AceBreakingNews – At issue is the inclusion in the constitution of 92 new words, which would recognise Aboriginal and Torres Strait Islander Australians as the first peoples of this nation, and install a new advisory body called the Aboriginal and Torres Strait Islander Voice.
Ace Press News From Cutting Room Floor: Published: Sept.04: 2023: Two sides, six weeks, one crucial question
You can vote Yes, or you can vote No.
You can’t have one bit without the other; either you approve all 92 words, or you don’t.
Already, however, the public debate around those 92 words has grown like an invasive weed, generating ill-will and dispute over issues that are far removed from the question at hand.
How many pages is the Uluru Statement? Are you sick of having acknowledgements of country “shoved down your throat”? Should Australia Day be changed? Is it racist to vote No?
Confused? You’re not stupid
When people say they’re “confused”, it’s not because they’re stupid. It’s because there are literally two cases sloshing about for Yes. The first is that the constitutional change is modest and won’t do much. The second is that it will be a powerful force for improving the lives of Indigenous Australians.
Here was the Prime Minister Anthony Albanese this week, advancing the first argument:
“This will not impact most Australians directly, but it might just make life better for the 3 per cent of Australians who happen to be the most disadvantaged group — the First Nations people,” he said.
“I think it will be a moment where we can show respect to them; where we can feel better about ourselves as well as a nation and where the world can look at us and say, ‘Australia is a mature, grown-up nation’.”
“Might just?” That’s pretty thin gruel for an urgent constitutional change.
But the PM knows that there are also two No cases.
There’s the Opposition’s argument that the Voice is a dangerously radical proposition that would gum up the works of government and the courts. And then there’s Independent Senator Lidia Thorpe’s argument that the Voice should be opposed because it’s utterly toothless. No wonder there’s confusion.
And the PM’s decision to characterise the Voice as a change that will make us feel better, and “might just” improve the lives of First Nations people – well. It tells you which No case he fears the most.
As the campaign begins, it’s worth having a look at why this referendum question has become so hopelessly ensnarled in undergrowth. And perhaps doing a spot of weeding.Loading…
The main reason things are so SHOUTY
Much is made of the halcyon days of 1967, when the nation came together and 90 per cent of us voted Yes for the 1967 referendum, a significant national turning point in the status of our First Peoples.
This is a contested referendum. There’s a Yes campaign and a No campaign. We know that Australians do not rush into changing our constitution. So the first, most obvious and most powerful tactic for maximising the chances of a No vote is to muddy the water.
Why was that change so simple, and why is this one so vexed?
Well, in 1967 there wasn’t a No campaign. And the detail of the actual constitutional change involved was significantly obscured from voters, or at the very least not outlined in detail.
The most enduring campaign poster from 1967 featured a beautiful Aboriginal baby, with the slogan “Right Wrongs: Write YES For Aborigines!”
Voting Yes, it was broadly indicated, would finally recognise First Nations people as Australians. The Yes campaign was vague on detail. It was feel-good. And most importantly, it was formally uncontested.
And that’s why, to this day, so few people know what, exactly, the 1967 referendum did. The most common misconceptions are that it gave Indigenous people the vote, or citizenship, or the right to be counted as humans in the Census instead of being considered flora and fauna.
What did the 1967 referendum achieve?
In fact, the 1967 referendum did two things.
First: It empowered the federal government to make “special laws” for Indigenous Australians.
Since Federation, section 51 of the Constitution had empowered the federal government to make special laws that affected only members of a certain race. It’s known as “the race power“. It was drafted specifically to allow the government to make discriminatory laws. And it’s still there.
But Indigenous Australians were expressly excluded from that section. Until the 1967 referendum removed the words in bold, section 51 empowered the government to make laws regarding “the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”.
Why were First Nations people carved out of this section in the first place? Opinions differ.
Certainly, responsibility for Indigenous policy was thought to be a state and territory affair. Some argue that the long-term plan was for Aboriginal people to die out, and it was left to the states and territories to manage their decline.
Either way, the claim that the currently proposed referendum would “introduce race” into our national document, or “re-racialise” the nation, is not correct.
