Sign In
0 Items (
Search
Comments (12)
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.
Conclusion
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.
You have nailed it, Peter!
.
If the Voice referendum is passed, ROADMAP 2, on page 25 of Document 14, illustrates the process to be followed to establish the Voice, and the formulation of the Makarrata Commission Bill (AKA Treaty Commission). So, the fun really begins when the celebrations are over, and the Labor/Green Parliamentary majority get busy with the Aboriginal Regional Dialogues to implement the Uluru Statement “IN FULL”, as per Albo’s pledge to the Nation. And, if any doubts or confusion should arise in the implementation process, we can rely on the High Court to clearly understand the true intention of the vague new amendment, and therefore how it is to be interpreted to support the process.
Superbly written, a copy should be placed in every mailbox in Australia
Peter you’re good man. I always thought that what mattered most is not perfection in vain glory per se ,but the perfection of one’s character that takes place when we confess our fragility,have stumbled and have righted ourselves with the known truth’s.
Well said. I wonder how long it will be before people can apply to have aboriginality emblazoned on their birth certificates – as with ‘gender’?
The key to identifying Aboriginals appears to be (a) that the person identifies as one and (b) some others agree with that person being one. In other words it is more like a gentlemen’s club than something determined by genetics. If it were determined by genetics, then of course the entire Voice proposal would be revealed for what it really is – namely a racist get-rich scheme that ought to be, in itself, unconstitutional. On the other hand, if it is merely an exclusive club, with a purely sentimental attachment to witchety grubs, fake history, and the prostitution of young girls, one has to wonder why exactly it needs a Voice more than any other club (near me there is a German Club, an Austrian Club, and an Italian Club – all presumably needing Voices on this argument).
But seriously, if these people need to be heard, they only need to speak. No legislation of any kind is needed, let alone constitutional change. Just give us the list. The real problem is that nobody involved in the Voice proposal – including the benighted dark race – appears to have the slightest idea of what is going to make everything better for them (although I could make a few suggestions if asked). In this intellectual vacuum, there can hardly be any need for a Voice, since it will have nothing to say. Unless, of course, what it is intended to say is certain to be rejected in the normal course of events – and therefore a cunning ploy that evades or overrides normal processes is urgently needed.
If the Dark Emu Exposed investigation is correct Dr Gordon Reid has mislead the Labor Party, Federal Parliament and his electorate – likewise Kyam Maher in South Australia. Extraordinary. It does not seem unreasonable they should produce the genealogical evidence to support their claims.
The biggest flaw of all is its sheer anchronistic dissonance with christian liberal philosophy. It is an idea that should never have seen the light of day in the 21st century. What the great thinkers of the 19th and 20th centuries would have thought about inserting special status in the constitution for a racial group is anyones guess.
I see that Wikipedia’s editors have robustly rejected any attempt to qualify what is said in the articles on Gordon Reid, Kyam Maher and Bruce Pascoe about their ‘aboriginality’.
Even an attempt to insert the word “self-identified” in Pascoe’s entry was quickly reversed.
I steadfastly ignore all of Wikipedia’s attempts to solicit money out of me while they continue to tolerate fake history of this kind.
SA’s First Nations Voice Act could not be clearer: Section 4(2) “For the purposes of this Act, a person will be taken to be of Aboriginal or Torres Strait Islander descent if the person is biologically descended from the persons who inhabited Australia or the Torres Strait Islands (as the case requires) before European
settlement. If ineligible people were permitted to vote, then presumably there would be some consequences.
Slightly off topic …
My view (for over 6 months now) is that NSW, VIC, SA and TAS will vote YES. The overall YES vote will be quite overwhelming through Sydney and Melbourne populations.
Some may consider that the fourth (and final) fatal flaw.
An interesting analysis of why The Voice campaign appears to be faltering:
https://tapri.org.au/wp-content/uploads/2023/08/Voice-finalV5.pdf
“Our analysis of the polls shows that the fall-off in support for the voice is mainly among non-graduate voters.
In our view the main explanation for this is that the voice is seen by many voters (especially the non-graduates) as a challenge to their nationalist values. From their perspective a strong and united nation is important as a protector of their economic interests. So is the maintenance of strong national unity and loyalty. Our polling evidence indicates that they see the voice as advancing the autonomy of the Indigenous community and thus as weakening this unity.
Some voice advocates have reacted to the slip in the voice vote by pressing the moral intensity of their cause, with the implication that a No vote is shameful, even racist.
Shaming is not working because, at the core of non-graduates’ nationalistic values, is the belief that all Australians are equal regardless of the community they identify with. For them it is voice advocates who are racists, because they are advocating for separate political representation and sovereignty for one racially distinct group, the Indigenous community.”
I am not surprised that non graduates are more likely to vote No. It was the same in the case of the opposition to the Covid vaccines. Those with a basic education have a developed ability to detect incongruities – what we in Australia call a good bulls—t detector. I recall the masses of ordinary families – with kids and dogs – who predominated in the massive rally in Canberra against vaccine mandates.
May they save us from this disastrous attempt to entrench race distinctions in our Constitution.
This article crisply represents the “No” case that the Albanese government should have had the honesty to provide to all voters under our Constitution. This referendum is therefore fatally flawed. And this government and all its fawning pro-“voice” acolytes are liars.
As it happens I am a constituent of “Federal Labor MP, Dr Gordon Reid”, and I can confirm that all his publicity, including his newsletter to constituents, includes a photograph of him nonchalantly wearing a stethoscope around his neck, presumably to remind everybody that he is a “doctor” and thus more important than others in the community. There are no doubt others in Parliament who could play that game. But I don’t notice any of the barristers in Parliament wearing their wigs. I don’t see David Pocock (a brilliant rugby player, and Australian representative; not so sure about his politics), wearing his Wallabies Jersey. Nor do I see anybody wearing Airline Wings badges to indicate their ability to captain a Qantas flight, although I seem to recall that there was an MP who was an ex-Qantas captain. Tony Abbott (and I’m sure there are other volunteer firefighters in Parliament) doesn’t wear his fire helmet to remind people of his commitment to keeping the community safe from bushfires. And probably a majority of the members of both houses of parliament are university graduates, but none of them bother to don an academic gown.