The Voice

A Shapeshifting Creature Inside the Constitution

At lunch the other day, one of our number, who knows a thing or two about constitutional law, of which to say I know little embellishes my knowledge, made the point that the Voice would be an unusual addition to the Constitution. It would not in fact create anything. It would simply insist that something of no definition whatsoever must be created by the Parliament. I chose the word unusual. In fact, bizarre is more apropos. Here is the Prime Minister’s suggested form of words for insertion into the Constitution:

♦ There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.

♦ Aboriginal and Torres Strait Islander Voice may make representations to parliament and the executive government 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 the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

What this says, bizarrely, is that an undefined body must be created which, in fact, needs no constitutional amendment to be created. The plot thickens. The Parliament already has the power. Albo could go for it tomorrow. Section 51(xxvi) – as amended in the 1967 referendum — allows the Parliament to make laws for “the people of any race for whom it is deemed necessary to make special laws.” So, why the need for the referendum?

It’s said that its insertion into the Constitution would prevent its disbandment. But it wouldn’t. Not effectively. The Parliament could disband any existing Voice and replace it with something of entirely different makeup, structure and delineation of powers, any time of its choosing. Of course, the High Court might intervene. There’s a rub I’ll come to later.

Consider the Senate. Part II of the Constitution has no less than twenty-three clauses of varying lengths, dealing with the makeup and structure of the Senate. Part IV deals with the qualifications and rules of conduct for members of both Houses. Part V deals with the respective powers of both Houses and the procedures applying if the Houses disagree with one another. There is nothing much left to the politics of the day, or to whim or whimsy.

The Senate can’t be disbanded and replaced with a different type of similarly named creature. It is a well-defined creature of the Constitution. If the insertion of the Voice into the Constitution is to be meaningful, then it too must be well-defined. Its makeup, structure and powers clearly set out. Otherwise, what is the point? It becomes an empty, shapeshifting vessel. Apart from anything else, its inclusion in such amorphous form would do a grave disservice to the standing and integrity of the exacting document which is the Constitution.

I mentioned the High Court. This is a time bomb waiting to go off. In short order, the Voice would neither be a creature of the Constitution nor of the Parliament. Judges these days are a law unto themselves. For instance, in the case between the Commonwealth and the ACT in December 2013 on the matter of same-sex marriage, the Court found in favour of the Commonwealth. Concluding that Commonwealth law overrode ACT law in respect of marriage (Section 51 (xxi). Well and good. But then, quite unnecessarily, the Court found that marriage could include persons of the same sex. This opened the door to legislation amending the Marriage Act in December 2017. Millenia of convention and tradition overturned and, to boot, biblical authority. There is no doubt that courts will progressively lean further woke, left and green. Think of the lawyers pouring out of woke universities in the last thirty years. To assume the Voice would be non-justiciable is simple minded; jejune in spades.

Incidentally, I also mention the same-sex marriage case because it illustrates how the lack of a definition of marriage within the Constitution – everyone thought that they knew what it meant until five minutes ago – led to the subversion of the foundation of civilized society. Namely, marriage. For the avoidance of doubt, the institution from which children issue and wives and husbands become nurturing mums and dads.

There’s a lot of talk about the need for detail about the Voice. Even from those like Peter Dutton, who should know better. First, asking for detail gives credence to the principle of having a constitutional Voice. In other words, there is no point in seeking detail unless you agree with the principle of dividing Australians by race; and in the very document which sets out how Australia is governed.

Second, the detail being asked for is usually related to the legislation which will animate the Voice. That is not to the point. Legislation can be changed at the whim of the Parliament. The detail needs to be in the constitutional amendment. Otherwise people are being asked to vote for a pig in a poke, even if they know what the legislation will initially look like. Mind you, even if the detail is spelt out in the Constitution; as I’ve said, no one knows quite where the High Court will eventually take things.

