My thoughts on the Voice

A couple of weeks ago, I received a flyer from my local member regarding the voice. It contained a number of claims that I honestly think are misleading or false. Someone asked in that post what I was referring to. As I have subsequently had a number of conversations with people raising those or similar concerns, I figured I owed it to them to set out my thoughts in some detail. The flyer had no sources whatsoever cited, so I've tried to back mine up as best I can.

To be clear, this is my personal view only, and does not represent the view of any business, body or organisation I am otherwise involved with.

I write this as someone who is a lawyer, but not a Constitutional lawyer, and who tries to be a strong ally to Aboriginal and Torres Strait Islander people through my professional and personal life.

In reality it would be best for you to read the explanations of someone who is both a Constitutional Lawyer and an Aboriginal person (such as the incredibly impressive Professor Megan Davis), but as this is a very important issue, if my voice can help even one person to understand the choice we are presented with better, I figure it is worth while my doing so.

(The tl;dr is that if you aren’t an Aboriginal or Torres Strait Islander person, the Voice is highly unlikely to impact you at all in any substantive way, but might, just might, make other people’s lives better.)

No Concern #1: The Voice is Legally Risky, and its powers will be decided by the High Court.

This is incorrect. The amendment vests the responsibility of determining the powers of the body with the parliament, not the Courts.

Whilst it is accurate that if there was a challenge to the Voice, or by

people arguing its powers were greater than what is intended the High Court would decide the outcome, that is exactly how the system is meant to work. The Court cannot make decisions on this in any event, only send the matter back for re-appraisal.

Source: https://www.aap.com.au/.../high-court-claim-misleads-on.../ (inc. Prof Anne Twomey, Prof Gabrielle Appleby and Prof George Williams).

On that, an open letter published by 8 former judicial officers, including The Hon. Mary Gaudron KC (High Court Justice) clearly stated the considered view that the proposed amendment would not 'disrupt government or destabilise the presently stable and appropriate division of power between the parliament, the executive and the judiciary.'

Source: https://australiainstitute.org.au/.../leading-judges.../

Former High Court Justice Kenneth Hayne and Banking Royal Commissioner, when considering if there were possible quirks or legal minefields stated 'I think there are none'.

Source: https://www.abc.net.au/.../kenneth-hayne-backs.../102153848

Current Solicitor General Dr Stephen Donaghue KC (appointed by the Turnbull Government, and retained by the Morrison Government, so certainly not an ALP stooge) says that the amendment would pose no threat to Australia's system of representative and responsible government.'

The wording of the amendment creates an advisory body. It cannot change the law. It cannot force the Government to do anything other than hear what it has to say.

Source: The wording of the amendment

No Concern #2: There are no details

This one is a significant red herring. The report that sits behind the proposal of what is proposed was released in 2021 and has been publicly available this whole time. It is 272 pages long. It goes into significant detail. Is this going to be exactly what the body looks like? Probably not, as it will need to be legislated by the parliament and they may take or leave some of the recommendations, but they are our elected representatives and that's their job.

It would be weird to have the whole structure in place in the constitutional amendment, and further to that it could be altered by parliament so presenting it as the exact model to the electorate would be disingenuous.

If you feel you don't have enough detail, check out the full report here:

https://voice.gov.au/.../indigenous-voice-co-design...

The other reason having little detail in the amendment is actually to address one of the concerns lower down (that it is permanent and once it is established if the Court expands its power, it will cause havoc). The only thing that the amendment guarantees is that there will be an advisory body known as the Voice that will be entitled to make representations to Parliament and Executive Government. Provided the legislation that then sets up the mechanism for the Voice keeps those things in check, it can put whatever other detail it wants on the Voice (such as making it express that no one has to listen to it).

No Concern #3: It divides us

In the event that there wasn't a pre-existing gap in terms of almost every relevant measure between Aboriginal and non-Aboriginal people, this may be a persuasive point. There is, however, a significant and objectively measurable gap already, meaning that our nation is divided. The purpose of the Voice is to bridge that gap. It does not need to divide us, but instead can help work towards uniting us.

No Concern #4: It won't help Indigenous Australians

This one is harder to fact check because we don't have a crystal ball. That being said, there is substantial evidence that solutions that are Aboriginal Community Controlled have significantly better outcomes than mainstream solutions imposed upon Aboriginal people and communities (see the 2017 report from the National Aboriginal Community Controlled Organisation). Additionally, the status quo clearly isn't working.

