Enshrined voice won’t advance equality

‘In reality, the proposal seems less likely to build bridges between Indigenous and non-Indigenous Australians than to raise higher and more impenetrable walls.

The text Anthony Albanese released last Saturday of a possible constitutional amendment on the voice is certainly a step forward. But it does nothing to address the practical issues of how the proposed institution would be constituted, precisely who it would represent and by what means it would be held accountable.

And it does not dispel the legitimate concerns that can be held about entrenching such a body in the Constitution.

There is, after all, no idea more fundamental to the Western tradition than that of political equality. To say that is not to deny that when John Locke asserted, late in the 17th century, that God created human beings in a strict “state of equality” in which “all the power and jurisdiction is reciprocal, no one having more than another”, the political principle he articulated was simply an aspiration.

Nor could anyone deny that aspiration was, for far too many years, cruelly thwarted in the case of Australia’s Indigenous peoples, with disastrous consequences both for those peoples themselves and for the nation as a whole.

But it is also clear that the history of political progress has been one of widening the circle of equal citizenship, bringing Locke’s principle, which formed the basis of modern liberalism, steadily closer to achievement.

It was very much with that aim in mind that generations of reformers fought to overturn the laws that unjustly excluded Indigenous Australians from full membership in the Australian polity; and it was the demand for complete civic equality that resounded so loudly – and so successfully – with Australians in the 1967 constitutional referendum.

Nowhere was the emphasis on equal, rather than special, rights more eloquently captured than in the song that could be heard from one end of the country to the other during the 1967 referendum – a song exhorting Australians to “ ‘Vote Yes’ to give (Aborigines) rights just like me and you”.

“The original Australians”, insisted Faith Bandler – who came to embody the campaign’s spirit – no longer wanted to be “a race apart in the land of their birth”; instead, the time had finally come for them to be “treated equally with other Australians”.

It was therefore no accident that the demand on the Indigenous petition that marked the campaign’s origin was not for the proposition that was eventually put to the Australian people – that is, an amendment extending to Aborigines the commonwealth’s power to make laws for any “race”. It was for the deletion from the Constitution of all reference to race, cleansing our founding document of the stain that had tarred it from birth.

Unfortunately, that plea was rejected by the campaign’s non-Indigenous advisers, who believed special laws, passed using the race power, would eradicate Aboriginal poverty and hardship. Now, after decades of failure that should have shattered that illusion, we are once again being told that constitutionalising inequality will promote equality and that enshrining separateness will reinforce national unity.

In reality, like all schemes that segment the political process, the proposal seems less likely to build bridges between Indigenous and non-Indigenous Australians than to raise higher and more impenetrable walls.

Already in the 19th century, bemoaning plans that would have allocated particular rights of political representation to specific groups in the community, John Stuart Mill argued that once representatives were instructed to speak on behalf of a specific group, they invariably became “mere attorneys of small confederacies”, fuelling sectionalism and converting political deliberation into a battle between implacable adversaries.

Only slightly later, Albert Venn Dicey, the Victorian era’s greatest constitutionalist, warned that any such plans invited “incalculable evils”, as the “special representatives” would, “from their very position”, feel impelled to “display and intensify (sectional) feeling”.

Even worse, said Dicey, instead of bringing into the legislative process the fact that the people being represented were “of different politics, pursue different professions and belong to different religious bodies”, the richness of many voices would be throttled into a single narrow voice.

The experience of recent years only confirms those fears, as Harvard’s Jane Mansbridge, who has been among the most prominent advocates of special forms of representation for disadvantaged groups, has frankly recognised.

“The diversity within historically disadvantaged groups is no less than in any other groups,” she writes; the consequence of special representation, which seeks to coax a unified view out of that plurality of interests and opinions, can only be “the suppression of (those) differences”.

At the same time, special representation is “fraught with danger” as it inculcates, both in the group itself and in the rest of the electorate, “the conviction that the individuals (who are being) represented have some essential traits that help define them and that render them unable to be represented adequately by those without such traits”, breeding the very “essentialism” all genuine democrats have always decried.

And compounding the damage, the essentialism’s effect is to “reinforce stereotypes, trap the individuals in the group in the images traditionally held of the group, de-emphasise lines of division within groups to the advantage of dominant groups within the group, and harden lines of division between the disadvantaged group and other groups”.

As a result of those harms and others, any special forms of representation are solely justifiable as a temporary measure, which ought to be repealed as soon as “structural conditions improve” — that is, once the original under-representation has been corrected. They should therefore “be kept as flexible as possible”, Mansbridge concludes, with their implementation “by voluntary adoption rather than by legislation, and by legislation rather than by constitutional mandate”.

Those lessons have been entirely ignored in the thousands of pages advocating the voice; instead, we are hurtling towards the most inflexible of all possible options.

And while that option’s possible advantages have been repeatedly asserted, little or nothing has been said about what could go wrong. Yet once the trapdoor of constitutional change has sprung, correcting it would require a referendum that could only be appallingly divisive.

In November 1965, when the proposal to extend the race power to Aborigines was put to cabinet, Robert Menzies demurred. “Shouldn’t our overall objective be to treat the Aboriginal as on the same footing as all other Australians, with similar duties and similar rights?” he asked his colleagues. And wouldn’t enacting “a separate body of laws relating exclusively to Aborigines” just perpetuate their treatment “as a race apart”, making it even harder for the ultimate goal to be achieved?

That Menzies made many dreadful errors on Indigenous rights is a fact; but as his period in office was drawing to an end, he at least asked the right question. So should we.