This post is rather long. If you want a point form summary, scroll down to the bottom. Secondly, this post does not represent the views of anyone else but me.
As part of his pre-election platform, the now PM promised to get an aboriginal Voice into the constitution during this parliament.
Since Albo basically controls both houses on this issue, we will almost certainly be asked to vote on his recently proposed proposed wording (emphasis added):
There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice
The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive government on matters relating to Aboriginal and Torres Strait Islander Peoples
The parliament shall, subject to this constitution, have power to make laws with respect to matters relating to the aboriginal and Torres Straight islander voice, including its composition, functions, powers and procedures.
It is worth noting here that the word “recognition” does not appear anywhere in these 73 words. Nor does it mention “first peoples” or “dispossession”. There is zero symbology here. It is all functional.
A successful referendum will put those words into the Constitution, these being the “standing orders” of the nation. Importantly, the composition, functions, structure, governance not to mention eligibility to stand, eligibility to vote, as well as the voting system (i.e. “procedures”) is not specified and will be the subject of separate legislation. The third stanza makes it clearer that parliament will be in control.
No legislation authorised under the third stanza has been formally drafted. This being the case, unless you are ideologically committed to the Voice as a matter of pure principle, an informed vote requires some details on the likely implementation plan. This is Dutton’s constant refrain on “more details”. However, some significant work has indeed been done on the details by Tom Calma and Marcia Langton. This proposes
- two members from each state and territory, which means 14 members. I note that this entrenches the over-representation of the smaller states, just like the senate, which a former Prime Minister famously called “unrepresentative swill”.
- a further five members representing remote areas due to their unique needs – one member each from the Northern Territory, Western Australia, Queensland, South Australia and New South Wales. So more senate-like bias towards remote minorities compared to those who choose to live in Redfern. And I should note that, if this report is correct, there are no remote areas deemed to exist in Victoria.
- One additional member representing Torres Strait Islanders living on the mainland. I really have to wonder why those on the Tiwi islands do not get a special guernsey.
This model of 20 members is not obviously bad, but it is not obviously good either and it was created by two highly paid careerist darlings of the progressive left, Marcia Langton and Tom Calma. This is where the political action will be – the actual legislation. It’s all in the details.
Members would serve four-year terms, with half the membership determined every two years. There would be a limit of two consecutive terms per member. If only we could impose the same limits on the national parliament! Lifetime politicians like Albo and Abbott would be as dead as the Albatross. (OK, they’re not extinct but I wanted the alliteration!).
I can imagine many other models. In particular, the aboriginal “nations” are not represented at all which seems at odds with the general “right side of history” argument for this body. However, this could mean 500 or 1000 members, which is perhaps why it was not considered.
Importantly, the electorate will have no input into the implementation details. It will be legislated before the election as part of Albo’s promise and only after a successful referendum. It will just be passed by parliament with Green and Teal support . The political backdrop will be the unenlightening, unedifying, superficial, emotional, partisan commentary from the usual media institutions and suspects.
Critical elements remain not only unspecified (as Dutton constantly complains) but also not discussed in the main stream media at all. Such as:
- Who is eligible to vote? Who is eligible to stand?
- Will they be paid? How much?
- Will the voting system be first past the post, preferential, proportional representation or something else?
- What will be the barrier to standing? Could there be 500 candidates in some regions?
- Will “establishment” candidates have funding from the Electoral Commission, as is the case for general franchise elections?
Surely, it would be better to have more functional details established before the referendum. There is really no reason why the ALP could not have a draft of the bill already circulating. Indeed, my position has always been that we should have legislation first with a possible referendum in Albo’s next parliament.
What are the upsides of the Voice?
The main one that progressives are running with is symbolic recognition. Clearly this is a weak argument since we abandoned the original plan for a preamble stating that aborigines were here first. In 2017, Pat Dodson and Mark Liebler’s plan was suddenly changed to something completely different at Uluru. Symbolism was explicitly rejected by the Uluru committee. Yet the apology was symbolic. Was that a bad idea?
Amazingly, there is no recognition or preamble as part of the Uluru proposal. This could have been bundled in with the Voice and would have made it harder to oppose. You really have to wonder who is running this process. How could the recognition preamble ever have been abandoned?
Another stronger argument in favour is direct representation with a view to better decisions, better programs, better outcomes and better use of government resources. This is actually more a claim than an argument. If it were definitely true, it would be an unassailable argument.
However, government departments are consulting community organisations already. What about the National Indigenous Australians Agency, whose role seems to be to coordinate with and advise the Commonwealth? The key distinction between this agency and the Voice is that the indigenous agency advisors are employed, not elected. So, if you believe the Voice will be much more effective than this agency then you believe that directly elected representatives are more effective in connecting government and communities than full time (indigenous) public servants. You might turn out to be right. But it would be a hard sell to the electorate if expressed this way.
