Official Yes and No cases for Voice referendum reveal two conservative agendas

July 26, 2023
Issue 
2023 Invasion Day march in Gadi/Sydney. Photo: Peter Boyle

罢丑别听聽on聽the Voice to Parliament referendum, published by the Australian Electoral Commission (AEC) on July 18, reveal just how little Anthony Albanese鈥檚 flagship constitutional reform has to offer First Nations peoples鈥 struggles for justice.

The AEC will distribute the聽two cases to all voters before the referendum. However, we will not be sent a progressive No case, as advocated by independent First Nations Senator Lidia Thorpe and other militant First Nations activists, including Gary Foley, Michael Anderson, Nala Mansell, Michael Mansell, Jenny Munro, Barbara Flick, Elizabeth Jarrett, Wayne Wharton, Marianne Mackay and Megan Krakouer.

罢丑别听Blak Sovereign Movement聽has published its own progressive No case.

The official No case scrapes the bottom of the barrel for non-existent evidence that the proposed constitutional change will be legally risky, have聽unknown consequences聽and be divisive and permanent.

Its charge that this is 鈥渢he biggest change to our Constitution in our history鈥 is nakedly聽hostile to First Nations activism and activists. From beginning to end, it is an exercise in scare-mongering that plays to a deep-seated racism in Australia.

The Yes case says the Voice will simply be an advisory body that 鈥渨ill not have the power to prevent, delay or veto laws or decisions鈥. In addition, it says it will save billions of 鈥渢axpayer money鈥 from spending on 鈥渇ailed鈥 programs to close the gap.

The No case expressly rejects First Nations sovereignty, but the Yes case also rejects it聽鈥 by deliberate omission.

While the Yes case claims the Voice proposal came from the popular 2017聽, that statement called for constitutional recognition of First Nations sovereignty that 鈥渉as never been ceded or extinguished, and co-exists with the sovereignty of the Crown鈥.

However, the government鈥檚 expert committee that came up with the wording for the proposed constitutional change for the referendum聽聽it would not confer any 鈥渞ights鈥 鈥 much less 鈥渟pecial rights鈥 鈥 to First Nations people.

The Voice was to be limited to making representations to parliament or government 鈥 鈥渁n opportunity available to any individual or organisation鈥.

Therefore, any constitutional recognition this proposal might lead to will be token 鈥 like the recognition of First National peoples聽聽of Victoria (2004), New South Wales (2010), Queensland (2010), South Australia (2013), Western Australia (2015) and Tasmania (2016).

The Victorian and NSW constitutions do not confer any legal rights (clauses were inserted that stated that recognition did not confer any rights or affect any laws). But they do recognise Aboriginal and Torres Strait Islanders as the 鈥渇irst peoples of this land鈥 and its 鈥渢raditional custodians鈥.

Labor鈥檚 proposed federal constitutional provision is only聽to recognise "Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia鈥. The proposed Voice will therefore be another federal First Nations advisory body, albeit one 鈥渆nshrined鈥 in the Constitution.

But what is this 鈥渆nshrinement鈥 worth? Will it prevent future governments from getting rid of the Voice should it prove to be too radical in its composition or proposals?

Bob Hawke鈥檚 Labor government abolished the National Aboriginal Consultative Committee/Conference (NACC) in 1985 and John Howard鈥檚 Coalition did the same, with Labor鈥檚 support, to the Aboriginal and Torres Strait Islander Commission (ATSIC) in 2005. First Nations people directly elected both the NACC/NAC and ATSIC and hence there was a contest of legitimacy when these bodies stood up to the government of the day.

This is unlikely to occur with聽the proposed Voice amendment which states:聽鈥淭he 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.鈥

The proposed constitutional enshrinement of the Voice would not stop a future government from radically narrowing its functions and reducing its funding, if it wants to prevent it from functioning.

As the law聽to create the Voice is yet to be revealed, the right-wing No case is using this to suggest that it might be given undeclared powers.聽In response, the leading advocates for the Yes campaign are stressing that its ambit will be very restricted, that it will only be 鈥渁dvisory鈥 and that it will have no right to veto anything.

Minister for Indigenous Australian Linda Burney has even聽聽that the Voice would not be advising on changing the date for 鈥淎ustralia Day鈥 鈥 Invasion Day to those committed to truth-telling.

Advocates for the conservative No case have made much of the fact that the proposed constitutional change says the Voice 鈥渕ay make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples鈥, as if it had the status of a First Nations chamber of parliament.

But this is scare mongering.

Norway, Sweden and Finland have established S谩mi parliaments (with advisory powers except in relation to cultural practices and international representation). This is not what is being proposed here.

However, if implemented, Labor鈥檚 proposal will聽for the first time聽establish a First Nations body that can officially advise federal parliament.聽Of course, the parliament, like the government, can accept or dismiss such advice.

Progressive No advocate Michael Mansell has聽聽for reserved First Nations seats聽in the Senate (a bit like Maori people have in the聽Aotearoa/ New Zealand parliament). He argues that would be a better way of ensuring First Nations voices in parliament.

The No campaign opposes the mounting movement to recognise聽First Nations sovereignty聽鈥 demonstrated by the聽growing Invasion Day marches聽鈥斅燼nd hence the beginning of a genuine, continent-wide, Treaty process.聽However,聽the Yes campaign聽politically surrenders聽to the right on this core issue.

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