It’s pity that the matter has got so far that any debate is entertained, including the one here in which I’ve engaged. I mean, what next? A constitutional provision to insist that the Parliament establishes a body of aged Australians to make representation on matters relating to aged Australians; a body of sick Australians to make representation on matters related to sick Australians; a body of Muslim Australians to make representations on matters related to Muslim Australians? Now, isn’t that latter piece of idle speculation something to conjure with? Balkanisation has lots of potential directions and dimensions.

17 thoughts on “A Shapeshifting Creature Inside the Constitution

  • pmprociv says:

    Spot on, Peter. It’s sickening to think so many presumably intelligent and well-informed commentators and public figures are blind to this, the first step in dismantling our nation. After all the hard work that’s gone into setting it up . . . at least it was good, showing lots of promise, while it lasted.

  • Peter Marriott says:

    Insightly covered Peter, particularly regarding Mr. Dutton and his weakly asking for more detail when his very first action should be to aggressively attack and ridicule the whole thing. All the detail could fit on the back of a postage stamp…..which is how they want it, preferring to rely on pure sentiment and emotion.
    The games afoot with this whole business and the only approach should be attack and ridicule, and what makes it worse, the PM is on record as stating he’s always got along very well with Mr. Dutton. This from a left wing member of the Labor Party as well, surely an old copper like Dutton must smell a rat……he’s having the wool pulled over his eyes….. I suggest.

  • john.singer says:

    What is an Indigenous voice?
    We do not have a definition in the Constitution of “Indigenous”
    We have up to now Citizens who were born in Australia and those born overseas who became citizens by contract (Naturalization). All these fit comfortably into the categories of Indigenous and non-Indigenous, the former having a small subgroup of citizens with inherited Aboriginality. However if you allow that subgroup to capture the definition you firstly leave the greater number of citizens with no classification other of the outmoded and non-inclusive “Currency Lads” and Currency Lasses”. and secondly (and dangerously) by claiming a 60,000 year heritage as first Peoples and First Nations to being Indigenous Australians you expand the definition to include ALL peoples of Sahulian descent. Further by including the Torres Strait Islanders who are known to be a different race to mainland Aboriginal people, you further destroy any semblance of clarity and distinction in the expression “Indigenous Australian”.
    The Constitution is no place for the creation of legal vagary.

    • Lawriewal says:

      Thank You john.singer for your very well expressed, important comment.
      Why is it nobody wants to identify who are the “indigenous” we spend so much money and time on?
      I comment occasionally in the Australian and I can guarantee if I mention this fact the comment is rejected. And do NOT even mention DNA tests!!!!
      So not only do we not identify the “indigenous” we must not seek to do so!
      Equally as worrying to me is the fact that there appears to be acceptance that it is OK for the indigenous to self identify as such.
      I strongly recommend that if Peter Dutton (wrongly) keeps on seeking details he should take note of john.singer and ask:-
      What is an Indigenous voice?

  • brandee says:

    Peter Marriott, indeed Peter Smith has covered the issue insightfully. but your comment on Peter Dutton does not recognise the limitations placed on him by the appeasing Scott Morrison and the zealotry for recognition by shadow Attorney General Julian. And the pro-Voice Julian Leeser is also Dutton’s shadow Minister for Aboriginal Affairs believe it or not.
    Lord love him but Julian Leeser needs a Road to Damascus conversion or else the Liberal Party preselectors in his electorate of Berowra must toss him out quickly [if the rules allow it].

  • Rob H says:

    All the senior levels of the Liberals are “big tent” Scott Morrisons who let the polls or the media determine what they think about anything. The acceptance of Malcolm Turnbull into the Liberal party after he was rejected by Labor and then to still not toss him after all his destructive behaviour since losing as PM says it all.

    Dutton is just one more example of a politician who has never had a job, started a company, had employees or in other words lived in the real world. None of them are worthwhile.

    • john.singer says:

      Sorry, but Peter Dutton worked in a Butcher shop, became a Policeman and then built a large child care business before becoming a politician. Never-the-less his performance as leader is too mild compared with his performance as a Minister.

