The Voice

The Constitution Isn’t Broke, so Don’t Fix It

I am confounded by the increasing number of conservative commentators who preface their remarks in opposition to the Voice with words such as ‘Of course, I support constitutional recognition of First Nations people but …’.

Here for example is Peta Credlin in the most recent Sunday Telegraph:

But this Voice to both the parliament and to the executive government is so much more than the constitutional recognition that almost everyone supports.

Admittedly, Credlin does not specifically say she supports it, but the inference is there to be drawn.

Paul Kelly, admittedly no conservative, writes in The Australian, regarding the flawed Voice question, that:

It is a tragedy because the Australian Constitution needs to recognise the Indigenous people and what they rightly call the ‘torment of our powerlessness’. 

To begin with, Kelly, of all people, must know the Constitution is two things – a power-sharing agreement between the Commonwealth and the States, and an operating manual for our national governance.  It is effectively a contract – one that is subject to the jurisdiction of the High Court.  As such, it is not an appropriate repository for emotional or feel-good rhetoric such as ‘the torment of our powerlessness’.  That would introduce ambiguities that can, and almost certainly will, have unintended consequences.

Secondly, what is meant by ‘Constitutional recognition’? Does it mean simply mentioning the Aboriginal people in the preamble?  Tony Abbott certainly supports this concept.  He proposes inserting a preamble to the Constitution to the effect:

Whereas the people … humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble federal commonwealth under the Crown … to create a nation with an Indigenous heritage, a British foundation, and an immigrant character… 

This is a paraphrase of the preamble to the Commonwealth of Australia Constitution Act of 1900, which is an Act of the British Parliament.  This new preamble is effectively a rewriting of history.  When the people agreed to unite, there was, for example, no question of Indigenous heritage or immigration.  And the original Act did not refer to the British people – it did not single them out.  It simply referred to ‘the people’.  So, the suggestion that it ignored Aboriginal people, who were classed as British subjects and were subject to the laws of the colonies, is specious at best. 

I would guess that, like the rest of the population, the overwhelming majority of Aborigines have never, and will never, read the Constitution.  They would not care either way if virtue-signalling elites, or even genuine democrats like Howard and Abbott, make themselves feel better by such a pointless gesture.

The above wording was devised as a half-smart device to apparently meet the demand for Aboriginal recognition and yet not single them out.  The sort of ‘every child gets a prize’ initiative that is crippling our education system.  In an otherwise incisive and comprehensive rebuttal of the Voice in The Australian, Abbott in talking about his proposed amendment, makes my point for me:

The advantage of doing this would be that it’s indisputably true, has something for everyone, and would become a good one-line description for the country we love.

Since the original Constitution never mentioned British people, Aborigines or immigrants – and has functioned perfectly adequately in the absence of such words – there is no practical purpose to be served by inserting them now.  And the Constitution is, above all, a practical document.  This type of recognition will not enhance it’s practical effectiveness one iota. 

Even Professor Greg Craven, a strong proponent of a (modest) Voice argues that putting words in the preamble is dangerous:

The constitutional provisions [of the proposed Voice] would be mechanical, not thematic. They would be very like the 1967 referendum insertions, which in 50 years have never excited the court. What would be dangerous in the Constitution are broad, sweeping values. This is where amending the preamble is dangerous.

Tony Abbott’s alternative proposal strikes me as a good example of what Craven fears:

Another would be to insert an acknowledgment into the Constitution that the continent and islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples, using the words of the Recognition Act of 2013 that the parliament passed without dissent.

What could an activist High Court make of this sentiment?

Crucially, neither of these proposals will cut any ice with the vocal and influential cabal of Aboriginal activists who have read the Constitution.  To them ‘constitutional recognition’ doesn’t mean just getting a mention along with everybody else or even just their own mention. This sort of metaphorical pat on the head they see as patronizing, which is exactly what it is.  What they want is recognition as a distinct constitutional entity.  And that means power in their own right.

