The Voice

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 14th 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

24 thoughts on “Good Intentions Meet Ardent Innocence

  • Ceres says:

    In 2019 Chris Kenny was all aboard as one of 19 included in a group with aborigines such as Noel Pearson and Marcia Langton selected by then Minister Ken Wyatt to design the process for an indigenous voice to Parliament. A voice that Wyatt said would not be constitutionally enshrined. Ha ha.
    How things have changed and we ain’t seen nothing yet if this thing gets up due to an apathetic populace following “the vibe” and who tremble at being called “racist”.
    Jacinta, Atsic, apartheid, and Albanese’s words about it taking a brave Parliament to ignore the Voice recommendations, should be all it takes to reject it but sadly in these crazy times, I doubt it.

  • Ceres says:

    Should have added the eleven aboriginal members already in Parliament to Jacinta etc.

  • Adelagado says:

    Just a thought. Has ‘The Voice’ been registered as the name of a political party yet? If so, by whom?

  • Brian Boru says:

    Good to see this rebuttal by Peter, butt what a pity the Nationals didn’t reject the Voice on fundamental principles.
    Some slogans for what is coming and which should be used to educate all Australians.
    Vote NO to racism.
    Vote NO to more bureaucracy.
    Vote NO to community division.
    Vote NO to apartheid.
    Vote NO to a racial Voice.

  • Blair says:

    As a descendant of British, Irish and Scottish settlers who arrived in the 1870s and Irish and English convicts who arrived in the 1830s and “40s, where’s my “constitutional recognition”?

  • Petronius says:

    The claim that the native peoples of Australia “never ceded sovereignty” is a retroactive declaration of independence: it follows that those who subscribe to the declaration have symbolically renounced their links to the Australian Constitution. They are notionally stateless as far as they are concerned. For these stateless denizens to seek to change the Constitution to form a representative advisory chamber is duplicitous and acting in bad faith. There should be convention of indigenous leaders to cede their presumed “ancient sovereignty” and recognise the sovereignty of the Australian Commonwealth and its Constitution.

    • Peter OBrien says:

      Hello Petronius, I would argue that Aborigines explicitly ceded sovereignty when they overwhelmingly lobbied for and voted for the Constitutional change in 1967. The descendants of those people cannot now rescind that cession, other than by revolution. In which case we have every right to proscribe any people and organisations that push that line.

      • Petronius says:

        I agree Peter O’Brien — but these kind of contradictions abound everywhere in “Aboriginalia”. They are just riding the postmodern wave for muddying the waters of truth. What would happen if the first motion passed in the new indigenous assembly was to declare its status as representative of a sovereign “blak” nation. There would be countless idiots who would go along with it. So let’s sort out the sovereignty question before any referendum.

  • Ian MacDougall says:

    As a woke activist (as distinct from a somnambulent passivist) I nonetheless intend to vote against ‘the Voice.’ And if it should get up, as on present trends it will, I intend to claim Norweigianality and start campaigning for representation of myself, and other descendants of Norweigian ancestors, for a Voice to the Norweigian Parliament; no matter how thin the Norweigian component of our blood may be on an individual-by-individual basis.
    The mother of my maternal grandfather was a Norweigian, by the maiden-surname of Neilsen. I was told this fact by his wife my grandmother, who went to church regularly and was not given to lying; about anything (except her age, which she gave as 87 when she was actually 93.) That should be evidence enough, though I am prepared to provide DNA evidence if required.
    I expect PM Albanese and the Norweigian Embassy to do everything they can to support my campaign, and as well Noel Person (sic) Chris Kenny, The Australian from behind its paywall, Marcia Langton, maybe Sky News and very definitely old Uncle Tom Cobbley and all.
    Norway, here I come.! (Some I know of would say ‘good riddance.’)

    • STD says:

      It definitely would not be good riddance, Ian- after all, you are QOL’s ,
      our Climate Change Clown- you keep us all sane.
      You are, a very articulate smart cookie, absolutely no doubt about it, it’s just that you have a screw loose and are unhinged when it comes to your internal nostrums regarding the weather, leave it to the people at met office, they are very cool people who’s forte is non fictional.
      May I recommend a good dose of Professor Ian Plimer, a table spoon of ‘Heaven and Earth’ ,should clear your scouring.
      There are very good reasons why Ostriches have their heads buried ( rooted in the ground) because the narrative of and in climate none sense can but only speak for itself.

      • Ian MacDougall says:

        STD (or whatever your real name is.) You say: “May I recommend a good dose of Professor Ian Plimer, a table spoon of ‘Heaven and Earth’ ,should clear your scouring.”
        May I recommend my 5-part review of ‘Heaven + Earth’ to be found at and passim? It might provide you with some clearance of your own.
        As it happens, I am currently working on a review of Plimer’s latest foray, his Green Murder (Connor Court Qld, 2022.) So watch for it on my blog at the link above: ‘Noah’s Rainbow Serpent.’
        Good night, and good luck.

