THE VOICE TO PARLIAMENT – PAST AND PRESENT

Former Chief Justice of the High Court of Australia Murray Gleeson in Recognition in keeping with the Constitution: a worthwhile project opined, “That Indigenous people have a special, and unique, status in the history and the life of the nation is beyond question. That the Constitution is an appropriate place in which to recognise that status is a matter of debate.” As Australia approached a referendum on The Voice to Parliament following the Uluru Statement from the Heart, The Sydney Institute began a series of discussions on the proposal for constitutional change. On Monday 15 August 2022, Sydney barrister Louise Clegg and lawyer, academic and former Vice Chancellor and President of the Australian Catholic University Greg Craven AO addressed The Sydney Institute to discuss some of the issues.

THE VOICE TO PARLIAMENT – PAST AND PRESENT

GREG CRAVEN

To begin, could I reflect on where we are at the moment in this debate over constitutional change, and the Voice to Parliament coming out of the Uluru Statement from the Heart.

We are in an unprofitable place, largely due neither to the opponents or supporters of the Voice. It is mainly down to Prime Minister Albanese and his government’s approach, where we’ve now got a draft without a model. We have no idea what this means. We don’t know how the draft has been produced. We don’t know who wrote it, we don’t know who’s advised upon it. It’s really in a black box. And the reason I say that, in terms of the debate, is that it really does facilitate the making of obscure arguments, problematic arguments, and things that you can’t really understand.

So, I believe the government needs not only to disclose the model, as a lot of people have said, but also needs to get together people who understand this process, who can actually look at what the model is and what the constitutional amendment is, before its finalised. Otherwise, we’re going nowhere.

I am, in fact, instructed to talk about the genesis, background and logic of the Indigenous voice, which I will do briefly. That is important, partly because it’s not terribly well known, and partly because it’s likely to affect attitudes towards the proposal of the Voice, particularly attitudes of those who would describe themselves as of a conservative bent of mind. Which is how I would describe myself.

The summary of it is that whether you regard the Voice as conservative or not, it’s certainly conservative in its imagination, in its development and in its logic. It was developed as a conservative proposition. Its logic is conservative.

This suits our Constitution. Ours is a nuts and bolts, mechanical constitution. There’s nothing exciting about the Australian Constitution, as generations of school children will testify. The way the Founding Fathers decided what should go into the Constitution was on the basis of how important the subject matter was. If a subject about the state was important enough, in it went. If it wasn’t important enough, it didn’t. And that is precisely how sophisticated the process was. To anybody who wishes to challenge me on this, I would point out that I was the idiot who republished the Convention Debates of the Founders with commentaries and indices. I have intimately read all 7000 pages of those debates, so I’m confident as the sole appointed distributor for the Founding Fathers today.

Thus, the Founding Fathers put federalism in, they put parliament in, they put the High Court in, and they put in some really important subjects like Commonwealth powers over lighthouses and weights and measures. That’s fine. But they didn’t put any recognition of Indigenous people in the Constitution. Why was that? Because the Founding Fathers didn’t believe it was important. Why did they not believe it was important? Well, sadly, they believed that Aboriginal people, indigenous people, as a race would die out. Now, it’s sometimes suggested they were happy about that. Actually, most of them weren’t, but they did think it would happen. Therefore, it wasn’t an important subject to put in.

So, the question I would pose in relation to whether you should have some Indigenous recognition in the Constitution is the same question as the Founding Fathers today would have put and answered themselves. Is Indigenous recognition of some sort, forget what sort, a subject of real importance in the current Australian polity, and therefore something that you would not leave out, being worthy of constitutional inclusion? I think it’s very hard to deny, whether you’re in favour of recognition or not, that if you were the Founding Fathers today you would put it in. It’s sufficiently central. As I say, it’s at least as central as weights and measures, lighthouses, and navigation and buoys. I’m all in favour of lighthouses and buoys, but I think Indigenous recognition probably beats them.

The logic of this is twofold. First, recognition is symbolic. People will say, “Oh, it’s only symbolic.” But so is a republic. So is a monarchy. At the end of the day, whether you’re republicans or monarchists, let’s come clean with each other. It’s mainly about symbols. But symbols are important. The flag is important, the cross on a church is important. So symbolism is of value. But that’s not enough.

Professor Frank Brennan and I have talked about this. Anybody who thinks that the Indigenous Voice is going magically to solve domestic violence, is going to ensure community strength, is going to solve school attendance, is deluded. The question is not whether it will solve these problems, but whether it is calculated to assist in that solution. In the same way, a pipe is calculated to convey water. My own view is that, simply by focusing attention, by maximising discussion around those problems, there is hope for change. I have a lot of ideas about what you would put in the ancillary legislation to ensure this sort of change, if the Albanese government ever allows us to see it.

It is also important, as a matter of history, to understand exactly what the call for the Voice has replaced. Before we had the concept of the Voice, the official line from the Left was that we wanted a general constitutional guarantee of equality. In other words, the “one-line Bill of Rights” where the High Court could use a compendious concept like equality to make the Constitution mean whatever it wanted, all judicially enforceable.

Whether you like the Voice or not, it is one of the huge achievements of those who sponsored it, that the entire debate around Indigenous recognition has turned from that disastrous general guarantee to the vastly more modest, more conservative concept of the Voice. This was achieved by conservatives, constitutional conservatives, in an imagination of a conservative constitution. I know that because I was in the room at ACU when we worked on that concept with people like Noel Pearson, with the express object of attaining not a radical position, but a conservative position.

