On October 14th 2023, Australia voted on a referendum to add a new chapter to the Commonwealth Constitution:
- 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 the Parliament and the Executive Government of the Commonwealth 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 matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.
The Australian Constitution came into operation on January 1st 1901, making it one of the oldest written constitutions in operational existence. It sets out the main sources of power, and how that power is balanced, between the Federal Parliament, the Executive Government, the Judicature, and the States that complete our federal system. It is a rulebook, with no flowery language. There were only two references of recognition in its preamble: the Queen and her heirs and successors, and the people of Australia.
In 2017, indigenous delegates at a National Convention issued the Uluru Statement from the Heart, calling for an end to “the torment of our powerlessness, the establishment of a First Nations Voice enshrined in the Constitution, a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history”. On the night of the election of the Labour Government, May 21st 2022, Prime Minister Anthony Albanese committed to implement the Uluru Statement in full.
Our suburban street on the south side of Adelaide in South Australia had a letterbox drop from one of the residents, enthusiastically plugging the ‘Yes’ side of The Voice. We respected their opinions and liked that they ‘owned them’ by putting their names and address on the flyer. So we responded in kind, as respectfully as we could, outlining our doubts.
1. The Race thing
No matter which way you sliced it, no matter how much the ‘Yes’ camp twisted in the wind about it, the rights conferred upon Aboriginal and Torres Strait Islander peoples through the Voice were discriminatory. By definition. It was fascinating to observe sentient beings try to argue to the contrary. What we think they were struggling to convey, in actuality, was that it would be benign or positive discrimination. But as Bruckner wrote:
Progressive thought is blind when it suggests that there can be no anti-white racism or an antisemitism among the formerly oppressed or the young people in the projects because they themselves have suffered from this evil. They are the victims; they are exempt from the prejudices that affect the majority of the population. But the reverse is true: racism is multiplying at exponential rates among groups and communities, taboos are collapsing, and everything is explained in terms of physical characteristics, identity, purity and difference. And this is a racism that is all the more certain that it is right because it is regarded as a legitimate reaction on the part of the persecuted.
Colonialism was good and bad for indigenous peoples all over the world; does it still have an impact today, except as a fertile source of feckless resentment?
The aboriginal peoples are neither a monolith, nor a helpless, pitiful giant, nor flora and fauna. They do not need a committee to speak for them and, if they did, how could we ensure the Voice would do that? Would Professor Langton, on campus at Melbourne University (where you can buy a ‘Professional Certificate in Preparing for Treaty’ for just $7,576) intuit what a young man on the APY Lands required in life? Did it take a village to raise a child? Could he not work out whether he sought the ‘dreaming’ or the ‘market’? To say that he could not seemed to reflect the ‘soft bigotry of low expectations’.
In 2020, the High Court, by a majority, determined that a man born in Papua New Guinea who was a citizen of that country, but resident in Australia, where he committed a felony, could not be deported because he identified as a member of the Kamilaroi aboriginal group. This begged a murky and uncomfortable question: who is aboriginal? Who would be eligible for election, appointment, etc., to the Voice body? The 2021 census revealed that most of the 80% claiming aboriginal descent (many self-identifying) lived in the cities, and – pardon us – many were white enough to burn your retinas. Aboriginality as eligibility for appointment to the Voice could become a huge powder-keg all by itself, a massive source of bitterness, cynicism and division, before it even got rolling. As U.S. Chief Justice Roberts said (in another context): “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”
2. The Constitutional Problem
The Voice was sold as ‘advisory only’. But advice can be disregarded at one’s discretion. Representations must mean something more. In any case, the Prime Minister said “it would be a brave Government that ignored the recommendations of the Voice”.
There was no attempt to confine the right to make representations to the Legislature and the Executive based on concerns particular to Aboriginal and Torres Strait Islander Peoples. On the one hand, you couldn’t quibble with that. Aboriginal and Torres Strait Islander Peoples are Australian citizens and can have views on any policy subject they like. However, if the Voice, as a constitutionally-enshrined body, could make representations on anything and everything, didn’t that give the federal Government of the day the right to make laws on anything and everything? This could spell the death of federalism, and we wondered how the various State Premiers, so enthusiastic about the Voice, might feel when their roles were reduced to that of regional distribution centres. The Prime Minister, a former (and future) research officer, didn’t get the memo: most successful referenda are preceded by a Constitutional Convention.
