Three Arguments Against the Voice

Part One: A Plea to Reconsider. I support recognising indigenous people in the Constitution but only if it’s done in ways that don’t damage our system of government and don’t compromise our national unity. Done well, recognition would complete our Constitution rather than change it. Done badly, recognition would entrench race-based separatism and make the business of government even harder than it currently is.

As shown by the British government’s injunction to Governor Phillip to “live in amity” with the original inhabitants, there has always been a degree of official goodwill towards the first Australians. The fact that this has now percolated far beyond high-minded documents to become the overwhelming instinct of the entire Australian people shows how far we’ve come in two centuries. It may indeed be simple “good manners”, as the Prime Minister says, to want to acknowledge generously in our nation’s founding document the original inhabitants who were most regrettably (given the prejudices of the 1890s) overlooked when it was first instituted. Yet it would be a dreadful mistake for an abundance of goodwill to propel changing the Constitution without careful regard for its consequences; because constitutional change is “for keeps” in a way that mere policy change or legislative change is not.

As leader of the opposition, and then as prime minister, I fully supported the principle of constitutional recognition that John Howard had first pledged in the lead-up to the 2007 election and that’s been bi-partisan policy ever since. I didn’t support the Gillard-era proposal that section 51(xxvi) of the Constitution might be changed to replace the Commonwealth parliament’s “race power” with a power to make laws “for the benefit” of indigenous people because this would have invited the High Court to adjudicate on the actual beneficence of any such law. Seeking an alternative, in July 2015, I jointly chaired, with the then opposition leader, a round table of about forty indigenous leaders to chart a process that might lead to a better proposal. The plan that emerged was to have a series of consultations, not just among indigenous people, but among the wider community too (because the Constitution belongs to everyone) in the hope of putting to the people a proposal that might readily succeed on the fiftieth anniversary of the successful 1967 referendum to count indigenous people in the census.

Unfortunately, it was only the indigenous half of that consultation process that ultimately took place under my successor. This culminated in the 2017 Uluru Statement from the Heart that called for so much more than just constitutional recognition. It sought an indigenous “voice to parliament” in order to given indigenous people much more say on the workings of government; as well as treaties between the Australian government and so-called “First Nation” groups; plus a “truth telling” commission to uncover and to publicise further injustices that indigenous people had suffered.

In other words, the original, all-but-universally-supported proposal to recognise indigenous people in the Constitution had morphed (or run off the rails even) into a much larger proposal for a series of changes that were not only supposed to make governance more responsive to indigenous people but also to change the understanding of Australian history. At least, that’s what the then-Prime Minister Malcolm Turnbull judged had taken place when he declined to support the Voice on the grounds that it would amount to a third chamber of the parliament. Although Turnbull says that he has changed his mind and now supports the Voice, he still admits that it would be “an enormous change to the way our parliamentary system works”.

At the Garma Festival in 2022, Prime Minister Anthony Albanese called for the Constitution to be amended in three specific respects: first, that there should be enshrined “a body, to be called the Aboriginal and Torres Strait Islander Voice”; second, that this body would make representations to both the parliament and to the executive government “on matters relating to” indigenous peoples; and third, that this body’s “composition, functions, powers and procedures” would be determined by the parliament. In other words, should this proposal succeed, there would have to be a Voice; it would have to be listened to; and its powers and functions could be as wide as a parliament might make them. Despite insisting that the Voice would be merely advisory, the Prime Minister subsequently admitted it would have to be a very “brave” parliament and government that didn’t accept its advice.

In my judgment there are four massive issues with this concept of indigenous recog­nition-by-way-of-a-voice.

First, it’s a race-based body comprising only indigenous people. Unless the government is to nominate or the parliament is to select the members of the Voice, there would presumably have to be a race-based electoral roll determining who could stand for election and who could vote for the Voice’s members. This would give indigenous people two votes: first, like everyone else, a vote for the parliament itself; and second, in a right that’s uniquely theirs, a vote for the Voice. If governments were in the habit of making decisions for indigenous people without their input, or if the parliament were devoid of indigenous representation, there might at least be an argument for such a special indigenous body. As it’s happened though, constitutionally entrenching a separate indigenous Voice when there are already eleven individual indigenous voices in the parliament; and when there’s arguably “analysis paralysis” from a surfeit of indigenous consultation mechanisms already, is a pretty strange way to eliminate racism from our Constitution and from our institutional arrangements.

