The Most Insidious Defect in the Voice’s DNA

Well, so much for Parliamentary supremacy. Even while it is still in the womb, the Voice has exercised its first veto.

Over the past few weeks there have been suggestions the proposed referendum question should be watered down to allow the Voice to make representations Parliament but not the Executive government.   This discussion has emanated from concerns expressed by both No advocates and some Voice supporters, notably Professor Greg Craven. 

Apparently Attorney-General Mark Dreyfus had proposed some additional wording which purported (wrongly in my view) to ameliorate or eliminate the problems associated with allowing the Voice to intrude into even the workings of the bureaucracy.  And the Solicitor-General apparently proposed that ‘Executive government’ be replaced with ‘Ministers of the Crown’.  That would not have solved the overarching constitutional issues but it would have lessened the extent to which the Voice would have the power to completely infiltrate, and clog up, the workings of government.

But events have turned out just as I predicted here:

But the fact is, Albanese will not be permitted to water down the question to only provide advice to Parliament even if he wanted to.  It is the referendum working group, dominated by Prof Marcia Langton, which will draft the final question.  And there is no way they will remove the provision of advice to the executive government, as was revealed in an interview Langton did with the ABC. 

These proposed compromises would not, in my view, overcome the fundamental and in-principle problems with the Voice, but they would have helped shore up support among what I suspect is a considerable number of waverers.  Given that this referendum has history against it – and is, despite what Albanese says, the most radical change the Constitution will ever have been asked toendured – you would think that Albanese would be amenable to any suggestion that lessens the risk of failure.

He has received serious advice from his Attorney-General and Solicitor-General and has rejected it so as not to antagonize the Referendum Working Group.  That sounds like a veto to me.  And can we expect the progeny of this unholy cabal – this Rosemary’s baby if you like – to be any more reasonable or accommodating to government.  Albanese himself already said it would be a brave government that ignored the Voice. Here is the proposed wording:

“A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.

Do you approve this proposed alteration?”

The Prime Minister’s proposed amendments to the Constitution are:

“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:

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 the Parliament and the Executive Government of the Commonwealth 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 Strait Islander Voice, including its composition, functions, powers and procedures.”

Ideally, a provision in the Constitution should not be over-prescriptive – it should offer room for reasonable interpretation in the face of evolving social and political imperatives.  But neither should it provide carte blanche to the Parliament.  Such a provision relating to the Voice should, as a bare minimum, specify its basic functions, how its members are to be selected, and constraints on its powers.  It would then be up to Parliament to prescribe the procedures – certainly not the functions and powers – under which it will operate i.e., to come up with a working model.  

The wording above falls a long way short. 

We often hear the refrain ‘If the government can make laws for Aboriginal people, then we should have a say in the framing of those laws.  That’s only fair’.  That is one of the more simplistic justifications for the Voice, nonetheless its very simplicity gives it some force.  It is based on a false premise, as I shall show. Nonetheless, it is a proposition that will appeal to many people.   However, the proposed referendum question does not accurately reflect this sentiment.  All laws affect Aboriginal people.  Are they then to have an extra say in laws that affect the general population?  That is what the above wording suggests.  That would be patently unfair.  The wording above should be amended to say that the Voice may make representations ‘only on laws relating exclusively to Aboriginal and Torres Strait Islanders, i.e., those enacted under Section 51(xxvi) of the Constitution’.

And putting the Voice in its own Chapter, rather than including it within “Chapter VII – Miscellaneous”, undoubtedly establishes it as a political constitutional entity on a par with the Parliament, the Executive and the Judiciary

But the most egregious omission, for me, is that a provision in the Constitution that references, or rather preferences, a certain group of people must make it clear beyond doubt who those people are.  If the current criterion – self-identification – is applied, that would open up a can of worms.  We need to know who exactly qualifies as an Aborigine and how those persons establish their bona fides. For example, would any degree of Aboriginality in one’s ancestry qualify?  If so, then the Aboriginal population can only continue to expand indefinitely — expand to the point where this will become less about disadvantage and more  about entitlement.  If not, then where is the cut-off?  Is it 50 per cent aboriginality? 25 per cent?  12.5 per cent?  Wherever it is set, someone is going to be aggrieved.

If this issue is not adequately addressed in the referendum question itself, that alone should be a deal breaker.

I cannot stress this enough.  It cannot be left to Parliament, or worse the High Court, to define, expand or contract this demographic at whim.  If the Voice goes into the Constitution, then it must be the Constitution (by means of a referendum) that defines and redefines – over time and as necessary – who is an Aborigine. 

I will expand further on these points and others in my forthcoming book The Indigenous Voice to Parliament – Don’t Risk It, to be published by Connor Court in the near future.

In conclusion, I return to my initial point, today’s events have consigned to the grave the notion that the Voice will not exercise a veto.