No Concern #5: No issue is beyond its scope

Simply false. The argument that the inclusion of a power to make representations to 'Executive Government' somehow allows the Voice to force change on every element of Australian life is without foundation. Further to that, once again this is an advisory body. Who cares if it sends a letter to the ATO or the head of the Department of Transport? As Prof. Twomey says “Further, parliament would also be free to legislate to say that the decision-maker was not obliged to consider any representation of the voice.

This is a decision for parliament to decide upon in the ordinary democratic process. There is nothing unusual about it.”

Source: https://www.aap.com.au/.../high-court-claim-misleads-on.../

No Concern #6: It risk delays and dysfunction

See my answers to 1, as this is exactly the same claim. Perhaps it was included so they had an even 10 concerns?

No Concern #7: It opens the door for activists

Whether there is a Voice or not, activists can demand further moves in favour of reconciliation. If the Voice is there it can make those requests directly to government, but as it has absolutely 0 decision making powers, there will be no more ability to make those things happen than there is today.

Interestingly, Warren Mundine (who is a vocal ‘No’ proponent) has said that if the voice doesn’t get up it would be even easier to get a treaty in place with individual Aboriginal nations (see: https://www.abc.net.au/.../warren-mundine-backs.../102866444). Take from that what you will.

This is related to the argument that the Voice will be taken over by activists. The whole concept of the Voice is that it will be democratically elected by Aboriginal people. Accordingly, if a majority of Aboriginal and Torres Strait Islander people are in favour of an activist's voice, then that activist should be heard. They don't need to have their arguments accepted, just listened to.

No Concern #8: It will be costly and bureaucratic - The National Indigenous Australians Agency (with 1,400 staff) already gets $4.3B in funding

So, the fact that the Government is spending that amount of money on a department that hasn't managed to close the gap (not that it isn't trying. There are very dedicated hardworking people in the NIAA, and I don’t mean to disparage them at all) doesn't seem to be an argument against trying a small body with limited advisory powers, particularly in light of the evidence of improved outcomes from community control.

This also isn't creating a government department. It isn't implementing programs. It isn't doing anything other than consulting with Aboriginal communities and making representations to government. How that is bureaucratic is beyond me to be honest.

Finally, the parliament will sort out what it is actually going to look like, and so if it needs adjustments to be better, it can be.

No Concern #9. The voice will be permanent

Well, yes. That is the point. Australian governments have a pretty bad track record of setting up bodies to assist Aboriginal people (National Aboriginal Consultative Committee, National Aboriginal Conference, the Aboriginal and Torres Strait Islander Commission, The National Congress of Australia's First People) and when the Government decided it didn't like what they were doing for whatever reason, they shut them down. The point of this being in the Constitution is to ensure that there is always some form of Voice in existence at all times.

As noted above, other than guaranteeing that there will always be some form of body that can make representations to Parliament and Executive Government, the Voice can be amended to whatever extent parliament think necessary. When you consider this, what is being asked for by the vast majority of Aboriginal and Torres Strait Islander people is pretty minimal.

No Concern #10. There are better ways forward

Whilst there are certainly many things we could be doing to support better outcomes for Aboriginal and Torres Strait Islander people, identifying them is something that should be informed by the Aboriginal and Torres Strait Islander community (ie, through the Voice). In addition, this doesn't need to be an one-or-the-other scenario. The Voice won't stop other actions being taken to address the current levels of inequality.

In addition to the 10 concerns raised on the flyer, I'll also throw in a few others that I've heard raised:

11. This will be the thin end of the wedge - what's to stop other minorities getting their own voice? Why do Aboriginal people get special treatment?

First, before any other group received their own Voice, a Constitutional Referendum would stand in the way. Additionally, few if any other groups have been as significantly impacted by the Australian Government and the advent of western colonisation of Australia than Aboriginal and Torres Strait Islander people. If there is such a group, I'd say they deserve a voice too.

If someone in the Australian community by virtue of their race has a life expectancy that is shorter than the norm by around 8 years, I'd say we should let them tell us what they think might help to correct that.

12. This will impact on everyone

It is not clear to me that a body that can make representations about matters relevant to Aboriginal and Torres Strait Islander people can have any impact beyond advising on issues relevant to Aboriginal and Torres Strait Islander people. If you aren't an Aboriginal or Torres Strait Islander person, this will not change your life one way or the other, except maybe your fellow Australians might have a better life.

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As I said at the top - I'm not a constitutional law expert, but have relied on the expertise of those who are. I'm also not an Aboriginal person, and whilst there are certainly Aboriginal and Torres Strait Islander people who are against the Voice, the majority of Aboriginal and Torres Strait Islander people I know are strongly in favour of it, which lines up with the polling (though you do need to take it with a number of caveats as the polling data isn't super reliable: https://www.abc.net.au/.../fact-check.../102673042).