December 8, 2022

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Crispin Hull / The Voice, Referendums and the Republic

"The Aboriginal and Torres Strait Islander Voice is getting opposition from two fronts: those – mainly Green-left – who say it does not go far enough and those – mainly conservative, monarchist, British traditionalists – who say there is not enough detail..."

The Aboriginal and Torres Strait Islander Voice is getting opposition from two fronts: those – mainly Green-left – who say it does not go far enough and those – mainly conservative, monarchist, British traditionalists – who say there is not enough detail.

Those critics have a point, up to a point, but now that Prime Minister Anthony Albanese has set the referendum process in motion it is critical for our nation’s well-being that the Voice be passed.

Those who say there is not enough detail should take comfort in the fact that the detail (like the body’s composition and procedure and so on) is to be dealt with in legislation, and not put in the Constitution itself.

That is how it should be. Details often need tweaking with experience. If the details are in the Constitution, it is awkward and expensive to change them.

Of course, a lot of the “more-details” critics are playing a tactical game because they do not want Indigenous recognition in the Constitution of any kind. The more detail they get the more material they have to work on to build a No case and a scare campaign.

It would be better if they agreed to make a start and, if they are really so worried about detail, take part in the legislative process after the referendum to work that detail out.

The “not-far-enough” critics are doing exactly the same thing as the Greens did in 2008 with climate proposals and the direct-elect proponents did in the 1999 republic referendum. They ended up getting nothing – defeating a good start or a good proposal in favour of self-congratulatory purity that yielded nothing.

It will be a shameful day for Australia if the purists allow themselves to be manipulated by the forces of reaction to defeat a sound proposal which would go some to healing two and a half centuries of dispossession and hurt.

The proposed new constitutional words are:

“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.”

It is clear that these words take exactly nothing away from the Constitution’s provision that “the legislative power of the Commonwealth is vested in the . . . Parliament”.

Now, the Government has not mentioned where in the Constitution these new words should sit.

I think they should be in Clause One, just under the words saying the legislative power is vested in the Parliament.

That placement would add to the two critical elements of the Voice: recognition and symbolism. Despite the strength of the economy and materialism in Australia, these things are important, and should not be dismissed by the naysayers saying the Voice is a waste of time.

That said, the naysayers have a point. It is possible the Voice becomes a perfunctory, meaningless process. But that will be because of how people in power treat the words in the Constitution, not because of the words themselves.

There is a precedent. Section 101 of the Constitution says, “There shall be an Inter-State Commission” to administer and adjudicate on all law made under the trade and commerce power including tariffs.

Guess what? No such body exists, despite the words of the Constitution. The Productivity Commission has a watered-down version of the body’s functions and free trade has made the rest of its powers irrelevant.

Not even the High Court could force the Government or Parliament to set up the body required by the Constitution.

The “not-far-enough” people also have a point. A government (presumably not a Labor one) could change the supporting legislation and make the body all-appointed and stack it with cronies. Or the Parliament and Government could simply ignore it. And not even the constitutional enforcer, the High Court, could do anything about it.

The important thing, though, is that the Voice will evolve. Critics from either front should take part in that evolution rather than not giving it a chance at all and thereby, once again, destroying an opportunity to reconcile, recognise and acknowledge the oldest inhabitants of this land and their spiritual sovereignty (not power-wielding sovereignty) over it. A treaty and truth-telling can come later, in addition to, not instead of the Voice.

CRISPIN HULL

The other essential reason for this referendum to be approved is that, if it is not, there will be no chance of any government giving another republic referendum a go.

And surely these two things go hand in hand. The British heritage is already acknowledged, but in our institutions and in our Constitution it dominates to the detriment of proper recognition of Indigenous heritage and the non-British post-war multicultural heritage.

Lastly, the Indigenous spiritual sovereignty is being constantly whittled away by population pressure on the land, its sacred places, and the original flora and flora which forms a critical part of that.

Unless, Australia takes a much more active role in not just reducing emissions, but reducing consumption of planetary resources so the nation is more sustainable, none of the three strands of Australian heritage will be worth very much.

The inexcusable tragedy would be if any progress on Indigenous recognition and improvement; a recognition that this multicultural society should move beyond a British-based hereditary monarchy; and urgent attention to the environment is blocked by the obstinacy of those who insist that unless their demands are fully met immediately nothing will happen.

One expects opposition from the National Party, One Nation and United Australia. They rely on it for their sectional electoral support.

However, it would be an ideal time for what is left of the Liberal Party to show it has learnt the lessons of May 21. One can only hope.

This article first appeared in The Canberra Times and other Australian media on 2 August 2022.

www.crispinhull.com.au

Crispin Hull BA, LLB (Hons) | Property Convenor  |  ANU School of Legal Practice Lawyer of the Supreme Court of the ACT, on the Register of Practitioners kept by the High Court of Australia