentary and pick up a few tidbits that inform your talking points for the next few days, but you know this is not real analysis. You are also concerned that your particular curation of news and media sources is pushing you to a pre-formed conclusion and your pride in being an ‘independent thinker’ is beginning to look dangerously like humility.
A friend of mine recently pointed out that due to time and energy constraints, as well as the state of political discourse, in the end most people are going to simplify this question down to: “Do I support Aboriginal people, Yes or No”.
“Rationality belongs to the cool observer, but because of the stupidity of the average man, he follows not reason, but faith, and the naïve faith requires necessary illusion and emotionally potent oversimplifications which are provided by the myth-maker to keep the ordinary person on course”
– Reinhold Niebuhr, Moral Man and Immoral Society
Because I am a stupid average man, I thought I would attempt to prove Neibuhr wrong and flesh out some of these ‘emotionally potent oversimplifications’ that this debate is full of.
Before we go any further, there has been a trend in recent years of criticising primary research by amateurs by attaching the prefix ‘armchair’ to their endeavours. I can hear the phrase being rolled out: “all of a sudden everyone becomes an armchair constitutional lawyer”. I would like to emphasise at the outset that:
- I am not attempting to interpret the constitution or its implications. In fact I am pretty much just collating the differing opinions of actual experts.
- That being said, I totally reject the doctrine of Expertism and I believe that this debate remains firmly within the power of Average Man to grasp
- Further, it is the duty of the democratic citizen to engage in this debate
Every argument rests on some underlying principle, whether it is explicit or not.
Every policy is an attempt to bring about a certain outcome, in a certain way. To properly judge a policy, we need to ask some basic questions:
What are the principles underlying the argument? Are they sound, valid and right? What are the outcomes being aimed at? Are these good outcomes? Then if the principles are sound, will it actually work? Will it achieve the outcomes it sets out to achieve? This last question is an important one, as history is full of well-intended policies with catastrophic consequences.
I have attempted to analyse the argumentation in the for and against cases as set forth by their most prominent proponents.
What is the Voice?
Conceptually, the Voice is very simple. Here is the proposed amendment to our constitution, in full:
| Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples129 Aboriginal and Torres Strait Islander Voice
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
|
The Voice will make representations to parliament and the executive government, and the exact extent of its powers and governance will be left up to parliament to decide.
The ‘for’ case
In my analysis of the source documents and commentary, there seem to be three distinct principles operating in the ‘for’ case:
- Sovereignty and self-determination stemming from status as First Nations people
- Equality and the righting of past wrongs (i.e. the Voice as a means to ‘closing the gap’)
- Constitutional recognition
Origins
The Voice movement began in 2017 with the Uluru Statement from the Heart [2]. The brief statement makes several clear points:
- Aboriginal and Torres Strait Islander possession of this land from time immemorial
- Unceded sovereignty flowing from this fact, which is a “spiritual notion: the ancestral tie between the land and the… peoples who were born therefrom”
- This sovereignty “co-exists with the sovereignty of the Crown”
- This sovereignty, “with substantive constitutional change and structural reform … can shine through as a fuller expression of Australia’s nationhood.”
The statement then makes reference to the current socio-economic disadvantage of Aboriginal people, specifically, incarceration and family disfunction. The assertion is that this is the result of a political status. “These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.”
The recommendation is therefore for constitutional reform to achieve a rightful place in the nation, and power over their own destiny. This will be done through two named institutions:
- The First Nations Voice
- Makarrata Commission, which has two purposes:
- To supervise a process of agreement-making between governments and First Nations
- Truth-telling about our history
Self-determination and representation
In further documentation relating to the Uluru Statement from the heart [4], there is a particular reference to Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples [5], which recognises that before any new laws or policies affecting Indigenous peoples are adopted, “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”. The declaration also emphasises the right of indigenous peoples to self-determination.
These ‘sovereignty’ and ‘self-determination’ ideas imply a vision for some sort of self-government for aboriginal people. Part of what makes this difficult to evaluate is that it isn’t clear exactly what this means. Does it mean a separate set of laws only for Aboriginal people? Separate governments? How would it interact with the government for the rest of us? At the very least it seems to imply a separate polity, based on race, with certain privileges to determine the laws that affect them. In other words, Australia’s representative democracy is not quite good enough for Indigenous people (i.e. it is not working), and that a special status and institution is required. It is also unclear whether the Voice is this mechanism for sovereignty and self-determination, or whether it is a pathway towards it.
