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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.
“If not, then where is the cut-off?”
.
Good question Peter. The answer is there is no cut-off because the Parliament gets to decide the composition of the body called the Voice. Both you and Bruce Pascoe could be eligible if Parliament so decided.
Peter,
I agree, Albanese is set on wasting our time in preference to helping to run a vibrant economy. The racist decisive proposal is already framed in confusion. Our Constitution does not mention or define a “First Peoples”. Who are they? Are they the people who lived in the colonies before 1901 Federation or those who lived at and immediately after Federation?
Either way, they’re all dead now so is the voice a cemetery for our ancestors?
What next will Albo and his loopie progressives come up with?…. A voice inclusion for Vauxhall 4WD vehicle owners who were neglected and downtrodden in society and never recognised in the Constitution ?
Vote NO before Albo starts balling again… what a pathetic representative sook he is.
And I don’t understand how you can have two “First Peoples” The ancestors of today’s Torres Strait Islanders settled the region much, much later than the ancestors of today’s Aborigines. They are relative newcomers so they should be classified as “Second Peoples”. The British and Irish constitute the Third Peoples,” the Chinese the “Fourth Peoples’ and then you have the other Numbered Peoples, the Germans, Greeks, Italians,etc.
Phillip,
The proposed wording is confusing by three counts;
(1) “There shall be a body, to be called …..” What does ‘body’ mean in this context?
(2) The proposed question does not say you have to be of aboriginal blood to be on the third floor. It only uses the term ‘First Peoples”, whoever they are. ?!? Can any citizen be nominated to this body?
(3) The suggested wording does not attend to the merits of qualifications of electors to this body.
I do hope Albo gives more detail to better inform me on ‘composition, functions, powers and procedures’. If I do not know that information then I can only assume Albo does not know either, therefore I cannot give him a considered answer.
Oh damn it, I’ll just have to Vote NO just like every good Aussie aboriginal citizen of the Arbëreshë people, ethnic indigenous Albanians should.
The simple answer is not one about our genetic makeup but the one the constitution covers us all be we any colour under the rainbow, that and the voice given to us through our elected parliamentary members, some of whom are aboriginal.
What is proposed by Albanese seems to me too clever by half. Here is the only question he wants people to vote upon:
“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?”
By itself, that question is likely to attract wide support.
Then if that question attracts sufficient Yes votes, it looks like what are called “The Prime Minister’s proposed amendments to the Constitution” will automatically go into the Constitution without the need for any further vote.
If, however, the question to be voted on was should these provisions be included in the Constitution:
“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”
people may very well not be keen to vote Yes to that.
Exactly, DougD. The Albanese wording is deceitful from first to last: a referendum question that is vague and unthreatening paired with an actual constitutional change that is an unworkable certainty of gridlock.
My favourite early case will be the ‘voice’ opposing a solar farm or a transmission line easement, urgently required by AEMO attempts to keep the electricity grid functioning as we try to keep the global climate no more than 1.5 degrees warmer than the Little Ice Age.
The first peoples of Australia were all the British Subjects resident in one of the 6 Colonies as at midnight on the 31 December 1900. and the became Australians (the FIRST Australians) one minute later.
@John Singer
Indeed – ‘first’ peoples were all those here on 31 December 1900.
This was the point my alarm bells rang.
Lying and deceitful – he didn’t mean us at all!
He meant the aborigines here in 1788. – actually he thinks they were the first inhabitants.
Really good point.
Peter has nailed the two major flaws in this proposal outside the underlying principle that no race-based insertion into the constitution should ever be made a priori. Firstly, to what laws affecting Aboriginal and Torres Strait Islander peoples does this refer and secondly to whom does it apply, in other words who qualifies as Aboriginal.
