As October 14, Referendum Day, beckons, Australians are asked whether to say “Yes” or “No” to the insertion of a new Chapter (IX) with a single section, s.129, into the Commonwealth Constitution.
The key Chapters in the existing Constitution set out the main sources of power, and how that power is balanced, between the Federal Parliament (Chapter I), the Executive Government (Chapter II), the Judicature (Chapter III) and the States that complete our federal system (Chapter V). In Australia’s Federal system, the States have exclusive legislative power over their territories, but the Federal Government can override this by having the right to legislate exclusively for the entire nation on specific topical areas, generally of a ‘national’ character (Defence, naturalization and aliens, immigration and emigration, external affairs, interstate trade, and so on). These are contained in sections 51 and 52 of our founding document.
The Australian Constitution came into operation on 1 January 1901, making it one of the oldest constitutions in operational existence today. There were only two references of recognition in its preamble: the Queen and her heirs and successors, and the people of Australia. Four days after commencement, 5/1/1901, the Brisbane Worker commented:
“Never has a nation before been launched under such happy auspices, but so complex and various are the ideas of statesmanship that Australia may be wrecked unless the true ideal – the ideal which should be the guiding star of her destiny is kept in sight. And this ideal, though not so large, and airy, and grandiloquent, as glory, and wealth, and conquest, is a basic one; and withal is so simple that anyone can comprehend it. It is the State built up of a multitude of perfect human units. The perfect whole, composed as it must necessarily be, of perfect parts.”
The Constitution has only been amended 8 times in 122 years, most of those being fairly procedural (Senate Casual Vacancies, Retirement of Judges, etc.) In 1967, the Federal Parliament’s power (s. 51 (xxvi)) to make laws with respect to the people of any race for whom it was deemed necessary to make special laws, was extended to the aboriginal race. This amendment was passed by an overwhelming majority (some 90%) although the ‘No’ vote was higher in country electorates with large numbers of aborigines. They might have had a point: since 1967, there is no sign that aborigines were better-off than they had been. In fact, in the decades since, vast sums of money have been expended on ‘closing the gap’, with nary a sign of constriction. We note that Robert Menzies, who knew a thing or two about constitutional law, was against it on simple principle and an allergy to the rise of bureaucrats.
Then, in 2017, a minority of delegates at a National Convention (at a Yularu resort, 25 km from Uluru) issued the ULURU STATEMENT FROM THE HEART:
“We, gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky, make this statement from the heart:
Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs.
This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years
ago. This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain
attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or
extinguished, and co-exists with the sovereignty of the Crown. How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years? With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.
Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened 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. They should be our hope for the future.
These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.
We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in
two worlds and their culture will be a gift to their country. We call for the establishment of a First Nations Voice enshrined in the Constitution.
Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better
future for our children based on justice and self-determination. We seek a Makarrata Commission to supervise a process of agreement-making between
governments and First Nations and truth-telling about our history. In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek
across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.”
(Apparently there’s a lot more to it (18 or 26 pages, it is unclear) than this one-page statement of what we think is, respectfully, trite, tendentious and not fully accurate. We haven’t read the other portions of the full Uluru Statement; like the P.M., ‘why would we?’)
On the night of the election of the Labor Government, 21 May 2022, Prime Minister Anthony Albanese committed to implement the Uluru Statement in full.
The proposed amendment reads:
Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples
129 Aboriginal and Torres Strait Islander Voice
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
So what are our doubts about this amendment?
In other words, don’t bake the special measure of the Voice into the Constitution. Instead, legislate it, if you must.