Questions of sovereignty aside, the aim of the Voice is to improve the quality of legislation regarding Indigenous people. Anne Twomey writes in The Conversation, “Decisions made with the best will in the world from Canberra can always be improved by listening to the people on the ground who are affected by them. The role of the Voice would therefore be important in improving the quality and effectiveness of laws and government policies. But it could not determine what those laws and policies will be.” [14]
Equality and righting past wrongs
Also foundational to the argument for the Voice is the assertion that Aboriginal people have been long oppressed, both by the initial colonial event, and the subsequent colonial system.
Who better to introduce this principle than our Prime Minister Anthony Albanese, who states that “An entire people have been kept so long in the margins, surviving against the odds, surviving even against misguided good intentions” [1]
The Uluru statement also makes direct reference to this: “Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are alienated from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers.” [2]
Key to the argument is the assertion that the present disadvantage of Aboriginal people is an intergenerational result of wrongs done to them by colonisation and by the continuing oppression of the colonial system.
Michael Jensen, a prominent Sydney Anglican minister, argues that “The proposal for the Voice asks us to reckon with the wound that was delivered to First Nations people over the course of the colonisation of the lands they inhabited for millennia”,
“Deep wrongs have been done to Indigenous peoples, from which they still suffer and from which most other Australians benefit.” [6]
Most relevant is the claim that the disadvantage is due to disempowerment. Aboriginal people are at a social disadvantage because of a political status and political structures. “These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.” (italics mine) [2]
That this forms the basis for calls for the Voice is not surprising. If Aboriginal people were thriving, there would be no need for it. The Voice is an attempt to fix something that is currently broken.
“Aboriginal and Torres Strait Islander stakeholders in particular expressed their hope that the Voice would fundamentally alter and improve the lives of current and future generations.” [7]
Albo optimistically sums this up as an opportunity for Australia to “truly live the spirit of the fair go”[1]
Recognition
Another of the principles forming the foundation for the ‘yes’ case is the need for constitutional recognition of Aboriginal people.
As part of the deliberations of the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum, this notion of recognition was emphasized [7]:
“It was widely recognised in the inquiry’s evidence that the Constitution’s lack of reference to Aboriginal and Torres Strait Islander people as the First Peoples of Australia is an unresolved omission in the Constitution. The Law Council of Australia outlined the three key reasons why constitutional recognition is needed:
- It will address the ‘longstanding and unfinished business for the nation’ by ensuring that Australia’s supreme law substantially recognises Aboriginal and Torres Strait Islander peoples as the original custodians of the land;
- All Australians ‘own’ the Constitution and the proposed alteration will reflect the history of this land, and at last include all its peoples, when it recognises Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia; and
- a successful referendum will have significant value as a symbol of recognition and unity between Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians.”
Michael Jensen argues that the Voice “was the consensus response of the Indigenous peoples of Australia to the question of constitutional recognition”[6], and that being constitutionally recognised is a symbolic step towards reconciliation and recognition of past wrongs – a welcoming into our government and society of a people previously left on the margins. Jensen goes on to state that, “putting the Voice in the Constitution is an act of deep respect. It has the benefit of constitutional recognition, but it adds more: it says to our neighbours ‘Not only do we recognise you, but we will listen to you, especially when it comes to matters concerning you.’”
Noel Pearson puts his case like this: “Why recognition? The answer is straightforward. Because the Indigenous peoples of Australia have never been recognised. There was no recognition when Lieutenant James Cook claimed possession of the continent on behalf of the Crown. … Indeed peoples of the Aboriginal race were excluded from being counted as citizens in the new federation, and from the national parliament’s legislative power. The necessity of recognition still remained well after the centennial federation. This lacuna still remains today. We are a nation that does not recognise its Indigenous peoples.” [8]
In other words, the current lack of constitutional recognition is core to the political powerlessness felt by Aboriginal people. Although symbolic, recognition is a meaningful step towards empowerment.
John Howard, in 2007, announced that “if re-elected, I will put to the Australian people, within 18 months, a referendum to formally recognise Indigenous Australians in our constitution. Their history as the first inhabitants of our country, their unique heritage of culture and languages and their special, though not separate, place within a reconciled indivisible nation.” [9] This was seen as “a balance of practical and symbolic progress”, and preferable to purely symbolic gestures, such as an apology to the stolen generation.
It’s worth noting that constitutional recognition is a different concept to the Voice. Howard’s plan was to include this recognition into the Constitution’s preamble, and indeed he now opposes the Voice because of concerns about the “constitutional quagmire” that the extra elements introduce [10]. A similar point is made by Stephen Chavura in his response to Michael Jensen’s Christian consideration of the Voice [11]. He argues against conflation of “the Voice and Indigenous recognition. We can have Indigenous recognition in the Constitution (the Preamble) without a Voice. In other words, a moral justification for recognition is not necessarily justification for a Voice”.