The power to make racially discriminatory laws has been there all along, and since 1967 it’s been used since to make special laws for Indigenous people, ranging from the establishment of ATSIC and Aboriginal legal services to the 2007 Intervention in the Northern Territory.
(Jane Lee put together a good piece for ABC’s The History Listen, examining whether the race power should be abolished.)
The second thing the 1967 referendum did was remove the Constitution’s section 127, which decreed that “Aboriginal natives should not be counted” when calculating the number of people in the Commonwealth.
This didn’t mean they weren’t previously counted in the census; they were.
And please excuse the language in this next paragraph.
“Prior to 1967, census asked a question about Aboriginal race to establish numbers of ‘half-castes’ and ‘full-bloods’,” reports this very handy research brief from the excellent folk at the Parliamentary Library.
“‘Full-bloods’ were then subtracted from the official population figure in accordance with the legal advice from the Attorney-General.”
The “official population figure”, for Commonwealth purposes, is much more important than a straight head-count. The population of each state is what’s used to calculate various federal payments. It’s also used to set electoral boundaries, and so on. So the failure to count Indigenous people in these calculations skewed all sorts of things, with particular ramifications for states and territories with larger First Nations populations.
Even though there wasn’t a No campaign for the 1967 referendum, there was plenty of racist commentary about.
The Sydney Morning Herald, for instance, described the historic inclusion of Indigenous people in the census as “a mildly entertaining historical oddity” and opined that it was “more difficult than rounding up a mob of wild brumbies”.
Technical problems presented in simple language
What is the point of all this? Well, it’s that as a nation we remember the 1967 referendum as simple, where in fact it was quite technical.
If the Yes campaign in 1967 had been “Vote Yes To Remove The Ban On Making Discriminatory Laws For Aboriginal People and Also To Fix A Nagging Administrative Matter In The Calculation Of Federal Payments And Electoral Boundaries” – how do you think it would have fared?
No, they went for a cute baby and essentially a “be nicer to Aboriginal people” vibe.
Oddly enough, the 2023 proposed constitutional amendment is actually easier to understand. Here it is:
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
i. there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
ii. the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
iii. the 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.
Read it carefully.
You’ll see that the proposed Voice “may make representations” to the parliament and to federal departments “on matter relating to Aboriginal and Torres Strait Islander peoples”.
There isn’t any mention of a veto power, or any obligation on the parliament or the bureaucracy to take – indeed – any notice of all.
This is a fact.
Yes proponent and Minister for Indigenous Australians Linda Burney has consistently argued that enshrining the Voice in the Constitution ensures that that Voice becomes a permanent feature of Australian governance and cannot be erased “at the stroke of a pen” by future governments.
Opposition Leader Peter Dutton agrees, but he thinks that’s a bad thing.
“If a Voice is embedded in the Constitution, the parliament can’t change the Voice or pass laws to override it,” he told the parliament in May, in a major speech outlining his reasons for voting No.
But clause (iii) clearly empowers future governments to fiddle with the Voice’s composition, powers and procedures. So a hostile future government could, say, reduce the membership of the Voice to one person, and park that person in a windowless room in Canberra without an internet connection, or take every recommendation from the Voice and file it straight into the recycling.
Conversely, a different government might increase the membership. But what they can’t do – and this is important — is abolish the Voice entirely, or introduce an obligation to listen to the Voice and act on its recommendations. If any future government tried to legislate either of these things, the High Court would be obliged to strike down that legislation. Because it’s inconsistent with the Constitution.
That’s how constitutional law works; the High Court chucks out legislation that doesn’t accord with the spirit of what the Australian voting population has agreed to have enshrined in our national document.
That’s not opinion; it’s a fact.
The referendum on October 14 is a yes/no vote on the above 92 words. All other disputes should be shut out. Incendiary allegations of racism or poor faith are irrelevant.
It doesn’t matter if the Uluru Statement is one page or 1,000; the referendum is not inserting the Uluru Statement into the Constitution. It’s about inserting those 92 words. It’s nothing to do with the date of Australia Day or charging people to go to the beach or proving that Australia isn’t racist.
Don’t get lost in the weeds.
Editor’s note, September 3: An earlier version of this story had an incorrect number of words in the proposed amendment.
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