It has been quite fascinating to observe sentient beings try to argue that the Voice is not racially discriminatory. What we think they are struggling to convey, in actuality, is that it is benign or positive discrimination. But as Bruckner wrote, “Progressive thought is blind when it suggests that there can be no antiwhite racism or an anti-Semitism among the formerly oppressed or the young people in the projects because they themselves have suffered from this evil. They are the victims; they are exempt from the prejudices that affect the majority of the population. But the reverse is true: racism is multiplying at exponential rates among groups and communities, taboos are collapsing, and everything is explained in terms of physical characteristics, identity, purity, and difference. And this is a racism that is all the more certain that it is right because it is regarded as a legitimate reaction on the part of the persecuted.” Colonialism had good and bad for indigenous peoples all over the world; Does it count today, except as a fertile source of feckless resentment?
The aboriginal peoples are neither a monolith, nor a helpless, pitiful giant, nor flora and fauna. They do not need a committee to speak for them; in fact, how can we ensure the Voice will even do that? Will Professor Langton, on campus at Melbourne U (where you can buy a ‘Professional Certificate in Preparing for Treaty’ for just $7,576.00), intuit what a young man on the APY lands requires in life? Does it take a village to raise a child? Can’t he work out whether he seeks the ‘dreaming or the market’? To say that he cannot, smacks of the ‘soft racism of low expectations.’ But instead, we’ve had a hefty weight of opinion pinning “racism” – that made-to-order scatter-word of abuse – on anyone foolish or fraudulent or fascist enough to dare question the Voice. As Douglas Murray observed in a related context, we suffer “ever fiercer campaigns and ever more niche demands” and “something strange and vaguely retributive is in the air.”
In 2020, the High Court by a majority, determined that a man born in Papua New Guinea who was a citizen of that country, but resident in Australia, where he committed a felony, could not be deported because he identified as a member of the Kamilaroi group. Apart from leaving the “details” of the Voice to the tender mercies of the High Court (see 2 below), this begs a murky and uncomfortable question: who is aboriginal? Who is eligible for election, appointment, etc., to the Voice body? Full blood, half-blood, no-blood? The 2021 census revealed that most folks identifying as Aboriginal and Torres Strait Islanders were hitched to a non-indigenous person. Most of the 80% claiming aboriginal descent (many self-identifying) live in the cities, and – pardon us – many are white enough to burn your retinas. Aboriginality as eligibility for appointment to the Voice could become a huge powder-keg all by itself, a massive source of bitterness, cynicism, and division, before it even gets rolling! U.S. Chief Justice Roberts said “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” Morgan Freeman said something similar; “Stop talking about it.”
2. The Constitutional Problems
Judges on the High Court, like Marvin, have brains the size of a small planet. But that doesn’t mean they can’t have an off-day (see the Love v Commonwealth case, referred to above). And mission-creep has been applied to the Commonwealth Constitution for an aeon (pardon the pun, lawyers).
Advice can be disregarded at one’s discretion. Representations must mean something more. The High Court will no doubt enlighten us in due course. In any case, the Prime Minister said “it would be a brave government that ignored the recommendations of the Voice.” The Solicitor-General opined that it would be “desirable” to consider such representations. So it would be undesirable to reject them, howsoever that is to be done.
There is no attempt to confine the right to make representations to the Legislature and the Executive based on concerns particular to Aboriginal and Torres Strait Islander Peoples. On the one hand, you can’t quibble with that. Aboriginal and Torres Strait Islander Peoples happen to be Australian citizens and can have views on any blooming policy subject they like. However, two difficulties arise. First, why does one group based on epidermis or ancestry get a special pass, seat at the table, or access to the cocktail cabinet? Second, and equally profound, if the Voice, as a constitutionally-enshrined body, can make representations on anything and everything, doesn’t that give the federal government of the day, under proposed section 129.3, the right to make laws on anything and everything? The words “subject to this constitution” might limit the law-making power per sections 51 and 52. However, as section 51 gives the power to Parliament to make laws with respect to the people of any race, does this spell the death of federalism? I wonder how the various State Premiers, so enthusiastic about the Voice, might feel when their roles are reduced to that of regional distribution centres? I guess the High Court will decide that in the fullness (or short space) of time. The irrefutable answer is that a body like the Voice can be legislated now (and as we pointed out above, it shouldn’t be constitutionalized now, or ever).
