It is fundamental to our system of governance that legislation should be as watertight as possible. To that end we employ a bevy of legal draftsmen, approximately 50, in the Office of Parliamentary Counsel. Of course, nothing devised by the human hand is perfect and we often see unintended consequences flowing from legislation. So, at least in theory, those mistakes can be corrected simply by Parliament amending the legislation.
How much more important, therefore, is it that we get constitutional amendments correct? They are much more difficult and costly to remedy.
Which brings me to the Voice. I have argued in various articles that the proposed constitutional amendment is fatally flawed. Here I summarize my arguments. Nothing I say below should be taken to indicate I support this Voice in any way. Here are three areas of concern.
Who is an Aboriginal?
I have argued in my book The Indigenous Voice to Parliament – the No Case that if the Constitution is to confer special rights on one group of people, it must be the Constitution that defines that group. It cannot be left to the Parliament, or worse, the High Court to determine who is an Aborigine. And the current three-part test is not fit for purpose. Here is an example.
Recently, Andrew Bolt revealed that there are question marks over the aboriginality of Federal Labor MP, Dr Gordon Reid. He interviewed Roger Karge, whose the Dark Emu Exposed website conducted the research which revealed that there is no aboriginality in Reid’s family tree. Dark Emu Exposed – it was responsible for calling into question the bona fides of author Bruce Pascoe – employs professional genealogists. It is confident that, absent skeletons in family closets, its research is impeccable. It has also raised doubts over SA Attorney-General Kyam Maher.
Dark Emu Exposed does not just target random individuals. It acts only on requests from third parties – in most cases, Aborigine people or communities who smell a rat. And it always seeks comment and clarification from the individual concerned before publication. If they get a response, it is often of the “I won’t dignify that offensive suggestion with a reply’ genre.
In the case of Reid, no response was forthcoming. Reid claims his aboriginality from his grandmother, Robyn Reid, who herself claims to be a proud Aboriginal Mingaletta elder and a woman of Wiradjuri descent. She is, apparently, accepted as such. Karge accepts that she believes this to be true. But her birth records say otherwise. Normally we might just accept her word, but when someone is receiving benefits or preferment because he/she is Aboriginal, we have to dispense with such niceties.
Bolt and Karge referred to the research of Aboriginal academic Dr Suzanne Ingram, who suggests as many as 300,000 of the 800,000-odd Aboriginal population might not be genuine. Bolt and Karge question this figure, believing it be closer to 150,000. Why the difference? I suspect it is because Ingram does not only include people with no Aboriginal ancestry in her numbers, but also many who have minimal ancestry and have lived lives indistinguishable from any mainstream Australian. Under the current test, the Aboriginal population can only continue to grow, creating a special class of people with no special needs or ‘connection to country’, but rights which the rest of us don’t have. This is iniquitous.
Will the percentage of GDP to be paid in ‘reparations’ be based on the Aboriginal population? And will it be ratcheted up a notch after every census?
Forgive my cynicism, but will any of this largesse find its way to the grandchildren of people like Dr Reid. Or will it remain stuck firmly to the fingers the Galarrwuy Yunupingus of this new nirvana?
The Remit of the Voice
When the Voice was first proposed, we were told that it was because Aboriginal people were making the reasonable request that ‘if you are making laws about us, we should have a say in the making of those laws.’ If that is a reference to laws that affect the population in general, then they already have a say through their elected indigenous parliamentarians and multitudinous community organisations. It has been controversially suggested by Professor Greg Craven, a notable supporter of the Voice, that the current wording will allow the Voice to make representations on anything from nuclear submarines to parking tickets.
‘No, no,’ says Albanese, ‘it will only relate to legislation that directly affects Aborigines’. He probably means ‘uniquely’ affect them. That is, legislation enacted under Section 51(xxvi). That is how I interpreted it when I first heard the demand to ‘have a say’. And I believe that is what most Australians would have thought. They would have had the NT Intervention in mind. And prominent Voice advocates such as Julian Leeser and Dr Shireen Morris still rely on this meme when they argue their case. And as recently as last weekend, Chris Kenny said (emphasis added):
The voice “inserts race” into the Constitution.
This is a blatant mistruth. Race has been in the Constitution since Federation and still exists in two clauses, including under the so-called “race power”. The voice does not mention race (surely an outdated concept) but would ensure that when the government makes special laws or policies relating to Indigenous people (ironically, under that existing race power) then Indigenous people will at least have had the opportunity to offer their views.
In fact, Aboriginal activists have made it clear hey want a special input into everything. If that is not what the government intends, then the wording of the constitutional amendment should make it explicit that it is restricted to Section 51(xxvi). To omit this caveat, means that the government accepts, without explicitly saying so, that the remit of the Voice is unlimited.
Is it an advisory body?
Albanese continually insists this is “an advisory body only” and its advice is not binding on government. I have repeatedly asked here, and in other forums, why is there not an explicit caveat to this effect? Why does the wording say, ‘make representations’ and totally avoid the words ‘advice’ or ‘advisory’?
Well, page 17 of Document 14 (aka The Uluru Statement from the Heart) tells us why:
There was a concern that the proposed body would have insufficient power if its constitutional function was ‘advisory’ only, and there was support in many Dialogues for it to be given stronger powers so that it could be a mechanism for providing ‘free, prior and informed consent’.
Dr Megan Davis is a co-author of the UN Declaration on the Rights of Indigenous Peoples, from which this requirement for ‘free, prior and informed consent’ is drawn. Is it likely that. as one of the influential members of the Voice Referendum Working Group, Davis would resile from this position after a successful ‘Yes’ result in the referendum? I think not.
Constitutional amendments should be focussed on one issue only and should be as explicit as possible. And if they are intended to introduce a major change – as this one is – as opposed to simply correcting some anomaly, they should be carefully considered by a constitutional convention. Not rammed through following a six-week media blitz funded by woke corporations and institutions, which have no business appropriating the views of their employees, customers and members.
In past articles I have described this proposed Constitutional amendment as a classic example of sloppy legal drafting. I now no longer subscribe to that view. I think the drafting reflects exactly what is intended by the architects of the Statement and acceded to by the most left-wing government in Australia’s history. It is not sloppy drafting. It is disingenuous drafting.
This referendum question is a lie.