As the US De-racializes, Australia Moves to Re-racialize the Constitution

In my previous article, I noted the curious historical juxtaposition that ten days before the US Supreme Court struck down race-based affirmative action policies in university admissions, Australia’s Parliament approved holding a referendum to re-racialize the Constitution. It will do so by inserting a new chapter to give to Aborigines rights of representations that are not available to any other group.

The Constitution Alteration Bill authorises a referendum, expected to be held in October, to ask voters to mark yes or no on a single question. Should the following amendment be inserted in the Constitution:

Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples

129 Aboriginal and Torres Strait Islander Voice

In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

1. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice; 
2. 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;
3. The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.

Amendment Procedure

To pass, a constitutional amendment needs a majority of votes nationally plus approval by voters in a majority of states; that is, in four of six states. This makes amending the constitution exceptionally difficult in Australia. The last effort, to move from a constitutional monarchy to a republic, was rejected in 1999. Law professor George Williams of the University of New South Wales notes that only eight of 44 proposed amendments have succeeded in Australia’s history.

Of the 36 failed efforts, 13 were deadlocked with a 3-3 stalemate among the states. Furthermore, in five of these eight, the national vote had been Yes. In the 1977 proposal to require elections for both houses of the federal Parliament to be held simultaneously, the national vote was a resounding 62 percent in favour. But Tasmania, Queensland and Western Australia voted No and it failed.

The politics of constitutional amendment are thus weighted heavily against success. This makes it all the more important that any new initiative should, if at all possible, have bipartisan support of the major political parties as well as broad community support. Incredibly, Prime Minister (PM) Anthony Albanese has gone out of his way to refuse to reach out across the aisle for a form of wording that both sides can agree on. He has opted instead for a maximalist approach that intensifies doubts about the impact of the proposal, and has joined in the intemperate criticisms of critics as being stupid racists.

After Albanese turned down an offer to sit down and work together on a legislated rather than a constitutional Voice, Opposition leader Peter Dutton explained the Liberal Party’s decision to oppose the referendum proposal by saying: “It should be very clear to Australians by now that the Prime Minister is dividing the country, and the Liberal Party seeks to unite the country.” The personal invective from Aboriginal leader Noel Pearson portrayed Dutton as an “undertaker, preparing the grave to bury” the Voice.

When Dutton criticised the amendment, which has no details whatsoever on form or function, as a “reckless roll of the dice” that would set race relations back, Albanese attacked him as “simply unworthy of the alternative prime minister of this nation” who is “totally devoid of empathy.” Instead, he is “seeking to amplify” all the “catastrophising and contradictions” based in “misinformation.” Burney castigates him as a “bully boy.” They are proving as good unifiers as Joe Biden.

In response, Dutton simply asked: “Why is the prime minister yelling at me that I’m not smart enough to understand it, or that I’m racist because I don’t support the voice?” Instead Albanese should “explain it to me.”

If that the Voice gets over the line despite the built-in difficulty, it simply will not be possible to repeal that, ever. That sobering reality ought to concentrate minds amidst calls to get with the “vibe.” It must be designed close to a perfect model to maximise the benefits and eliminate all risks. This test is absolutely not met.

The Amendment Would Permanently Divide Australians by Race

Back in 2007, Chief Justice John Roberts had argued: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The present Parliament has 11 members with Aboriginal ancestry, already exceeding their share of the population.

The conclusion of constitutional conservative lawyers like Greg Craven and Julian Leeser who denounce the model as “fatally flawed” yet will vote and campaign for Yes is intellectually incoherent, elevating emotion above reason, and morally muddled. The counterpoint to the Craven-Leeser sentiment is the first TV ad against the Voice from Fair Australia featuring Senator Jacinta Nampijinpa Price who is married to a Caucasian. In a key sentence, she says: “I don’t want to see my family divided along the lines of race, because we are a family, of human beings, and that’s the bottom line.” The sentiment will resonate in the many “blended families” in contemporary Australia.

On 3 April, Leeser gave an important speech at the National Press Club. His self-identification as “a non-Indigenous Australian” is problematical. If not Australian, what is his country of indigeneity? Or does he not have a country to call his own? What exactly does “indigenous” mean in contemporary Australia (or New Zealand, the UK, Canada, and the US)?

• The first inhabitants? What if our best knowledge indicates they migrated from somewhere else – do we then subordinate objective scholarship to Dreamtime mythology?
• Does it refer to the original inhabitants? What if I claim “original inhabitant” status because India was once part of the supercontinent of Gondwanaland before it split and one part floated north, hit the Asian mainland and the collision created the mighty Himalayas?
• Does it refer to anyone born here? If not, then what does this mean for a fifth/sixth generation South Australian of Irish descent? Is she indigenous Irish but not Australian?
• As a corollary, does an Australian Aborigine, who was born in Ireland of ancestors who went there five-six generations ago, remain an indigenous Australian, shades of the High Court’s 2020 Love decision? In that case two people of Aboriginal descent were born outside Australia, did not confirm Australian citizenship, were convicted of crimes, and on grounds of failing the character test, were ordered to be deported by the government. The court revoked the government order. In a 4-3 decision, the court ruled that a non-citizen of Aboriginal descent is not an alien and therefore cannot be deported.

