Indigenous Voice Of Division Would Force Parliament’s Hand

Written by:
2 August 2019
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Proponents of an indigenous voice to parliament make two key claims: it would be confined only to areas affecting Aboriginal and Torres Strait Islanders, and it would not become a third chamber of parliament. Both claims understate how far-reaching such a body is likely to become.

In an opinion piece in these pages on July 26 (“Cleanest way to establish a voice”), esteemed constitutional lawyer Anne Twomey refers to a draft constitutional amendment she prepared in 2015 to provide guidance on how a constitutionally enriched voice might work. The first part of Professor Twomey’s proposed amendment states that an Aboriginal and Torres Strait Islander body “shall have the function of providing advice to the parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples”.

But this seemingly unobjectionable limitation hides how far the remit of the voice would be. All major policy decisions made by parliament affect Aboriginal and Torres Strait Islander peoples, including tax, welfare, education, health, infrastructure, industrial relations, environmental regulation, financial market regulation, and superannuation. It couldn’t be any other way. Laws are passed by parliament on behalf of all Australian citizens regardless of their biological make-up.

Even assuming an Aboriginal and Torres Strait Islander body could represent the diversity among indigenous Australians is questionable. There is no more a single indigenous view on policy than there is a single non-indigenous view. But the proposal for a voice cuts against the model of Westminster parliamentary democracy, based on geographical rather than racial representation, that underpins the success of modern Australia.

Professor Twomey also flatly rejects the claim that an indigenous voice to parliament would act as a third chamber.

In a separate article on July 13 (“Fright-monsters keen to deny voice a fair go”) Professor Twomey states “the only people suggesting this (that the voice would become a third chamber) are those who are opposing it, so we can strike this off the list of problems”. Professor Twomey asserts that the proposed indigenous voice is not a radical concept as it would join numerous other bodies “whose job it is to ensure that the parliament is better informed about particular subject matters”.

Chris Kenny in his article from July 20 (“Uluru plan could not be fairer”) similarly claims that if critics must describe an indigenous voice as a chamber, “then it will not be a third chamber but perhaps the 598th chamber”. But the entire point of having an indigenous voice is that it must not be just another body among many others. That is why proponents insist on it being constitutionally enshrined — to elevate it above the other bodies and to prohibit its abolition by parliament.

If the voice is to be just another government body, then it doesn’t need any special representation.

The government could establish the voice right away, without the need for constitutional change. But if the voice is to be something more influential, then it will necessarily need to have a more privileged place within the policymaking, development, and implementation process.

This is why the voice would become a de facto third chamber (if not de jure — although even on this point we cannot be sure until a concrete proposal is established).

Parliament would be reluctant to go against the advice of the voice, not necessarily because of the quality of its advice, but out of fear of being shamed into action. In a time of identity politics, the image of a majority non-indigenous parliament going against the advice of an indigenous-only body would make it difficult for parliament to go against that advice.

Despite disagreement about the voice, there is broad agreement that the views of many indigenous Australians are not reaching the policymakers in Canberra.

This is not an argument for another Canberra-based bureaucracy, though, but its opposite. More localism achieved via the decentralisation of policy to local communities would empower those in remote areas to take control of their own lives in a way that Canberra never could.

Policymakers, commentators, and activists on both sides of the debate should come together to develop a positive and united policy program based on localism, regional economic development, and providing real property rights to indigenous Australians. This would deliver practical outcomes without compromising on the universality of the Constitution.

Regardless of the intentions of proponents, the voice would become an exercise in identity politics where every policy issue would be viewed through the prism of race. This would create an irreparable, permanent, structural, and racial divide in Australia from which this nation would never recover.

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