Last night on Chris Kenny’s program we saw how he has let ego blind his usual capacity for critical thinking. In a dialogue that commenced with him outlining how it was the dissenting voices of Covid hysteria that have ultimately been proven right and vindicated, in which he counts himself, he segued into the newly reworked working groups proposed referendum proposal, stating that the bulk of constitutional experts are of an opinion that it is sound’. Yeah right Chris, like the bulk of so called medical experts and associated representative bodies didn’t also back into the hilt lockdowns and vaccine mandates! He arrives at this position through an assumption that is itself inherently racist – that Aboriginal Australians somehow exist in a parallel legal framework to all other Australians. That is to say that if one truly believes that the voice will only make representation on a select few pieces of legislation that apply to Aboriginals and Aboriginals only, (as if they existed in a legislative silo) then lay out what these pieces of legislation are. If Kenny is not prepared to do so our cannot limit that list, then it is reasonable to conclude that the voice will make representation on all legislation, as ultimately Aboriginals, like all other Australians, are implied as Australian citizens (Even when born overseas and having never sought citizenship as the High Court ruling on Love and Thoms demonstrated) in all pieces of legislature. This will have the effect of either rubber stamping the Aboriginal Voices’ special elevated input, above all other racial groups into all laws in Australia or alternatively bringing executive government and parliament to a standstill if this input is not agreed upon or contested, likely because it will be inherently racially prejudiced.
As to the second point as to who this Voice applies to, well that is a dogs breakfast that will descend further and further into the dark alley of racial profiling that was meant to be risen above by the original civil rights project.
Identity politics is inherently toxic. It will always ultimately pit one group against another.
The fact is, Chris Kenny cannot see this because his (considerable) ego is triggered by the fact that he participated in the original working group on the Voice. He may be on the right side of history on Covid policies and AGW alarmism but his reasoning is fatally flawed on this issue. On the other hand Peter O’Brien has seen right through it!
I must tell my grandchildren that if The Voice gets up, the legal industry is the one with unlimited potential for growth. Time and time again we have seen that if there is the remotest possibility of any legal challenge to any legislation on any issue, activist ‘human rights’ lawyers ensure that it runs all the way to the High Court. The Hindmarsh Island Bridge comes to mind. No doubt the legal profession are already planning their next luxury yacht.
‘The Voice’. If you say it enough times, sounds like a Lefty newspaper.
The utter banality of it all is perhaps the most noteworthy feature of these developments. Freedom of thought and speech are dead, the federal Attorney General has made that clear. Voltaire, apocryphal or not: never heard of him. The penalties for “misinformation” in the referendum campaign remain to be seen but will surely prove enlightening.
Albanese’s Australia, the latest Weimar republic. Paul Keating (and thereby Beijing) is laughing. Who believes for a second that The Voice will tolerate nuclear submarines. The Premier of South Australia, for one, should take note. If the death of democracy in Australia were not so serious the means of it would, indeed, be cause for unbounded hilarity.
I’ve just watched this and wonder what it means in the shorter term
https://youtu.be/tsEMe69A7KQ
I’m guessing Labor will say its fake … but they would, wouldn’t they?
The question of who is eligible is not defined neither are the terms of how those privelidged few will be elected/selected.
By election of a favoured demographic this “body” could easily be used to represent the interests of political margins.
Rather than an indigenous voice it would more resemble a woke voice to parliament.
A radical arm of left wing power forever entrenched in the workings of our democracy.
I agree with Peter that the “most egregious omission, for me, 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.” In the UK situation, if you have a British grandparent, you can put up your hand for British citizenship. It’s very clear, and is based on family relationships, not race. Defining people by race for constitutional purposes was tried in South Africa under Apartheid and it went down like a lead balloon, particularly with those classified as “coloured” some of whom I have met here in Australia after they had migrated. This racial classification system split families, as some could pass as “white” and got more benefits and cut themselves off from their blood relatives. Their other “beef” was the health system there, where you had three separate hospital and ambulance systems to cater for the 3 classifications. In Australian cities we now have separate health facilities (optional) available for Aborigines, i.e. people whose kids went to the same schools as our kids, played in the same sporting teams, got jobs in the same organisations etc and suddenly the main hospital(s) are not catering for their needs? How must the race-neutral health professionals in the main hospitals feel if the implication is that Aboriginal patients are not welcome in a local hospital because of their race? It’s disgusting, and racist to imply that health professionals treat Aborigines differently from other patients. The idea of “self-identifying” as an Aborigine, as Peter says, would open up a can of worms. Perhaps they could get some tips from the archives in South Africa? That was a roaring success, wasn’t it?