This was the idea that, logically, the call for Indigenous recognition should be centred on a conservative concept that would work with the Constitution, rather than against it. A guarantee of equality does not work with the thread or the flow of the Australian Constitution. It would have a good place in the American Bill of Rights, but the last thing we need is the American Bill of Rights or indeed, the American Constitution.

The idea of a Voice, of something as big and as tiny as a Voice, is that it would work within the Constitution as a conversation. It is a voice, not a stipulation or a direction. In a sense, it’s absolutely consistent with the overriding concept of parliament, from the French “parler”, something that speaks. The Voice, as a constitutional concept, emerged from conservatives in conservative discussion. It was picked up at Uluru, as a means of delivering a particular philosophical end, but as a constitutional conception, it predated Uluru. As I say, a conservative idea replaced a radical idea. That is a huge achievement in constitutional discourse.

It’s very important at this stage of the debate, as I say, that we have a model – but instead we have a constitutional draft without a model. We have a shell without a nut. We have to accept that people of goodwill always can disagree about the concept or form of the Voice, but this is exacerbated in an atmosphere where we have no clear model to debate. All the same, there already are some arguments that don’t make a lot of sense.

One is, for example, that you can’t have race in a constitution, when we already have had, since Federation, at least two and possibly three such race provisions. Two of them are specific provisions about Indigenous people. But another is the preamble itself, with its recitation of the Crown of Great Britain and Ireland, reflecting the founding races of European Australia. It is just silly to say race isn’t in the Constitution when the first words of the Constitution say it.

Then there is the idea that the Voice gives indigenous people special rights. The Voice gives no one any rights. There is no individual right. It is a means of expression. If you really want to get worked up about extra rights, I always say you should attack Tasmanians. Tasmania has an equal number of senators as the great state of New South Wales. Tasmanians have a substantive right to elect more senators. So, if we’re really going to get worked up against extra rights, let’s go for the Taswegians.

My honest view is there’s not going to be a lot of action around the constitutional draft for the Voice, as compared with the machinery legislation to implement it. It certainly worth arguing about the scope and form of the words of the constitutional draft, as Louise Clegg has done. But the truth is, most of the argument is going to be around the practical legislation.

The importance of the legislation is critical. Realistically, we are going to get a Voice one way or the other. For constitutional amendment, a referendum must be won. I actually believe the usual referenda realities will apply, which will make it hard to win, though I do not dismiss the possibility that this could be a postmodern, social media referendum.

But even if the referendum doesn’t win, we will get the Voice in legislation. The current power of section 51(26) would allow that legislation to be passed. Therefore, it seems to me that the logic, particularly for conservatives at this point, is that they have to engage with the possible legislative content of a Voice. They do indeed have to debate it. They do indeed have to check it, they do indeed have to put their views forward. If they don’t, the eventual model will emerge without their input, and be as bad as the government likes it to be. So, simply as a matter of prudence, you would engage to produce the best possible, or remembering from our Republican days, the least worst model of a Voice. And if you don’t, you have only yourself to blame.

Now, the central point of engagement, I suspect, that focuses people’s mind, is how do you prevent creating an expensive monstrosity? And how do you focus a body not into becoming an expensive monstrosity, but into actually having priorities that go towards those practical matters that people think about? How is this body going to help mitigate domestic violence? How is it going to help people go to school? How is it going to help communities to be strong? If I were doing this, around the model, I would draft a pretty determined and unusual statute. I would make sure the legislation directed the Voice into doing certain things, either philosophically or by means of priority.

For example, I would have a clause in there saying that the Voice must discharge all its functions in the interest of all the Australian people. There is no such thing as a clause of the Constitution that belongs to any group in Australia, even one as important as its Indigenous people – all clauses, all operations of the Constitution belong to the whole nation.

I would make sure that the Voice had very determinative priorities. The first one would be to scrutinise new legislation, because that’s the fundamental thing it can do. We’ve got problematic legislation, but we certainly don’t want more. And I would go a hell of a lot further.

I would say the Voice would have priority areas where it had to focus its efforts above anything else. In all its functions, whether it’s looking at new statutes, old statutes, or executive action. I would put priority on the Voice in exactly the areas that I’m talking about. You must first have regard to, for example, domestic violence, education, community strength, mental health. We don’t care what you think about the International Covenant on Civil and Political Rights. Get down to work and in all your actions, put these things first.

I would require the Voice, in doing that, to consult and use the public service of the Commonwealth in respect of any report on any subject matter, with a view to producing a full plan. These plans would be fully elaborated and fully costed, so that you don’t get sweeping generalities. And I would make sure that the Voice was subject to every ordinary requirement of governance assurance that applies to public bodies, to the Auditor General, to the Freedom of Information Act, to the oversight of a very determined parliamentary committee. And I would make sure, contrary to Marcia Langton, that members of the Voice could be sacked. Not simply by other members of the Voice, but by an effective external mechanism.

The Voice was conservative in imagination and conservative in construction. And I think it has to be ensured as conservative in operation. I’ve often thought about what the modern sales pitch for “conservatism” is. One of the problems today is you now have this notion of being progressive, as if such a notion makes you a great, wonderful person.

What is the alternative neon light for conservatism, I wondered, because being a “conservative” doesn’t sound very sexy. In fact, it sounds like being an 80-year-old man on Balmoral Beach, which I very shortly will be. But conservatives are careful and constructive, and they accept responsibility for what they do. Which means that what they do is constructive, rather than negative. So, what I want is a Voice that’s conservative in being responsible and constructive.