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Prime Minister Anthony Albanese is leading a ‘small target’ approach to the referendum aimed at enshrining race in the Constitution via an indigenous Voice. He calls it no more than ‘a simple courtesy, a common decency’ — a mere advisory body, if you take him at his word, that will recognise indigenous Australians in our nation’s ‘birth certificate’. He’s hoping Australians buy a bill of goods when he tells us it’s no big deal.
Prominent pro-Voice journalist Chris Kenny, who was a member of the Voice Co-Design Senior Advisory Group, argues that because the Constitution allows the Parliament to make special laws for indigenous people, it’s only fair they have a constitutional right to be consulted about them.[i] Implied is that the scope of the Voice would be limited to legislation involving Section 51(xxvi), the so-called ‘race power’, and perhaps also ‘special measures’ under the Racial Discrimination Act.[ii] Examples would include the Native Title Act, or special rent assistance to increase indigenous participation in tertiary education. Yet Kenny, who has begun to express reservations about the little information so far released about the Voice, may have a wider mandate in mind, as do Voice advocates more generally.
The Langton-Calma report says parliament would be obliged to consult the Voice on a defined and limited range of matters. These are yet to be detailed. There would be an expectation of the Voice being consulted on a wider range of matters based on principles that are, again, yet to be detailed. But Langton-Calma does not limit what the Voice may wish to advise on.[iii]
The wording Albanese proposes for the Constitution is that the
Voice may make representations to parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples.
Minister for Indigenous Affairs Linda Burney talks about matters like health, housing and education.[iv] Even so, it’s not clear whether she means all health, housing and education policies or only those that specifically target indigenous Australians. Other Voice advocates have much longer lists, including criminal justice matters. Foreign Minister Penny Wong’s intention to appoint an “Ambassador for First Nations People” to “embed Indigenous perspectives, experiences and interests into our foreign policy” suggests an agenda for the Voice that is much broader than practical measures to improve indigenous health, education and housing.[v] Will we also have indigenous perspectives on defence, the economy, science, the environment and every other matter? Former High Court judge Kenneth Hayne, for one, views the ambit of the proposed clause as broad.[vi]
Albanese says the scope of the Voice is a matter of detail that will be sorted out by the parliament after the referendum. Others, such as columnist and lawyer Janet Albrechtsen, citing former High Court judges Kenneth Hayne and Ian Callinan, point out that it is the High Court that will decide on the interpretation of ‘matters relating to’ and the constitutionality of any constraints Parliament might place on it.[vii]
Many Voice proponents focus on the claim that it would deliver practical outcomes and help close the gap. For example, Ben Wyatt says governments need a credible source of advice and engagement with the most marginalised to ensure policy is more effective, “to ensure the taxpayer dollar is spent with better outcomes”.[viii] How the Voice would achieve this is nothing if not a mystery. Such Voice advocates have diagnosed the problem as a lack of good advice from indigenous people about their needs and how they should be addressed. The Voice, apparently, will bring to light some profound new insights or delivery mechanisms that will transform the situation, with ‘empowerment’ a magic cure-all.
Langton-Calma talks of local and regional voices working with existing institutions in a ‘co-design and partnership’ model involving ‘shared decision-making’ with all levels of government. Yet the Coalition of Peaks, an existing body of over 80 indigenous community organisations, says it already works for indigenous communities through partnerships and shared decision making with governments at all levels.[ix] The National Indigenous Australians Agency, with over 1,300 staff, says its focus is on
on working in partnership and place to deliver on programs under the Indigenous Advancement Strategy (IAS). First and foremost, we work with First Nations peoples to share decision making to achieve better outcomes. We also work closely with our Commonwealth colleagues, state and territory governments and peak organisations to ensure a joined-up approach.[x]
We already have organisations taking the sort of approach Langton-Calma claim for their local and regional voices.
Of course, none of this ‘getting advice’ to deliver ‘better outcomes’ requires the Voice to be enshrined in the Constitution. The Parliament already has all the authority it needs to legislate for any advisory or deliberative bodies it sees as necessary or desirable.
