The Prime Minister’s suggested form of words for insertion into the Constitution to create the Voice seems to be the preferred option. For its proponents, it has the distinct political advantage of being extraordinarily vague. Presumably it will be the substantive part of the referendum question. It goes like this:
- There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
- 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.
It might pass. After all, how many among the voting public have the least familiarity with the Australian Constitution. Not many, I’d say with some confidence. They will not understand how extraordinary is the proposed insertion. No other body created by the Constitution (e.g., the House of Representatives, the Senate, the High Court) is without a level of detail as to how it’s constituted and its powers. These are not left to legislation. Legislation is fluid, subject to the politics of the day. The only thing we’ll know about this new constitutional creature is its name. To repeat, that is extraordinary. And its proponents hope to get away with it.
Another extraordinary feature of the promised referendum is that the vague, indistinct, undefined creature called the Voice can already be created, courtesy of the 1967 referendum, under Part V, Section 51 (xxvi) of the Constitution. This allows the Commonwealth Parliament to make laws for “the people of any race for whom it is deemed necessary to make special laws.” So, to make it clear, Albanese want a constitutional change to insist that he does what he can already do and is keen to do. But exactly, precisely, what he wants to do he is keeping to himself until after the referendum. Then he’ll tell us what he wants to do.
Mind you, even if he were tell us what he wants to do beforehand, a new government could do something entirely different. The Constitutional amendment is not the least prescriptive. Which, when you think about it, also gives the High Court carte blanche to fill in gaps. And it undoubtedly will because we know that whatever is done to appease the Aboriginal lobby it will never, ever be enough. Cases will be brought before the Court.
If a racist provision is to be inserted into the Constitution at least put the details in. Better still. Here’s a novel idea. Get rid of Section 51 (xxvi). Ensure that race is never a factor in any law made by the Parliament.