Good Intentions Meet Ardent Innocence

Chris Kenny must be feeling pretty much under siege at the moment.  Alone among the conservative commentariat, he supports the Aboriginal Voice to Parliament.  The others, every one of them, is vehemently opposed.  As if that wasn’t enough for him to contend with, Noel Person and Marcia Langton have come out and shown the true colours behind this odoriferous proposal.  Kenny has been strangely silent on the subject since then.  Perhaps he is having second thoughts.

Nonetheless, an article he had in last Weekend Australian deserves a response. In that article (paywalled) he has taken great umbrage at the Nationals for coming out and opposing the Voice.  He takes issue with the apparent contradiction of National’s leader David Littleproud stating some time ago that there was not enough detail and then subsequently opposing the Voice before that detail was forthcoming:

It is contradictory and disingenuous to proclaim a proposal is vague and lacking sufficient detail for proper assessment but then to oppose it, before that detail is presented, on the basis that it is bureaucratic, unrepresentative and ineffective. This is what the Nationals have done on the Indigenous voice under their leader, David Littleproud.

There is some merit in that criticism because what Littleproud should have done was to oppose embedding the Voice in our Constitution in principle. Kenny also says:

Public support for the voice is strong. Despite the best efforts of some, the idea does not generate fear among most voters and there is every chance the referendum will succeed – with or without the Nationals.

The logic here seems to be that the Nationals should get on board because ‘public support for the Voice is strong’ and they need to make sure they are, to use a phrase I despise, ‘on the right side of history’.  That is a species of logic Kenny routinely rejects in most other matters, most notably catastrophic anthropogenic global warming.

There are two elements to this proposal, the Voice itself, and its place in our Constitution. The Voice could be legislated today, based on what has been outlined in the Indigenous Voice Codesign Committee Report issued in July 2021.  Broadly it would establish an advisory body consisting of 24 members elected or appointed from within 35 regional councils. The first thing that needs to be considered is how effective would this Voice be?  Kenny argues:

Part of Littleproud’s argument this week was that there had been too little consultation with Indigenous people about the voice structure and that Indigenous communities in regional and remote communities needed to be heard in Canberra. Given this is the aim of the voice proposal, his words could well have been voice advocacy rather than denunciation.

It was under the Morrison Coalition government (in which Littleproud was a cabinet minister until six months ago) that a detailed co-design process was under­taken. This was for a legislated voice, to be sure, but three committees of mainly Indigenous representatives consulted thousands of Indigenous people across the length and breadth of the country, producing detailed recommendations about a structure or local, regional and national voices, and noting the strong preference among Indigenous Australians for such a project to be enshrined in the Constitution.

The first point to emerge from the above is that the objection of the Nationals is primarily about embedding the Voice in the Constitution because that is what all the debate is currently about. The apparent support of the Morrison government for the Voice was predicated on it being legislated only (as Kenny points out).  So, there is no, in principle, volte face in the Nationals opposing the proposed referendum.

The second point is that the Coalition opposition is not, in any case, bound by decisions of the former government.  It can change its policy position. Clearly Jacinta Price has been able to convert the Nationals to her point of view, probably because she alone had the courage and the credentials to state vehemently what, probably, many of them already believed in their hearts. Kenny says:

It would be a great pity if the impressive Price, who came to parliament primarily as a voice for grassroots Indigenous Australians, allows her career to be framed forever over opposition to a broader Indigenous voice.

Instead she could have been a constructive figure, ensuring the voice is as practical and representative as possible. The Nationals have now counted themselves out of the public debate in a premature and unwise fashion; Littleproud’s scattergun justifications made that clear.

Kenny professes to be a friend and admirer of Price and yet, here, he seems to be suggesting that she should abandon her principles just to be on that ‘the right side of history’ and to preserve her political career.  That does not show much respect for his friend.

As to the Nationals dealing themselves out of the debate, that is just nonsense.  Here Kenny seems to be suggesting that the Voice is a fait accompli and the only real debate is about the details.  If they oppose the Voice – be it legislated or embedded in the Constitution – in principle, which I believe is now effectively their position, they have every right to also point out its flaws in a practical sense, when the detail finally emerges.

As to the effectiveness of the Voice in overcoming genuine disadvantage, imagine a scenario in which the local community supports something such as an alcohol ban or a cashless welfare card – i.e., grassroots advice – but the Voice opposes it because it is deemed by some discriminatory or ‘racist’.  That is a highly likely result of a national body comprising 24 members, developing advice based on the input from 35 Regional Councils spread across Australia, representing a demographic as widely diverse as the Indigenous population of Australia.  In fact, we have seen that outcome already.  There will inevitably be a diluting effect on the advice that originates from the most affected region, by the time it is issued by the national body, which will inevitably be dominated by the Aboriginal Industry’s educated urban activists.  This effect will be magnified by the tribalism that infests indigenous politics.