Memo to the Honourable Mr. Albanese, former (and future) research officer: this is why most successful referenda are preceded by a Constitutional Convention.
3. Another useless/destructive Committee?
Law Lecturer James Allen has written that “this body will carry with it a huge bureaucracy. As the wording stands at present it will have input into every law mooted…Law-making will become sclerotic. Rent-seeking is almost certain to become a feature of political life.” The concept of representations to the Executive is problematic. The Executive is described in the Constitution as the Royal, the Governor-General, Executive Council, Ministers, Departmental Officers, the armed forces, and civil servants. The Australian Bureau of Statistics in November last year stated that there were “254,000 employees in Commonwealth government.” Will they each have to hear the Voice?
The Registrar of Indigenous Corporations Annual Report for 2021/22 states that as at 30 June 2022, there were 3,521 registered Aboriginal and Torres Strait Islander corporations.
The Parliament of Australia website states that “[i]n 2015–16, the Australian Government directly spent $14.7 billion on Indigenous people.” How’s that working out? Does it mean we must leap from a platform of failure into the unknown void? A new level of managerialism? Minister Burney, at least, had worked-out that utility needed to be stressed, so she claimed, without evidence, that the Voice would improve aboriginal welfare and housing problems. But that which is asserted without evidence can be dismissed without evidence.
In South Australia, the Voice was legislated in March 2023 but SA has parked its operation until next year; we know not why. In Victoria, they have the First People’s Assembly and a Yarook Commission. Google them and you’ll find policies little shy of apartheid. The Waitangi Tribunal in Aotearoa (Google it) has been a divisive disaster, directing resource allocations on race grounds. There is now a period of 50 years in which it is pellucid that progressive policies (on both sides of the political aisle) have correlated with disaster in indigenous communities (vide Peter Sutton’s The Politics of Suffering). The Australian Capital Territory has the Aboriginal and Torres Strait Islander Elected Body. It has been there for 15 years. Its processes, including elections, are a disgrace. ACT, not exactly remote from places of the leisured and the treasured, has some of the worst practical indigenous outcomes in the nation.
Go to Lingiari. Go to Wilcannia. Or Tennant Creek, or Katherine, Alice Springs, or Tiwi, or the APY lands. They’ll laugh at the idea of the Voice, and not in a funny way.
Another thought: the members of the Voice might soon find themselves either as irrelevant as the Interstate Commission, or as despised as ATSIC. They might have to be sequestered, like a jury. We wouldn’t want to sit on it: who needs the aggravation?
4. Enough bona fides? – We are more than willing to acquit the overwhelming majority of “Yes” voters of bad faith. We accept their good intentions at face value. The impulse is to ‘do something.’ Fair enough. However, something tightens in the chest when a Yes advocate says Jacinta Price is no better than “coloured help“…there to “to punch down on other Blakfullas.” Or the Prime Minister calls No-voters “Chicken Littles.” Or the partisans misrepresent the extent of the Voice, in adverts, broadcasts, speeches, flyers, and even the ballot card itself. Or if you advance some benefits of colonisation, you are smeared on Q & A as “disgusting.”