Noel Pearson says it’s a ‘two birds with one stone’ situation, whereby Aboriginal people can be granted both recognition and representation, and that the two work hand-in-hand, “It … is not about the legislative enactment of a voice to parliament by itself. It is about the recognition of Indigenous Australians in the Constitution, which empowers the parliament to legislate the voice to parliament as the means by which Aboriginal and Torres Strait Islander people are recognised in the nation.” [8] (italics mine)
Summary of the ‘for’ case
So it seems to me that if you agree with the following statements, you should vote ‘Yes’:
- Australia’s representative democracy is not appropriate or not working for Indigenous people
- It is right and proper that a special system of representation be applied to Indigenous people
- Aboriginal people are socially and economically disadvantaged because of their lack of genuine representation and recognition
- The Voice will be an effective means of addressing these issues or at least a meaningful step in the right direction (addressed further in the below section ‘Will it work?’)
The principles in the ‘against’ case
Equal democratic access to all, no racial discrimination
This seems to be one of the strongest sources of opposition to the Voice.
In his submission to parliament David Jackson AM KC states that the Voice “would mean that we become a nation where, whenever we or our ancestors first came to this country, we are not all equal.” [16]
Stephen Chavura agrees: “The Voice is nothing more than new constitutionally enshrined rights (to make direct representations to parliament prior to any legislation, to stand for office in the Voice machinery, to vote for representatives in the Voice) to be enjoyed only by Australians who identify with a particular race”. [11] The argument is that it creates a new political class who have special rights and privileges based on their race.
If good policy is about listening to the people on the ground, as the Yes pamphlet states [15], then why doesn’t every group get a constitutional voice to parliament? Are there no non-constitutional channels where this is possible?
Tony Abbott argues along the same lines, calling it an “affront to the ideal of constitutional equality”. “Any special voice – for some but not for others, especially a voice based on ancestry – would still mean we are no longer one, equal people.” [12]
This is not unprecedented in history, and indeed has happened in a negative sense by not affording rights to some groups of people. Indeed, Sarah Ferguson, of the 7.30 Report, argues that “Race … is already in our Constitution” [13], as though this justifies more race in the constitution.
Progress in the past has looked like removing that negative discrimination and welcoming all groups of people into the same rights we all share. The Voice would institute positive discrimination into our constitution. Though some people might argue this is necessary, it is important to recognise this is a big philosophical step away from the ideals of previous generations.
Entrenched division on ethnic grounds
Similar to the above concept is the notion that the Voice inherently divides us into separate ethnic groups – that it diminishes our sense of a united nation of Australia, regardless of race or background. The words of the Uluru statement about sovereignty, which should be considered as part of the purpose for the Voice – the end goal, certainly seem to reinforce this idea.
I do find it difficult to make sense of the idea that sovereignty can be shared – that it could “co-exist with the sovereignty of the Crown”. Either there is one government for all of us, or there are two governments for two distinct nations. But to share sovereignty while sharing territory? This seems implausible.
Abbott argues that the Voice is “likely to entrench the separatism that is the root of the dysfunction” [17]. This is an interesting point – that separatism itself is a major factor in socio-economic disadvantage. The argument seems to be that equality (of outcome) is furthered by unity and equal treatment, as opposed to inequality being rectified by special treatment.
This is the great ideological divide of our time.
This brings up two other related concepts, which are worth examining in a brief ideological detour:
Race as a cause of disadvantage
When we say that Aboriginal people are at a disadvantage in society, we mean that a group of people, in certain locations, are statistically worse off than the rest of the population, by some social or economic metric. This group of people may happen to be Aboriginal, but it is another step to say that they are disadvantaged because they are Aboriginal. This would imply that the causes of disadvantage have race as a primary factor. Intrinsic factors being ruled out, this basically reduces the cause to racism – both current and historical, continuing to take effect through intergenerational trauma. This is the exact point made by many modern theorists, but I find it unconvincing.
In order to vote for the Voice, you have to believe that a major cause of the disadvantage of aboriginal people is that they, as a race, lack sufficient representation and recognition. To me, this argument does not ring true. Fatherlessness, drug and alcohol abuse, truancy, unemployment, domestic violence. Are these symptoms of intergenerational racism? Or are they self-perpetuating causes of the kind that can infect any culture, regardless of race?
Colonial guilt
Part of what animates this discussion is a desire to rectify the social disadvantage of Indigenous people. We feel an emotion closely associated with guilt when we consider their plight. This is good and proper and I think we are called to feel responsible for their plight and to seek the welfare of everyone in our nation.
What is not appropriate is a sense of culpability – actual guilt – for past wrongs. Yet this is what many commentators and indeed Christian theologians are arguing.
