Thursday 5 January 2023

What will "the Voice" Referendum ask us to do?

 The "Voice" referendum will likely ask us to approve or reject wording like this or very similar to this:

There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice

The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive government on matters relating to Aboriginal and Torres Strait Islander Peoples

The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

Now the government already has the power to do all these things.  We do not need a referendum for any of this to happen. We are not being asked to (a) put anything into the Constitution, (b) take anything out of the Constitution or (C) change what is already in the Constitution. 

Sec 51 of the Constitution (sometimes called "the race power") allows the government to make special laws for the people of any race. It has been used in the past. It has been used to set up bodies like the Aboriginal and Torres Strait Island Commission or ATSIC. ATSIC failed. (ATSIC failed not because of any government intervention. It failed because of internal corruption and division. In trying to make it as independent as possible various governments tried not to intervene.)

The present government is now saying that a Voice must be a permanent body. They are also saying that by "putting it into the Constitution" it will only be possible to remove it by another referendum.  The government is also suggesting that a "yes" vote will give them the powers to ensure this happens. 

Now there is no preamble to our Constitution. It was initially an Act passed by parliament in the United Kingdom and then here. So where does the Voice go? It could go either into the Constitution or before the Constitution. 

Putting it into the Constitution would require a referendum because the current proposed referendum does not mention placing anything in the Constitution. Such a referendum could be held at any time following a  yes vote and subsequent legislation in the parliament but it would be reasonable to assume it would be held at the next election.

Putting it before the Constitution raises entirely different questions. What status would it have? How binding would it be?  What if there are unintended consequences?

We do not know the answer to these questions. The present government has said it will be an "advisory" body only. How much influence would any advice have? Would any government go against advice given if it was likely they would be held to be "racist"? 

It is perhaps important to note that a similar body was set up in New Zealand. Called the Waitangi Tribunal it was intended that it should be an advisory body to the government with respect to Maori affairs. That sounds similar to the Voice proposal but there is now genuine concern that, rather than advisory, it has become a quasi-judicial body which influences every decision made by the New Zealand government.  

Could the same thing happen here? The answer has to be, almost certainly. While it is said that the Voice would not be a third chamber of parliament it has the potential to influence every decision made. In New Zealand the initial argument that it "only concerns decisions which affect them  or their interests" has been shown to be false because, as citizens, any decision made by government naturally extends to those who are advising. 

What we are being asked to do then is potentially give very wide powers to an advisory group. 

How will that group be chosen? 

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