This Voice will not be an insubstantial edifice.  It will require a secretariat for the national body and one for each of 35 regional councils. They will require premises. There will be salaries for staff, the cost of elections, allowances for delegates, publication of official and promotional material, websites, commissioning of reports and studies, national and overseas fact-finding missions, attendance at international conferences and so on. The cost, however constrained initially, will inevitably blow out.  And, significantly, this infrastructure will be replicated at state level as well, providing, if nothing else, a useful source of employment for legions of indigenous Australians. 

Normally, establishment of such a large bureaucracy would require a cost-benefit analysis. Has this been done? I suspect not. We can argue about the details of the Voice and agree to await further clarification, but the one critical detail that is missing is any empirical evidence beyond feel-good rhetoric that this Voice will improve the lives of any Aborigines, other than those who jump on board what Senator Jacinta Price describes as the ‘gravy train’.  What compelling difference is there between this proposal and all the other advisory bodies that have gone before? What is there to convince us to dispense with the tried-and-true notion of ‘try before you buy’? 

Kenny’s contention that the Voice is the best way to get grassroots advice to the parliament flies in the face of the lived experience of state and federal parliaments. Kenny also says:

Price made a better case about wanting to avoid another level of bureaucracy, but her claims about not wanting to be “governed” by a “race-based” body is just plain wrong and typical of the inflated rhetoric being used to drum up antipathy.

Kenny may be right to say that Jacinta Price would not be ‘governed’ by the Voice if it remained legislated, although I am by no means sure of that.  What I am sure of, however, is that Price and every one of us would be governed by the Voice if it were in the Constitution, as it would form a permanent part of our nation’s governance structure. We are not governed just by Parliament.  We are also governed by a myriad of bureaucratic agencies and courts implementing, interpreting and overseeing laws and regulations enacted by parliament. 

Kenny often says on his Sky News Kenny Report that he understands many of his viewers (the large majority, I would imagine) don’t agree with him but that it’s good that we should debate the matter civilly.  His rhetoric about ‘inflated rhetoric being used to drum up antipathy’ flies in the face of that noble sentiment. He professes to put forward a reasoned argument in support of the Voice.  His opponents don’t.  They just drum up “antipathy”. He goes on to say:

Some Liberal conservatives will want to follow the Nationals’ lead while others, and the moderates, will want to seize the chance to differentiate from their Coalition partners, support the voice and demonstrate the party is pragmatic rather than anachronistic. There is already a push within the party to allow a free vote on the issue.

Despite his own rhetoric, Kenny is so convinced of the righteousness of his case that he cannot ascribe any motive to opponents of the Voice other than a red-necked reactionary response.  He does not seem to accept that they may be driven by conviction.

Would these ‘pragmatic conservatives and moderates’ of which Kenny seems to approve would likely be the same pragmatists that support radical climate action, oppose nuclear power and acquiesce in all manner of woke ideology such as gender fluid theory?  You know, the ones he excoriates regularly on Sky News for acting “pragmatically”. He tells us:

You have to choose your battles. And the Coalition is not short of areas where it needs to sharpen the contrast with Labor.

This is a culture-war battle, the type of battle that, were it centred on any other topic, would have Kenny’s full backing.  He just happens to differ with most conservatives on this one.  Doesn’t mean he’s right.

Part of Littleproud’s argument this week was that there had been too little consultation with Indigenous people about the voice structure and that Indigenous communities in regional and remote communities needed to be heard in Canberra. Given this is the aim of the voice proposal, his words could well have been voice advocacy rather than denunciation.

It was under the Morrison Coalition government (in which Littleproud was a cabinet minister until six months ago) that a detailed co-design process was under­taken. This was for a legislated voice, to be sure, but three committees of mainly Indigenous representatives consulted thousands of Indigenous people across the length and breadth of the country, producing detailed recommendations about a structure or local, regional and national voices, and noting the strong preference among Indigenous Australians for such a project to be enshrined in the Constitution.

The three committees must have missed Yuendemu, one of the most dysfunctional remote communities in the land.  Yuendemu elder, Ned Hargreaves, no friend of Jacinta Price, claimed on 9 News recently that they had not been consulted on the Voice and did not understand it.

Kenny also brushes over the concerns regarding judicial activism, as expressed by Janet Albrechtsen in a powerful article in The Australian .  He states that these concerns – i.e., concerns about judicial activism – have been dismissed by former High Court chief justices Murray Gleeson and Robert French, former High Court justice Kenneth Hayne, ‘not to mention a raft of other constitutional law professors’.  As Albrechtsen observes, ‘well they would say that wouldn’t they’. Would Gleeson have given us Love and Thoms, I wonder?  If yes, then he is very much himself an activist judge.  If no, then what faith can we have in his assurance that High Court justices would shun activism?

One of those constitutional law professors Kenny relies upon is Macquarie University Law School’s Dr Shireen Morris, who in September in a debate on Sky News, argued that ‘Aborigines were explicitly excluded from the Constitution’.  That is flat out wrong. Let’s not put too much faith in constitutional experts either.

Kenny repeats this falsehood:

Without getting bogged down in semantics, it is important to understand the voice is not race-based. The push for an Indigenous voice is not based on racial characteristics or assumptions; rather, the nation’s original inhabitants need a voice because they were specifically excluded from the Constitution initially, have been subjected to specific laws and policies, were found under law to have inherited special rights to native title and the like, and they remain, as a cohort, the most disadvantaged group in the country.

