Originally published in The Spectator Australia

When it comes to the Voice, Anthony Albanese is breaking all the rules for successfully changing the constitution. First, he hasn’t thoroughly explained how the change would work. Second, he hasn’t given both sides of the argument a fair go to make their point. And third, he’s made no effort to make his proposal bi-partisan, beyond trying to bully the Coalition into supporting it on the grounds that it would be disrespectful, even racist not to.

But on something as important and as sensitive as recognising indigenous people in the constitution, it would be a serious national embarrassment for a proposition to be put to the Australian people and fail. That’s why Frank Brennan, the distinguished Jesuit lawyer, has produced this short book, An Indigenous Voice to Parliament – Considering a Constitutional Bridge. He wants to rescue the Voice referendum from the defeat to which he thinks it’s currently doomed.

Brennan’s is a noble undertaking, because almost every Australian thinks that indigenous people should be recognised in the constitution. The argument – and it’s getting fiercer all the time – is over what form that recognition should take. Should it be whatever the loudest indigenous leaders want, given the dispossession their people suffered from 1788; should it be a simple acknowledgement that indigenous people were here first; or should it be, as Brennan argues, a more nuanced response to the Uluru “Statement from the Heart”?

His book is a clear, comprehensive and scrupulously fair account of all the various endeavours, so far, to retrofit our otherwise serviceable constitution with a formal acknowledgement of the indigenous peoples of Australia, a nettle that was beyond our 19th century constitutional founders to grasp. The best we’ve managed so far is the Aboriginal and Torres Strait Islander People’s Recognition Act 2013, that the parliament passed without dissent, stating that “the continent and islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples”, acknowledging their “continuing relationship…with their traditional lands and waters” and respecting their “continuing cultures, languages and heritage”.

Should words to this effect be inserted in the constitution, as Brennan himself proposed back in 2015, that would undoubtedly constitute recognition. But that’s all it would be. It wouldn’t satisfy the demand of the indigenous leaders in their 2017 “Statement from the Heart” for “voice, treaty, truth”; effectively, for a new compact between Australia and its “First Nations”, formally re-writing indigenous people into the governance of the country, two centuries after its original British settlement. This is when indigenous constitutional recognition, in my view, went off the rails: ceasing to be a completion of the constitution, to make it, finally, something for everyone; and becoming an attempt to change the constitution, to right the alleged wrong of 1788 and beyond, by giving just some of the people a special say over the governance of everyone.

Brennan recognises that the current proposal for an indigenous voice both to the parliament and to the executive government, and to advise on anything at all “relating” to indigenous people could readily give rise to litigation on anything that the Voice might object to; and because that would add a further level of doubt, expense, and potential delay to our already gummed-up governmental processes, Brennan reckons that it’s almost certain to lose at the referendum expected later this year.

It’s precisely because a referendum that failed would leave our country divided, at least some indigenous people embittered, and quite possibly, all of us exposed to more international obloquy, that he proposes a different and less far-reaching version of the Voice. Brennan’s version is that the constitution be amended to create a Voice to advise the parliament only; and solely on matters specifically concerning indigenous people; thus avoiding many of the flaws in the current proposal. Conceivably, the High Court could still be called upon to adjudicate whether a law was “special” but it’s much harder to see how the ordinary and sometimes urgent functions of government could be subjected to judicial over-ride.

On the other hand, why should any group of people, even one that might be thought to deserve special recognition as the first Australians, have their own unique voice to the parliament? Wouldn’t this entrench the separatism that has bedevilled the well-being of individual indigenous people since the Whitlam era, with different official expectations about the kind of schooling they should receive, the jobs they might do, and the “country” they might be connected with; lest, over time, more might become integrated or even assimilated into the broader Australian community? 

As Warren Mundine has argued (and as Brennan cites in a useful chapter on prominent individuals’ arguments for and against the Voice), “this belief that Aboriginal people are a different species requiring ‘culturally appropriate’ solutions has kept an Aboriginal industry thriving and allowed politicians, academics and consultants to build successful careers for themselves while people on the ground languish”. Why, indeed, should indigenous people be granted an entitlement to group self-determination, over and above the individual self-determination that should be available to every Australian regardless of ancestry? And why should Australians with a particular ancestry have a say in their governance that couldn’t and shouldn’t be accorded to everyone else?

But since the indigenous leadership, at least as represented at Uluru, have asked for a Voice, Brennan’s view is that the wider community should give it to them, provided it can be massaged into something that’s less immediately disruptive to established patterns of government. He’s putting forward his milder version of the Voice as a way to avoid a tragic impasse, by offering a potential accommodation between a government that fully supports the Uluṟu statement and an opposition that questions or opposes it. On the other hand, he says, “should the government fail to reach agreement in the parliament on the proposed new wording for the constitution…it would be best if the referendum were postponed”, because, he says, this generation of leaders would have been found wanting in the wisdom and the decency needed to get it right. It would test the magnanimity of Voice opponents were the PM, at the eleventh hour, to adopt the Brennan compromise but it’s hard to see that happening. Brennan is right that it shouldn’t have come to this, but if it’s the present proposal that goes to a vote, it simply must be defeated.