The Indigenous voice to parliament is nothing to fear

The Yes case has not been put more eloquently than by musician Paul Kelly. Apart from filling a gaping hole in our Constitution, it could make a difference for the better.

Paul Kelly and Noel Pearson in Brisbane earlier this week. Picture: Lyndon Mechielsen

Before I get into this horridly divisive and increasingly personal voice debate, let me share some positive words about what is, after all, an optimistic and uplifting proposal. The case for voting Yes has not been put more eloquently, or pithily, than by Paul Kelly – not this paper’s esteemed editor-at-large who writes powerfully against the voice proposition, but Paul Kelly, the nation’s greatest singer-songwriter.

In an elegant and heartfelt Facebook post of about 250 words, Kelly springboards from the intrinsic value of 60,000 years of Indigenous culture. “That this gift and this deep history are not yet recognised in our founding document seems to me a huge hole in our soul. And a big knock to our idea of ourselves as the land of the fair go,” writes Kelly.

Yes, the fair go, it has long been my favoured summary of the voice proposal. “Recognition is not achieved with fine sounding words and feel-good statements but by promising to listen,” Kelly goes on, dismissing the patronising alternative of preambular symbolism and cutting to the core request.

Kelly then references the chasm in life outcomes between Indigenous and non-Indigenous Australians. “That yawning gap is unfair and diminishes us all. By saying yes to a voice and listening to it, we can tackle these problems in a more effective way.”

Yes, it diminishes us all, which is why the voice proposal is not only about uplifting our Indigenous brothers and sisters but about binding us into a better nation. Kelly also focuses on the implicit reciprocity of this arrangement: “And fairness cuts both ways. Having a voice gives people responsibility as well as agency. Being involved in decisions that impact your life brings with it accountability for the outcomes.” This is the conservative argument, the Noel Pearson thesis, and it is crucial.

Kelly does not hector: “I understand there are many different points of view. Some say that a Yes vote will divide us. But I believe this referendum is an invitation to join together and that saying yes will make us a more complete nation.”

The nation’s contemporary bard ends poetically. “No leaves us nowhere. Yes breathes in new air. That’s why I’m voting yes.”

There you go, that is the case for positive change made as succinctly as possible. Which leaves me to update the brutal cut and thrust of the culture wars debate.

Whatever we might want to say about the inadequacies of the pro-voice campaign, the central point about the No case is that it is overwhelmingly based on fear. A couple of elements of wariness are justifiable – concerns about unintended constitutional consequences and worries a voice might entrench separateness in our society.

The legal alarm has been stress-tested for months, if not years, and if the assessments of former chief justices of the High Court, law professors and the bulk of legal opinion are to count for anything, these fears have been allayed. The argument about separateness is more about philosophical disposition and so is harder to resolve – we must all make up our own minds. But the No camp has to contend with the fact the voice aims to redress historical disadvantage, close the gap, and reconcile the nation rather than divide us.

And they also have to explain how they can oppose a voice on the grounds of opposing separateness yet accept state and federal ministerial portfolios and departments for Indigenous affairs, special programs for Indigenous people, as well as specific laws about native title, land rights and cultural heritage protection. If that hurdle is not high enough, the No camp must also explain how the separateness of a voice is racially divisive, as they claim, yet they promise to legislate precisely the same type of body, just without a constitutional mandate.

According to the polls the No position is working, but it is far from logical.

There is a prevailing tone in the No advocacy, and certainly in the commentary of their supporters, that giving Indigenous Australians a voice involves non-Indigenous people losing something. This is a false binary. No advocates and commentators talk about the voice granting “racial privilege” to Indigenous Australians. This contention that allowing our most disadvantaged group to have a non-binding say on matters affecting them is some kind of gilt-edged preferment over the rest of us is truly a perversion. Could we really be that paranoid, wrongheaded or flint-hearted?

Whether it is reparations, land grabs or treaties, no matter what scares the No campaigners and their media supporters promote, the one fact they always ignore (or, in some cases, try to deny) is that the voice will be purely advisory. In other words, it cannot deliver anything to anyone.

In the unlikely event that the voice formed a radical view on reparations, for instance, the most it could do is recommend it is taken up. Only a government, only the parliament, could act. End of scare.

Likewise, arguing that radical remarks at some time or place by someone like Thomas Mayo demonstrate the unacceptable risk of a voice is like arguing the idiotic remarks of Lidia Thorpe show the unacceptable risk of having a Senate. Logic goes missing here, in favour of a scare.

Imagine if the voice were populated by people such as Nyunggai Warren Mundine or Jacinta Nampijinpa Price, would that be threatening? My good friend Jacinta, whose courage and commitment I have respected, admired and supported for many years, reaffirmed in these pages last week that her aim is to empower the voiceless – which is exactly what the voice was conceived to do.

We could expect a voice to be noisy, uncomfortable and mercurial. It would be as imperfect as any other representative body and would surely require refinement by governments over time.

But given its remit on matters relating to Indigenous people, and especially its constraint to only “make representations”, it is difficult to envisage it doing any harm. The risk is all on the upside – properly constituted and organised, it might just do some good.

Lord knows, whatever we are doing now is not working. As the No camp keeps pointing out, we have failed; we are wasting billions of dollars, and there are myriad Indigenous groups with overlapping responsibilities. These are not reasons to reject a voice but reasons to have a representative body in place that can help to tackle seemingly intractable dilemmas.

The tragedy of the voice campaign is that it has become a partisan battle. Once the Coalition decided to formally oppose the referendum rather than allow a free vote in the liberal tradition, it meant winning the contest became a hard political imperative for Peter Dutton and his team.

If the Coalition fails to defeat the referendum now, it will have done itself enormous medium-term political damage. So rational consideration of the voice or issues of reconciliation and Indigenous advancement surrounding it have become irrelevant.

The Coalition, by hook or by crook, just needs more people to say No. It is a tragic fate to befall a project of empowerment and reconciliation decades in the making.

After I detailed eight myths of the No campaign in these pages last month, Jacintaand Mundine responded in these pages in personal terms but without refuting a single point.

Indeed, while attempting to reject my claims that the No case was based on a scare campaign, Jacinta wrote about the voice leading to the “destruction of our nation and our democracy”.

It is difficult to see any good coming from this level of exaggeration. In his piece, Mundine got much wrong. He wrongly associated me with the Yes campaign, and on social media accused me of spreading “lies” yet failed to identify an error.

Mundine was wrong about race in the Constitution – it is there in Section 51 xxvi – “the race power” – and it is not mentioned in the proposed voice clause. He also wrongly claims the Calma-Langton report rules out elections for voice representatives, when it specifically allows for them.

Mundine argues a voice is not needed because adequate representation already exists. Which is OK for him, I suppose, given he was once the chairman of Tony Abbott’s hand-picked Indigenous advisory committee.

The point about the voice is that Indigenous people might be capable of choosing their own representatives, rather than deferring to the hand-picked elites. Mundine also mocks pretensions about the voice as a “magical wand to solve all problems” without citing who has ever made such a claim.

The essential questions remain for the No camp. Are we doing so well on reconciliation and the practical closing of the gap that we should just keep doing what we have been doing? And if the formation of local, regional, and national voices to advise governments on matters relating to Indigenous people would be racially divisive and counter-productive, why is the Coalition proposing to legislate identical bodies under the existing race power?

The bottom line is that the voice is nothing to fear. The worst that could happen is that it makes no difference, that it fails. Yet, apart from filling a gaping hole in our Constitution, it could make a difference for the better, especially if we seized on that as a bipartisan national goal.