Pearls and Irritations

David Solomon has raised an important issue in Pearls and Irritations this week. He has suggested some opinion leaders may argue there is little point in a referendum to enshrine a Voice for First Nations in Australia’s Constitution because the Commonwealth parliament already has the power to legislate for creation of such a “Voice” and should simply act now to provide Indigenous communities with government support to improve health, education, employment and living conditions.

Solomon is concerned that “wild claims” will arise from the politics surrounding this issue and that the longer we delay the referendum, the poorer its prospects of success.

Referendums are always risky and it is smart to anticipate the tactics dissenters may use to derail the Yes vote. But it is unlikely that a quick referendum is the answer or is even possible, bearing in mind that parliament itself will need to resolve to conduct the referendum and that will take time. In the circumstances the best and probably only thing to do is to prepare sound answers to “wild claims” and promote that information widely. In the case of this particular referendum it’s especially important to help non-Indigenous Australians understand what’s in it for them if they vote Yes. The answer is, “a lot”.

Dissenters may certainly argue that the minimalist wording of the amendment to the Constitution, suggested as a starting draft by the Prime Minister at the recent Garma Festival, will confer on First Nations nothing more than a right to make representations to parliament. And as Solomon suggests the logical question will then be, “Is it worth having a referendum for that?”

The answer on this one is that if granting Indigenes the right to make representations were the only reason we are having a referendum, then chances are it wouldn’t be worth it. But that is not the only reason for this referendum. One of the far more pressing reasons is that it will give all Australians a chance to confirm their will and impress that upon the parliament – a will towards reconciliation and equality that is evident in polling on support for an Indigenous Voice.

Solomon himself appears to be arguing that political pragmatics will dictate the result and that therefore we should either have the referendum now, before dissenters are given full coverage by the media, or skip it entirely because a constitutionally enshrined voice is not necessary anyway. This implies that we should cut straight to the chase of increasing government support for Aborigines, trusting that whatever form a legislated (as opposed to constitutionally enshrined) Voice takes, the government will still act “for the benefit of the people of that race” and not to their detriment.

Let me put the counter view here. There is no need to rush the referendum, much less skip it. Nor is there a need to rush to legislation. That won’t speed up either the Voice or better living standards for Aborigines. Instead it risks destroying everyone’s confidence in the Voice itself and their faith that it will be heeded in such a way as to benefit First Nations people.

For instance, a merely legislated Voice would crush that faith immediately. The call from Uluru is not for a merely “legislated” Voice. That is not, as Solomon claims, “one of the wishes/demands of the Uluru Statement from the Heart.” The call is for a Voice enshrined in the Constitution. That is a very different call and it has been made with good reason after serious consideration by First Nations peoples, those Australians who came together at Uluru “from all points of the southern sky” and made a particular statement from the heart. Their sincerity could not have been clearer. Dissenters may wish to argue that it’s time to skip constitutional enshrinement and simply “listen to the Voice (and act) now”. But it will not inspire confidence among Aborigines that their Voice will actually be listened to if the very first thing they’ve asked for – the thing that is clearly essential to them – is ignored.  

Solomon has quite correctly pointed out that just because an institution is provided for in the Constitution doesn’t mean it is protected from dissolution. He gives the example of Section 101 which says, “There shall be an Inter-State Commission…” and points out the Commission is “no more, despite the Constitutional requirement that it ‘shall be’”. But it doesn’t follow that there is therefore little or no point in enshrining the Voice in the Constitution. Indeed, there are numerous things in Australia’s governance that the Constitution says “shall be” but are “no more”, mainly because the powers-that-be simply no longer require them in the form originally prescribed or have found a way around them when they no longer suit their purpose. For instance, the wording of the Constitution allows the states concurrently with the Commonwealth to levy income tax but the states have that power “no more” due to the first Uniform Tax case in 1942 which had the effect of completely removing the states’ power to levy their own income tax.

This disparity between what the Constitution said “shall be” in 1901 and what “now is” in 2022, however, is not a testimony to the pointlessness of enshrining a Voice in the Constitution. It is simply a testimony to the success rate Australia has displayed in solving its problems as they have arisen, without resorting to amendments to the Constitution.