In hindsight, the restriction of “indigenous” to Aborigines and the “welcome to country” ritual before any and every official function in government departments and universities have proven damaging, normalising instead of overcoming racial separation and promoting reconciliation. The idea that I should be welcomed to my own country is frankly bizarre.

Conceptual Confusions

The Voice debate is riddled with confusions. The first results from the conflation of support for a voice as an abstract principle, and support for the Albanese model. We saw this in the republican debate. Despite a comfortable majority indicating in-principle support for a republic, it proved impossible to find an actual model that most people could support and the republic proposal was defeated.

At the international level, we see the same dynamic in efforts to restructure the UN Security Council. Most countries support it in the abstract but there are always more losers than winners when any actual model is put up and so the initiative has failed for decades.

A second confusion is between a symbolic acknowledgment in the Constitution of the place of Aboriginal communities in Australian history and society, and a policy advisory body legislated by Parliament on Aboriginal matters. A constitution specifies the organs of government; the manner of their creation and organisation; their powers and limits in relation to one another and to citizens; and the procedures for formulating and executing laws and resolving conflicts among citizens and groups. It encapsulates the social purpose of an all-inclusive political community. It enumerates the system of checks, limits and balances with both a licence function to permit some actions and the leash function to proscribe other actions.

Like the US, the Australian Constitution has been extraordinarily successful n creating, nurturing and sustaining a stable constitutional democracy, even if with flaws and imperfections. Nothing in a country’s Constitution is inconsequential. Constitutional governance also puts an apex court – in our case the High Court of Australia – as the final arbiter of the interpretation and applicability of its clauses to particular cases. Its judgment cannot be questioned and appealed any further by Parliament.

Unintended consequences of any amendment can cascade through a system of government. Skilled lawyers will often be able to find room to encourage sympathetic judges in an activist judiciary to find all sorts of meanings that were never intended.

Yet another confusion is mixing up feeling good about one’s own virtuous self, and actually doing some good for the intended beneficiaries of a policy in redefining the terms of the relationship of the Aboriginal peoples with the broader Australian community. 

As people of goodwill, most Australians want to do the right thing. Instead of offering us the right choice, however, the proposed Voice amounts to an abuse of public goodwill. Exhortations to go with the flow of kind gestures have not produced terribly good outcomes in the Covid years or in the trans culture wars.

The refusal to provide details is in contempt of citizens’ right to informed consent in return for popular legitimacy for a constitutional change. Constitutional entrenchment would be racist in design, implementation and consequences. Most Australians are familiar with the litany of failures with respect to Aboriginal communities.

The Voice will make little practical difference to the “nasty, brutish and short” life of most Aborigines living in remote communities in the outback on metrics of life expectancy, literacy, housing, violence, incarceration rates, suicides, community safety, etc. This is precisely the major point of the critique from the likes of Aboriginal leaders like Nyunggai Warren Mundine and Jacinta Nampijinpa Price. The overriding goal of the Voice should be the difference it will make on the ground, not making us feel virtuous on the morning after the referendum.

Downstream Risks

Human rights laws treat all citizens as rights-bearing equals in and under the law, with the same immunities, privileges and obligations. By contrast, a constitutional Voice would, in a final coup de grâce, entrench inequality of citizenship. 

The best way to harden and institutionalise racial identity is to carve it into the Constitution. The Voice will entrench the soft bigotry of low expectations that regards Aboriginal people – the many and growing examples to the contrary notwithstanding – as permanent state dependants who are incapable of ever looking after themselves. 

It will vastly complicate Australia’s challenge of effective and timely governance in the national interest for the common good. It will risk governmental paralysis, be complex in its bureaucratic sprawl, attract grifters and rent-seekers, prove costly in implementation and heighten disconnection and disenchantment on the ground.

The Albanese model is neither symbolic nor modest but powerful and open-endedly expansive. Once embedded in the Constitution, it will be impossible to remove, no matter how deleterious it proves and how much damage it causes, without closing the outcomes gap. Going by experience elsewhere, power, resources and influence will be concentrated in a parasitical elite while doing little to deliver practical outcomes where most needed in the remote communities.

The open appeal to the feel-good factor notwithstanding, the divisions and bitterness it has already generated is a small foretaste of the rancour we can expect once the poison of race-based preferential status has been injected into the constitutional heart of the Australian body politic. It will create a massive new bureaucracy with a powerful vested interest to keep feeding the grievance and victimhood narrative as the most effective means of growing its size, budget, powers and tentacles into every sector of Australian life.