Bear with me while I address in some detail this pernicious and now apparently widely accepted, claim.  In using the words ‘explicitly’ and ‘specifically’, Morris and Kenny can only have been referring to the original Section 51(xxvi) or Section 127, as these are the only sections that explicitly refer to Aborigines.  Section 51(xxvi) did not exclude Aborigines from the Commonwealth or the Constitution.  It merely excluded them from the class of people for whom the Commonwealth could make special laws because that was the responsibility of the states.  As British subjects, resident in Australia at the time, Aborigines were subject to every other provision of the Constitution in the same way that white people were.

As to Section 127, repealed in 1967, it only constrained government from counting Aboriginal people in ‘reckoning the numbers of people of the Commonwealth or a State or other part of the Commonwealth’.  This has been interpreted to mean that Aborigines were not to be included in the census.  This is almost certainly wrong.  To begin with, Section 127 was an outlier, lacking context, and placed right at the end of the Constitution in Chapter VII Miscellaneous, rather than being included as a proviso to Section 51 (xi), which gave the Commonwealth power to legislate regarding census and statistics.  It is much more likely that Section 127 was a general provision designed to prevent the states from overstating their populations, by including estimated numbers of bush Aborigines, in the context of Commonwealth/State financial arrangements in relation to the apportionment between the states of surplus revenue from customs and excise.  Rationalising the imposition and management of customs and excise was one of the major drivers for Federation and one of the major sticking points that had to be resolved. Section 25 contains similar wording to Section 127.  It says:

For the purposes of the last section, [which concerns representation in the House of Representatives] if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

Section 25 was based on the 14^th Amendment to the US Constitution, which was designed to penalize those states that, after the Civil War, did not enfranchise their Negro residents.  It was intended to have the same effect here in relation to, inter alia, Aboriginal people. It clearly contemplates a universal franchise, including Aborigines.

Section 127 had nothing to do with denying citizenship to Aborigines, as is widely believed.  This is a good example of the risk of unintended consequences flowing from poorly drafted constitutional provisions.

The preamble to the Constitution states:

Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland and under the Constitution hereby established.

In 1901, the Aboriginal men of New South Wales, Victoria, Tasmania and South Australia (SA included Aboriginal women as well) could vote for the colonial parliaments.  They were unquestionably part of ‘the people’ and many of them voted for the Constitution.  Those that could vote in state elections, as detailed above, could vote in Commonwealth elections as well.  Section 41 of the Constitution guaranteed this.

If it was intended that Aborigines should be specifically excluded from the Constitution, we would expect to find some discussion on this matter in the proceedings of the Constitutional Conventions.  There is no such discussion.

As to the possibility of unintended consequences, Kenny reassures us:

Remember, there is a failsafe option here. If a voice proved to be irreparably damaging, even after legislative changes by parliament, the requirement to have a voice could be overturned at a subsequent referendum – not a likely scenario, but obvious insurance.

Not a likely scenario?  A snowflake’s chance in hell more like.  And what are the odds that a development that may seem ‘irreparably damaging’ to Kenny – given that he is, in all other respects, a conservative – may be perfectly acceptable to his fellow travellers on their Voice ‘journey’, all of whom have a far broader agenda than Kenny? He concludes:

The voice is a conservative idea to deliver a fair go to Indigenous people, and to ensure Indigenous aspirations to constitutional recognition are realised in their preferred practical way, rather than through mere symbolism. If it is implemented effectively, run diligently and embraced widely, it just might help make a difference.

If the Voice is a conservative idea, why is it not being lauded by such credentialled conservatives as John Howard, Tony Abbott, Andrew Bolt, Peta Credlin and Greg Sheridan, to name but a few? 

Not everyone supports the idea of symbolic recognition.  And, in any case, the agenda of the activists is not Constitutional recognition, but power.  They state as much quite openly.  Kenny never talks about ‘truth telling’ and ‘treaty’, the second and third tranches of the Uluru Statement.

What ‘truths’ do we still need to know other than that Aborigines were dispossessed of their sole occupancy of this continent, that they suffered trauma and mistreatment as a result and that there are still vestiges of disadvantage?  These truths are already very well known and constantly aired.  Does Kenny accept the truth of claims that as many as 50,000 Aboriginal children were ‘stolen’ from loving families in order to eradicate the Aboriginal race?  Does he accept the ‘truth’ that 100,000 Aboriginal warriors were killed in ‘colonial wars’? 

The ‘truth’ the activists want you to know is that they ‘never ceded sovereignty’ and that Australia was founded illegitimately.  Once we accept that, we then move on to ‘treaty’.  The Voice is the first step in this process, but Kenny never acknowledges this inconvenient truth. 

You’re on a hiding to nothing on this one, Chris.  Think again and give it  miss.

Peter O’Brien’s latest book, Villian or Victim? A defence of Sir John Kerr and the Reserve Powers, can be ordered here