Second, it would vastly complicate the difficulties of getting legislation passed and anything done. If the Voice chooses to have a view on anything at all that touches indigenous people, that view would have to be taken very seriously by government; indeed, on the Prime Minister’s view, it would be a veto in fact, if not in theory.

Third, in the event that an indigenous person or entity were aggrieved by a government that failed to give the Voice a chance to make representations on any issue, or that then ignored it, there could readily be an application to the High Court to rule that the Constitution had been breached. This is the likely consequence of importing into the Constitution such a vague-yet-portentous concept as a “Voice” (as opposed to one described as an advisory body or a commission) especially one that’s said to be the means of putting an end to centuries of marginalisation. At the very least, the existence of a Voice could import further delay into the finalisation of legislation or decision-making as it’s given adequate time to investigate and come to its conclusions.   

Fourth, the whole point of indigenous recognition is to address a gap in what’s otherwise been an admirable Constitution and, in so doing, to help to complete the reconciliation of indigenous people with modern Australia. There could hardly be a greater setback to reconciliation than a referendum that fails. Yet that is the likelihood—at least based on the record of previous attempts to change the Constitution—in the absence of substantial bi-partisan support. Although the Coalition’s indigenous affairs shadow minister has previously been an in-principle supporter of a voice (and accompanied the Prime Minister to Garma), the new Coalition senator for the Northern Territory, the proud “Celtic Warlpiri Australian” woman Jacinta Price has expressed deep scepticism about a proposal with so much of the detail thus far omitted, with so much potential for ineffective posturing, and that defines people by racial heritage.

The only way the current proposal could succeed would be by playing to Australians’ unease over indigenous dispossession and desire to be on “the right side of history”. Even so, with figures such as Price and the former ALP national president and Liberal candidate Warren Mundine figuring prominently in the “No” campaign, it’s hard to see the Voice winning over a majority of the people plus a majority of the states.

My strong hope is that the government might reconsider the wisdom of putting a proposal that’s problematic in principle, doubtful in practice, and probably doomed to fail. It would be a pity, though, were the whole bid for constitutional recognition to founder because it had become a proposal pushed by activists who sought too much. In my judgment, there is a proposal that could succeed because it passes the test of successful constitution-making: namely, having something for everyone but not too much for anyone.

On quite a few occasions as prime minister, including at a “recognise” dinner in December 2014, I described Australia as having “an indigenous heritage, a British foundation, and a multicultural character”. These days, because multiculturalism is a contested concept, I’d prefer to substitute the term “immigrant character”. My inclination, back then, depending on how the consultations had developed, would have been to propose an amendment to the constitutional preamble, so that it would henceforth read, “Whereas the people … humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble federal Commonwealth, with an indigenous heritage, a British foundation, and an immigrant character, under the Crown … and under the Constitution hereby established”.

The amendment would add words that were self-evidently true; that had the potential to speak to everyone, whether descended from indigenous people or the latest arrival; that provided a good short-hand description of Australia; and that could hardly be mischievously judicially mis-applied to interfere with the processes of governing. It also had the advantage, I thought, of building on Noel Pearson’s concept of the “pillars” on which modern Australia rests; with the degree of emphasis that might be given to each one of them a matter for individual choice.

It would actually be the strength of such a proposal that it would be symbolic change only; because any change that went beyond that would inevitably involve much more than recognition itself and become a change to the way Australia is governed. That’s precisely the current difficulty: the quest for recognition has evolved into a demand for this entirely novel governmental entity that, it’s implausibly claimed, would both make a big difference and yet be no big deal; combined with the palpably false claim that indigenous people currently have no say over governmental decisions that affect them.