An attractive outcome would be that we get some diverse aboriginal opinions – not just the regular aboriginal firebrands. Under the Langton/Calma model there will be two representatives per state. Political dynamics being what they are, there will likely be a “left” and “right” candidate; for instance Anthony Dillon versus Gary Foley. You can probably guess who I would vote for but, alas, I will not be eligible to vote.
A diverse Voice (remember when diverse actually meant diverse?) that includes the less radical should lead to a deeper discussion rather than the uniformity we endure from the usual suspects dominating public discourse via Q&A, the Drum and the Guardian.
On the other hand, diversity means conflict. If the Voice is evenly distributed between left and right, it will be hard for them to provide unequivocal advice to government. Which is just politics as usual. One possible outcome would be that there is an ALP and a Coalition aboriginal candidate in each state. Political dynamics being what they are, we could easily iterate towards this.
If you vote for the Voice are you voting for this? Or are you voting for a combination of long overdue recognition and a more effective and representative indigenous input into government decision making? You just don’t know.
What are the main downsides of passing the Voice into the constitution?
Future jurists may read implied rights into the new words that will be inserted into the founding document, especially taking into account the political discussion of the times which they are entitled to do, in intuiting our overall intent. The phrase “may make representations to” could potentially be interpreted to mean that the Government must give high weight to these representations. Presumably they could not formally ignore them. What about state funding to support these representations? Future high courts will decide.
Some constitutional lawyers have also raised concerns about the addition of the words “Executive Government”. This has mainly been added through the influence of the 272 page Co-Design Report of Marcia Langton. I understand that it means the public service. So the Voice could make representations to senior public servants and committees, as well as parliament. The question is whether they would be entitled to make such representations to every arm and level of the executive government and potentially hold up the workings of government. Real time appeals to the courts (including the High court) would delay rather than facilitate decisions.
The term “matters relating” is not defined and could become a point of contention and disagreement. The government of the day may not appreciate being lectured on debt levels, foreign policy, changes to superannuation etc. though aborigines are affected by this as much as anyone else.
It was recently put to Marcia Langton:
If a government decision is made without listening to the Voice it could be challenged in the High Court and potentially stopped from being implemented until the Voice had been heard.
She replied: “that is a possibility and why would we not want that to be the case?”
But overall, the wording is anodyne enough that it is unlikely to lead to major substantial change apart from its face value intention. And the third stanza provides some protection from judicial activism.
Perhaps the Voice will become an evenly balanced partisan body dominated by existing political tribes, and therefore become less effective than a truly community based representative body could be. But that will be a lost opportunity, not a disaster.
It is claimed by Greg Sheridan that the Voice, once it is operating, will lead to constant racial discord. I think this depends on the make-up of the Voice and, in any case, I do not think that media and activists need the Voice to stir up racial discord. They are doing just fine currently.
He also argues that the Voice is only the first step on the road to co-government. This is a slippery slope argument. Slippery slope arguments are not wrong in principle. But they are easy to make and do not allow for common sense.
I encountered the slippery slope argument on gay marriage. “If you vote for it then the next step will be trans-activist nonsense”. Well they were right about trans-nonsense being the step. But we can all resist trans nonsense where it actually appears. I am a living example that you can vote for gay marriage without automatically supporting female impersonators in prisons. Similarly, one can vote for the Voice and resist calls for co-government when they are made. And since aborigines are a tiny minority, they will never be able to impose anything on the rest of us.
The effect of this referendum on politics.
Quite apart from the substance, the way this change is being presented is often emotive and evangelical. If you are against it, then you are racist. Peter Dutton is against it and he did not attend the apology so you have to support it to perform your disapproval of Dutton. If we are going to base constitutional change on how likeable our current politicians are then we are lost.
This should be the most purely intellectual decision that we can muster. But no. Not in 2023.
It is a “moment in history” that we have to be on the “right side of”. This makes constitutional change a social media contagion. And make no mistake that a large proportion of young voters will entirely base their decision on Tiktok and Instagram influence. The effects of this debasement of democracy will be far reaching and long term. Future changes to the constitution will no longer begin with an appropriate onus of proof. It will mainly be “the vibe” and the attractiveness index of the influencer who brings the referendum to your attention.
Finally, the government is not going to fund both the yes and no cases. This has been required with previous referenda where approved (and to some extent fact checked) brochures were sent out to each household. The argument of the government is that such a process is archaic. The consequence is that voters will get their information from their own sources. You can see how well that works out in some cases. #foxnews
Why a referendum at all?
The people who railed against the gay marriage plebiscite as unnecessary are the same folks who say we must have a referendum for the Voice. A referendum for gay marriage was considered a denial of human rights. Anything else but a referendum on the Voice is similarly considered a moral failure.
I was on the fence on the issue of statute versus referendum on gay marriage. The plebiscite was a reasonable compromise. We decided in favour of gay marriage not because we “must” according to human rights zealots, but because we wanted to. And there is nothing in that decision that can be extended or modified by a future High court.