But one major problem that certainly has not been solved is Indigenous disadvantage and that particular problem hasn’t been resolved precisely because the Constitution is at the heart of the problem. It is a central cause of the problem. To put that another way, the cause of the problem – the reason why the gap between Indigenous and non-Indigenous wellbeing is widening, not closing – is that the nation was constituted in 1901 as a racist nation. And it still is.

Section 51 (xxvi) which gives the Commonwealth the power to make laws for ‘the people of any race, for whom it is deemed necessary to make special laws’, and Section 25 which makes “provisions as to races disqualified from voting”, mark the Australian Constitution as alarmingly racist in comparison to 21^st century norms in Western liberal democratic countries. Indigenous disadvantage in 21^st century Australia arises in no small measure from this 19^th century characterisation of our nation. The fact is that the Constitution allows the government to behave both well and very badly on the basis of race. That is reason enough to put the Indigenous Voice to a referendum. Australians should not be robbed of the chance to signal to the parliament, and to the High Court for that matter, whether racist aspects of the Constitution are still appropriate. This will help ensure that when the Voice is legislated it is at least framed in such a way as to reduce the risk of adverse discrimination and it increases the chances that dissolution of a Voice will be a justiciable matter. In that respect, constitutional enshrinement of the Voice increases its protection as an institution.

Dissenters from the Indigenous Voice are probably genuine in their suggestion that the priority should be to close the gap. But we couldn’t expect to close the gap if as a nation we do not wish to address the main thing that has caused the gap to be so big in the first place. Through more than 200 years of exclusion of Aboriginal and Torres Strait Islanders from having a secure Voice protected as a right in our essentially racist Constitution, Australia has embedded and widened the gap. It has compounded the atrocity of the original dispossession. For these stolen lands, stolen children, stolen generations, stolen heritage and stolen futures, there has been no genuine rapprochement. And failure to solve the causal constitutional issue of the equal status of the Aboriginal race will continue to both beggar Indigenous Australians and debase non-Indigenous Australians until it is addressed.

Australians will either be unable to make peace with both their conscience and First Nations, and/or they will be unable to redefine the nation they want to become, unless they are given the opportunity to decide for themselves in a referendum whether to recognise the validity of a First Nations Voice in the Constitution. The referendum may not of itself resolve the problem of racism at the heart of the Constitution. Nevertheless, the Uluru Statement from the Heart is a once in a century opportunity to make peace with First Nations and define a new national purpose and character – one that gives First Nations confidence that the “ancient sovereignty can shine through as a fuller expression of Australia’s nationhood”, and one that gives non-Indigenous Australians a new start as a cohesive society.

In that context, it is entirely high-handed for dissenters to suggest that the people of Australia should not be given the opportunity to make amends to First Nations – symbolically and practically, and without the intercession of politicians. A referendum is the one chance Australians get to speak their will on policy. And when an invitation like the Uluru Statement from the Heart has been so graciously extended, no gesture could have greater meaning for national cohesion than acceptance of what is being offered in the invitation – direct acceptance by the people themselves, not just by a transitory parliament in legislation. Conversely, no greater damage could be done to national cohesion than to pass up the opportunity inherent in the invitation.

Solomon is, with good reason, afraid the referendum may be undone by dissenters and he quotes the views of Alexander Downer and Henry Bolte. There will always be dissenters but it is presumptuous and pre-emptive to assume that Australians will automatically succumb to the re-hashed views of a few old white men, particularly when it is plain for all to see that, while those views prevailed, the project to extinguish First Nations culture and decimate their health and wellbeing flourished. Suggestions that we might, at this point in the nation’s history – with all the unresolved problems that arose from our founding – turn away yet again from First Nations and refuse to consider their invitation to walk with them in a movement for a better future – those suggestions smear and belittle Australians. They rob them of both intelligence and compassion. But above all they rob them of the opportunity to reconcile their future with First Nations and thereby to realise the “fuller expression of Australia’s nationhood” that First Nations have imagined is possible.

It is possible. So this is not just the “time to listen to the Voice and act”. It is the time to tell the powers-that-be what sort of Australia we want. We all have a lot to lose if we shirk this referendum and politicians and dissenters should be held to account if they intercede to prevent the emergence of a constitutionally enshrined Voice.

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