Clarity on this is extremely important. It is one of the biggest issues of our generation and it fundamentally affects the way we see the world.
Firstly, it makes no logical sense.
There are two distinct arguments that are tried here. Firstly, that the present generation of Australians bears the direct guilt for the past sins of colonialism – sins which have not been atoned for. Secondly, that this generation might not be directly guilty, but benefits from the sins of the past and so acquires guilt in this way. In both, the outcome is the same: there exists a present moral debt owed to Aboriginal people.
To the first argument, Western law has never recognized culpability across generations. If one person commits a crime, it is a complete lunacy to hold their children guilty. How much more when we abstract the crime across an entire population, and then multiply by dozens of generations! Add to this that most current citizens of Australia are migrants and descendants of migrants in this country who had nothing to do with colonialism. Guilt cannot be transferred.
To the second argument, I agree that present Australians have enormous prosperity and opportunity. However, it is a completely different argument to say that because we prosper, we are responsible for the wrongs in the past. It simply cannot be proven that our present prosperity is due to past atrocities. We do not benefit from these atrocities. No one does. We benefit by virtue of living in a free, open, rules-based, democratic, resource-rich, aspirational country. The bow is drawn too long – there is no causal link. The British arrived in Australia in 1788 and the world changed irrevocably. Regardless of whether this is right or wrong, this does not make every subsequent activity by non-indigenous people on this continent immoral. If this were the case, then the only moral option left would be to totally vacate the country. The history of the world is full of war and dispossession. None of us would call this good, but each generation is responsible for itself, not the actions of previous generations. If this were not so, then there would not be enough blood in the world to expiate the guilt of the crimes of the past.
Both of these arguments are helped by an ignorance of history and a sweeping generalization of colonialism as purely evil – a representation of the event as one big atrocity. This is simply not true. There was and continues to be an overwhelming amount of good that has happened in Australia since Europeans arrived.
Secondly, it makes no theological sense.
Michael Jensen explicitly makes the two arguments above in his article:
“Deep wrongs have been done to Indigenous peoples, from which they still suffer and from which most other Australians benefit. The Bible says ‘you shall not steal’, and we (as a nation) have stolen. The Bible says ‘you shall not kill’, and we (as a nation) have killed. That is not in question: it is a matter of historical record. Lest we say ‘we’ have not done anything of the kind, it is good to remember that Scripture acknowledges the reality of intergenerational responsibility for sin (Exodus 34:6-7)” [6]
The two main passages to look at here are Exodus 34:6-7
“Yet he does not leave the guilty unpunished; he punishes the children and their children for the sin of the parents to the third and fourth generation.”
and Ezekiel 18:20
“The one who sins is the one who will die. The child will not share the guilt of the parent, nor will the parent share the guilt of the child. The righteousness of the righteous will be credited to them, and the wickedness of the wicked will be charged against them.”
In condensed form: The biblical doctrine of sin is that each person is responsible for their own sin. No one can inherit another’s sin. At the same time, we inherit Adam’s original sin, and so eventually incur guilt when we sin. But the guilt is always ours – for our own sin. When read in this light, Exodus 34 and Ezekiel 18 make sense.
This is a complex topic that deserves much more attention than I am giving it now, and I would commend further reading. Mark Powell has written an excellent article on this, and the references in it are also very helpful [24].
So to clarify: Yes to responsibility to do something about the current plight of Indigenous people, No to any guilt for past wrongs.
Will it work?
OK so perhaps you have analysed all the principles and arguments and still find the Yes case compelling. We turn now to consider arguments around whether the Voice will work in practice. This represents a large part of the public criticism. Questions around effectiveness but also dangers of abuse fit into this category.
Constitutional quagmire
The wording of the constitutional amendment is fairly straightforward and does not seem to allow for any legal tricks. The Voice will have the right to make representations to parliament. Simple. However, some commentators have raised concerns around whether the parliament will be required in any way to act on, or show proper consideration of these recommendations, and whether this could result in judicial action stalling or slowing the legislative process.
John Howard: “An Indigenous Voice to Parliament making recommendations to every part of federal government creates potential for those recommendations to be “litigated if they are rejected”” [10]
Tony Abbot: “Voters are starting to work out that giving the Indigenous voice a constitutional right to make representations to everyone on everything is going to gum up our government and ensure it can do nothing of substance without first obtaining a measure of Indigenous consent.” [12]
The question is: What happens if the Voice makes a representation and the parliament flatly refuses to act on it? Or what if the government seeks to pass legislation without consulting the Voice?
Two of Australia’s foremost constitutional experts, Professor Nicholas Aroney and Professor Peter Gerangelos, have written a submission to the parliament that is well worth reading [18]. In it, they discuss these concerns.
