Parliament must be able to have the final say on voice

Not only does the ATSIC experience give a powerful example of why any voice should be capable of being abolished, there are compelling reasons of principle why parliament needs to have power to abolish the voice. Picture: AAP

Put simply, there is only one question you need to ask about the proposal to recognise an Indigenous voice to parliament in our Constitution. Under the model to be put to the people, can parliament abolish the voice or not?

Use whatever euphemism you want – abolish, terminate, remove or defenestrate – Australians will clearly understand the issue if you put it before them honestly and clearly. Yet even now, with the urgent call from Indigenous leaders that a referendum be held on May 27 next year or January 27, 2024, some of them are deliberately ignoring the point, perhaps trying to slide a radical model past the population by stealth.

Some voice advocates, especially in the media, are too overcome by emotion to deal rationally or analytically with the issue. Could it be possible that most simply don’t understand the significance of the point?

Let’s skip the dissembling, the fudging and the occasional downright dishonesty. Who is boss – parliament or the voice? Can the voice give parliament the proverbial finger, meaning that no matter how badly behaved, how corrupt, inefficient or downright unnecessary the voice might become, parliament will have no power to abolish it?

The dividing line between yes and no answers is the dividing line between an acceptable, sensible constitutional recognition of Indigenous people and a radical and indefensible attempt to remake our Constitution on racially divided lines.

While the voice debate has, to date, seen all manner of urgers trying to dragoon popular opinion into their camp, it will not be until this question is answered that we will learn what Australians really think about the voice.

However, my guess is most Australians are ready to enact constitutional reform to facilitate the establishment of a voice provided it is properly supervised by and subject to parliament in the same way as every other advisory body in our national life is.

So for example, if you will pardon my amateur legislative drafting, a new provision in our Constitution could say: “There shall be a voice whose members, rights, powers, privileges and other features shall be determined by laws passed by the parliament. Parliament may at any time by law change any of those features and for the avoidance of doubt may abolish the voice with or without a replacement.” This might lead to more Australians saying yes at a referendum to establish a voice.

Such a provision provides simple and powerful constitutional recognition that does not override parliamentary sovereignty or put a racially constituted body beyond the triennial judgment of the electorate.

Sadly, what the radicals among voice activists want – although they frequently try to hide this agenda – is precisely that. To put the voice beyond the reach of parliament. To quote professors Marcia Langton and Tom Calma from the foreword to the Indigenous Voice Co-Design final report: “We were not surprised by the growing support for constitutional enshrinement (of the voice) … for many practical and principled reasons … including that it would be the best way to protect an Indigenous voice against abolition.” This fear stems from the 2004 abolition of the Aboriginal and Torres Strait Islander Commission, a little lamented body whose maladminis­tration and ineptitude led to its abolition with bipartisan support.

Not only does the ATSIC experience give a powerful example of why any voice should be capable of being abolished, there are compelling reasons of principle why parliament needs to have power to abolish the voice.

To demand that the voice be protected forever is the ultimate act of defeatism, an abject surrender to helplessness. We should be aspiring to lift Indigenous Australians up to the point where they need no special treatment, no special voice. Saying Indigenous Australians will always need a special voice is ultimately insulting. It assumes they will always need special treatment over and above their non-Indigenous fellow citizens.

There are pros and cons to affirmative action but even the most fervent advocates of it will usually admit affirmative action measures must be time limited. As Justice Sandra Day O’Connor said in the landmark US Supreme Court Grutter v Bollinger decision, which approved limited and targeted use of racial preference in US college admissions processes, “Race-conscious admissions policies must be limited in time.” She went on: “The court expects that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”

Of course, there are radicals who say the point of the voice is not to address disadvantage but to recognise inherent rights stemming from prior occupation. Australians will find this a hard sell – helping those who are disadvantaged and giving them special access to parliament is one thing. If we arrive at the highly desirable point where living standards of Indigenous Australians are the same as non-Indigenous Australians, why should skin colour or genealogy confer special rights?

A voice that is permanently entrenched by the Constitution, co-equal with parliament and unable to be abolished by parliament, should be offensive to all Australians, regardless of skin colour, as patronising and infantilising. It is, however, much more. It would destroy a constitutional principle – that of parliamentary sovereignty – because the voice could flip the bird at parliament if parliament thought it was no longer necessary or appropriate. It also would enact a perman­ent gerrymander. Indigenous Australians would get two votes in our democracy – one for the voice and one for parliament – whereas the rest of us get only one.

To do all this on racial grounds, to permanently divide Australians by race, is not something we should tolerate.

During this election and beyond, we can expect urgent demands for a voice referendum to be followed by claims that it is nonsense to suggest a constitutionally entrenched voice will become a third chamber of parliament. Vigilant, rational and persistent testing of those claims means we must demand an answer to this single question: “On your proposed model, will parliament have the power to abolish the voice?”

If the answer is no (or some formulation of weasel words that really mean no) there is nothing further to ask. This model should be unacceptable to all Australians who value our system of parliamentary sovereignty.