As Tony Abbott also says:

Let’s be clear that it’s no longer just constitutional recognition that many Indigenous leaders now want and that the government is proposing to give. They’re seeking a mechanism to overcome, in Senator Pat Dodson’s words, “the tyranny of our dispossession”, as if history can be undone.

As Keith Windschuttle made abundantly clear in The Break-Up of Australia, it was never about ‘just constitutional recognition’.

So, if this proposal succeeded in a referendum, it would be a big yawn for the vast majority of Aborigines and a provocation to the activist minority.  This issue will not go away.

Abbott also says, in relation to his two proposals:

Something with a touch of poetry would be better than a dry acknowledgment of the facts, but either would well round out an otherwise serviceable Constitution.

A serviceable Constitution, not a poetic one, is what we need.

As I say in my new book, The Indigenous Voice to Parliament –  the No Case, who we are as a nation – our values and aspirations – is reflected in the democratic traditions and institutions we inherited from Great Britain. And, more importantly, in our legislation, which has made us one of the most diverse, tolerant and generous nations on Earth.  It is in our legislation that we must look to enrich all the people, to alleviate disadvantage, to unite us and to recognize past injustices.  All that we require from the Constitution in this respect is that it offers no impediments to such legislation.

28 thoughts on “The Constitution Isn’t Broke, so Don’t Fix It

  • March says:

    States are already awash with recognition… QLD’s stands out as the better one – something along Tony Abbot’s suggestion.

    NSW state constitution…
    2 Recognition of Aboriginal people
    (1) Parliament, on behalf of the people of New South Wales, acknowledges and honours the Aboriginal people as the State’s first people and nations.
    (2) Parliament, on behalf of the people of New South Wales, recognises that Aboriginal people, as the traditional custodians and occupants of the land in New South Wales—
    (a) have a spiritual, social, cultural and economic relationship with their traditional lands and waters, and
    (b) have made and continue to make a unique and lasting contribution to the identity of the State.
    (3) Nothing in this section creates any legal right or liability, or gives rise to or affects any civil cause of action or right to review an administrative action, or affects the interpretation of any Act or law in force in New South Wales.

    Victoria
    1A Recognition of Aboriginal people (1) The Parliament acknowledges that the events described in the preamble to this Act occurred without proper consultation, recognition or involvement of the Aboriginal people of Victoria. (2) The Parliament recognises that Victoria’s Aboriginal people, as the original custodians of the land on which the Colony of Victoria was established— (a) have a unique status as the descendants of Australia’s first people; and (b) have a spiritual, social, cultural and economic relationship with their traditional lands and waters within Victoria; and (c) have made a unique and irreplaceable contribution to the identity and well-being of Victoria. (3) The Parliament does not intend by this section— (a) to create in any person any legal right or give rise to any civil cause of action; or (b) to affect in any way the interpretation of this Act or of any other law in force in Victoria.

    South Australia
    2—Recognition of Aboriginal peoples (1) The Parliament on behalf of the people of South Australia acknowledges that— (a) the Parliament of the United Kingdom in 1834 passed a Bill called An Act to empower His Majesty to erect South Australia into a British Province or Provinces and to provide for the Colonisation and Government thereof and that by Letters Patent dated 19 February 1836 His Majesty established the Province of South Australia; and (b) the making of the above instruments and subsequent constitutional instruments providing for the governance of South Australia and for the making of laws for peace, order and good government occurred without proper and effective recognition, consultation or authorisation of Aboriginal peoples of South Australia. (2) Following the Apology given on 28 May 1997, the Parliament, on behalf of the people of South Australia— (a) acknowledges and respects Aboriginal peoples as the State’s first peoples and nations; and (b) recognises Aboriginal peoples as traditional owners and occupants of land and waters in South Australia and that— (i) (ii) (iii) (c) their spiritual, social, cultural and economic practices come from their traditional lands and waters; and they maintain their cultural and heritage beliefs, languages and laws which are of ongoing importance; and they have made and continue to make a unique and irreplaceable contribution to the State; and acknowledges that the Aboriginal peoples have endured past injustice and dispossession of their traditional lands and waters. (3) The Parliament does not intend this section to have any legal force or effect.

