Emeritus Professor Greg Craven has challenged opponents of a constitutionally enshrined Indigenous ‘voice to parliament’ to answer 10 questions.
He began by saying “referendums are much like marriages”, because romance is eventually confronted by reality and the “certainty of victory” gives way to a campaign where “battle lines are fully drawn”. Perhaps he is confusing marriage with divorce. Either way, it’s telling he thought there was anything romantic about the voice or that it could have ever been a sure thing. Many Australians aren’t embracing the voice, including many Indigenous Australians like me.
Here are my answers, given from the perspective of an Aboriginal person who remembers the 1967 referendum and whose family members campaigned for it for decades.
- Why aren’t Indigenous people and the voice important enough for constitutional inclusion?
Indigenous people are in the constitution like every other Australian. Every part of the constitution is about us and how we’re governed. The voice will be about Indigenous Australians and no one else. And if it won’t improve Indigenous lives, it’s not important enough to be in the constitution or anywhere.
- What’s wrong with having constitutional provisions about race?
I believe it’s wrong to demarcate a system of government on racial grounds. Race-based constitutional rights don’t work. Look at Fiji. Native title and recognition of treaties are not about race but about pre-colonial sovereignty and property rights.
Australia’s constitution has two provisions referencing race: Section 51 bestows commonwealth power to make laws about the people of any race, and section 25 prevents states excluding people from voting on racial grounds and then counting those people towards its population entitlement to lower house seats (which actually punishes the state). These may be archaic but are not special provisions applying to one race of people.
- Why does the definition of Indigeneity matter?
If a group gets special rights, it matters if someone is genuinely part of that group.
- Why are we talking about the constitutional amendment, not the surrounding legislation?
We’re talking about the amendment because we’ll be asked to vote on it. I’d like to talk about the legislation, but the government won’t publish it until after the referendum.
- How could the voice be a third chamber of parliament (noting it only has influence)?
The bait and switch is that the voice is ‘conservative’ because it’s just advisory. So the voice is essential because Indigenous people have no voice but safe because government can ignore it. Yes, there other influential bodies like lobby groups and unions, but none is constitutionally enshrined.
- Why do Indigenous parliamentarians invalidate the need for the voice (noting they represent all constituents, not Indigenous people exclusively)?
Here’s where voice advocates are ignorant of (or deliberately ignoring) Aboriginal cultures. No Aboriginal person can speak for another country, only their own. Where’s the proposal for a constitutional voice for the Bundjalung people (my country on my father’s side) or the Gumbaynggirr or Yuin people (my countries on my mother’s side)? The voice won’t, and can’t, represent Indigenous people as a group.
- Why would the High Court run amok with the voice (noting it didn’t with the ‘1967 referendum insertions’)?
The 1967 referendum removed words from the constitution that excluded Aboriginal people. There were no ‘insertions’. Activist judges read between the lines. Including new provisions that require reading between the lines provides more space to run amok. This could be tested by having senior counsel review various scenarios where government ignores or defies the voice, or changes its structure or funding, and devising the arguments in support and defence of a challenge. Publish the opinions and let us see.
8 Why does ATSIC’s failure mean the voice won’t work?
We’ve had many Indigenous bodies, including four failed elected bodies – but government can prove this wrong. Legislate the voice tomorrow and show us.
- Why are we sure the voice won’t make a difference on the ground?
No one is sure, but if it will make a difference, why wait to put it in the constitution? Legislate now so Indigenous people start benefiting right away.
- What happens if the referendum fails (breaking Indigenous souls)?
I didn’t notice broken Indigenous souls in 1999 when a constitutional preamble honouring and recognising Indigenous people failed. Maybe most didn’t care. I’m not convinced many Indigenous people care about the voice. Most I speak to say they oppose it, don’t understand it, or think it will just cement the influence of Indigenous people who have been around forever while building a huge and expensive bureaucracy that will fix no problems.
The 1967 referendum was about dismantling state-based segregation regimes by removing express exclusions of Aboriginal people in the constitution. There was not a ‘No’ case because no member of parliament voted against the enabling legislation. That won’t be so for the voice, and Indigenous parliamentarians will be among those opposing it.
Professor Craven says there is not actually a ‘Yes’ or ‘No’ side to a referendum. Rather, everyone votes ‘Yes’ to one constitutional model or another. In 1967, Australians voted ‘Yes’ to a constitution that treated all Australians the same. Sixty years on, Australians opposing the voice will simply be voting ‘Yes’ to that principle once again.
Nyunggai Warren Mundine is director of the Indigenous Forum at The Centre for Independent Studies
Photo by Jonas Schallenberg