Let us be quite clear about the Constitution and the Voice. The Commonwealth Parliament already has the power to legislate to bring the Voice into effect, one of the wishes/demands of the Uluru Statement from the Heart.
The power was given to the Parliament in the 1967 referendum that changed section 51 (xxvi) of the Constitution to enable it the make laws for ‘The people of any race, for whom it is deemed necessary to make special laws’
Arguably, such laws must be for the benefit of the people of that race. That would be a test this proposal would have no difficulty in passing.
Before that referendum changed the Constitution, the race power specifically prevented the Parliament from making special laws about the Aboriginal people in the Australian states. The referendum won the approval of just over 90 per cent of those who voted.
But the power to create the Voice is not what is now at stake. It is the symbolic issue of a change to the Constitution made at this time in our history to give Aboriginal and Torres Strait Islander people an institutional right to be heard when their affairs are being considered by government and parliament.
A change to the Constitution would, it is argued by some, protect the institution of the Voice from future political changes. But this isn’t really correct. A future government could cripple and indeed abolish the institution called the Voice, once it were established, without much effort at all. How? By ignoring it, by defunding it and/or by repealing its legislative base.
This is so whether the Voice is enshrined in the Constitution (as Liberal former Minister for Indigenous Australians, Ken Wyatt, once supported) or enabled in the Constitution and then legislated, as Prime Minister Anthony Albanese now proposes. This is illustrated by the sad and tragic history of the Interstate Commission, a body that the Constitution creates in section 101, which begins ‘There shall be an Inter-State Commission…’. Well, there was an Inter-State Commission twice, from 1913 to 1920 and from 1975 to 1990, but it is no more, despite the Constitutional requirement that it ‘shall be’.
The Constitution would be no guarantee that the Voice would continue to exist and be heard.
The virtue in having all the details of the Voice in legislation is the flexibility that arrangement provides to meet changing circumstances, changes that may be required in how the Aboriginal and Torres Strait Island people and communities are to be represented, how the Voice will function and how it will relate to what government as well as parliament is doing that falls within its areas of responsibility.
That is the constitutional and legal side of the argument. The politics, which no doubt will involve wild claims about those issues, is far more complicated.
It is important to note that Prime Minister Anthony Albanese, while appointing a minister responsible for implementation of the Uluru Statement from the Heart including the Voice, is personally committed to the cause. It was the one item on his political agenda that he deliberately committed to in his election night victory speech. It is an issue he has pushed for many years.
It is also notably that he outlined his plans for the Voice at such an early time in his government. This he had planned months ago, having decided to attend the Garma festival in Arnhem Land before the election – he has been a regular attendee for some years.
In his speech he set out both the question that would be asked at the referendum, and the words that would be added to the Constitution if it was carried by a majority of votes and in at least four states.
The question:
Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?
The new clause in the Constitution:
- There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
- The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples.
- The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.
The wording provides an answer to those who are concerned about whether the Voice would in some way infringe Parliament’s powers. It has one specified function, to make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples. Parliament’s powers will not be diminished by the Voice.
Is making representations enough? Is it worth having a referendum for that? Is this just a pointless exercise, a feel-good gesture when what Aboriginal and Torres Strait Island people need is government support to improve health, education, employment and living conditions. To quote former Liberal leader Alexander Downer writing in the Financial Review this week:
‘The idea of the Voice will appeal to some people emotionally and may be seen by others as racially divisive. But either way, its hard to believe it’s going to make any difference to resolving the excruciating cultural dilemma of reconciling Western education, health and living standards with traditional Indigenous culture.’
The Prime Minister’s answer is that the way to get better outcomes from the aid governments do provide is to get advice from those the government is seeking to help. As he said at Garma, the Voice would be a body with the perspective and the power and the platform to tell the government and the parliament the truth about what is working and what is not.
The fate of the referendum depends on what the official Opposition position is. Its spokesman who attended Garma, Julian Leeser, supports it but wants more detail. There are some in the Opposition who will want to oppose it.
When the 1967 referendum was held the Liberals were in power, and those within its ranks who objected were silenced. (One such was Sir Henry Bolte, then Premier of Victoria, who later boasted to me and several other journalists that he had voted ‘no’.) That won’t happen here. Even if the Opposition agrees to support the referendum, some dissenters will make themselves heard and be given full coverage by at least some of the media.
The longer the wait between the unveiling of the Government’s proposals and the date people vote, the more quibbles, questioning and outright opposition there will be.
There is no reason to delay a vote. The earlier it is held, the better its prospects of success.
David Solomon is a former legal and political correspondent. He has degrees in Arts and Law and a Doctorate of Letters. He was Queensland Integrity Commissioner 2009-2014.
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