Do we really need an Indigenous ‘voice’ to parliament?

While Australia’s Prime Minister Anthony Albanese and his minister for Indigenous affairs frolic together with NBA basketball legend Shaquille O’Neal, the proposal for an Aboriginal and Torres Strait Islander Voice to Parliament (the Voice), devolves into a bully pulpit for elitists, Aboriginal academic activists, media, and the rich and powerful.

Racial abuse, threats, insults, and fear have driven the so-called “debate” so far.

On social media and in conversation, anyone who questions the referendum has been singled out for abuse and threats.

Senior legal people, including the Silks at the Bar who will run and, in time, preside over legal cases on the proposed constitutional provisions have been driven into silence. They’re unwilling to state publicly how they believe the Voice will impact public law, and parliamentary and government decision-making for fear of losing briefs.

Except for a few media outlets, the bias in favour of the Voice has drowned out all opposing views. We are to believe that all Aboriginals and Torres Strait Islanders are united in their support for the Voice.

This couldn’t be further from the truth.

Origins of the Voice

Let’s go back to 2017 when the Uluru Statement from the Heart was signed off by some 250 Aboriginal delegates who gathered in central Australia at the First Nations National Constitutional Convention.

The Statement had three basic demands: an Aboriginal and Torres Strait Islander Voice to Parliament, a treaty with First Nations People, and a Makarrata Commission.

The prime minister at the time, Malcolm Turnbull, stated that the convention went beyond its brief with the concept of a Voice to Parliament and did not consider it as a representative position—demonstrated by the number of walkouts from the process.

In a joint statement by the Turnbull government’s then-Attorney-General George Brandis and Minister for Indigenous Affairs Nigel Scullion the proposal to amend the Constitution was rejected.

They said it was neither desirable nor capable of winning acceptance in a referendum and would inevitably be seen as a “third chamber” of Parliament. It would also be inconsistent with the fundamental principle on which Australia’s democracy is built, that all citizens have equal civic rights.

The Morrison government had second thoughts following relentless pressure and campaigning by Voice proponents, particularly from big business and the media. It set up the Calma/Langton Inquiry to come up with a co-design of what the Voice would look like. The report from the inquiry has been completed and made public, with no government yet to respond to its detail.

Why I Don’t Support the Voice

From the beginning, I have never been convinced to support the Voice, a position I share with many other Aboriginals from across the political spectrum. The reason for this is three-fold:

1. The Voice is not Aboriginal culture. In our cultures, only countrymen and women can speak for country. No national body can speak for the circa 300 traditional owner groups, Australia’s “First Nations,” it would be a huge bureaucratic structure drowning out Aboriginal voices, not enabling them to be heard;
2. I am a believer in liberal democracy and all the freedoms and opportunities it creates; and
3. I don’t believe Australia and its Constitution is racist. There are racist individuals in our country, like every country in the world, but that does not make our country nor the laws that govern us racist.

The Parliament already has the power under the Constitution to set up a Voice to Parliament today or at any time of its choosing.

So, why does it have to go in the Constitution at an enormous cost of some $180 to $200 million (US$122 to $135 million), not including the money spent already? How about Parliament legislate the Voice and do something better with that money by spending it on the ground in ways that could produce practical results right now?

I have not heard a convincing argument as to why the Voice needs to be in the Constitution. People have said it avoids the vagaries of changing governments and policies changing.

Well, Paragraph 3 of the current proposed Voice amendment states quite clearly that the Parliament will have the power to determine the Voice’s powers, functions, structure and composition. The same powers the Parliament has now.

People have also said they want Aboriginal and Torres Strait Islander people to be “in the Constitution.”

You could do that with a preamble or statement that has words recognising the people and cultures who have been living on the Australian continent for millennia. You could enshrine Indigenous treaty rights like they do in Canada or give the Commonwealth the power to make laws on native title and/or agreements between traditional owner groups and governments on matters relating to their native title.

None of those things would be based on race but rather on historical facts and/or cultural rights that come from descent (not race).

Aboriginals and Torres Strait Islanders Don’t Speak for Each Other

After Prime Minister Albanese’s visit to Thursday Island in the Torres Strait, the people signed The Masig Statement—Malungu Yangu Wakay (Voice from the Deep).

It calls for self-determination, the right to freely determine political status and pursue economic, social and cultural development, autonomy or self-government in matters relating to internal and local affairs, and partnerships with regional stakeholders, the Queensland government, and the federal governments to achieve its goals.

The people believe it will eventually provide a place for a Torres Strait Islander Voice.

This didn’t surprise me. They’ve always been subsumed with the larger Aboriginal cohort rather than as their own independent group. And Torres Strait Islander people are different from Aboriginal peoples in descent, culture, and lore.

If the Voice makes a representation to Parliament that doesn’t have the support of Torres Strait Islander people, then it won’t be their voice.

In Aboriginal cultures, no Aboriginal person can speak for another country, only their own. That is our lore. How are individual First Nations represented in this Voice? Where is the seat at the table for the Bundjalung (my country on my father’s side) or the Gumbaynggirr or Yuin (my country on my mother’s side)?

From a legal perspective, I’m concerned with the words “voice” and “matters” in the first and second paragraphs of the proposed amendment, which could expose them to potential legal action or lawfare.

The Voice Doesn’t Add Anything New

Indigenous Australians are Australian citizens. There is no law, regulation or policy, and no act or decision of the federal government or parliament that doesn’t relate to Aboriginal and Torres Strait Islander people.

Are we going to have long, drawn-out debates on all laws before parliament and all policies of the government that need to be checked beforehand by the Voice? Budgets? Defence? Education? Health? Infrastructure? Commerce and Trade? The list goes on.

This would make the Voice a massive inhibitor of legislation, policy, and government decision-making. Leaving its legacy as one characterized by delay at the very least.

The Voice is not a new thing. We’ve had many Indigenous Voices before, and the Joint Council on Closing the Gap among others, now.

There is no detail on how this Voice will be any different to the others, except it will be expensive, arbitrary, permanent, and entrenched as a concept in a document that otherwise has no definition or guidance of what it is supposed to be.

There have been four elected bodies since 1973, all of which failed. One of them, the National Aboriginal Consultative Committee (later the National Aboriginal Conference), was set up as an advisory body but soon developed a new constitution giving itself autonomy, policy-making, and administrative powers. It didn’t survive.

Query if the Hawke government in the 1980s, who abolished it, could have done so if a “National Aboriginal Conference” had been embedded in the Constitution.

We have tried Indigenous representative bodies, Indigenous advisory bodies, and Indigenous consulting bodies multiple times over the decades. None have lifted Indigenous people out of poverty. None have “Closed the Gap.”

Why would a repeat of the same old, same old be different? In the words credited to Einstein: “Insanity is doing the same thing over and over again and expecting a different result.”