Much advocacy for a constitutionally enshrined Voice appears fuelled by resentment that the Aboriginal and Torres Strait Islander Commission (ATSIC) was abolished in 2005 by John Howard’s government with, it should be noted, Labor’s support. It is a key reason for rejecting the option of a legislated Voice. The Australian’s Paige Taylor explains that inside the Yes campaign,
thinking goes something like this: the first time there is a problem with a [legislated] Voice member or the body itself – and that is entirely possible – a government could opt to abolish the body rather than fix it. If the voice was in the constitution, future parliaments would be obliged to reform it in response to scandals or flaws and to suit the circumstances of the day.[xi]
The clear implication is that ATSIC should have been reformed, not abolished. Putting the Voice in the Constitution, rather than legislating it, is a tactic to take abolition off the table once and for all. Albanese says it “means a willingness to listen won’t depend on who is in government or who is prime minister”; a voice, in the Prime Minister’s words, that “cannot be silenced”.[xii]
CONSTITUTIONAL recognition of indigenous Australians came to prominence following the 1992 Mabo land rights decision although it has a longer history. But the then prime minister, Paul Keating, and the Australian Republican Movement, led by Malcolm Turnbull, were wary about it appearing integral to their push for a republic.[xiii] The Constitutional Convention of 1998 and the ATSIC-organised Indigenous National Constitutional Convention supported ‘a Constitutional preamble recognising Indigenous Australians and the fact of their original occupation’. John Howard commissioned poet Les Murray to help draft a new preamble, which was amended through the parliament before being put to a referendum along with the republic in 1999. Both changes were comprehensively rejected by Australians.
Since then, ‘minimalist’ recognition in the preamble has been dismissed by indigenous leaders as merely ‘symbolic’ with the related insistence that recognition must be “substantial” recognition.[xiv] In his 2014 Quarterly Essay, A Rightful Place: Race, Recognition, and a More Complete Commonwealth, Aboriginal leader Noel Pearson proposed that recognition take the form of a new indigenous body to ensure that “indigenous peoples get a fair say in laws and policies made about us”; “to ensure that indigenous peoples have a voice in their own affairs”.[xv] Indigenous leaders also proposed a process of building an indigenous consensus around recognition. In 2015, then prime minister Tony Abbot rejected it, concerned that proposals would emerge from an indigenous-only process that would be unlikely to receive general support. He wrote “I am in favour of building consensus, but strongly believe that this should be a national consensus in favour of a particular form of recognition rather than simply an Indigenous one”.[xvi] Later that year, new prime minister Malcom Turnbull in concert with opposition leader Bill Shorten established a referendum council co-chaired by Pat Anderson and Mark Leibler to, among other things, “lead the process for national consultations and community engagement about constitutional recognition, including a concurrent series of Indigenous designed and led consultations”.[xvii] It culminated in the gathering of indigenous leaders at Uluru in 2017 that produced the Uluru Statement from the Heart.[xviii]
The Uluru Statement talks about ‘indigenous sovereignty never ceded’ and asks for a constitutionally enshrined Voice to Parliament together with a Makarrata process of “truth-telling” and “agreement-making”. Voice, truth, treaty. Morrison’s government supported a legislated approach to the Voice, not one in the Constitution. Linda Burney, however, rejects the legislated approach, saying it “ignores wishes of the more than 1200 First Nations leaders who took part in nationwide consultations that led to the Uluru Statement from the Heart”. We have come to the difficulty Abbott worried about. An indigenous consensus on recognition, not a national one, that Prime Minister Albanese has committed to put to the Australian people and which risks rejection.
But Albanese has not just committed to a referendum on the Voice. He’s committed to implementing the Uluru Statement from the Heart in full: Voice, truth, treaty. And all the while he soft-soaps Australians that this referendum is all about courtesy. That is belied by its status as ‘substantial’ recognition. Marcia Langton says the referendum will determine whether our nation continues to be “founded on colonial theft and brutality” or “a new accord”[xix].
Opposition Leader Peter Dutton has written to Prime Minister Albanese seeking answers to 15 basic questions about the proposed Voice.[xx] One of them strikes me as a serious misunderstanding of what’s at stake in asking whether the Prime Minister will rule out using the Voice to negotiate a national treaty. This query utterly mistakes the situation because Albanese has already committed to implement the Uluru Statement from the Heart in full.
An agreement, a treaty, would be a matter that relates to indigenous people, and it follows the Voice would make representations on it — including, of course, its terms, its acceptability and its implementation.
Right now, before the referendum, Dutton should be pressing Albanese on his plans for the whole Uluru Statement from the Heart, voice, truth, treaty, not just the voice. As former UK Supreme Court judge Lord Jonathan Sumption wrote regarding the Brexit vote, a referendum “must be held after and not before a contingent agreement has been reached on the terms”.[xxi]
Albanese wants the opposite – have the referendum first and, if the Yes case gets up, establish how the Voice will operate. After that, ‘truth-telling’ and, the inevitable treaty.
