Not everything that Peter Dutton said about the Indigenous Voice to parliament is false or misleading. For instance, in the course of the past fortnight’s parliamentary debate he said “the government wants you to vote for the Voice on a vibe”. And it’s true that Anthony Albanese has been pitching the approaching referendum as a feelgood opportunity.
“Who do we want to be when we wake up the morning after this referendum?” the prime minister posed in this week’s Lowitja O’Donoghue oration.
“I believe we will rise with a stronger sense of ourselves. A great nation that has dared to become even greater – not just to ourselves but to the world. And I firmly believe that we will. Not because I am innately an optimist, but because of who we have shown ourselves to be. That instinct for fairness – the great Australian instinct for the fair go that defines us – remains fundamental to our identity.”
And while the change would uplift the lives of many Indigenous Australians, he said, “for most of us, [it] will have no material effect on our day-to-day lives – except, crucially, how we feel about ourselves – and how we see ourselves as Australians”.
So yes, there’s certainly a lot of “vibe” involved. The invitation to feel good about ourselves is certainly one element of the government’s campaign for a Yes vote. But is that wrong?
Dutton is also right to lay claim for the Liberal Party in some of Australia’s proudest achievements of equality. Labor’s Gough Whitlam usually gets credit for ending the White Australia policy.
But while Whitlam finished the job, it was, indeed, a Liberal prime minister, Harold Holt, who began the process of dismantling that great error of Australian history. And, as Dutton pointed out, it was Holt, again, who oversaw the successful 1967 referendum in which more than 90 per cent of Australians voted overwhelmingly to include Indigenous people in the census.
So why not declare joint ownership of this next step and support the Voice? Why not share in the national feelgood vibe and claim joint Liberal responsibility for another proud moment?
The core of Dutton’s position is that while the earlier advances were about equality, the Voice would be an “overcorrection” that would, in fact, create inequality. This is the same argument that sits at the very centre of the serious No case.
Said the opposition leader: “The Voice, as proposed by the prime minister, promotes difference. And it’s, sadly, a symptom of the madness of identity politics which has infected the 21st century. The Voice will re-racialise our nation. At a time when we need to unite the country, this prime minister’s proposal will permanently divide us by race.”
This seems superficially plausible. The Voice referendum would amend the Constitution to add that “the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples”. Isn’t that a clear distinction based on race?
It’s not. In fact, it is false and misleading for two main reasons. Albanese this week called it the “great lie” of the No case.
First, the Australian Constitution and whole corpus of Australian law already make distinctions that apply to Aboriginal and Torres Strait Islander people. In the Constitution as it exists, section 51, clause 26 says the parliament shall have power to make laws with respect to “the people of any race for whom it is deemed necessary to make special laws”. This is the so-called race power.
And a range of laws already applies only to Indigenous Australians, including the native title laws governing land use. These laws, which have emerged in the 31 years since the High Court’s Mabo verdict, actually demonstrate how traditional Aboriginal custom and tradition can co-exist successfully with colonial-era land title.
Second, it’s a misnomer to say the Voice would make a distinction based on race. It’s not about race, but indigeneity. This seems a subtle difference; in fact, it’s profound. It’s not a matter of what colour your skin may be but a matter of who is indigenous to a particular place.
Australia is home to many ethnic groups from across the world but has only one Indigenous people. They were here first. That’s why they’re called First Nations.
Their indigeneity is the cause of their unique suffering; Aboriginal and Torres Strait Islander people were dispossessed of their own land by a 1788 colonial enterprise based not on right but on might. It was a unique affliction and the remedy, likewise, is unique.
Attorney-General Mark Dreyfus said in parliamentary debate: “This bill would not introduce race into the Constitution. In the words of the former chief justice of the High Court Robert French, the proposed constitutional alteration contained in the bill would represent ‘a significant shift away from the existing race-based legislative power that the Commonwealth has with respect to Aboriginal and Torres Strait Islander people’.”
Explained Dreyfus: “And that is because the proposed alteration would recognise Aboriginal and Torres Strait Islander peoples not as a race but as the First Peoples of Australia. How can anyone possibly argue that this is about race?”
The Uluru Statement from the Heart explains indigeneity this way: “Aboriginal and Torres Strait Islander tribes were the First Nations of the Australian continent and its islands, possessed under ancient laws and customs, according to the reckoning of culture, from the Creation, according to the common law, from time immemorial, and according to science for more than 65 millennia.
“This is a spiritual notion: the ancestral tie between the land, or mother nature, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with their ancestors.”
And recall that the proposal for a Voice to parliament, enshrined in the Constitution, originated from the Uluru Statement.
Peter Dutton likes to send up the idea as the “Canberra Voice”. Yet the idea doesn’t come from middle-class civil servants in an air-conditioned Canberra committee room but from 250 Indigenous leaders kneeling in the red dust of Uluru to put their names to a plea for “a rightful place in our own country”.
Australia’s many ethnic groups have no trouble grasping the unique status of Australia’s Indigenous people. More than 120 organisations this week signed a joint letter pledging to “steadfastly support” the Voice referendum, encompassing Australian Italians and Indians, Irish and Iranians, Sri Lankans and Sikhs, Chinese and Pacific Islanders, and scores of others.
After falsely categorising the Voice as a divisive “re-racialisation”, Dutton then conjured fear that it would trample Australia’s institutions of governance: “The Voice could grind our system to a halt from the resulting years of litigation, and the High Court – not the parliament – will make the final judgment on a disputed matter.”
But the text of the constitutional amendment that the House approved this week as the basis for the referendum is very clear that the Voice would have only the power to “make representation” to the government and parliament. The parliament remains paramount.
And Dutton, once again, ignores the inconveniently eminent opinion of former chief justice French, who has written that “it is quite unlikely” that “there is any room for constitutional implications attaching legal consequences to representations made by the Voice to the executive”.
Dutton’s own former shadow attorney-general, Liberal MP Julian Leeser, dismissed his leader’s scaremongering. “The Voice will advise – just like the security services, the chief medical officer, the chief scientist, DFAT and other agencies advise,” Leeser said in the House debates last week. “The parliament will still be supreme in matters of law and policy.”
Dutton even resorted to conspiratorial imprecations that gave the Voice dark undertones of tendencies to tyranny: “It will have an Orwellian effect, where all Australians are equal, but some Australians are more equal than others.”
A former Coalition colleague of Dutton’s, Andrew Gee, who quit the Nationals over its fearmongering on the Voice and now sits as an independent, described this as “the low road”.
“To label the Voice Orwellian – I can only ask, what are they thinking?” Gee told the parliament. “Australia is a free and open society, so by all means oppose the Voice if you want to. But to take it to those places? To incite fear like that? Good grief.”
So, not everything Dutton said was false or misleading. Just the most important parts.
Peter Hartcher is political editor.
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