Structural implications
This is the notion that the Voice having its own chapter would imply certain relationships with other bodies in the constitution, as is the case with the separation of powers of the Legislature, Judiciary and Executive, where many of our practices are implied from this structure, rather than explicit in the constitution.
“The insertion of a new Chapter IX into the Constitution would create the potential for similar structural implications concerning the Indigenous Voice and recognition of Australia’s Indigenous peoples. … The Indigenous Voice would have its own chapter. While distinct from the Parliament, the Executive and the Courts, the Indigenous Voice would be accorded a similar constitutional status. … Any such structural implications would likely concern the constitutional relationship between the Indigenous Voice and the other institutions established by the Constitution, and especially its capacity to make representations to the Parliament and the Executive Government” [18].
Meaning of ‘First Nations’ recognition
The location of the recognition of ‘First Nations’ peoples in its own chapter carries with it constitutional implications, which, in Canada’s case, “have given rise to the requirement that the Crown must consult with First Nations and accord them reasonable accommodations in its policy making. In the Canadian jurisprudence, these requirements operate not at the level of administrative law, but by virtue of what has been called ‘an overarching constitutional imperative’” [18].
Definition of ‘representations’
Aroney and Gerangelos argue that “a right to make representations is not, of itself and according to its natural meaning, a right to be consulted or a right to give advice that must be considered, accommodated or followed. However, it is well established that when interpreting the Constitution, the courts are not limited to discerning the ‘expressed’ meaning of the words used but must also discern their ‘necessarily implied’ meaning.”
There is a possibility that the implied meaning would “prevent the enactment of laws or the exercise of executive powers in a manner that would unjustifiably restrict the capacity of the Voice to make ‘true’, ‘free’, ‘effective’ and ‘informed’ representations. The more difficult question is whether a more farreaching implication would arise, namely that the Voice must be provided with everything reasonably necessary to enable it to make representations having these sorts of qualities”.
Aroney and Gerangelos take care to note the Explanatory Memorandum accompanying the bill, which clarifies some of these ambiguities:
- Parliament would not be required to wait for the Voice to be consulted or make a representation before taking action. Representations would not be required to be sought before legislation.
- Parliament is not obliged to follow a representation of the Voice.
- The Voice does not impose any obligations on Parliament.
However, they note that such documents are not binding on a court’s interpretation of the constitution itself. Therefore, in the case of a rejected representation:
“While the matter is not without doubt, it would be open to the Court to consider that [the Voice] would be interpreted to imply that executive officers must consider all such relevant representations when exercising reviewable executive or statutory powers. An aggrieved party with sufficient standing would then be able to initiate proceedings in the courts seeking judicial review”.
Louise Clegg summarises Aroney and Gerangelos, calling the Voice “an undercooked thought experiment which has not been scrutinised, interrogated or stress-tested by people with sufficient viewpoint diversity. … We are close to landing a constitutional amendment which will fail the nation because of an abject failure of proper process.” [19]
Professor Bertus de Villiers seems to agree with the notion that an “obligation on Parliament to invite comment from the Advisory Council” would “[give] rise to judicial review if comment is not sought”, and that if “Parliament would be required to ‘consider’ the advice received”, this would “give rise to judicial review if Parliament fails to give recommendations adequate weight or attention” [21]
It is very hard to tell how likely these eventualities are. Are the above arguments simply scare-mongering? Are we wrong to pessimistically take the worst-case scenario and base our decision on this? Is this not an uncharitable and bad-faith action? Some will claim that it’s easy to tear down, hard to build.
I will leave it for you to decide. Your temperamental leaning towards optimism/pessimism, and progressivism/conservatism will inform this choice.
Non-legal powers
Some people have raised concerns around the social power that a voice could wield, regardless of its legal ability to affect decision making. The argument runs that even if the Voice holds no legal power, it would potentially hold so much social power that any government would be afraid of the political ramifications of not following its orders. It could be argued that this is not a convincing argument, as the same could be said of any body, constitutional or not. If the government were to pursue a Voice-style body through legislation, the same argument would apply. In other words, this is simply a fact of politics and culture, and not relevant to the constitutional amendment. However, cultural power applies to the courts as well, and a politicised high court conforming to social pressure is not an implausible outcome, as the American situation shows us.
Similar models elsewhere in the world
This seems to be a worthwhile area to explore. Can we look to other successful models to give us confidence in the Voice? Or have there been models that serve as warnings to us?