The scope of the Voice seems to be as fluid as that of gender these days. It’s hardly to be wondered at then that there is widespread confusion on the public understandings – I use the plural advisedly – of the Voice. Albanese has tried to downsize the scope of the Voice and talk up the primacy of Parliament to allay pubic fears about its potential to jam the workings of government.

But Megan Davis, a senior member of the referendum working group, insists that Parliament will not be able to “shut the voice up.” It will speak to all parts of the government: cabinet, ministers, statutory offices, and agencies like the Reserve Bank, Centrelink, and the Great Barrier Marine Park Authority, and public servants.

Sentiment is Hardening against the Voice

The campaign to codify grievance in the constitution is faltering as arguments against resonate in the wider community. Moral intimidation by the self-appointed custodians of public virtue to shame Australians into voting Yes isn’t working. Efforts to shame Australians into voting Yes are fuelling a backlash.

In the latest Newspoll, published in The Australian on 26 June, No voters outnumbered Yes nationally 47-43, a 7-point turnaround in three weeks. Of the six states, only Victoria and NSW are in the Yes camp. If the referendum fails, Albanese will own it. He rejected the option of splitting constitutional recognition and a legislated voice, rebuffed calls to defer the referendum until after a proper consultative process, and insults and belittles those with good-faith concerns.

Public support is slipping mainly because the product is fundamentally flawed. Born of racist assumptions, it infantilises Aboriginal Australians. Its major effects will be to entrench identity politics, make Australia a more racially divided society, empower a new bureaucracy, make the task of governing more complicated, cumbersome and litigious, give oxygen to radicals making more extreme demands – and all for little practical gain in the daily lives of the vast majority of Aborigines.

Success in closing the gap will come from future generations who break free of the soft bigotry of low expectations, to better their lot through their own efforts by taking advantage of the equality of opportunity in modern day Australia. Instead of consigning them to permanent victimhood, the government should encourage them to confront the obstacles and equip them to push through the barriers with the requisite education and skills.

The sales assistants are not on top of their game. The Minister for Indigenous Australians, Linda Burney, is no match for the hard-hitting intellectual firepower of Jacinta Price on the opposite bench. Thomas Mayo has been filmed paying “respect to the elders of the Communist Party” for their “very important role in our activism,” and threatening to use “the power in the Voice” “to tear down the institutions that harm our people” and “to punish politicians that ignore our advice.” With friends like Mayo, Albanese doesn’t need political enemies like Dutton.

The sales pitch is deeply flawed, riddled with confusion and mixed messages. How would another body solve Aboriginal disadvantages when all existing bodies with a $30bn combined annual budget have failed? How will the government prevent the capture of benefits, power and influence by the urban elites? At a time of falling trust in politicians, Albanese wants voters to sign on the dotted line and trust the politicians to fill in the blanks later. To keep faith with the Aborigines demanding a Voice with punch, he assures them it will be substantive. To allay concerns in the broader community, he insists it will be modest and symbolic.

The net result, of the refusal to address legitimate questions about core functions and basic structure, is to fuel suspicion and deepen distrust. Paul Keating won his “sweetest victory” in 1993 by attacking John Hewson’s GST complexity: “If you don’t understand it, don’t vote for it; if you do understand it, you’d never vote for it!” Adapted to the Voice, the No campaign has a readymade equivalent slogan: “If you don’t understand it, you should vote No. If you do understand it, you must vote No!”

From the day this “emotionally manipulative” proposal was introduced, Price insists, “We are being divided. We will be further divided throughout this campaign. And, if the Yes vote is successful, we will be divided forever.” Speaking on Australia Day in 1988, Bob Hawke declared: “In Australia there is no hierarchy of descent; there must be no privilege of origin.” That is a second great campaign slogan for the No camp from an iconic Labor PM.

David Adler, President of the Australian Jewish Association, explains in Spectator Australia why the AJA rejects the Voice. It is “inconsistent with Jewish values,” contradicted by the Jews’ tragic history in Europe, “would do great harm to Australia,” and entrenchment in the constitution would make the harm permanent.

Born of conceptual confusion, the Voice speaks not to all Australians’ better angels but to some white Australians’ guilt complex. With her usual cut-through messaging Senator Price warns: “We are being divided. We will be further divided throughout this campaign. And, if the Yes vote is successful, we will be divided forever.”

Permanently codifying racial grievance into the Constitution will guarantee it is weaponised sometime in the not too distant future by activists making increasingly radical demands and stoking resentment and backlash. If approved, the Voice will not mark the end of a successful process of reconciliation but the beginning of fresh claims for co-sovereignty, treaty and reparations, using the constitutional voice as the enabling mechanism.