    • Michael says:

      And, let’s not forget that Malcolm Turnbull set up the process that led to the 2017 Uluru Statement from the Heart.

    • lbloveday says:

      “Dutton is just one more example of a politician who has never had a job”
      Nonsense, unless 9+ years as a Police Officer is not a having a job.

  • Stoneboat says:

    Thanks Peter. The idea should been given the boot from day one.
    “ Millenia of convention and tradition overturned and, to boot, biblical authority. “
    Point of order: it’s Biblical authority from the capital G God.

    • lbloveday says:

      Peter is unlikely to think Wikipedia is the authority on this (or anything!), but they don’t capitalise:
      “In Christianity, the term biblical authority refers to two complementary ideas”,
      and elsewhere:
      “Bible/ biblical

      1. Capitalize Bible and all nouns referring to sacred texts.

      2. Lowercase the word biblical and other adjectives derived from names of sacred texts.
      CORRECT: He didn’t have sufficient biblical evidence for his supposition, though he did reference two fairly long Bible verses.

      While capitalised in the title:
      Biblical Authority: The Critical Issue for the Body of Christ
      Holman Bible Publishers / B&H Publishing
      Not so in the precis:
      The subject of biblical authority is the most critical and sensitive issue facing the evangelical Christian world today.

  • DougD says:

    “To assume the Voice would be non-justiciable is simple minded; jejune in spades.” Even if the proposed Voice details statute says Voice issues are non-justiciable, that will also be jejune in spades. Unless, that is, the High Court accepts that parliament can, for the first time, tell it how it must interpret a promise in the Constitution, here, that the Voice ” may make representations to parliament and the executive government etc” But Albanese won’t accept the need to include non-justiciability in the Constitution itself. Why? He or his Solicitor General must know that allowing the courts anywhere near the Voice will ensure either paralysis in government or having to give in to the Voice’s purely “advisory” black-mail to keep government moving. And it’s not just parliament but the executive government also that will be paralysed by litigation. The executive government includes the ministers – Constitution sec 64 – and all civil servants – sec 67. Think of the range of decision-making by civil servants. that the Voice will be able to control by the threat of litigation.

  • Brian Boru says:

    Dear Peter Dutton and members of the Liberal Party,
    political opposition parties have a vital role to play in a democracy because they can put forward better alternative policies in reasonable debate to the benefit of a nation. When it comes to the debate on the “Voice” in our Constitution you and your party appear to be just fence sitting instead of giving a lead in this matter.
    Australians believe that everyone should be judged on what they say and do, not on the colour of their skin, their religion, who their ancestors were, where they come from or what wealth they have. We are a nation of migrants from the first to the last of us and we want equity for all and unity as one people, not divisions into classes. Many of us or our forebears have come to Australia to escape just this kind of prejudice or persecution.
    Australians believe in a fair go for all regardless of who they are. If people need help, it should not matter who their ancestors are but rather that help should be given on the basis of need.
    The “Voice” is a racist concept, contrary to the sentiments of Australians. It will only lead to division and apartheid. If you have the Australian sentiments I mention above and aspire to be a statesman or stateswoman, please get off the fence and show a lead.

  • Michael says:

    I’m pretty sure this is the first referendum to propose a new Constitutional institution. So the key issue will be its relationship to the other Constitutional institutions, the Governor General, the Senate, the House of Representatives and the High Court, the Executive Government. That will, and will always be, the critical and contested issue. It is a unique feature of this referendum. And, abhorrently, it is proposed that this new institution be based on race, or in Langton’s re-wording, clans and language groupings. It is a total anathema for a modern, multicultural, democratic nation. We are citizens, Australians.

  • Farnswort says:

    ‘Oppose it on principle’: Andrew Bolt clashes with Peter Dutton on Voice to Parliament –

    • Brian Boru says:

      Thanks for that YouTube link. I was going to say that Peter Dutton must have splinters in his bottom from sitting on the fence. I now think he might have also damaged or even eliminated another vital part of his anatomy.

Leave a Reply