Select Page
Chris Merritt
Legal Affairs Contributor
13 March, 2023
Time to dump flawed Indigenous voice model

The slide in support for the proposed Indigenous voice to parliament has given Anthony Albanese little option but to accept that the plan he unveiled at last July’s Garma festival is a dud.

Despite the prime minister’s best efforts, the Garma provision has failed to capitalise on goodwill towards Indigenous people and is a force for discord.

It is backed by a bare majority, according to the latest polls, not the overwhelming support that was on show at the 1967 referendum.

Back then, almost 90 per cent of voters supported removing the constitutional ban that prevented the federal government making laws for Aborigines and Tores Strait Islanders.

With that sort of history, it’s hard to see how Garma’s downward spiral could be due to antipathy towards Indigenous people.

A more likely explanation is the fact that this provision threatens the egalitarian nature of Australian society where everyone, regardless of race, has an equal say on how this country is governed.

Garma would require us to abandon that principle by constitutionalising a race-based lobby group, equipping it with a separate bureaucracy and giving it an additional say on every law and administrative decision, not just those relating specifically to Aborigines and Torres Strait Islanders.

Constitutional recognition of Indigenous people is a worthwhile goal and could still be possible this year – but not with Garma.

This provision would destroy equality of citizenship by giving one group of Australians preferential treatment when dealing with parliament and the bureaucracy.

The decline in support for Garma is clear and consistent. This week’s Newspoll shows it now stands at just 53 per cent, down from 56 per cent in February.

This is in line with figures published by Resolve Political Monitor. That organisation’s polling found support for Garma was 63 per cent in August, 64 per cent in September, 62 per cent in December, and 58 per cent in January and February.

Garma has triggered division – something that could become permanent if a close vote at the referendum leaves almost half the nation alienated.

This is not the sort of outcome this country deserves.

We have been poorly served by a flawed provision and a flawed process. Garma was released without consultation with the broader community and without legal advice from the Solicitor-General, Stephen Donoghue.

It was also a mistake to hand leadership of this project to a select group of insiders meeting in secret instead of seeking buy-in from the broader community.

This plan should have been thrashed out in public at a constitutional convention involving representatives of all stakeholders, regardless of race.

The Constitution, after all, is owned by the entire community and cannot be changed without support from a majority of the people in a majority of the states. That requires fact-based debate.

Yet instead of facts, race-baiting has become the hallmark of the push to constitutionalise Garma’s flawed model for a voice to parliament and the executive.

Just this week, Marcia Langton, one of the key proponents of the voice, said those with concerns about an aspect of the plan suffered from “unconscious racism”.

This is not just unseemly, it’s illogical.

The most prominent leaders of the case against the voice are both Indigenous: Warren Mundine and senator Jacinta Nampijinpa Price.

And who can forget Noel Pearson’s seventeen-minute tirade against Price on ABC radio?

On February 14, Price told a senate estimates hearing: “In November, Patricia Karvelas, interviewing Noel Pearson, chose to listen to his views on me being described as ‘trapped in a redneck celebrity vortex’ – again another stereotype – and that I was being used by right-wing think tanks to ‘punch down on blackfellas’.

“At no point did Ms Karvelas attempt to intervene or challenge Mr Pearson’s views but accepted them wholeheartedly. I think it is utterly disgraceful that this sort of ongoing behaviour is allowed to continue,” Price said.

And consider the mindset that helped inform the government’s original ban, since overturned, on providing a pamphlet with arguments against the Garma model.

On November 25, Pat Dodson, the government’s special envoy on reconciliation, told a panel discussion in Melbourne: “The government is not interested in supporting any racist campaigns, which will have an impact on the question of the pamphlet.”

It is time to accept that this poisonous idea has run its course.

It has failed to win the sort of broad community endorsement that would guarantee its legitimacy as a new institution of state.

Unless the prime minister accepts this reality and overhauls Garma, the nation is heading for a close vote at the referendum which would be the worst possible outcome.

Regardless of which side wins, half the nation would be embittered and alienated – which is the reverse of what this project was supposed to achieve.

The starting point for reforming Garma is to be found in separate proposals by barrister Louise Clegg and Jesuit priest and lawyer Frank Brennan. They both presented papers at last week’s conference hosted by Uphold and Recognise.

Clegg has also outlined her proposal in a video that appears on the website of the Rule of Law Education Centre.

They would confine the voice to providing advice on special laws that relate only to Indigenous people. It would have no say on laws that affect the broader community.

They would also confine the voice to providing advice to parliament, not the executive, which would remove the threat of litigation confronting public servants under Garma.

Constitutional change is doomed without solid community buy-in. That will never happen with Garma. But it might happen with Clegg and Brennan.