Indigenous voice to parliament must not create a two-tiered Australia

A group of indigenous activists protested at the doors to Parliament House. Picture: NCA NewsWire / Gary Ramage

Beware the pile-on over an Indigenous voice to parliament. Few things are as predictable as a gaggle of constitutional lawyers in search of new constitutional provisions to litigate about.

No sooner had the voice co-design groups called for submissions into the voice proposed by the federal government to be set down by an act of parliament than 43 senior lawyers, academics and public law experts lodged their submission saying this was not enough. The group, including many luminaries of left-wing legal activism, maintain the proposal cannot work unless the body gets constitutional protection.

Note the strategy: the suggestion of an “expert consensus” about the location of the voice that misleads voters into thinking they have no choice. These legal elites claim that a legislated voice will be ineffective. Only a deluxe, constitutionally entrenched model will do. Akin to the failed referendum on a republic, the plan is to implement a constitutionally entrenched voice by dint of a never-ending academic and progressive pile-on claiming the inevitability of such a model.

This strategy was continued by Mark Leibler on these pages on Friday. Leibler said he has “no doubt our nation will ultimately achieve … constitutional recognition of Aboriginal and Torrens Strait Islander Australians in the form they have nominated”.

Leibler may claim an inevitability to a constitutionally enshrined voice, but it remains a highly contested question for millions of other Australians. And for good reason. A legislated model is not only more likely to be effective, it is also more likely to be ­accepted by the people as a model capable of being changed to suit changing circumstances. By contrast, the constitutional model permanently entrenches a two-tier Australia, where your rights and privileges depend on the colour of your skin. It would overturn parliamentary sovereignty and be immune from change, no matter how badly needed.

The difference between a legislated model and a constitutionally entrenched one goes to the essential legitimacy of the voice. Affirmative action, where one group in society is given special privileges or attention to overcome disadvantage, is inherently risky. As the Chief Justice of the US Supreme Court, John Roberts, famously pointed out: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

However, most Australians may accept that carefully targeted, time-limited and closely monitored affirmative action is appropriate and effective to end particular disadvantage in a specific group or groups. This is why most Australians are likely to applaud the establishment of a well-designed, legislated voice.

If parliament sets up the body, supervises it and can amend or even abolish it if necessary, Australians have little to fear. There is a better chance that any special preferences or privileges will last only as long as necessary to overcome disadvantage. In the spirit of a workable, responsive democracy, that model is reviewable every three years at the ballot box.

The power to abolish a body that has lost its way was critically important when the Aboriginal and Torres Strait Islander Commission was dismantled with bipartisan support in 2004 because it was riddled with claims of maladministration and corruption.

But that experience explains why advocates of constitutional entrenchment are so fervent about the body being immune from discipline, let alone abolition, by parliament. They want their constitutionally enshrined voice to be above parliament.

At least Leibler was candid about this when he said constitutional status for the voice was necessary to overcome the fact parliament dismantled ATSIC to bring an end to its worst features without, Leibler says, regard to its best features. For those demanding a constitutional voice, it would seem such a body could be as corrupt as it liked, and still be exempt from abolition by parliament.

This freedom from abolition or amendment by parliament is what would, if enacted, create a permanent two-tiered Australia. Indigenous Australians will have, in perpetuity, a right — to elect a voice — which no other Australian can enjoy. But if we are genuine about achieving real progress on the ground, rather than cementing racial difference in the constitution in perpetuity, we should envisage a day when a voice will no longer be required.

The elite lawyers and academics demanding a constitutionally entrenched voice are already dancing on the heads of a thousand pins dreaming up arguments to prove this would not create preferential rights and privileges based on race. These attempts are mere sophistry.

Test it this way. Next time someone tells you that a constitutionally entrenched voice is innocuous and does not create two classes of Australians with different rights and privileges, ask this question: “Well, in that case you would not object to adding to any constitutional amendment establishing the voice the following rider: ‘To avoid doubt, nothing in these provisions concerning the voice gives any Australian any rights or privileges not shared by all other Australians. If any provision concerning the voice has that effect, it is void’.”

If your interlocutor objects to such a provision, you know what they are trying to do, namely slide a two-tier Australia past you ­before you notice it.

And they are in a rush. The pile-on in favour of a constitutionally entrenched voice has started despite the fact key features of a model for delivering an Indigenous voice are still a complete mystery, and require vast amounts of thinking and consultation. For example, there is still no agreement on the model’s powers or scope of operation, let alone its membership, or issues such as by whom and how the body is elected or appointed.

For the constitutional pile-on brigade, any old pig-in-a-poke will do as long as it cannot be amended or abolished by parliament. On this argument, it is better to have a disaster that is permanent and cannot be fixed than a legislated voice that parliament can fix.

A legislated voice will no doubt also create preferential rights and privileges, but it can be repaired by parliament and is subject to the collective supervision of all voters. That seems a fair compromise between the continuing disadvantage of Indigenous Australians and the need to avoid creating a permanent two-tier Australia.