Originally published in The Australian
The Prime Minister’s emotion was understandable last week, talking about the Indigenous voice to parliament, because a better deal for Indigenous people should be a key part of our national project.
All of us want to close the outcomes gap between the First Australians and everyone else; and almost all of us are happy to see Indigenous people recognised in the Constitution. So a sense of occasion was entirely fitting.
But the challenge is to find a way of doing this that doesn’t divide Australians by race and end up making an unsatisfactory situation worse.
And the risk is that an abundance of goodwill might lead voters to support a change that turns out to be much more than they thought.
There are much more straightforward ways to recognise Indigenous people in the Constitution than via a voice. One would be to insert into the preamble, right after “ … one, indissoluble federal commonwealth” and before “under the crown … ”, these new words: “with an Indigenous heritage, a British foundation and an immigrant character”.
The advantage of doing this would be that it’s indisputably true, has something for everyone, and would become a good one-line description for the country we love. Another would be to insert an acknowledgment into the Constitution that the continent and islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples, using the words of the Recognition Act of 2013 that the parliament passed without dissent.
Something with a touch of poetry would be better than a dry acknowledgment of the facts, but either would well round out an otherwise serviceable Constitution and do justice to an Australia so beyond past prejudices that, without any reverse discrimination, we now have 11 individual Indigenous voices in the national parliament.
Let’s be clear that it’s no longer just constitutional recognition that many Indigenous leaders now want and that the government is proposing to give. They’re seeking a mechanism to overcome, in Senator Pat Dodson’s words, “the tyranny of our dispossession”, as if history can be undone.
“Recognition” and “consultation” are the sales pitch for the proposed voice but the intention is to regain the sovereign power over the future direction of the country that they think was wrongly taken away two centuries ago. As announced last week, the proposed constitutionally entrenched voice to both the parliament and to the executive government is about restoring at least some measure of the sovereignty the government thinks Aboriginal people unjustly lost from 1788 onwards.
By giving the voice a right to make representations to both the executive government (including the public service) and to the parliament on anything “relating” to Indigenous people, and by requiring all the arms of government to seek “early advice” from the voice in the preparation of laws and policies, this change would mean that almost nothing could happen without substantial Indigenous input.
Maybe the voice wouldn’t be the “third chamber of the parliament” Malcolm Turnbull originally called it; or the “fourth arm of government” (after the executive, legislative and judicial arms), as some lawyers have said. But it would certainly be a massive disturbance to the way we have been governed; a form of co-governance, in fact, where the representatives of the 4 per cent of Australians with Indigenous ancestry have a constitutionally guaranteed special and extra say over the governance of everyone.
This is very far indeed from the “modest” change the PM claims it is. It’s actually by far the biggest constitutional change we’ve ever been asked to make. It’s not just adding to the powers of the federal parliament but actually changing the way we are governed.
And by declining to have a constitutional convention to tease out all the implications; and by failing to provide the sorts of accompanying detail about how the voice might operate and be selected (as sought by the opposition); and by failing first to establish the voice by legislation (as the government could under existing constitutional powers), so everyone could see how it worked in practice before making it “forever” in the Constitution, Anthony Albanese is rushing us into making what will be effectively an irrevocable change with vast ramifications.
As the PM’s language last week indicates, he wants this to carry on sheer moral force. He thinks the inherited pain of dispossession for Indigenous people and the inherited shame of dispossession for the rest of us (even though nearly all Indigenous people have both dispossessed and dispossessing ancestors, and even though none of us can be responsible for what happened more than a century ago) creates a virtual obligation to make amends in whatever form Indigenous leaders want.
Even if this voice really would still the “whispering in our hearts” (making us “feel better about ourselves”, as the PM puts it) and enable all Australians to go forward, fully reconciled to each other as equal citizens in the best country on Earth, the racial distinctions inherent in it would hardly be justified. But almost the first items of business for the new voice, which – remember – can be proactive as well as reactive, are likely to be hyper-contentious: such as questioning the date of Australia Day, seeking treaties between the commonwealth and our 300-plus “First Nations”, and seeking additional payments for the use of land and water by way of reparations or compensation for past exploitation.
This is hardly a prescription for “bringing the nation together”. And as quite a few legal experts (most recently Greg Craven) have noted, any failure to give the voice adequate notice of proposed laws and policies, to resource it properly, or to fully take its advice into account is likely to lead to action in the High Court, with the potential to add exponentially to the tardiness and imprecision of government decision-making.
Even if it would finally remedy the near failed state that remote Australia has largely become, it could hardly justify the unequal treatment inherent in such a change. But instead of facilitating on behalf of remote Indigenous people the jobs, education, and housing prospects that most Australians enjoy, this is far more likely to entrench the separatism that is the root of the dysfunction.
Different (and invariably lesser) outcomes are the inevitable consequence of the different expectations about schooling, working and living that any voice, especially one dominated by activists, is almost bound to reinforce.
By so irrevocably committing the government to the maximalist Indigenous agenda, albeit with the best of intentions, the PM has set us up for tragedy. Instead of sticking to the achievement of constitutional recognition (as is all but universally supported); and instead of implementing the voice through legislation (to be adjusted or even ended as needed, as other Indigenous bodies have been), he is forcing us to choose between our goodwill for Indigenous people and our wariness towards a Trojan horse in the heart of our Constitution.
Getting Indigenous kids to school, Indigenous adults to work and keeping Indigenous communities safe are more important than a form of recognition that would turn out to be both divisive and counter-productive.
I’d prefer to avoid the moral scorn that will be directed at all voice critics. But in the absence of an 11th-hour prime ministerial change of heart, it’s absolutely necessary that Australia vote no.