Ed,
Can I begin by thanking Oscar Tamsen for his considered and respectful letter regarding the upcoming referendum and The Voice (CVI 12/7/23). I am certainly no one of authority but I offer the following as a means of hopefully clarifying some issues.
The referendum if passed will require the government to establish a body, The Voice, which may make representations to the parliament and executive on matters of concern to First Nations Australians. Very senior constitutional lawyers and former high court judges, in spite of being misquoted by some politicians, have made it clear that this could not be interpreted as going beyond providing advice and definitely does not imply any sort of veto. As to what “matters” The Voice might proffer advice on, trying to place definitive limits beyond “matters affecting First Nations Australians” could be problematic and really quite unnecessary. I’m confident indigenous Australians would reject Voice members who did not concentrate on critical issues like health, housing, education and justice, and of course the parliament and executive would be unlikely to give a lot of time to advice that was not pertinent to those issues. The check and balance is the ballot box.
Now to the details of the structure of The Voice. Our constitution is not a weighty tome. It was largely a power sharing agreement between the six founding colonies. What they were prepared to cede to a commonwealth parliament and just the barest details of how that parliament would be structured, again in order to protect the interests of the states. There is a lot of detail not enshrined in the constitution, quite deliberately, in order that it be flexible enough to cope with changing circumstances and needs. For instance, much of the workings of the parliament is left to convention, not constitutional prescription. Only very broad guidelines are given on the structure of the parliament or indeed the voting system. The details were left to the parliament to implement and modify over time if desired and they have been modified a number of times. It’s when you do put a lot of detail in a constitution you run the risk of unintended consequences down the track. The classic example is the provision in the American constitution of the right to bear arms. It seemed fine 250 years ago in the context of just coming out of a revolution and war of independence but is very problematic now and very problematic to remove.
So, it should come as no surprise that the referendum question itself is very light on for detail. Instead, it is designed to enshrine the principle of a Voice. So why doesn’t the government put forward the detail it intends to legislate should The Voice get up? Two points. You can imagine that if they did many people would assume that at the referendum they were voting for, or against, that detail. But this would be wrong as the legislated detail could be changed by future governments. You can also bet that certain politicians would go through that detail line by line looking for points to argue on, even though they know very well that any detail they don’t like could be altered should they find themselves in government. Legislated detail is a political issue to be debated in parliament and if necessary, resolved at elections. It is highly likely that the detail of The Voice will be modified over time to improve it or meet changing needs, but no future government will be able to simply abolish it without reference to the people by means of a democratic referendum.
The referendum has come out of a process of years of broad consultation and expert advice. We can summarise this as the Uluru process. First Nation Australians are asking for recognition as the original custodians of this land going back tens of thousands of years, but they want recognition which is meaningful and practical, not just nice words in a preamble. They are tired of advisory bodies being abolished at the whim of the government of the day. A voice to parliament is a practical way of improving policies and outcomes. We know that programs with local input work better.
What has been put forward is very modest, generous really, and it provides a pathway towards true reconciliation and an opportunity to address the disadvantage which is so apparent in the Closing The Gap annual reports.
Graeme East, Yamba