Bennelong Papers

Entrenching a Divided Australia

It is not unusual for laws and policies, although well-intentioned, to have the opposite effect as that contemplated by the legislators. I was recently reminded of this platitudinal observation when I read an announcement of a seminar which will be held in Perth on February 18, 2021, on “A Divided Australia?” The participants will be discussing the federal government’s promotion of social justice issues, especially the role  Aborigines might play in our system of government.

The trigger for the seminar is the preparation by the Morrison government of legislation to establish a First Nations Voice in Parliament. The Voice would be a standing consultative body which would advise government on laws and policies affecting Aboriginal people. The legislation is the government’s response to the recommendations made by an Aboriginal National Constitutional Convention held on May 17, 2017. This gathering resulted in the release of a document, the Uluru Statement from the Heart. The document proposes the establishment of a First Nations Voice in Parliament to empower Aboriginal people, and the establishment of the Makkarrata Commission to supervise a process of agreement-making with Australian governments and oversee a process of truth-telling about Australia’s history.

Importantly, the Statement envisages the incorporation of the Voice in the Australian Constitution. While legislation for the establishment of the Voice is well under way, the government has not accepted the recommendation to enshrine the Voice in the Constitution. This is not so much a rejection of the Statement’s recommendation, but more an acknowledgement that, in accordance with section 128 of the Constitution, any amendment to the Constitution requires a mandatory procedure to be followed.

The proposal to establish the Voice is seriously flawed, for a variety of reasons. First, any legislation providing for the establishment of the Voice inevitably involves the granting of special privileges to one group merely on the ground of the race of its members. The distribution of societal benefits on the ground of a person’s race, which is an incident of birth, makes a mockery of governments’ stated reassurances to create a society where a person’s race is irrelevant. This proposal may also require the drafting of rules to determine group membership, which would lead to intractable problems associated with attempts to prove membership of a group. The sponsors of the Voice may attempt to sidestep this difficulty by arguing that its establishment has everything to do with ‘disadvantage’ which itself may be the result of past racial discrimination. Such an allegation certainly has merit, but it still raises the question why one disadvantaged group, among many, is selected for special treatment.

Second, proponents of the Voice may seek to justify its establishment on the ground that it provides compensation for past societal discrimination.  Although there is no doubt that Aborigines were often horribly treated, compensation for past, documented, instances of racial discrimination is problematic because the people who would be asked to provide compensation are those who have never discriminated, and the beneficiaries are those who have not suffered any discrimination. This backward-looking argument also worryingly hides the realisation that the quest to seek compensation involves the assessment of past practices in the light of modern standards. If we test past practices in the light of modern knowledge, then many actions of the past would have to be regarded as immoral and now also illegal, like slavery, child labour, removal of children from their families, corporal punishments, torture, and the imposition of discretionary punishments. We know that these practices are odious examples of violations of human rights, but it is also feasible that people in the past did not realise this or understand the consequences of their actions. This is not unlike the activities of living people, whose actions may well be regarded as retrograde in 50 or 70 years from now. The proposal to seek compensation for societal racial discrimination denies that people have the right to determine the future when they are alive.

Third, the most important objection to the proposal to establish the Voice is that the machinery of government may well be paralysed, at least occasionally, because this new consultative body would need to be consulted by governments before it introduces any new legislation. The requirement of ‘consultation’ raises the question whether it would be sufficient to ask the Voice for an opinion, or whether it must give an opinion. If the adoption of legislation is delayed until the Voice provides governments with its opinion, it could effectively veto legislation by adopting the convenient device of not giving an opinion at all. Hence, the Voice would be able to paralyse the machinery of government. In such a case, the Voice would function as a third chamber, in addition to the House of Representatives and the Senate.

Presumably, the proposed legislation may make it clear that the Voice would only have to be consulted if proposed laws and policies actually or potentially affect Aboriginal people. However, such an argument is disingenuous because all general laws, since they are made for all the people of Australia, potentially impact on Aboriginals. Indeed, it is not appropriate to exempt any racial group from the application of Australia’s general laws.

Fourth, the impact of the proposed legislation on freedom of speech is likely to be significant because it would be risky to criticise the existence of the Voice and the proposals emanating from it. Indeed, critics would almost certainly be depicted as bigoted troglodytes if they were to question the work of the Voice. For too long now, laws have progressively chipped away the free speech rights of Australians. While each restriction may be recognised as a reasonable, even defensible limitation, the aggregated limitations significantly and adversely affect the rights of those Australians who still believe in the power of free speech and its importance for the maintenance of a vibrant and prosperous society. Perhaps, even the writing of this opinion piece may well be described as a xenophobic exercise whereas, in reality, it is only an invitation to effectively implement the principle of equal opportunity and remove all barriers that may have been placed in the path of a person’s legitimate ambitions.

It is appropriate to end with a view expressed by Keith Windschuttle, who has recently argued in Quadrant that “The historical grievance expressed by the Uluru Statement of the Heart could never contribute to reconciliation or a more unified nation. It is bound to have the opposite effect.”

Gabriël Moens AM is Emeritus Professor of Law at The University of Queensland. He recently published his debut novel on the origins of the Covid-19 pandemic, A Twisted Choice

12 comments
  • Macspee

    Maybe its time to define, for the purposes of obtaining benefits and having a special voice, a person as aboriginal who has no more than one non-aboriginal ancestor. There will be wailing and gnashing of teeth.

