The recent comments by Nationals frontbencher Barnaby Joyce likening the Voice proposal to a law enacted in Nazi Germany show what a difficult task it will be to get the Voice referendum passed.
Various polls show about 65 per cent support for it. However, large majority support for sensible and/or symbolic constitutional change in Australia often evaporates when it comes to putting a Yes on a ballot paper.
All too often, the No case is mounted on many fronts. The reform does not go far enough; it goes too far; it has this or that imperfection; this or that group would prefer different words; the change would be a slippery slope into fascism, racism, socialism etc; if you are not sure or don’t know, vote no; and so on.
There are many ways to make a change with many details all of which can be argued over. So, some discord and division in the Change camp is inevitable. Against this, there is only a single way to keep things as they are.
In short, manifold and often contradictory reasons are put for the single result of keeping things as they are. The argument for change, however, has to be all-embracing. Moreover, it has to convince people – often people obsessively attached to their own way of achieving a result – not to reject the good in the quest for what they see as the perfect, which is usually elusive anyway.
We never got a republic with a directly elected president in a perfect democracy, nor, nearly a quarter of a century later, did we even get an Australian head of state.
This time, however, much more is at stake. If this referendum is not passed Australia and Australians will be seen here and internationally as racist.
When the republic referendum went down, we were just seen with some amusement and bemusement as anachronistic apron-string tuggers without any self-respect.
The prospect of being branded racist is perhaps the best argument against those who agree with the broad proposition of constitutional recognition for Australian Indigenous people but who reject the Voice because they want a treaty or a truth commission or some other way of doing it.
Those who think that way should vote Yes for the Voice and push afterwards for a treaty or whatever. They should take the lesson from the republic precedent. If the Voice goes down, do not imagine it would be a step towards a treaty, or truth commission, or reparations and compensation. To the contrary it would put the cause of Indigenous recognition and justice back a quarter of a century or more.
That said, arguments put by Barnaby Joyce and others like him, must not be dismissed. A hallmark of social media has been to put people into camps or tribes and decide issues not on merit, but on who is putting them.
It you take the view that if Barnaby Joyce is putting it, it must be wrong, it invites the view that if Labor is putting it, it must be wrong. And that results in deadlock and stagnation.
Joyce raised an important point, however clumsily. He said that the Voice would be “a delineation of people and their rights”.
“It’s not the same. It’s vastly less, vastly less noxious, but the Civil Service Act of Germany in 1933 also delineated people’s rights on the premise of their race, their belief,” he said. “It’s a very dangerous precedent.”
The main difficulty with Joyce’s analogy is that the German law was designed to discriminate against Jewish people and to make their lives worse, not better.
The Voice, on the other hand, has been designed by Indigenous people to improve the lot of Indigenous people.
He not only misread German history, but also misread Australian history.
He said, “It was the Coalition that successfully held a referendum in 1967 that removed racial distinctions from our Constitution. We’re very proud of that. Our actions stand in contrast to Labor’s historical association with the birth of the White Australia policy, which the Liberal and National parties under Harold Holt and John McEwen, also had to consign to history.”
But the 1967 referendum did not remove racial distinctions from the Constitution. It changed Section 51 (xxvi) of the Constitution which gave the Commonwealth Parliament power to make laws with respect to “The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”.
The referendum removed the words “other than the aboriginal people”, thus giving the Commonwealth power to make laws with respect to Indigenous people as well as any other race of people.
So racial delineation remains in the Constitution. Incidentally, that post-1967 power could be used to legislate for the Voice without a referendum and my guess is that the High Court would uphold it. But Indigenous people want constitutional recognition.
As it happens, the 1967 referendum did not work as intended. Most people imagined the Commonwealth would only use its new power to the advantage Indigenous people. They never imagined that the Liberal-National Coalition Government under John Howard would use the power to the detriment of Indigenous people by enacting the intervention.
The Constitution’s power is described as “with respect to” Indigenous people, not “for the benefit of”, and the High Court held that “with respect to” meant legislation to the detriment of Indigenous people was valid.
The aim of the Voice is to ensure Indigenous people at least get a formal way to point out any adverse effects of proposed legislation. It does not give them a right to veto it, as suggested by then Prime Minister Malcolm Turnbull when he likened it to a third chamber of Parliament while contemptuously dismissing the Uluru Statement out of hand, pandering to the National Party.
Further, it was Whitlam, not Holt, who ended the White Australia Policy with formal instructions to immigration officials to ignore race when selecting migrants. Also, Whitlam got through the Racial Discrimination Act in 1975 after repeated efforts by the Liberal and National Parties to block it or water it down.
Yes, in the early years of the Federation Labor actively supported White Australia because of the threat of cheap labour to high wages, but so did the Coalition.
But the important point now is not Joyce’s rewriting of history, but to get on with the constitutional recognition that Indigenous people have for so long craved.
This article first appeared in The Canberra Times and other Australian media on 18 October 2022.
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