Make no mistake, the Uluru Statement from the Heart is about creating a constitutionally enshrined indigenous representative body and the supporting governance structures that would amount to a de facto government for a quasi-independent indigenous nation that would have a treaty-governed, co-governance relationship with the Commonwealth of Australia. This referendum is about the very foundations of Australia. Aboriginal leaders know it, and Albanese pretends otherwise. Dutton and his Liberals need to wake up. Albanese is proposing a revolution.
Dr Michael Green has a PhD in Systems Engineering
[i] See, for example, Chris Kenny, “Indigenous voice to parliament embodies fair go paves practical way for reconciliation”, The Australian, 4 June 2022.
https://www.theaustralian.com.au/commentary/indigenous-voice-to-parliament-embodies-fair-go-paves-practical-way-for-reconciliation/news-story/587a0983a3aa61346e19bf476610c1cb
[ii] Human Rights Commission, Special Measures.
https://humanrights.gov.au/quick-guide/12099#:~:text=The%20Racial%20Discrimination%20Act%20permits,students%20is%20a%20special%20measure.
[iii] Australian Government, National Indigenous Australians Agency, Indigenous Voice Co-Design Final Report, (aka the Langton-Calma Report), July 2021.
https://voice.niaa.gov.au/sites/default/files/2021-12/indigenous-voice-co-design-process-final-report_1.pdf
[iv] Linda Burney, The Australian, 16 January 2023.
https://www.theaustralian.com.au/commentary/linda-burney-voice-our-next-historic-and-proud-chapter/news-story/c3ac4c188388141ca1ee1d7fb00cdc5d
[v] Senator Penny Wong Media Release, “Ambassador for First Nations People”.
https://www.foreignminister.gov.au/minister/penny-wong/media-release/ambassador-first-nations-people
[vi] Kenneth Hayne, “Fear of the voice lost in the lack of legal argument:, The Australian, 28 November 2022.
https://www.theaustralian.com.au/commentary/fear-of-the-voice-lost-in-the-lack-of-legal-argument/news-story/9696d03a566d3d946a74b7035175a9e4.
[vii] Janet Albrechtsen, “Get better advice on voice and go back to the drawing board”, The Australian, 21 December 2022.
https://www.theaustralian.com.au/commentary/get-better-advice-on-voice-and-go-back-to-the-drawing-board/news-story/0010a29ede5e3228ddd3261f661f71cc
[viii] Ben Wyatt, “Time for us to vote for the legislation on a voice”, The Australian, 10 January 2023.
https://www.theaustralian.com.au/commentary/time-for-us-to-vote-for-legislation-on-a-voice/news-story/28684bebbe1d4ff6068022dc2200a83e
[ix] Coalition of Peaks.
https://coalitionofpeaks.org.au/
[x] NIAA Annual Report, 2021-22.
https://www.niaa.gov.au/sites/default/files/publications/annual-report-2021-22.pdf
[xi] Paige Taylor, “On the details of the voice, Anthony Albanese’s answers sounded worse than the reality”, The Australian, 18 January 2023.
https://www.theaustralian.com.au/nation/on-the-details-of-the-voice-anthony-albaneses-answers-sounded-worse-than-the-reality/news-story/94af6a6240eb7547da7a933dd571df5c
[xii] Anthony Albanese, quoted by Michelle Grattan in “Albanese releases draft wording for indigenous voice to parliament referendum”, The Conversation, 29 July 2022.
https://theconversation.com/albanese-releases-draft-wording-for-indigenous-voice-to-parliament-referendum-187933
[xiii] Mark McKenna, First Words: A Brief History of Public Debate on a New Preamble to the Australian Constitution 1991-99, Parliamentary Library Research Paper, 2000.
https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/pubs/rp/rp9900/2000RP16#Pre
[xiv] Referendum Council Final Report, 2017, p5.
https://www.referendumcouncil.org.au/sites/default/files/report_attachments/Referendum_Council_Final_Report.pdf
[xv] Noel Pearson, A Rightful Place: Race, Recognition, and a More Complete Commonwealth, Black Inc., 2014.
