Fright-monsters keen to deny voice a fair go

The most remarkable thing about a proposal for an indigenous voice to parliament is how moderate and reasonable it is. It is not a demand to dictate laws. There is no insistence upon a power of veto. There is simply a cry to be recognised — to be listened to with respect.

It means no more than that indigenous views can be channelled into the parliament by a formal mechanism so that they can be taken into account and parliament can be better informed when making laws that affect indigenous Australians.

How many people would prefer that the parliament be poorly informed? Who thinks it is a good idea for parliament to waste money on ineffective programs that achieve nothing?

The proposal is so very reasonable that it has shocked people into imagining hidden conspiracies and conjuring up fright-monsters, because they cannot bring themselves to believe that a proposed change could actually be good.

The best way to dispel fright-monsters is to expose them. The first is the claim that any indigenous voice that could channel its views and advice into the parliament would be a “third house of parliament”.

To state the obvious, it would be a third house only if it was given the power to initiate bills, pass and veto them, and be defined as a constituent part of the parliament in section 1 of the Constitution.

The only people suggesting this are those who are opposing it, so we can strike this off the list of problems.

If the suggestion is that any person or body that formally advises parliament in relation to bills or policies is a third house, then we would have a parliament of very many houses indeed.

Take, for example, the Independent National Security Legislation Monitor, whose role is to provide independent oversight of national security legislation and make recommendations about it, which are tabled in parliament. The monitor is currently conducting an inquiry into laws that terminate the citizenship of people involved with terrorism. Does this make the monitor a “third house of parliament”?

If so, the monitor would join the Auditor-General, the Productivity Commission, the Australian Law Reform Commission, the Australian Human Rights Commission and the many other bodies and people whose job it is to ensure that the parliament is better informed about particular subject matters.

All of these bodies and officers have influence, and should be listened to with respect because of their experience and expertise, but that does not mean they dictate legislation and government policies.

Governments have to take into account broader issues as well, such as the budgetary position and the general wellbeing of the entire country.

There is no greater threat in having an indigenous body advise and influence the parliament than there is in relation to any of these other bodies. Instead, there is a benefit in having a better informed parliament and hopefully better targeted laws and policies.

The next argument is that if this indigenous voice is enshrined in the Constitution, the High Court will get involved and every time indigenous advice is not followed there will be litigation and the High Court will force the parliament to give effect to that advice. This view is misguided. It is part of the principle of the separation of powers that the courts do not intervene in the internal deliberations of the parliament.

The High Court has held that it will not enforce constitutional provisions, such as sections 53 and 54 regarding money bills, because they concern the internal proceedings of the houses. As long as the constitutional provisions concerning an indigenous voice were drafted to make it clear that consideration of its advice was part of the internal proceedings of the houses, the matter would not be one that could be brought before, or enforced by, the courts.

The third argument concerns equality. Some have argued that there is a fundamental principle of equality in the Constitution and that division on the basis of race should not be brought into the Constitution.

First, there is no general provision of equality in the Constitution. For example, Tasmanians have, per head of population, far greater representation in the federal parliament than voters from NSW.

Members of parliament might also be aware by now that section 44 disqualifies them if they are dual nationals.

Second, the Constitution has always provided for distinctions based upon race. From 1901 to 1967 section 127 provided that for certain purposes “aboriginal natives” were not counted in the population.

This did not mean that they weren’t counted in the census. Every census, from the very first, has included detailed information about indigenous Australians. But it did mean that when determining the population for the purpose of calculating how many seats a state had in parliament, indigenous Australians were excluded from the statistics until this provision was repealed in the 1967 referendum.

Section 25 continues to provide that if a state excludes people from voting on the basis of race, it is punished by having its population reduced for the purposes of its representation in the federal parliament. Section 51 (xxvi) continues to allow the federal parliament to make laws with respect to the “people of any race for whom it is deemed necessary to make special laws”.

There are good reasons today to remove sections 25 and 51 (xxvi) from the Constitution, but there will still be a need to include some kind of power to make laws with respect to indigenous Australians.

This is not because of race. It is because of indigeneity.

Only indigenous Australians have legal rights that preceded British settlement and continue to apply today.

Only indigenous Australians have a history and culture unique to Australia.

It is not racist, divisive or a breach of principles of equality to enact laws that deal with native title rights or protect indigenous cultural heritage.

Nor is it racist, divisive or in breach of principles of equality to allow the only group about whom special laws are made to be heard about the making of these laws. Indeed, it is only fair, and fairness is a fundamental principle that Australians respect.

Anne Twomey is a professor of constitutional law at the University of Sydney.