He makes this other relevant point about the activists’ justification for a “Voice” , viz: “We often hear the refrain ‘If the government can make laws for Aboriginal people , then we should have a say in framing those laws. That’s only fair.” In 1967 we were told we had to have powers in the Commonwealth Constitution to make laws for Aborigines in order to be able to override existing State constitutional powers that could lead to discriminatory legislation passed in the States. The obvious solution was for the States to remove such race powers from their Constitutions and the Commonwealth to do like wise (e.g. s.25 and s.51(xxvi)) so there would be no race based powers in any of the various Australian constitutions and we would all become equal citizens.
In a presentation (Papers on Parliament No.57) in February 2012, entitled “Mick Dodson ‘Constitutional Recognition of Indigenous Australians’” he said, inter alia, the following quotes: “There are two highly offensive provisions in our Constitution and one is section 25, which gives Parliament the power to disenfranchise members of a particular race and the other is subsection 26 of section 51, part of which was repealed in the 1967 referendum to remove reference to Aboriginal natives. …… that power has never been used to discriminate against members of any other race. It has only been used to discriminate against Aborigines and Torres Strait Islanders. ….. Should we just repeal section 25? …… Should we repeal subsection 26 of section 51? I say yes….”. I agree with Dodson on the above proposal, but that’s about the only time I would, as he is a force behind the “Voice” which, if passed will be a disaster for the nation, in my view. It’s no good deleting the above Commonwealth sections without doing the same for the States. As far as I can make out nobody in the Media or Governments is addressing the issue of the States’ ability to initiate race based legislation such as we see today with States introducing their own versions of the “Voice” , Aboriginal “parliaments” as in Victoria and seeking to have “treaties” with people who say they are Aborigines. Why are the States not being scrutinised for their apparently racist constitutions?
Surely in a Westminster democracy every citizen should have exactly the same rights in terms of Government access and interaction. The Voice gives exceptional and additional rights to a tiny minority of Australians and is therefore undemocratic. The fact that it is racist and also betrays our constitutional rights just makes it more of a disaster.
Here’s an irony. Although the Voice referendum question is racially discriminatory in its purpose, in its actual wording it is non-discriminatory regarding the membership of the membership of the body to be known as the Voice, and regarding the means of selection of that body’s members. To be more specific:
• If the referendum succeeds, any honkey will be constitutionally entitled to be a member of the Voice, even ones who have no more Aboriginal DNA than Bruce Pascoe or me — which is to say, none. Genetic aboriginality, or even pretended genetic aboriginality, will not be constitutionally necessary.
• The referendum question allows membership of the Voice to be decided by any method which the Federal government at any given time wishes and enshrines in statute law. The question puts no restrictions on the classes of persons or of institutions to which the government can delegate the power to choose members of the Voice. Thus if the referendum succeeds, a future Federal government could delegate the choice of the members of the Voice to, for instance, the Federal cabinit itself; or the Prime Minister alone; or even the vociferously pro-Voice Board of the Collingwood Football Club, without thereby violating the Constitution.
In reality, of course, if the referendum passes what its wording in truth requires or permits will ultimately count for nothing, since the justices of the High Court will, over time, deem it to mean or imply whatever pleases them.
Having read “Bitter Harvest”, I look forward to your new book Peter. I am currently reading, “Finding the Heart of the Nation,” Thomas Mayor and would appreciate some analysis in a future Quadrant article.