Detail isn’t needed to vote on the Voice, but explaining these four things wouldn’t hurt

In politics, as in life, there are always colliding truths.

There is no legal reason or historical precedent for the Indigenous Voice to Parliament referendum to be a detailed proposal. The reverse is true. Referendums pose simple questions and parliaments take care of the detail. Constitutional law expert Anne Twomey nailed this truth recently in the Herald, as the good professor always does.

Anthony Albanese’s signature reform can be both a sword and a shield.Credit: AAP

But it’s also true that sharing details can be both a sword and a shield: a way of making a sincere case for important change whilst risk-managing being positioned as “evasive” or of “treating people like mugs”, as is the current opposition line.

The welcome news is the current prime minister is not the evasive type.

He successfully campaigned for a Voice referendum at the 2022 election, giving him the credibility which only political courage buys – think John Howard and gun reform. Moreover, after the first-year performance of the Albanese government, the Rabbitohs and rugby league-loving PM is running with an even stronger wind in 2023.

And when explained, the detailed answers to questions about the Voice to Parliament are not uncomfortable truths. They are in the manner of safe remedies in keeping with Australia’s as-yet-unrealised but genuinely held national aspiration to be a fair place for all.

The wisest course then is to smother the alarms with this plentiful, soothing and accurate information. Four such bells are ringing now.

First and potentially the most erroneously compelling is: why should Australia, a country where race is supposed to be irrelevant, adjust its founding document to include provisions making race entirely relevant?

This argument carries powerful adjectives like “undemocratic” and “un-Australian” and claims of a referendum making “race-based” laws.

The truth is there are already race powers in the Constitution, a legal reality unknown to most. The suggested Voice amendment does not introduce “race” into the Constitution because it’s already there. That is, the parliament has the power to make laws for people of any race under Section 51. Powers which are anachronistic, controversial, and thankfully tempered by more recent racial anti-discrimination laws.

Will the Voice operate as a separate parliament? The answer is an emphatic “no”.Credit: Matt Davidson

These powers are also arguably necessary if parliament is to address more than two centuries of discrimination and disadvantage for First Australians. Thus, if democracies are about ensuring power is used properly – and given the Australian historical context – the Voice amendment serves a democratic purpose by better informing the makers of the laws of the land and the users of these powers.

Second, why shouldn’t every race or, for that matter, religion have their own separate voice to parliament?

This is a fair question demanding a practical response. The reality is that no people face the same level of entrenched and multi-generational disadvantage as Indigenous Australians. The uncontested indicators suggest poorer health, shorter life expectancy, a lower level of education and employment and higher infant mortality rates. If you are a male Indigenous Australian, there is a one-in-six chance you are in prison or have spent time in prison, often with parents and in some cases grandparents.

Such is the impact of 235 years of settlement: of pre-Federation ruling practice ranging from near genocide to convenient terra nullius, to later governments stealing children from their families, to more recent normalised de-prioritisation and ignorance of the importance of the right to speak for oneself.

Third, will the Voice operate as a separate parliament? The answer is an emphatic “no”. The Voice will be a small group of advisers with no powers to pass laws, allocate funds or to veto either. In respect of the issue of “function”, the Voice is then not unlike standing ethics advisers used by parliaments as is the case in NSW or the federal Parliamentary Budget Office function in Canberra. Advisory, not determinative.

Those concerned about the prospect of radical change can be assured that decisions about law or about money remains exclusively the role of parliament – a parliamentary factory in all of its inglorious politicking, necessary compromise, and wondrous practicality will continue to churn out the sausages, only this time with higher quality ingredients.

The Voice simply means future parliaments, in addition to all other sources of advice, will have direct advice from Indigenous Australians on matters impacting Indigenous Australians: the first advice of this kind since an Australian Parliament was convened by the Duke of Cornwall and York (and later King George V) in Melbourne in May 1901.

Finally, and if this is true, are we voting for something benign or even tokenistic and if so, why bother? After all, won’t future parliaments be run by the same rules of electoral mathematics as all others – the same calculus which has processed majority voices of uninformed disinterest into inadequate investment in Indigenous health, education and employment and overinvestment in incarceration?

This would be true if Australia was a static place and home to unfair people. Thankfully, we are neither. The national electoral equation is constantly changing, and the opportunity exists for the Voice and future parliaments to impact the equation: to both serve as platforms from which the growing ranks of Indigenous leaders can share untold stories of the oldest continuous culture in human history and the challenges it now faces.

And do so at a time when Australia, and the parliament it produces, is already more receptive than at any time in modern history. Indeed, after the Morrison years when government listened with its mouth, this portends to be a parliament capable of listening with its ears.

Thus, better understanding the Voice proposal and speaking to the arguments against it tends to make it a more compelling proposition.

The Voice does not fit into the category of being a solution looking for a problem, like so many initiatives from big modern intrusive government. Nor is it a radical leap forward.

It is both safe and utterly necessary. A chance for Indigenous Australians to share. For parliaments and people to listen and learn. And actions to be more considered and so longer lasting.

Meaning, the government should confront the apocryphal devils in the detail with confidence that the Voice has many more angels in its arsenal.

Jack Whelan is a barrister and mediator and a former prime ministerial adviser and chief of staff to the federal attorney-general.

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