I’ll be voting “yes” for constitutional recognition of the Voice.
I’ll vote “Yes” because that is what most Aboriginal leaders have called for, because defeat would set back reconciliation and because it’s Labor policy, and I’m a member of the Labor Party.
But I think the politics surrounding the Voice are problematic.
There is broad consensus that the constitution should recognise that Aboriginal peoples were the first peoples to inhabit Australia and that British colonisation involved appropriation of the lands they inhabited without any consent or treaty.
This is a simple fact and I doubt many Australians would have an issue with it. Part of the “No” campaign against the Voice (to be led by Warren Mundine) will advocate for constitutional recognition of prior inhabitance but through means other than creation of the Voice.
Certainly, having the Voice to Parliament as the means of constitutional recognition complicates what should otherwise be a straightforward constitutional reform proposition.
In his article in ‘The Age’ on 26 January, Noel Pearson stated that the “how” of constitutional recognition is to vote “Yes” to requiring Parliament to establish the Voice to parliament. But the notion creating of the Voice is necessarily the only “how” is nowhere near as self-evident as Pearson makes out. And while defeat of the referendum would be a setback, Pearson’s suggestion that if the referendum on the Voice fails that this will forever end the hopes of reconciliation is an exaggeration.
Reconciliation, much like democracy, should be regarded as an ongoing process. We can never hope to “reconcile” with the violence, racism and brutality that characterises colonisation and the damage this caused to aboriginal people and their cultures. We cannot undo the past. But it is important that we recognise it. And collectively take whatever steps we can to build a better future including closing the gap in health and other relevant indices.
But in my view constitutional recognition is neither a necessary requirement for, or a guarantee that, Aboriginal voices will be heard, or given sufficient weight, by government.
Constitutional recognition can only impose on the Commonwealth government a general obligation to create a body called the Voice to parliament. It cannot guarantee that this institution will be adequately funded or resourced or that it will lead to Aboriginal voices being adequately represented and listened to- all of this depends on the particular legislated and budgetary arrangements.
When I’ve asked deeply committed supporters of the Voice the question why they consider constitutional enshrinement is necessary, the answer is normally along the lines that it is required to prevent a future Coalition government coming along and destroying the representative body.
This is probably, at least in part, a legacy of John Howard’s destruction of the Aboriginal and Torres Strait Islander Commission. But constitutional recognition would not have protected ATSIC’S reputation given the problems that afflicted it.
Certainly, Coalition governments have a track record of engaging in culture wars, best typified by John Howard’s characterisation of historically accurate descriptions of the brutality of colonisation as a “black armband” view of Australian history and his stubborn refusal to support the apology.
Nevertheless, we are unlikely to further the aims of broader reconciliation by making it as hard as possible for the Coalition or its supporters to agree to a model for Aboriginal representation.
We know that the Australian Constitution, including all its reactionary, colonialist, monarchical, mumbo jumbo is a sacred cow for many conservatives and has proved exceedingly difficult to change.
Whatever his alterior political motives, Dutton’s call for Labor to legislate a Voice is likely to appear as “common sense” to many Australians, especially those who prefer to blame government for alleged “lack of detail” rather than admit that they lack sufficient interest to acquire and think about the publicly available detail regarding the Voice.
In the end Dutton’s call on the government to legislate the Voice gives him a “try before you buy” type argument that is likely to prove far less complex to advance that those who will advocate in favour of constitutional entrenchment of the Voice.
The more complex argument “Yes” campaigners will need to advance is that the history of brutality and dispossession should result in special arrangements for consultation with Aboriginal people about issues that directly affect them. Legal advice is that the Voice provides no special rights for Aboriginal people because its role is only to make representations to parliament and the rest of the community already have this right.
This may be so. But clearly the Voice would create special arrangements for the way representations from Aboriginal are made to, and received by, the government. The whole point is to give Aboriginal people a stronger political Voice. For example, the Voice, unlike other representative bodies, will be able to table its formal advice to government in Parliament.
So, the idea of the Voice still bases itself in positive discrimination type arguments. I have no issue with these arguments. But we know from experience many in the community regard positive discrimination as unfair. This is particularly so of those who suffer other forms of disadvantage, or who simply do not feel particularly “heard” by government and who will not have any special means like the Voice through which their representations can be made. If the Voice does go a referendum as planned we might well expect a higher “no” vote in areas of relative disadvantage compared to more affluent areas.
When one adds the difficulty of convincing the community on the need for positive discrimination or special measures to the historical difficulty of succeeding in referendums without bipartisan support from both mainstream parties, one begins to understand the magnitude of the task the government and there Aboriginal leadership have set for themselves.
Further, Labor’s position affords Dutton the luxury of criticising constitutional recognition without ever having to spell out any legislated model for a Voice that the Coalition would accept.
The truth is that Barnaby Joyce and most fellow National Party travellers are unlikely to accept any model whatsoever for a Voice. So, despite the work of Ken Wyatt, the former minister for indigenous affairs under the Coalition government, the Coalition probably has no legislative model of its own to promote.
If pressured to come up with one because Labor produces legislation to establish the Voice, the Coalition would likely split on the issue in a similar way that it did on energy policy.
But for as long as Labor refuses to legislate the Voice, Coalition MPs (like Shadow Attorney General Julian Leeser) who claim to support a constitutionally entrenched Voice, can join in Dutton’s criticism of the government on the supposed “lack of detail”.
Then, media attention will likely continue to focus on the split between those Aboriginal leaders who support the Voice and the smaller number, both to the right and the left, who oppose it, rather than on any split within the Coalition.
The truth is there is no lack of detail on specifics as to how the Voice would operate. The group appointed by Ken Wyatt has produced a comprehensive plan.
The Voice would advise the Australian parliament and government on matters relating to the social, spiritual, and economic wellbeing of Aboriginal and Torres Strait Islander peoples.
Parliament and government would be obliged to consult it on matters that overwhelmingly relate to Aboriginal and Torres Strait Islander peoples, such as native title, employment, housing, the Community Development Program, the NDIS or heritage protection.
The Voice would be able to table it’s formal advice in parliament, and a parliamentary committee would consider that advice. But all elements would be non-justiciable, meaning that there could not be a court challenge and no law could be invalidated based on this consultation.
The national Voice would have 24 members, with gender balance structurally guaranteed. There would be two members from each state, the Northern Territory, ACT and Torres Strait. A further five members would represent remote areas due to their unique needs – one member each from the Northern Territory, Western Australia, Queensland, South Australia and New South Wales. An additional member would represent the significant population of Torres Strait Islanders living on the mainland.
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.
Two co-chairs of a different gender to one another would be selected by the members of the voice every two years.
The national Voice would have two permanent advisory groups – one on youth and one on disability – and a small ethics council to advise on probity and governance.
Local and regional voices would provide advice to all levels of government to influence policy and programs and could also advise the non-government sector and business. The report outlines, their roles, how they would be constituted and the principles they would adopt, like cultural leadership, community led design and empowerment.
The Voice would not deliver services, manage government funding, or mediate disputes between Aboriginal and Torres Strait islander groups.
I’ll be voting yes. But my gut feel is that Labor should try and convince Aboriginal leaders that the referendum is too risky and they should just legislate for the Voice. The numbers are there to pass legislation. They might not always be.