        • STD says:

          Ian H n E is chock full of real data ,it can only be refuted if one does not want truth. Thanks for the kind offer ,however one thinks that scouring through garbage is a sure fire way to contract consumption.
          U2 best of luck with your endeavours.

  • john mac says:

    The left would call Kenny a broken clock on this issue . Can he not see the evidence before his own (all of our) eyes the breakdown of society , the division and the escalating violence from not just the Indigenous here in Oz , but Africans throughout the west? The more we have admitted guilt (not yours truly) the more money thrown at them , the more ubiquity in ads , propaganda and policies has only served to make them angrier , full of righteous indignation , which will never end ? They are talking reparations in the US states California and NY (of course) in the vicinity of $200,000 plus per black . And rest assured that will spread here there and everywhere . This is one of too many Trojan horses civilisation must deal with , the bankruptcy from climate madness, another virus , the race and gender hucksterism, the “Cashless society” ,facial recognition, road revenue raising , the Oxfordshire project – coming to your council soon ! and Govt activism on private property all with the sanction of the WEF and facilitated by the vast bureaucracies in place spell doom for the west I’m afraid . Glad that I’m over 60 so as not to grow up in Orwell’s 1984.. But sad and beyond disappointed in the collective stupidity of humanity .

  • STD says:

    Good work.
    Don’t worry about Kenny, he is just making sure that SKY is not at face value anyway, perceived as being unprogressively biased and discriminatory, there are good odds on the Voice for that very reason,
    We all know the Voice is the first step on the yellow brick road that will lead to the eventual breakup and redraw of the Australian states.
    The Aboriginal flag hints at this, it is a socialist (red) inspired Aboriginal (black) takeover of Australia that will end with a myriad of autonomous Indigenous ‘welfare’ (cowards who shun the idea of working and contributing to the benefit of the entire society and its culture) states at its heart.
    I know it sounds heartless, however, sadly this the truth.
    Ps, did Kenny rock the boat on Pell, publicly?

  • RobyH says:

    Thanks Peter. Brilliant article.

  • GG says:

    No Aboriginals were not “dispossessed of their sole occupancy” because they did not have “sole occupancy”. Multiple disparate tribes, most of whom wished to destroy the other, did not constitute “sole occupancy”. Therefore there was no single representative with whom the new arrivals could negotiate. The concept is moot.
    No Aboriginal children were “stolen” at any time in our history,. This is a vile falsehood, and deemed so by the Federal and High Courts of Australia on multiple occasions. The hate-speech of the “stolen generations” false narrative is where it belongs: in the garbage.

  • Michael says:

    The Constitutionally enshrined voice is about creating an indigenous representative body and a supporting bureaucracy that would be a de facto government for a quasi-independent indigenous nation that would have a treaty-governed relationship with the Commonwealth of Australia.

  • Francois Stallbom says:

    I am from Southern Africa. Australia runs the most sophisticated apartheid system in the world. Go figure!

  • Ian MacDougall says:

    Francois Stallbom: I spend a fair bit of time in rural Australia, where there has been apartheid running for years. And for whatever reason, it all comes from the Aborigines, not from the non-Aborigines.

  • Ian MacDougall says:

    The local Aborigines live in houses in the same streets of our town as the Non-Aborigines, (NAs; referred to by Aborigines as ‘Gubbas’) yet refuse to engage in any NA socal activities. If a NA attempts to converse with an Aboriginal kid in the street, the kid’s parents will intervene straight away and remove said kid from the scene.
    In another town I know about, rivalry between Aboriginal skin-groups is intense, with members of one skin-group refusing to talk to members of any other such group they consider ‘inferior;’ to them. I have this from a part-Aboriginal relative who is a resident there.
    Once on my travels, I met a ‘full-blood’ Aborigine, who was very proud of his ‘full-blood’ status, and let all and sundry know about it. But he was himself just-married to a white woman, so the ‘full-bloodedness’ of his family line ends with him.
    Virtually all people who identify as ‘Aboriginal’ these days, save a minority living in remote tropical Australia, have some non-Aboriginal ancestry. Many of them could pass as ‘whites.’
    See my and others in the series for elaboration on this.

  • vicjurskis says:

    Good onya Peter, It’s a circus. U don’t need great intellect to see that an aboriginal flag and an aboriginal voice are bs. The flag is just stupid. The voice is racist and the concept of first nations is ridiculously oxymoronic. Australia became a nation in 1901. Fairdinkum blackfellas and whitefellas gotta get together and save us from the rainbow watermelon climate crazies.

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