  • Greg Williams

    Well these days it seems you can define what the allocation of chromosomes to your body is, simply by saying I define myself to be male/female. I guess it won’t be long before you can define what your DNA is as well. Or if you don’t like being a Scorpio, maybe. you will be able to redefine as a Pisces simply by changing your birthdate. I guess if the whole of Australia redefines itself as of aboriginal descent, then the problem goes away.

  • DougD

    Professor George Williams, arguing in The Australian on 1 February for the Voice to be entrenched in the Constitution said:”As a constitutional amendment, the Voice would be more than an advisory body … It would provide a long overdue structural mechanism in our democracy for Indigenous peoples to have a direct say on laws made for them.” Even if the Voice is contained only in legislation that a government could repeal, but only in practice, with bi-partisan support, it will give the representatives of Indigenous peoples a powerful means of dictating to government, A statutory duty to consult the Voice before government can act requires more than a mere show of courtesy by government before it can take action. A statutory duty to consult before acting may well lead to litigation [publicly-funded for both parties] that will be used as a lever to force a government that needs to take action to bow to the demands of the Voice. As was said in Bannister Quest v Australian Fisheries Management Authority by the Federal Court: “There are many examples where legislation has imposed a duty on administrative agencies and on persons holding particular offices to consult, before acting, with persons and organisations likely to be affected by decisions proposed to be taken by them. Such a duty to consult will ordinarily involve more than the decision-maker telling interested parties what it is going to do; it will usually require the decision-maker to give information to those others and an opportunity to them to respond. The duty will also require the decision-maker to consider the responses and to take them into account, to the extent it considers appropriate, in arriving at the ultimate decision.” The opportunities a duty to consult will give the Voice to delay government are prodigious. Just how complicated litigation over whether a duty to consult has been complied with is illustrated in Gondarra v Minister for Indigenous Affairs also in the Federal Court.

  • wdr

    I do hope that if it comes to having a national plebiscite on entrenching an Aboriginal Voice, that there is a serious movement to oppose it. Many Quadrant readers would certainly join an Opposition movement. I suppose that if Income Tax rates are raised, the Aborigines will have a veto power over whether this applies to them. We should be so lucky.

  • Stephen Due

    Aboriginal activists and other proponents of the Voice want to institutionalize the division of Australia by race. They want to establish a permanent, structural, racial divide in this country. That is to say, they want to make Australian government inherently racist.
    We already have an abundance of legislation and policy in this country based on the Aboriginality, real or supposed, of some citizens. We already have to put up with the racist Aboriginal flag being flown beside the Australian national flag outside government buildings, the implication being there are two nations on Australian soil, not one.
    Far from setting this abysmal situation in constitutional concrete, a rational and moral government would condemn the Voice for what it is – a divisive and unjustified innovation.

  • lhackett01

    At the risk of belabouring my point, in support of those who are concerned about the ever increasing empowerment of Aborigines at the expense of all others, read my paper “Aborigines, the Constitution and the Voice” at https://www.scribd.com/document/458064355/.

  • Necessityofchoice

    As someone who lived in South Africa in the early 70’s, I can identify this proposal as the love child of Apartheid.

  • Harry Lee

    Look and you will see that anti-White-ism is surging in the USA and UK.
    In those countries, anti-white campaigns are being encouraged by the political Left, the Leftist mainstream media, and by Big Tech, and is rampant in the education systems.
    Plus, public sector departments/agencies are going full-pelt in promoting low-capability non-whites to high-power positions.
    White-created money is being shoveled to non-whites, and non-white violence, including murder, rape and other criminality is being ignored.
    It is all there to see, if one looks.
    So yes, Australia is subject to our versions of anti-Whiteness.

  • Harry Lee

    To lhackett01:
    I have read your article, and send you my respect for your excellent scholarship and for publishing factual, valid information that can get a chap into big trouble in these Days of the Great Idiocy.

  • Gordon Cheyne

    “Beyond this point lies sites of traditional significance to Aboriginal People”
    “Lies sites”?
    Is that the grammar of The Voice, or just English as a second language?

  • Harry Lee

    The proposition that Aborigines have unpleasant lives due to the white presence is obviously false.
    In normal times it would be considered as an empty thought.
    Sure, we are not in normal times -we are in the time of Anything Goes.
    Anything goes, as long as it can be used to endorse the transfer of wealth from white productive people to people of any origin, creed, or colour, who want their unproductive life-styles to be paid for others.
    And who else but the Big Statists -of any origin, creed, colour, with primary allegiance to any anti-Westernist foreign or transnational political force- to engineer such transfers.
    Must understand:
    The ALP and the Greens are enemies of the Western traditions that made Australia a going-concern.

  • Elizabeth Beare

    The Voice is just another ATSIC (Aboriginal and Torres Strait Islander Commission). It will become equally as unrepresentative, nepotistic, riven and corrupt as that organisation became before it was disbanded.

    The Federal Parliament represents all of the people who have the right to vote. Aboriginal people have a voice with their vote just as any other citizen or citizenry group does and they have made their voice heard by using this vote as they see fit, just as other groups have. Nothing else is needed except a revision of old policies of almost bottomless monetary assistance which have produced a culture of welfare dependence. A major policy shift should be done in consultation with community representatives within the affected communities, not by the recommendations of activist aboriginals in the urban areas who are ignorant of many of the problems – as Jacinta Price, who comes from these remote communities, has written about recently in The Australian. Education and employment and movement into larger townships where opportunities are greater would be good things to concentrate on.

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