A change to the constitution is binding. There has never been a reversal of a constitutional change. So, the Voice will be permanent. Legislative mistakes on the other hard are easily reversed.
The argument for constitutional change has not been made in any but emotive terms. It is variously about locking the change in so it cannot be reversed by future Tony Abbots, it is about recognition of aboriginals and it is about not rejecting the “generous offer” of aboriginal people expressed in the Uluru statement.
It is a fact that changing the constitution in this way prevents our children and grandchildren from abolishing the Voice at some point if it proves to be dysfunctional, as ATSIC proved to be. This is true of any constitutional change – it commits future generations to certain principles – so it is always worth treading carefully.
But this is a weak argument against the Voice it seems to me. Since the Voice is to be implemented by statute, the government of the day could change the Voice in any way they deemed fit, in any way they thought would cure its perceived ills, short of abolishing it entirely.
Now a reasonable person might ask why the Prime Minister does not create the body right now. Indeed Victoria and SA have already legislated a kind of Voice. There is nothing stopping him legally and he controls both houses (at least on this issue). I think the reason is obvious. If he did, then people would rightly ask why we need to change the constitution. His answer could only be … it’s Mabo, it’s the constitution, it’s the vibe. Simply put, if he legislates the Voice which he says is so important right now, then the referendum is sunk.
So, what is his justification for denying aborigines a voice to parliament over the first 12-18 months of his government? Has he been asked this question by any journalist? He has not. Will he be? I really do hope so.
Let me finish this section by answer the question “Why a referendum”. Why has it been put to us?
It is the basest politics from Albo.
This was the very first thing he promised in his victory speech. It is a classic wedge. He knew he would force Dutton to oppose it, because the Coalition are divided on culture war issues. This means that Albo and the ALP get all the glory if it passes and no blame if it fails. He is willing to play with the constitution but, more importantly, drag the entire nation into an unnecessary racial argument, just for political advantage. A preamble of recognition, followed by a legislated Voice, would have served all constituents better. But there was little advantage in it.
How much more evidence do we need of the psychopathy of politicians? There aren’t too many decent ones I can name. Perhaps Gough, McCain and Obama.
I also reject the legitimacy of a binary choice. We will choose between
- Option 1: Insert the Voice into the constitution
- Option 2: Do not do this, which means do nothing.
Whatever happened to …
- Option 3: Include acknowledgment of aboriginal pre-occupation in the constitution and leave the possibility of an aboriginal advisory body to parliament (which Option 2 does anyway).
This was the original intention of constitutional recognition and was widely discussed for over a decade until the Uluru folks decided to take a completely different approach. I was blind-sided by this at the time, as was Malcolm Turnbull. It bore no relation to what we hadbeen agonising about for the previous 10 years.
I suspect that if Australians were offered three options, they would choose option 3. Yes, I know that this was rejected as part of the 1999 republic referendum bundle but polls suggest that if it has been offered separately it would have easily passed. Sentiment is even more positive now.
How will I vote?
I will probably swallow my shit sandwich and vote yes.
Why? It is the only form of “recognition” that we are being offered. While I resent Albo’s cynical motives in forcing this issue, I do not want to slap indigenes in the face with a rejection and I cannot see that it will likely do much harm. This was pretty much my rationale for voting for gay marriage as well, even though I bristled against the sanctimonious bullying of the yes campaign.
So I will resist my usually contrarian nature and take a pragmatic view: it probably won’t do much harm, even though we never needed a referendum to do it. Some professional aboriginal activists may be able to make a career in Canberra and the High court will have some extra dockets to process. We will all get to know the “leaders” of the Voice – and be in no doubt that there will many self-appointed leaders that will be on the telly every night.
It might do some good even. We might find that grass roots activists will have more access to and influence on the pinnacles of power and we could see some better outcomes.
But I think the whole political process has debased our democracy. And I will not be surprised if the next six months does even more damage to how we look at the rules that support our freedoms and how they are changed.
Reasons to vote for or against the Voice, in each case listed in the order of how salient I judge these reasons are in the minds of proponents. My personal view of the strongest points would be Yes 2, 3 and No 6, 7.
Reason to vote Yes.
- To recognise Aborigines in the constitution.
- To give marginalised Aborigines more say in decisions that affect them.
- To get better outcomes by connecting government decisions to communities
- A no vote will be a national vote of contempt for Aborigines
- To begin a longer journey towards negotiating treaties.
- Dutton is a bastard.
Reason to vote No.
- To not give special rights to any racial or ethnic group
- It will lead to constant racial division and conflict
- It will be another expensive ineffective political institution
- It will involve High Court challenges.
- It will slow down government decisions.
- It is unnecessary as Aborigines already have input into government policy and decisions.
- The process of this referendum is so debased that it deserves to lose.