    QLD
    Preamble
    The people of Queensland, free and equal citizens of Australia—
    (a)intend through this Constitution to foster the peace, welfare and good government of Queensland; and
    (b)adopt the principle of the sovereignty of the people, under the rule of law, and the system of representative and responsible government, prescribed by this Constitution; and
    (c)honour the Aboriginal peoples and Torres Strait Islander peoples, the First Australians, whose lands, winds and waters we all now share; and pay tribute to their unique values, and their ancient and enduring cultures, which deepen and enrich the life of our community; and
    (d)determine to protect our unique environment; and
    (e)acknowledge the achievements of our forebears, coming from many backgrounds, who together faced and overcame adversity and injustice, and whose efforts bequeathed to us, and future generations, a realistic opportunity to strive for social harmony; and
    (f)resolve, in this the 150th anniversary year of the establishment of Queensland, to nurture our inheritance, and build a society based on democracy, freedom and peace.
    3A Effect of preamble
    The Parliament does not in the preamble—
    (a)create in any person any legal right or give rise to any civil cause of action; or
    (b)affect in any way the interpretation of this Act or of any other law in force in Queensland.

  • RobyH says:

    Thanks Peter. Just bought the book.

    I understand why the Aboriginals wants the Voice. Political power. I just don’t understand why Labor would agree to such an absurd proposition. This is the Blak House of Lords. In fact it will have greater reach. It is way way past recognition and still it goes forward. With support from so many politicians and companies.

  • Peter Smith says:

    Good stuff Peter. I sort of went along, lazily, with Tony Abbott’s formula. Now I don’t.
    Maybe Peter Dutton will read your piece and steel himself to do the right thing. Hmm?

  • brandee says:

    Remarkable clarity Peter, much appreciated.
    As you say so many even of conservative inclination pointlessly want to see Indigenous aborigines mentioned in the constitution: Peter Credlin, Paul Kelly, Tony Abbott. Really, it is not a mention they want. It is power. The power. will come from the Voice, from a treaty, and from Truth Telling. A mention would only be of use in the path to power.
    The much respected Tony Abbott continues to frustrate with his good cop bad cop duality, his soft love tough love inclinations. Better he justify a non mention and urge the 20% of aborigines living On Country to move to where they can join with their kin making their way in modern society: in football, television, university, modelling. acting, judiciary, building, plumbing, music, teaching, dancing, etc.
    Power in modern society does not legitimately come from tribal humbugging/demand sharing.

  • Ceres says:

    The power hungry , non democratic aboriginal aristocracy will entrench their snouts in the trough as well as ensuring never ending High Court legal challenges if this thing gets up. Meanwhile the current 20% of outback needy aborigines will remain, due to various factors, which could be addressed without drastically altering the Constitution.
    There will never be an end date of recognition or whatever else this aristocracy demands and Australia could end up paralysed.
    So many wise voices pointing out all the terrible pitfalls including Greg Craven but he lamentably recently stated why he will hold his nose as he votes yes (The Australian 25/3) so he’s caved. He should know better unlike so many others who won’t be bothered doing a bit of non msm research but go with ‘the vibe’.

  • STD says:

    “The constitution isn’t broke, so don’t fix it”
    That’s the point Peter – the progressive and left wing political elements want compounded molecular change- if it’s not broken, it needs breaking- the hammer is there for a damn bad reason. The hammer represents justice and revenge.

    • ianl says:

      Close enough. Probable and constant High Court litigation is actually what the Aboriginal activists want. For them it is a feature, not a likely impediment. Sooner or later, the planets will align and an activist High Court will deliver another “Mabo” or three.

      While this may sound glib, I was present at a 2 day Sydney conference in 1993 on Mabo at the time Keating’s legislative response was being thrashed out. The Aboriginal activists present were quite open in their expectations for a continuing series of High Court decisions to give them what they wished for, although after the event, that didn’t occur. The proposed “Voice” is far more potent.