5. Look Who is Backing “Yes” – We don’t really want to get personal. But…Malcolm Turnbull has done a volte-face and is now a Yes-man. (He’s seen ‘a Bigger Picture’). The Albanese Labor Government, Law Societies and Bar Associations, progressive media companies, the ABC, Qantas, BHP, the Big Banks, Woolies and Coles, Wesfarmers, the AFL, Get-Up, Shaquille O’Neal, the less-than-impressive Linda Burney MP, the hitherto-reasonable Noel Pearson, ex-Judges who said the Voice is “common sense” that will “enrich our democracy” [how?] and that there’ll be no ‘lawyers picnic’ and now accept that there will, or the serving one that calls No voters “disgusting,” Peter FitzSimons, are all on the Yes Bus. Yes signs and Yes ads wash over television and the internet in a turgid jet. Some of them are good, but are reaching saturation level fast. (I don’t know why no-one ran with my idea of combining John Farnham singing “You’re the Voice” with attractive young First Nations people, à la the singing show “The Voice,” swinging their chairs around in a collective whoop of ‘Yes!’, but that may still be on the way, in the final push.) It’s a bit rich that the Prime Minister shelters under the cover of ‘unity’ while making only Yes donations tax deductible and not funding both sides, a first for a referendum in Australia. In fact, his disastrous shambles of a campaign for ‘Yes,’ admittedly not all his fault, begins to make one wonder if his strategy is to divide and conquer, irrespective of the result on 14 October. He seems sincere, but maybe he just wants to wedge the ‘Tories’? The ones in “Sydney” rather than “Gadigal Land”? Yet he has invested so much money and political capital, that you find it hard to imagine that he’ll allow a ‘No’ vote to succeed. Perhaps we’ll have to carefully scrutinize those ‘hanging chads’, or those “ticks” inferred as a “Yes”?
6. Democracy sausage – We will be lining up for our sausage sizzle (and cake drive) on polling day, although we don’t know what’s in it. But the odd clutching of a stomach or two is nothing compared to unanswered and batted-away questions about what shape the Voice might take. Or the lack of evidence, or even coherent argument, that it will confer benefits where most needed. Self-determination, a watermark of the Uluru Statement, might be the foolish gift the Gods foist upon those who make no such wish. The members of the Voice won’t be elected. We don’t quite know who will get a slot. How long will they be appointed for? Can they go again? Can they be removed? By whom? Will the Voice be subject to national laws? What exactly will it do? How will it be funded? How much funding? Will it have a department to support its functions? When and where and how will it meet? Will minutes of its meetings be published? Will the rest of the country be able to comment on its representations to Parliament and the Executive?
Everyone knows that, intentionally or not, the descriptions of the Voice as ‘modest,’ ‘limited,’ ‘advisory only,’ were misleading. For example, we have been listening to ABC morning radio’s AM programme for ever, and it continues to describe the proposal as merely recognition and a purely advisory body to Parliament. That is misleading by omission. And we know that the Voice is but the ‘first door’ to Treaty (including sovereignty), a Truth Commission (Makarrata), and reparations (‘pay the rent’). It has actually been sold to indigenous people as ‘the hook.’ Yet the Yes Campaign shut-down questions about detail, process, KPIs and so on. It was like a sales person on the lot, telling you: “This car will make you feel like humming. I can’t tell you the specifications, the weight, the maneuverability, the life-timeline, the mileage, the price. I can tell you, it comes in one colour. Sign here to buy.”
7. Shame Shame Shame, We’ll all take the Blame – The silliest argument for ‘Yes’ is the national destruction / international pariah theory. Chris Kenny, for whom we have a lot of respect, wrote that if the referendum failed, it “would leave us with division, bitterness and the repudiation of Indigenous aspiration.” (Simmer down, Sparky!) Ukraine, Israel, Gaza, Syria, Iraq, Libya, Yemen, South Sudan, Somalia, Afghanistan, the Democratic Republic of Congo and the Central African Republic, South Africa – are on fire. In Australia we are having a disagreement, in a mostly agreeable manner, thank goodness. I don’t think the U.N Rapporteur will rap our knuckles that hard if we vote ‘No,’ irrespective of how much the Prime Minister snivels. Failure will probably be seen as a slap to aboriginal Australians though; another indignity they neither need nor deserve.
Which is why we’re saying “Yeah, nah” to this dopey idea, that, frankly, smacks increasingly of a grab for power, money, and glory. All of which are fleeting.[UPDATE: By last Saturday night, it was very clear that the ‘Yes’ case had been annihilated. Every State voted ‘No’ by a comfortable majority. The national vote, as of writing, is 60.7% ‘No’ to 39.3% ‘Yes.’ ]