The extra commentary in the Uluru Statement considers this question: “Norway, Sweden and Finland all have a First Nations Parliament, with authority over certain matters and a right to be consulted over legislation that affects them. In contrast, the New Zealand Parliament has seven seats reserved for Māori people. Both of these mechanisms allow Indigenous peoples to have a voice in the processes of government.” [4]
For an introductory look at the Sami Parliaments of Scandinavia, The Nordic Policy Centre, associated with the think tank The Australia Institute, has quite an interesting publication describing their function. “The Sami parliaments are not parliaments in the Westminster sense – they do not provide self-government and do not have a formal legislative function. They are mostly consultative bodies whose purpose is to promote and preserve cultural self-determination, covering matters such as language, traditional livelihood, land rights and social wellbeing. They are established by legislation” [20]
For further reading, Professor Bertus de Villiers submitted a very comprehensive comparative study of the relevant international institutions to the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples. In it, he presents a balanced picture of the alternatives, and keeps returning to the tension inherent in the proposition: Either the Voice’s advice is non-binding and therefore could be seen as a ‘toy telephone’ and lead to greater frustration, or Parliament is bound by the advice received, which would mean that the doctrine of parliamentary sovereignty would be compromised. [21]
This seems to be the tension in overseas models as well, with the Sami parliaments growing increasingly frustrated that they lack any real power to affect decisions (resulting in complaints to the UN), and the South African House of Traditional Leaders being variously criticised as weak, overly complex, and an ongoing source of controversy.
“In practice, the formal powers of traditional authorities are often limited to advisory and consultative aspects. This means that the traditional authorities generally do not have the ability to veto legislation; their approval is not required for legislation of a general nature to be enacted; their advice to parliament is not binding; legislation cannot be legally challenged due to advices not being invited or accommodated; but their views may carry informal political weight depending on the matter under consideration” [21]
De Villiers does not write these words in order to oppose the Voice. Instead, writing to the Committee that formulated the Voice, he seeks to provide guidance for its success, in order to avoid the international pitfalls and to learn from what has been implemented internationally.
His recommendation, given the Voice will function as an advisory body, is that this would be enacted by parliament, rather than through the constitution.
“As a general proposition it can be said that unless the Advisory Council exercises significant and important governance and legislative functions, it should preferably be a creature of statute, regulation or executive act rather than the Constitution” [21]
“Account must be taken, however, that the credibility of the Constitution can be diminished if it creates institutions that ultimately over the long term to not perform properly or lack credibility” [21]
What are the alternatives
At this juncture it is worth asking: is this the best option we’ve got? Should I vote for the Voice because I don’t see anyone else proposing anything constructive?
Marcia Langton claims that the Voice is the “singular fix to decades of appalling Indigenous policy and appalling government inaction that has, by and large, worsened the outcomes for our people” [3]
Is this the singular fix? If not, what are the alternatives?
Legislation first
De Villiers puts forward a brilliant case for a body established by legislation, not constitutional amendment.
“Firstly, we know the process to amend the Constitution is very complex and time consuming.
Secondly, before an amendment can be called on the Constitution, all detail regarding the consultative body would have to be worked out, otherwise people wouldn’t know what they are voting for, and that can take considerable time.
Thirdly, as we’ve seen internationally and also in Australia, people find many reasons to vote no in referendums. I mean everybody would have expected the republic referendum to get a resounding yes, and we know it got a no. This happens with referendums, that if there’s a singular question, for a wide variety of reasons people may vote no.
Fourthly, the international embarrassment that would be visited upon Australia if a referendum is negative would be enormous. For a country that is known internationally as a lighthouse of democratic standards to reject by referendum a proposal for an advisory council for Indigenous people would be embarrassing, to say the least.
Fifthly, the Constitution, especially the Constitution of Australia, is not a flexible instrument. It’s not a flexible document, which means if an advisory council is included in the Constitution and over time there’s a need to adjust it, such an adjustment process would be very complex and even impossible.
Sixthly, internationally one could say that advisory councils are usually not created by constitutions. They are usually created either by statute or by executive action.” [21]
Advisory bodies such as the Law Council of Australia argue that the Voice should not simply be in legislation, because:
- “It was the means chosen by Aboriginal and Torres Strait Islander people, through the Uluru Statement, and after careful and longstanding deliberation on the options available, to recognise and empower them and is thus an expression of self-determination;
- Constitutional enshrinement of the Voice would provide it with an enduring mandate and distinguish it from previous advisory bodies, such as the Aboriginal and Torres Strait Islander Commission, which were able to be established and dissolved and were consequently subject to the changing political landscape; and
- The exercise of popular sovereignty at the referendum and then the constitutional status of the Voice will also be part of its success.” [7]
The failure of previous institutions such as ATSIC seems to be a sticking-point in this debate. The feeling is that the legislative route has been tried and failed. What is needed is a more permanent solution. This argument doesn’t fill me with certainty. If ATSIC was a failed experiment, it is probably a good thing it was able to be removed by parliament. The key question is, why did it fail? Was it due to the fickle political landscape, and relatively low protection offered by legislation? Did it simply become politically unpopular? Or were there more systemic issues? If this is the case, what is the guarantee that the Voice will not face similar issues?