Of itself, the change I had in mind would not solve the issues bedevilling indigenous Australia. It would still be up to the wisdom of government and the initiative of individuals to raise indigenous life expectancy, to increase educational attainments and to boost employment prospects. But of itself, neither is grafting an indigenous voice onto the parliament going to get the kids to school, the adults to work, and the ordinary law of the land applied in remote communities. Indeed, there’s a paradox here: at the very time when the Prime Minister says that a constitutionally entrenched indigenous Voice is the government’s highest first-term priority, the government is seeking to pass legislation abolishing the cashless debit card against the express wishes of several key indigenous leaders in the communities where it has helped to reduce alcohol-fuelled violence.

Especially if a Voice turns out to be largely the preserve of activists from the big cities, it’s far more likely to be a permanent echo chamber for grievance than a mechanism for reconciliation and a better life for indigenous people. The likely result won’t be one Australian nation but a country where the descendants of the original inhabitants have a privileged position over everyone else whose local roots go back no further than 1788.

I can understand why indigenous leaders would want constitutional change to go beyond the symbolic in order to produce better outcomes for their own people; and hence the call for their own unique Voice to which the parliament should defer. But better outcomes are ultimately the product of better attitudes; and these are more likely to be engendered by a generous acknowledgment of all the elements that have made modern Australia such a special place than by creating yet more elements of government based on indigenous ancestry.

If against the better judgment of many who have studied the Voice proposal as it currently stands, it should prevail at a referendum and be incorporated into the Constitution, it will be the duty of every Australian to make the most of the new situation. Against expectation, perhaps it would turn out to be the kind of forum where indigenous people of goodwill respectfully debate the issues that particularly impact them—and not a forum for point-scoring, grandstanding and grievance-mongering; perhaps it could, after all, become the kind of forum that all Australians might wish our parliament to be. We can but hope.

It’s just that, based on what we know, the Voice is wrong in principle, almost sure to be bad in practice, and unlikely to succeed in any referendum. If it fails, reconciliation is set back. If it succeeds, our country is permanently divided by race. Hence the fundamental question: why further consider something that would leave us worse off whichever way it goes?

Part Two: Vote “No” to a Voice That Divides Us

The Prime Minister’s emotion in March was understandable, talking about the indigenous Voice to parliament, because a better deal for indigenous people should be a key part of our national project. All of us want to close the outcomes gap between the First Australians and everyone else; and almost all of us are happy to see indigenous people recognised in the Constitution. So a sense of occasion was entirely fitting.

But the challenge is to find a way of doing this that doesn’t divide Australians by race and end up making an unsatisfactory situation worse. And the risk is that an abundance of goodwill might lead voters to support a change that turns out to be much more than they thought.

There are much more straightforward ways to recognise indigenous people in the Constitution than via a Voice. One would be to insert into the preamble, right after “one, indissoluble federal commonwealth” and before “under the crown”, these new words: “with an indigenous heritage, a British foundation and an immigrant character”.

The advantage of doing this would be that it’s indisputably true, has something for everyone, and would become a good one-line description for the country we love. Another would be to insert an acknowledgment into the Constitution that the continent and islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples, using the words of the Recognition Act of 2013 that the parliament passed without dissent.

Something with a touch of poetry would be better than a dry acknowledgment of the facts, but either would well round out an otherwise serviceable Constitution and do justice to an Australia that is so far beyond past prejudices that, without the need for any reverse discrimination, we now have eleven individual indigenous voices in the national parliament.

Let’s be clear that it’s no longer just constitutional recognition that many indigenous leaders now want and that the government is proposing to give. They’re seeking a mechanism to overcome, in Senator Pat Dodson’s words, “the tyranny of our dispossession”, as if history can be undone.

“Recognition” and “consultation” are the sales pitch for the proposed Voice, but the intention is to regain the sovereign power over the future direction of the country that they think was wrongly taken away two centuries ago. The proposed constitutionally entrenched voice to both the parliament and to the executive government is about restoring at least some measure of the sovereignty the government thinks Aboriginal people unjustly lost from 1788 onwards.