[xvi] Michael Gordon, “Tony Abbott scuttles Indigenous plan on constitutional recognition”, The Sydney Morning Herald, 3 August 2015.
https://www.smh.com.au/politics/federal/tony-abbott-scuttles-indigenous-plan-on-constitutional-recognition-20150803-giq6bs.html
[xvii] Referendum Council Final Report, 2017.
https://www.referendumcouncil.org.au/sites/default/files/report_attachments/Referendum_Council_Final_Report.pdf
[xviii] Uluru Statement from the Heart, 2017.
https://fromtheheart.com.au/uluru-statement/the-statement/
[xix] Marcia Langton, “Fighting for a Voice”, The Saturday Paper, 7 January 2023.
https://www.thesaturdaypaper.com.au/opinion/topic/2023/01/07/fighting-voice?cid=88257d7c5f40133dfc91932501fc4fa1#mtr
[xx] Peter Dutton, Letter to Prime Minister Anthony Albanese, 7 January 2023.
https://twitter.com/PeterDutton_MP/status/1611919809880666112/photo/3
[xxi] Jonathan Sumption, Law in a Time of Crisis, Profile Books, 2022.
Kenny has lost all credibility. Sadly, Dutton is not far behind him. Dividing a nation based on race is wrong. Period. We all know what the game is here. Let’s not forget the BS about native title. The Voice is every bit as cynical.
1] “Prominent pro-Voice journalist Chris Kenny argues that because the Constitution allows the Parliament to make special laws for indigenous people, it’s only fair they have a constitutional right to be consulted about them.” That’s nonsense.
Sec 51 of the Constitution allows the Parliament to make laws, general as well as special, with respect a lot of matters. Two examples only: Trade and commerce with other countries – so is it only fair that China should have a constitutional right to be consulted about them? And banking – so is it only fair that NBA, Westpac and the other banks should have a constitutional right to be consulted about them?
2] “The Voice may make representations to … the executive government… “ The executive government includes ministers – Constitution sec 64 – and civil servants – sec 67. The High Court has held that a lowly police constable executing a statutory power of arrest was part of the executive government of the NT. On what decisions by minor civil servants will the Voice have the constitutional right to make representations? No possibility of the Voice paralysing a range of government decision-making, is there?
3] “Much advocacy for a constitutionally enshrined Voice appears fuelled by resentment that the Aboriginal and Torres Strait Islander Commission (ATSIC) was abolished in 2005 by John Howard’s government with, it should be noted, Labor’s support.” We don’t need to rely on journalist Paige Taylor.
Indigenous Affairs Minister Linda Burney said in her Nugget Coombs Memorial Lecture in 2019: “Security of the Voice is paramount – that is why the Uluru Statement called for it to be constitutionally enshrined. Because we have seen before how easily the institutional voice of First Nations people has been taken away, by the Government of the day. We all know what happened to ATSIC.”
We certainly do.
HERE IS A THOUGHT.
The Government while Wyatt was the Minister wanted to adopt the Uluru Statement and introduce the “Voice” by legislation as they believed a referendum would fail.
The Albanese Government with Minister Burney agrees with all the submissions of Uluru and of Wyatt’s committees but insists on constitutional change.
WHY?
Well perhaps they got legal advice that suggested that legislating the current plan under the powers of Sec 51 would be struck down by the High Court as unconstitutional because it does not satisfy the conditions of Sec 51. So the only way to get this divisive idea into law and beyond the power of the High Court to prevent it, is to amend the Constitution first, not just to accommodate it, but to prevent future Governments from removing it.
To virtually guarantee the result they have a Bill before Parliament to amend the methods of conduct for this referendum only. This Bill must pass both Houses of Parliament to become law.
BUT don’t be fooled – the Act to conduct a referendum is very different to other legislations. The Act to conduct a referendum and set wording of that referendum can bypass both the requirement to have it approved by the Senate or to even have a majority opinion. That Act can be passed by the House of Representatives where Labor has a majority with only about 31% of the National Vote and an unbalanced State representation and without a 51% support in the Senate (where it can be soundly defeated) it can be voted on for a second time in the House of Representatives and become Law with only another 31% support.
There are great dangers for the Nation in this proposal, there is much more to it than meets the eye, so think very carefully and choose wisely.
Why would the Voice be unconstitutional under section 51
There’s already great sections of Australia which can’t be entered by anyone but the local tribe without a permit. The Voice will just make two countries more of a reality. Vote No!
Michael Green leads, and has stimulated, a very timely discussion.
Peter Dutton has his hands tied somewhat because the Liberals under PM Morrison, and with a decade of persistent advocacy by Federal Member for Berowra, the centre right Julian Leeser, have endorsed in great detail the divisive racial concept. Morrison refused to engage in the culture wars and rather than expose the danger of racial division endorsed the Voice idea of aboriginal Australians having two votes nationally whereas others have only one.