3. Another useless Committee?
The ABC – Australia’s version of the BBC – kept referring to the referendum proposal as merely recognition and a purely advisory body to Parliament, but it was something more. The concept of representations to the Executive was problematic. The Executive is described in the Constitution as the Royal, the Governor-General, Executive Council, Ministers, Departmental Officers, the armed forces and civil servants. The Australian Bureau of Statistics in November last year stated that there were “254,000 employees in Commonwealth Government”. Would they each have to hear the Voice? Could that not render governance sclerotic? And there are literally thousands of aboriginal corporations, advisory bodies and native title specialists in existence now.
Another thought: the members of the Voice might soon find themselves as despised as ATSIC (the previous national indigenous body, wound-up in insolvency and scandal). Voice members might have to be sequestered, like a jury. Who would want to sit on it? Who needed the aggravation?
4. Enough bona fides?
We were more than willing to acquit the overwhelming majority of ‘Yes’ voters of bad faith. We accepted their good intentions at face value. Their impulse was to do something. Fair enough. However, something tightened in the chest when a ‘Yes’ advocate referred to indigenous ‘No’ campaigner Jacinta Price as “coloured help”, there “to punch down on other Blakfullas”. Or when the Prime Minister called No-voters “Chicken Littles”. Or if someone advanced some benefits of colonisation and was smeared as “disgusting”.
On paper, the ‘Yes’ campaign should have prevailed, in a canter. It had the support of Federal Labour and wall-to-wall mainland State Governments, numerous judges, Law Societies and Bar Associations, progressive media companies, the ABC, Qantas, BHP, Telstra, the Big Banks, Woolworths and Coles, Wesfarmers, the major sporting bodies and celebrities from the arts, Get-Up, even Shaquille O’Neal and MC Hammer. The ‘Yes’ side spent over $100m. ‘Yes’ signs abounded; ‘Yes’ ads washed over television and the internet in a turgid jet.
But the pitch was devoid of detail. It ran on the ‘vibe’. It smacked of a vanity project by the leisured and treasured elites. There was a lack of evidence, or even coherent argument, that the Voice would confer benefits where they were most needed. The members of the Voice wouldn’t be elected. No one knew who would be appointed or for how long. Could they be removed, and by whom? Would the Voice be subject to national laws? What exactly would it do? How would it be funded? How much funding? When and where and how would it meet? Would minutes of its meetings be published? Would the rest of the country be able to comment on its representations to Parliament and the Executive?
Also, the Voice seemed but the ‘first door’ to Treaty (including sovereignty), a Truth Commission (‘Makarrata’) and reparations (‘pay the rent’). It was actually sold to indigenous people as ‘the hook’. Yet the ‘Yes’ Campaign shut down questions about detail, process, key performance indicators and so on. It was like a sales person on the lot telling you: “This car will make you feel like humming. I can’t tell you the specifications, the weight, the manoeuvrability, the lifeline, the mileage, the price. I can tell you, it comes in one colour. Sign here to buy.” This dopey idea smacked increasingly of a grab for power, money and glory.
5. Shame Shame Shame, we’ll all take the blame
The silliest argument for ‘Yes’ was that if the referendum failed, it would leave the nation with a soiled international reputation, a pariah in its repudiation of indigenous aspiration. Ukraine, Israel, Gaza, Syria, Iraq, Libya, Yemen, South Sudan, Somalia, Afghanistan, the Democratic Republic of Congo, the Central African Republic and South Africa are all on fire. In Australia, we were having a disagreement, in a mostly agreeable manner. We didn’t think the U.N Rapporteur would rap our knuckles that hard if we voted ‘No’, irrespective of how much the Prime Minister might snivel.
6. The Result
The Constitution has only been amended eight times in 122 years, most of those changes being fairly procedural. The last referendum was in 1999, when a comfortable majority decided to stick with Her Majesty. It is a high bar: one has to obtain a majority of the six states and a majority of the national vote, including voters in the territories. By last Saturday night, it was very clear that the ‘Yes’ case had been annihilated. Every state voted ‘No’ by a comfortable majority. The national vote, as of writing, is 60.7% ‘No’ to 39.3% ‘Yes’. The Voice did worst in remote seats comprising the most traditional indigenous citizens, and best in affluent inner cities. It was like an inverted Brexit: the status quo remained.
And the feedback to our little responding flyer? One chap returned a copy with furious comments in the margins. One was returned simply ripped in half. But several people rang our doorbell and told us they agreed with every word.
As for the Prime Minister, he blamed the lack of bipartisanship on others, claimed credit for taking the question to the people, called for unity, and doubled-down on implementing the Uluru Statement, thereby emblematising La Bruyère’s epigram, that indulgence towards oneself and severity towards others is the same vice.
Peter Jakobsen is an Australian lawyer.