ATSIC was created in 1990 by the Hawke government but was axed in 2004 by John Howard following controversy around its chairman. Howard said at the time that ATSIC had become “too preoccupied with what might loosely be called symbolic issues and too little concerned with delivering real outcomes for indigenous people” [22].
The abolition was supported by both parties, and at the time the Indigenous Affairs Minister Amanda Vanstone said the review commissioned by the Government found indigenous people felt “an absolute disconnect” between themselves and ATSIC [22]. This sentiment was echoed by Noel Pearson at the time, who said it was “very dysfunctional” and needed “very radical reform” [23].
I have not seen any good analysis of the failure of ATSIC and its ramifications for the design of the Voice. If any readers are aware of this, please let me know. Regardless, there is surely a way to incorporate the lessons learnt from ATSIC into a new body established by legislation. There is no reason to expect constitutional permanence alone will help avoid any of these pitfalls.
David Jackson is therefore adamant that “the short fact is that there is no reason at all why the Parliament cannot now legislate to establish a body which has features similar to those proposed for the Voice” [16], and I have to admit I find this compelling.
Conclusion
At the very least I hope I have convinced you that there are good and reasonable grounds for both a Yes and No vote. Whether you vote Yes or No will be dependent on your worldview – how you think about the fundamental principles at stake, your temperament, and your assessment of the above and other issues.
We should remember to engage each side of the debate with good faith, assuming our opponents also want to see the plight of Aboriginal people improved. Importantly, voting no doesn’t make you a racist. Likewise voting yes doesn’t make you a good person. Unfortunately, in my conversations with colleagues and friends about the Voice, I have already heard the racism epithet applied to No voters.
It is also important to recognise that we can agree with many of the starting points and principles of those who advocate for Yes, but that it doesn’t necessarily follow that the Voice is a good idea or that it will solve the problems we both agree are real and serious. Many of the yes campaigns arguments leave me going “yes I agree, but how does the Voice solve this?”, or “that makes sense, but how does that make The Voice a good idea?”.
Good policy is more than just a good feeling. Movements can feel morally right – be a ‘right side of history’ moment – yet can be built on flawed ideology or have disastrous consequences. Take the communist revolutions of the 20th century: in the 20/20 vision of hindsight, we can see both the principles and the outcomes were flawed. Good policy must be built on sound principles and have an articulated goal – something we are aiming at – as well as be able to deliver that outcome. It is incumbent on the Yes campaign to articulate and demonstrate why The Voice is the appropriate solution to the problems that we all acknowledge.
I will be voting No.
I am well aware that it is easier to naysay – to tear something down, than to build it up. But I think this is appropriate in the case of a constitutional amendment. We ought to be excessively cautious.
I would suggest that if we are concerned about the social disadvantage of Indigenous people, which we should be, there are better ways to rectify this than enshrining positive discrimination into our constitution. If we are concerned about the recognition of their history and original connection with the land, there are better ways to do this than creating a divided polity based on race. If we are truly seeking the welfare of Aboriginal people, we still have so many other constructive avenues to pursue.
In this regard, even if the referendum does not succeed, I think it has moved the national conversation forward. A failed referendum will not push us backwards, as the scaremongers would have us believe. We can, and should, learn from it and try something else more reasonable.