By giving the Voice a right to make representations to both the executive government (including the public service) and to the parliament on anything “relating” to indigenous people, and by requiring all the arms of government to seek “early advice” from the voice in the preparation of laws and policies, this change would mean that almost nothing could happen without substantial indigenous input.

Maybe the Voice wouldn’t be the “third chamber of the parliament” Malcolm Turnbull originally called it; or the “fourth arm of government” (after the executive, legislative and judicial arms), as some lawyers have said. But it would certainly be a massive disturbance to the way we have been governed; a form of co-governance, in fact, where the representatives of the 4 per cent of Australians with indigenous ancestry have a constitutionally guaranteed special and extra say over the governance of everyone.

This is very far indeed from the “modest” change the Prime Minister claims it is. It’s actually by far the biggest constitutional change we have ever been asked to make. It’s not just adding to the powers of the federal parliament but actually changing the way we are governed.

And by declining to have a constitutional convention to tease out all the implications; and by failing to provide the sorts of accompanying detail about how the voice might operate and be selected (as sought by the opposition); and by failing first to establish the Voice by legislation (as the government could under existing constitutional powers), so everyone could see how it worked in practice before making it “forever” in the Constitution, Anthony Albanese is rushing us into making what will be effectively an irrevocable change with vast ramifications.

As the Prime Minister’s language indicates, he wants the referendum to carry on sheer moral force. He thinks the inherited pain of dispossession for indigenous people and the inherited shame of dispossession for the rest of us (even though nearly all indigenous people have both dispossessed and dispossessing ancestors, and even though none of us can be responsible for what happened more than a century ago) creates a virtual obligation to make amends in whatever form indigenous leaders want.

Even if this Voice really would still the “whispering in our hearts” (making us “feel better about ourselves”, as the Prime Minister puts it) and enable all Australians to go forward, fully reconciled to each other as equal citizens in the best country on earth, the racial distinctions inherent in it would hardly be justified. But almost the first items of business for the new voice, which—remember—can be proactive as well as reactive, are likely to be hyper-contentious: such as questioning the date of Australia Day, seeking treaties between the Commonwealth and our 300-plus “First Nations”, and seeking additional payments for the use of land and water by way of reparations or compensation for past exploitation.

This is hardly a prescription for “bringing the nation together”. And as quite a few legal experts (notably Greg Craven) have noted, any failure to give the Voice adequate notice of proposed laws and policies, to resource it properly, or to fully take its advice into account is likely to lead to action in the High Court, with the potential to add exponentially to the tardiness and imprecision of government decision-making.

Even if it would finally remedy the near failed state that remote Australia has largely become, it could hardly justify the unequal treatment inherent in such a change. But instead of facilitating on behalf of remote indigenous people the jobs, education and housing prospects that most Australians enjoy, it is far more likely to entrench the separatism that is the root of the dysfunction. Different (and invariably lesser) outcomes are the inevitable consequence of the different expectations about schooling, working and living that any Voice, especially one dominated by activists, is almost bound to reinforce.

By so irrevocably committing the government to the maximalist indigenous agenda, albeit with the best of intentions, the Prime Minister has set us up for tragedy. Instead of sticking to the achievement of constitutional recognition (as is all but universally supported); and instead of implementing the Voice through legislation (to be adjusted or even ended as needed, as other indigenous bodies have been), he is forcing us to choose between our goodwill for indigenous people and our wariness towards a Trojan horse in the heart of our Constitution.

Getting indigenous kids to school, indigenous adults to work and keeping indigenous communities safe are more important than a form of recognition that would turn out to be both divisive and counter-productive.

I’d prefer to avoid the moral scorn that will be directed at all Voice critics. But in the absence of an eleventh-hour prime ministerial change of heart, it’s absolutely necessary that Australia vote No.

Part Three: Even Watered Down It’s Still Wrong

Because Voice supporters are worried that the referendum might fail, they’re now arguing among themselves about whether to water down their proposed change to our system of government.

A constitutionally entrenched indigenous Voice that was only to the parliament would certainly be less radical a change. But it would remain just as unnecessary given that there are already eleven individual indigenous voices in our parliament. And it would be no less wrong in principle. 