  • Greg Jeffs says:

    How can Anthony Albanese’s tears and lip quivering be explained? Even if the most obvious view is taken and it is assumed he was acting in a purely cynical manner, then, to what end? Where does intense emotion fit into the picture? Former Prime Minister, Bob Hawke, teared up when speaking of his daughter’s drug addiction. Whether appropriate or not, Mr Hawke’s emotion was at least understandable.

    If “The Voice” was introduced simply as bill to be legislated in the normal manner, would that still have engendered Mr Albanese’s tears? Has all the previous legislation about these matters caused its proponents to cry when introducing it?

    A possible explanation is that they were tears of fear. The fear being that, if this referendum fails, the prized open-ended republic referendum question would be unlikely to be risked. Thereby denying Mr Albanese his chance to go down in history.

    • Farnswort says:

      It’s all about The Vibe. Albo, an ageing leftist simpleton, is emotionally invested in this Voice caper – he is a true believer. There is an almost religious fervour to it. The Voice and the other ‘Uluru Statement from the Heart’ demands offer an avenue for guilty whites to publicly seek redemption for their Original Sin(s). White leftists like Albo get high on this sort of stuff.

      Reason and rationality have gone out the window.

      • STD says:

        Farnswort, Albanese is no simpleton.

        On the contrary, he is as cunning and radical as the proverbial rat, when you strip him of his Fabian front

        Keep in mind that Labour under Albanese recorded a declining primary vote at the last federal election of 32.58%.

        A rat is a rat is rat, however there is a large voter demographic who are not yet aware that it is a very green rat with red nose. A very radical and nasty rat with a guised Christian first name, it is only found in one suburb in Melbourne, it is euphemistically known as the Bandt rat- I believe the first and only such rat that has a pair of Grattan spectacles abridging a very long nose- a rare rat and a world first- taxonomic category Chordata- this particular class of rat has a fetish for the molecule Carbon dioxide and climate related phenomena of global warming. This particular species loves fooling people into believing that fairy tales such as the climate fairy tail are actually true, when in actual fact fairy tales endow us with the archetypal traits present in human animal nature.

        • Brian Boru says:

          Lets not forget that is was the Liberal (party of no principle) that helped Bandt get elected in the first place by giving him second preferences. The Libs played tactics instead of principle and we got Bandt as a result.

        • Farnswort says:

          STD, I will concede that Albo is shrewd politically. He can play the game well. But that doesn’t make him a deep thinker when it comes to philosophical matters.

          • STD says:

            I agree, he is just another one in the long line of rissoles who have made their souls available to the highest bidder.
            Watched a piece on Stalin the other night – how these twits could even fathom following such an evil creed has me stumped. We cannot allow any more of this, we have to fight like hell for Australia, and now.

      • STD says:

        Ps, I’m not sure if there is a correlation.
        What have David Marr, Adam Bandt and Anthony Albanese got in common?
        One writes, one talks, and the other is a B grade actor ……….

  • STJOHNOFGRAFTON says:

    What is broke is Australia. Financially broke. The constitution’s not broken but it has got cracks in it. Albanese wants to widen the cracks further with his relentless hammering in of the Voice wedge. If that succeeds, Australia will become split into two nations with two constitutions. That, or two dictatorships. The wrecking ball is already being lined up for the swing. Victoria is already a dictatorship with Chairman Dan off to China for secret, even press free, talks, no doubt on tactics, whilst South Australia has instituted The Voice fait accompli.

  • NarelleG says:

    Thank you Peter.
    Exactly what my Facts Matter facebook group have been saying – thank you for your book – look forward to reading it.

    Is it okay if I post wee snippets eg one liners on social media aka Facebook?

    Thanks
    Narelle

  • padraic says:

    I agree totally with your sentiments, Peter. I could never understand how we in Australia could alter the preamble in a UK Act of Parliament – the Constitution – yes, but the preamble ??? Where does one stop with group recognition with just the three classifications- Aboriginal, British, Migrant? What about me ? I am not Aboriginal, British or Migrant – I am Australian born and bred and 5th generation. Where do we fit in to the picture, not that I would want to be added to the list which should be quietly done away with and let’s get on with a common citizenship and leave our ethnicity or whatever at the door.