References
[1] – Albo op ed Australian – An Indigenous voice to parliament is our chance to grasp history and create change, says Prime Minister Anthony Albanese
[2] The Uluru Statement From The Heart – https://ulurustatement.org/wp-content/uploads/2022/01/UluruStatementfromtheHeartPLAINTEXT.pdf
[3] The Guardian, Marcia Langton attacks ‘relentless scare campaign’ waged by opponents of Indigenous voice https://www.theguardian.com/australia-news/2023/mar/13/marcia-langton-attacks-relentless-scare-campaign-waged-by-opponents-of-indigenous-voice
[4] The Uluru Statement from the Heart – FAQs https://ulurustatement.org/education/faqs/
[5] The (surprisingly/shockingly poorly graphically designed) United Nations Declaration on the Rights of Indigenous Peoples – https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf
[6] Michael Jensen’s article, The Voice: A Christian Consideration, The Gospel Coalition, 16/6/23, https://au.thegospelcoalition.org/article/the-voice-a-christian-consideration/
[7] ADVISORY REPORT ON THE CONSTITUTION ALTERATION (ABORIGINAL AND TORRES STRAIT ISLANDER VOICE) 2023, Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum – Chapter 2, deliberations regarding recognition: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/Aboriginal_and_Torres_Strait_Islander_Voice_Referendum/VoiceReferendum/Report/Chapter_2_-_The_Legislation
[8] Noel Pearson’s speech at the National Museum of Australia: https://www.nma.gov.au/audio/australia-speaks/transcript/australia-speaks-noel-pearson
[9] John Howard on Constitutional Recognition, Sydney Morning Herald, 12/10/2007, https://www.smh.com.au/national/pm-promises-referendum-20071012-gdrbm9.html
[10] John Howard on the Voice, The Australian 23/3/23, https://www.theaustralian.com.au/commentary/constitutional-quagmire-john-howard-expresses-concern-over-voice-to-parliament/video/cd1fe4582390b32aad2595ada85b5532
[11] Stephen Chavura’s response to Michael Jensen, ABC, 26/6/23: https://www.abc.net.au/religion/stephen-chavura-christian-critique-of-voice-to-parliament/102523242
[12] Tony Abbott’s defense of constitutional equality, The Australian, 22/5/23, https://www.theaustralian.com.au/commentary/a-watered-down-indigenous-voice-to-parliament-would-still-be-an-affront-to-the-ideal-of-constitutional-equality-writes-former-prime-minister-tony-abbott/news-story/379187599feb8a2ca9a4665734730cb4
[13] Tony Abbott on the 7.30 Report, ABC, 6/7/23, https://www.abc.net.au/news/2023-07-06/tony-abbott-says-the-voice-%E2%80%9Creinforces-the/102573128
[14] Anne Twomey regarding the constitutional limitations of the Voice, The Conversation, 28/2/23, https://theconversation.com/what-happens-if-the-government-goes-against-the-advice-of-the-voice-to-parliament-200517
[15] The official referendum pamphlet, AEC, https://www.aec.gov.au/referendums/files/pamphlet/your-official-yes-no-referendum-pamphlet.pdf?=v1.0
[16] David Jackson AM KC, submission to parliament (no. 31), 11/4/23, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/Aboriginal_and_Torres_Strait_Islander_Voice_Referendum/VoiceReferendum/Submissions
[17] Tony Abbot on the division inherent in the Voice, The Australian, 27/3/23, https://www.theaustralian.com.au/commentary/vote-no-to-a-voice-that-divides-us/news-story/7c00b590a5f3fc75a34f9430d2ccb7ac
[18] Professor Nicholas Aroney and Professor Peter Gerangelos, submission to parliament (no. 92), 2023, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/Aboriginal_and_Torres_Strait_Islander_Voice_Referendum/VoiceReferendum/Submissions
[19] Louise Clegg, The Voice is an undercooked thought experiment, Australian Financial Review, 5/5/2023, https://www.afr.com/politics/federal/the-voice-is-an-undercooked-thought-experiment-20230503-p5d57h
[20] The Nordic Policy Centre publication on Sami Parliaments, 22/1/2021, https://www.nordicpolicycentre.org.au/sami_parliaments
[21] Professor Bertus de Villiers, Adjunct Professor, Curtin Law School, Australian Parliament, Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples (6/7/2018), https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22committees/commjnt/9fb35c70-e8f2-42b4-a831-b7461ae29a98/0001%22; and Submission 6 – Attachment 1, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/Constitutional_Recognition_2018/ConstRecognition/Submissions
[22] Dissolution of ATSIC, The Age, 16/4/2004, https://www.theage.com.au/national/howard-puts-atsic-to-death-20040416-gdxoqw.html
[23] Noel Pearson on the dysfunctionality of ATSIC, Sydney Morning Herald, 11/11/2002: https://www.smh.com.au/national/pearson-calls-for-reform-of-atsic-20021111-gdft6t.html
[24] Mark Powell, Quadrant, 27/8/2023, https://quadrant.org.au/opinion/religion/2023/08/endless-circuits-of-the-apology-loop/
Other articles
Michael Jensen’s rejoinder to Stephen Chavura’s article, ABC, 4/7/23: https://www.abc.net.au/religion/christian-case-voice-michael-jensen-response-stephen-chavura/102558976
Attorney general’s submission to parliament https://www.aph.gov.au/DocumentStore.ashx?id=ea88212c-eccc-45d2-822c-8578fa96895c&subId=740367
Janet Albrechtsen’s treaty article: https://www.theaustralian.com.au/inquirer/worried-about-the-indigenous-voice-to-parliament-wait-until-you-see-the-treaty/news-story/780cacd9532701d4652c35b937fea21c
Outbound 