Any special Voice, for some but not for others, especially a Voice based on ancestry, would still mean that we are no longer one, equal people. It would still be an affront to the ideal of constitutional equality even if it were a Voice only to the parliament, and only on laws specifically relating to indigenous people. It would still mean two classes of Australians: the few, whose ancestry here could be traced back some 60,000 years; and the many, whose ancestry in this country dates only from 1788; with the few given a special right to influence legislation over and above that accorded to the many. It would still mean that some people, based on the length of their links to this country, would get a special say over how they were treated compared with that accorded to everyone else.

And it would still be a change to the way we are governed, rather than the simple recognition of indigenous people in the Constitution that almost everyone supports.

The pro-Voice voices now calling for the Voice to be changed, such as Mick Gooda, Julian Leeser and Father Frank Brennan, can see from the polls that Australians are waking up to just what a far-reaching change the current proposal is. 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 that it can do nothing of substance without first obtaining a measure of indigenous consent.  

Indeed, that’s precisely what Voice proponents want: a Voice that can’t be ignored or shut up, says Professor Megan Davis; a Voice that will have its remit determined by the High Court, says Professor Marcia Langton. But a Voice whose powers are ultimately decided by the unelected High Court, and a Voice that exerts an effective veto over government, especially a Voice that might end up selected through an opaque and undemocratic process that can change from community to community, is hardly a Voice that people would vote for, which is why only a few of its proponents are honest about what they want it to be.

Then there’s the growing realisation that the Voice is just the first demand of the Uluru Statement from the Heart, to which the Albanese government is committed “in full”. There are also treaties between the federal government and the 300-plus indigenous “First Nations” who supposedly never ceded sovereignty, plus “truth telling” to counter the view that Australia’s history is something to be proud of.

Those wanting the Voice to be watered down, from the current fourth arm of government, to a constitutionally sanctified advisory body to the parliament (and perhaps also to ministers too) think that this might allay fears that this is really a power grab by indigenous activists masquerading as constitutional recognition and that it might make it easier for the federal parliamentary Liberal Party to drop its opposition to the Voice.

The Voice modifiers are decent people who are understandably worried about the bitterness that a failed referendum could engender, hence their eagerness to make it more acceptable. But the Voice opponents are decent people too, also worried about the bitterness of a failed referendum, just not enough to acquiesce in a dud change that should have been better thought through from the start.

Whether they’re pro or anti Voice, none of the current proposal’s critics deserve the vitriol that Noel Pearson has directed at them. Instead of providing the prophetic leadership of which he is sometimes capable, Pearson’s bullying of everyone who dares to disagree illustrates just how divisive this Voice of his would be, should it come about.

A Voice that could make representations to a much more limited range of entities and that had the effect of its representations clearly defined would certainly be less of a potential disruption to the work of government. But while it would be less bad in practice it would still be wrong in principle; and in my judgment, it would be a huge mistake to say “yes” to something that’s wrong in principle out of relief that it could have been worse.

Whether it’s a Voice to the whole of government or just to the parliament, it could hardly be more at odds with what we used to tell ourselves about our country: that each and every one of us, male or female, black or white, old or young, immigrant or native-born, rich or poor, religious or not—provided there was a commitment to Australia—were all first-class citizens with the same rights and responsibilities.

We don’t give a special Voice to women, or to migrants, or to people with disabilities, even though the parliament sometimes passes laws that particularly refer to them, and even though they, too, have sometimes not had the fair go from our system that they deserve. Likewise, we can’t give a special Voice to the first Australians without establishing a hierarchy of descent; or indeed, a pecking order among all the victims of history.

Seeking an eleventh-hour compromise will hardly allay people’s misgivings, just reinforce them and confirm that the Liberal Party was always right to say “no”.

The Hon. Tony Abbott was Prime Minister of Australia from 2013 to 2015. The first part of this article is an extract from Beyond Belief, edited by Peter Kurti, published by Connor Court in 2022. The second and third parts were originally published in the Australian in March and May this year respectively.