Crispin Hull / Back to Basics on the Voice

What an unseemly, messy “debate” we had in the Australia Day week over the Voice.

To put it crudely, it seems that the whitefellas opposing the Voice are concerned that it might give the blackfellas too much, and that the blackfellas opposing the Voice are concerned that it will not give them enough.

Time to go back to basics. What are we doing here? 

Something is badly broken and needs fixing. All of the statistics and research tell us that Indigenous people in Australia have below-par outcomes on nearly all measures: infant mortality; life expectancy; educational attainment . . . . the list goes on and on.

So, this is not a case of “if it ain’t broke don’t fix it.”

How do we fix ths? Well, after 59 years of policy since the 1967 referendum which supposedly fixed the “Aboriginal problem” we know it did not and that something more or something different from top-down paternalism is needed.

Some constitutional history and theory are worth reflecting upon. The constitutional conventions of the 1890s spent an inordinate amount of time on race. If you read the transcripts the overt racism is embarrassing.

The Founding Fathers were at great pains to ensure the Constitution did not inadvertently grant citizenship and the rights that go with it to Indigenous Australians or “British subjects” from India or coloured people from anywhere.

So, they inserted the race power into the Constitution. It gave the 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 aim of that clause was to ensure that the Commonwealth could kick out the Chinese and the Kanaks while leaving the States with the power to continue their racist, assimilationist and exterminationist policies.

In 1967 it was naively thought that, if the words “other than the aboriginal race in any State” were taken out of the clause, the Commonwealth could then enact laws and policies to help Indigenous people. The referendum passed, but Indigenous disadvantage persisted.

The main reason, of course, was that the power to make laws “with respect to” Indigenous people did not require consultation or active engagement with Indigenous in the making of the laws and policy and did not even require that those law be for Indigenous benefit.

That is what this year’s referendum hopes to fix.

Critically, it begins with the words: “In recognition of Aboriginal and Torres Strait Islanders as the First Peoples of Australia.”

Then says, “There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.”

It “may make representations to parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples”.

The parliament shall have power to make laws with respect to the composition, functions, powers and procedures of the Voice.

It is true, as Opposition Leader Peter Dutton points out, that the Parliament already has the power to create a body like the envisaged Voice. But it would have to be made under the race power as amended by the 1967 referendum and omits the recognition. Without the recognition as requested by Indigenous Australians after wide consultation it would be a dud.

So, has the past week’s “debate” dashed the hopes of the referendum passing, as some suggest? I think not, for several reasons.

Popular political wisdom suggests that unless a referendum has the support of both major political parties it will go down and even if it has that support it might still go down. In the past that has been true.

But a lot has changed since the last referendum (on the republic) was lost in 1999.

Since then, support for the major parties has fallen fairly dramatically. It means there are fewer “rusted-on” supporters who will vote in whatever way their party dictates.

Polls are showing the Coalition vote in the low 30s. Even if all of them vote No, it would not be enough to defeat a referendum.

Next, the Liberal Party is unlikely to oppose the referendum outright. Dutton faces a dilemma. His party desperately wants to get back the inner-city seats it lost to independents at the last election. 

Those independents are now having a friendly tussle as to which gets the highest Yes vote in their electorate. Dutton will not want to alienate further those sort of voters: younger, better educated, and fairly affluent.

His way out will be for the Liberals to have a conscience vote. 

A third point is that the nature of political persuasion has changed since 1999. The campaigns run by the Teals and other independents proved singularly effective.

Lastly, the history of referendums shows that this referendum in is the class of previous successful referendums. These are ones that call for fairness, fair play and greater equality. Of the eight successful referendums (nine if you count marriage equality, though that was not a vote for constitutional change), more than half were in this category. The penchant for fairness is in plebiscites is even higher if you count the World War I double rejection of conscription.

Sure, a lot of sensible referendums fail and a lot of fairness referendums do not get as high a vote as they should. This is because there will always be people who want to seek short-term political gain; who do not want the other side to have a successful referendum whatever its merits; or who self-aggrandise.

And they will get a great deal of media attention because media thrives on reporting conflict. That will confuse some people

But when Australians go into the polling place it is hard to see a majority in three states rejecting the basically fair and obvious proposition that recognises Aboriginal and Torres Strait Islanders as “the First Peoples of Australia” or accepting the misguided and delusional proposition that it should be rejected because it does not go far enough. As if any government would revisit the matter until decades elapsed, if ever.

This article first appeared in The Canberra Times and other Australian media on 31 January 2023.

Crispin Hull is a former editor of The Canberra Times and regular columnist.


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