  • exuberan says:

    I despair that so few Australians will ever get to read the words in this and other similar articles. The power grab by city living highly vocal MSM supported part Aboriginal activists who hunger for money (Treaty) and power (instructing the executive govt), They all live in denial of their Western European brain cells

  • Daffy says:

    Constitutional recognition can only be about power, because as Peter points out, the Constitution is simply the documentation of the power arrangements of this nation. I’m sure most of the population regards ‘recognition’ much like a party invitation when in fact it is more like the keys to the safe.
    Due to the dreadful lack of ‘Civics’ type education in primary and secondary school most people thus have no idea what a Constitution is.

  • Peter OBrien says:

    Thank you al above for your comments.
    The other issue that grates on me, and I was going to touch on it in this article but decided not to, is ‘reconciliation’.
    In today’s Oz Janet Albrechtsen has terrific article marred only by her final observation that this Voice is likely to hamper reconciliation.
    My comment:
    “Great article Janet – as usual – but what do you mean by reconciliation? Is it the same thing that, say, Langton and Davis mean? I doubt it. It’s time real conservatives stopped paying lip service to this nebulous concept. Aborigines need to reconcile themselves to the fact that there is no going back, and that the vast majority of them lead lives vastly superior to those they would have led pre 1788.”

    • pmprociv says:

      You took the words right out of my mouth, Peter. Definitely another brilliant article by Janet in today’s Oz, but spoiled just a little by that terminal gaffe. As always, this whole mess is further complicated by sloppy use of language, and absence of clear definitions. Reconciliation refers to the coming back together of two individuals, or groups, who’d become estranged through argument or disagreement. Presumably, in our context, it refers to indigenous-exogenous relations, although that becomes pretty meaningless in the urban setting, where all live essentially similar lifestyles (with varying degrees of affluence). For those Aborigines living in remote communities, the 20% who account for the bulk of “The Gap”, the majority non-indigenous population has hardly featured in their thinking (except perhaps as the magic source of all their material needs); if anything, reconciliation there should be directed at improving relationships among the different incompatible tribal groups, whose ongoing hostilities and vendettas account for much of the violence we read about. But of course, it would be racist to suggest that real reconciliation should begin at home . . .

      A peak into Reconciliation Australia’s very slick website (https://www.reconciliation.org.au/) gives no indication of its ultimate goal, just the usual victimhood, a feelgood advocacy for more power, while painting itself as yet another very loud voice to governments! So why the urge to molest our national constitution?

  • Alec Witham says:

    I would like to know the purpose of the original clause 51. The parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:– (xxvi) “The people of any race, other than the Aboriginal race in any State, for whom it is deemed necessary to make special laws.” I understand that the amendment of 1967 removed the words “other than the Aboriginal race,” but why was “race” mentioned in the first place?

  • Dudley Horscroft says:


    “Race” in s 51 was inserted to give the Commonwealth Government powers with regard to the immigration and settlement of Chinese and Pacific Islanders, the latter normally being employed on fixed term contracts. Thus, the Commonwealth passed legislation re the contracts on which they were employed, including the return of them to their own countries at the expiration of the contracts. The parenthesis “other than the Aboriginal race in any State” was included to ensure that there could be no discrimination against Aborigines, who were fully fledged British subjects, and equally able to exercise their vote at elections in most States.

  • peter prenavon says:

    Thanks PETER O’. When “dark emu” first came out, I was intrigued as what purpose could be found for a non-Aboriginal to claim he was an Aboriginal who had secret knowledge of Aboriginal society and culture.
    THE Penney dropped when i realized his recreated society and culture, was a blueprint for the establishment of grounds, that if presented as fact, the Aboriginal people would be able to suggest to the high court that Aboriginal people had the qualifications which would allow them to claim they met the conditions necessary to claim a sovereign nation existed at the time Europeans arrived in Australia.
    and today their claim to a voice, to have effect over executive government. It would then be able to claim Sovereignty/ treaty.

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