Only very carefully can Dutton take the Party with him while Morrison remains on the shadow back bench and Leeser is prominent on the shadow front bench, but he must do it soon, and pull this brand from the fire.
My understanding, and I’m happy to be corrected, is that any Treaty is going to involve the payment of a percentage of G.D.P – 2.5% – “in perpetuity.” Anyone better at maths than I, able to give some idea of the sums involved?
I haven’t heard that percentage, but happy to do the math. Australian GDP is around USD 1.6 trillion, so 2.5% would be USD 40 billion a year. At current exchange rates (call it 0.70), it’s about $A58 billion a year.
The City of San Francisco has started the ball rolling with its proposal to give every black resident a lump sum payment of USD 5.0 Million with an annual payment of $100,000 fot 250 years (yes).
Reparations and power is the name of this game. The treaty can only involve a payment to the dispossed.
On another matter, Marcia Langton has stated that there will be matters raised by the Voice, which will be obligatory for the parliament to implement. So much for the “advisory” tag.
Regardless if the Voice gets up or not, it seems every State has decided to get their own treaty going – without any consultation of the taxpayer!
Western Australia reached an agreement with the Noongar People, described as a “de facto” Treaty. SEVEN dissident Noongars claimed they hadn’t been properly consulted, and launched court action, derailing the whole process and claiming billions of dollars in compensation.
On the upside, if we are hoping on people’s greed to derail these processes, at least greed is often equal to their stupidity!
Thanks yet again, Michael, for another clearly articulated argument for why we should not go down this crazy, nation-destroying path. I’m glad you mentioned some of those other representative voices already telling governments what to do, for they seem to have been overlooked by all other commentators, both for and against. There are more such advisory groups, far too many to list here, but two that stand out are NACCHO (National Aboriginal Community Controlled Health Organisation) and Empowered Communities (all have very slick websites). It should be noted that Linda Burney is on the Coalition of Peaks, and no doubt is in close touch with at least some of the others. That adds up to a huge number of publicly-funded “indigenous voices” speaking to governments. What additional, possibly useful advice could The Voice offer, without swamping the information overload that must already overwhelm (and intimidate?) our politicians and bureaucrats?
It beggars belief that Foreign Minister Penny Wong could even think about appointing ‘an “Ambassador for First Nations People” to “embed Indigenous perspectives, experiences and interests into our foreign policy”’. You’d think she, of all people, would recognise the racism underlying such a move, implying that (self-identified) indigenous people think differently from the rest of us (each one of us is unique, which is why we have voting systems). It would be the first step towards dismantling the Federation, splitting Australia in two (at least). Imagine the fun foreign powers would have with this — think of China’s “Belt & Road Initiative”. To think that, all the way up to this point, I’d judged Wong to be intelligent, thoughtful and responsible . . .
On Treaty – we must go to Mabo which held that Australia was settled and more importantly NO compensation is payable.
Aboriginals became British citizens – the land the Crowns.
These conversations – the Voice and Treaty – are beyond comprehension.
“…this referendum is all about courtesy.” say PM Albanese. Perhaps he should ask the Voice proponents for the courtesy of accepting white Australia’s many apologies … that’s a first step required in reconciliation.
And how does Penny Wong’s idea for an “Ambassador for First Nations People” to “embed Indigenous perspectives, experiences and interests into our foreign policy”’ square with recognition in the Constitution as ‘First Nations People’ being Australians?
“Money for nothing, and the cheques are free”
Apologies to Dire Straits.
Anthony Albanese ( a.k.a An-Al) is not only a con artist but terminally dumb. Worse, he evidently believes we are even dumber. The real aborigines comprise 3 % of the Australian population, and have 4.6% of the seats in Federal chambers. Additionally their fellows no doubt hold influential positions in States houses, local government, quangos, etc.
Aborigines are more than adequately represented.
There is no reason to cede them any more influence
“The real aborigines comprise 3 % of the Australian population, and have 4.6% of the seats in Federal chambers.”
Quite right.
It is in the interest of Aboriginal politicians, both in Parliament and not, to agitate for ever more power and influence. But only a small minority of those identifying as ‘Aboriginal’ are ‘full-bloods.’ Most people whoidentify as Aboriginal have a mixture of Aboriginal and Non-Aboriginal ancestry.
I have a Norweigian great-grandmother in my (mostly Irish) family tree, so I am one-eighth part Norweigian. I suppose on the strength of that, together with the legal precedents arising out of the Aboriginal Voice, I could claim not only a need for special representation in the Norweigian Parliament, but maybe a nice little slice of Norweigian real estate as well.
As compo. For something.