The Voice story - No case

By now you would have been bombarded with so much of gobbledygook around the Voice that you would be thinking ‘what the hell is going on?’

And to be safe, like all Australians, you would be inclined to, by default, err on the side of caution and vote ‘No’ on October 14.

And you will be doing the right thing, absolutely.

After listening to the protagonists of the Yes camp and reading of, the Uluru Statement in full and other related documents, I am more apprehensive about the victory of the Yes camp as I explain below.

‘Yes’ will divide Australia for good
I believe the victory of the Yes campaign has the potential to divide Australia forever; plunging it into a legal warzone dotted with constitutional and legal deadlocks, ruled by two powers – the Voice and the Commonwealth.

The Voice as an advisory body is – Unnecessary
There are myriads of advisors – paid big fat salaries to advise on Indigenous affairs to governments at all levels.

The Voice will be providing advice, and work with the army of advisors the governments and politicians already employ.

The Voice website says it will work alongside existing organisations and traditional structures.

Clearly, the Voice will be an unnecessary, costly, advisory body with constitutional status and thus permanent.

The Voice is NOT about Indigenous recognition
The demand for the Voice was first made by the Indigenous leaders in the 2017 Uluru Statement from the Heart.

I believe, The Voice is NOT about recognition of Indigenous people in the constitution. It is about power; it is about rights; it is about sovereignty “never ceded.”

It is about land and water rights, treaties and reparations, a fact which many leaders have made no attempts to hide.

Indigenous Senator Lidia Thorpe, speaking at the National Press Club gave Australian a glimpse of what could be at stake suggesting Australia does not have enough money to compensate.

“A lot of money [is] owed to First peoples. Look at the resources that have been extracted over 200 years … It would make the country broke. That’s why we need to negotiate,” she said.

To understand the issue completely let us look at the Uluru Statement – just the one-page summary, to avoid any unnecessary argument.

For ease of understanding we divide it in two parts – Part 1 claims in the top two paragraphs and objectives – Part 2 – in the penultimate paragraphs


Relevantly the first two paragraphs read:

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.

If you look at the construction of the above two paragraphs, it is hardly about recognition; it is all about claiming ownership of the Australian continent and its adjacent islands.

If you are wondering how a noble idea of recognising our Indigenous people in the constitution turned into what seems to be a full-fledged legit claim of ownership of the whole continent and adjacent island, you need to look at the 1992 Mabo decision of the High Court of Australia.

In that case, the High Court by a majority of 6-1 accepted the ongoing relationship of the Indigenous people (Meriam people of Murray Islands) and thus found they were entitled, to the possession, use, occupation, and enjoyment of (most of) the land of the Murray Islands.

The decision opened the way for Indigenous peoples around Australia to claim any lands and waters as theirs.

They would need to establish:

1.  That they continue to hold rights to their land and waters arising from their traditional, substantially uninterrupted laws and customs – the ongoing and continuous relationship; and

2.  those rights have not been legally extinguished by an appropriate authority.

If you now have a look at the two paragraphs again, you will see this as an attempt to have a blanket constitutional recognition and universal acceptance by the people of Australia of the current of future Native Title rights claims of Indigenous people.

Native Titles Act 1993
Within 12 months of the High Court’s Mabo decision, the Australian government delivered a comprehensive framework to judiciously deal with Native Titles claims of Indigenous people in the form of the Native Titles Act 1993.

Is it not strange that, despite the Native Titles Act 1993, which was particularly enacted to provide for and undo the injustices of the past done to the Indigenous people, we time and again see some Indigenous leaders continuously throwing claims of their ‘continuous relationships’ and ‘Indigenous sovereignty was never ceded’ into the public domain rather than making applications under the Native Titles Act 1993?

Do they not want to make changes to the Native Titles Act 1993 to suit their claims?

Only they would know.

A 2019 petition calls for the Act to be abolished claiming it discriminates against the Indigenous people.

Clearly, it is not about recognition anymore; it is a whole lot more at stake.

You would not be surprised that when in 2010 an Expert Panel of Indigenous elder Pat Dodson and lawyer Mark Leibler AC was appointed by the then Prime Minister Julia Gillard to find appropriate ways to recognise Indigenous people in the constitution, one of the recommendations was to acknowledge the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.

The Panel went a lot further and recommended that section 51(xxvi) of the constitution – the only section giving the power to the parliament to make laws for Indigenous people – be repealed.

It suggested that a new ‘section 51A’ be inserted after section 51 which would make that power of the parliament to make laws relating to Indigenous people subject to:

recognising that the first inhabitants of Australia were Indigenous people;

acknowledging their continuing relationship with their traditional lands and waters;

respecting the continuing cultures, languages, and heritage of Indigenous people; and

acknowledging the need to secure their advancement.

These recommendations were incorporated in full in the self-repealing Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 enacted by the Gillard government.

Section 3(2) of the Act read:

The Parliament, on behalf of the people of Australia, acknowledges the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.

In my view neither the Expert Panel led by Pat Dodson nor the Gillard government had the appropriate authority of the court as conceived under the Native Titles Act 1993, in the case of expert panel to recommend and in the case of the government, to commit the Australian people to accept the ongoing and continuous relationships of the Indigenous people with the whole of Australian continent’s lands and waters.

That under the 1993 Act would only be a court’s domain, which would examine the evidence and decide the issue conclusively.

Our politicians need to understand enacting a legal statute and chanting a ‘welcome to country’ are two different things.

And now to Part 2 of the Uluru Statement


Looking at the latter part of the Page 1 statement, we find the Uluru statement – talking about empowerment of their people, their ‘rightful place’ in their ‘own’ country.

We call for the establishment of a First Nations Voice enshrined in the Constitution.

When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.

Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

It is evident the Yes camp would like the Voice as the parliamentary body, to have unfettered power to make representations regarding every statute, law, rule and regulation in relation to Indigenous Australians as opposed to accepting the supremacy of the Parliament of Australia to make laws for all Australians, including Indigenous people.

In fact, Professor Asmi Wood – ANU who is on the Yes side has openly called for the federal parliament’s power to make laws for the Indigenous people to be taken away; he believes it is detrimental to Indigenous people.

In an article titled – Voice to Parliament would provide secure recognition, Prof Wood, among other things said:

“… The constitutional power under section 51 (xxvi) that permits parliament to act detrimentally against Indigenous Peoples only must be rescinded so we can create a level legal playing field on race. Australia does not need the coercive ‘races power’ to regulate the three per cent of the population of Indigenous descent. Times have changed and the coercive powers of the past must be abandoned.”

Section 51 (xxvi) simply gives the parliament power to make laws deemed necessary for any special race, including our Indigenous people.

It is the same Section 51 (xxvi) which the 2010 Expert Panel also called to be abrogated.

Clearly, the supremacy of the legislative authority of the parliament – is not accepted by some in the Indigenous intelligentsia.

Thus, in my view, the recognition is just a façade to have a constitutionally backed parliamentary body – the Voice – to commence the intended work on their land and water rights, compensation, and reparations through their framework of treaty or treaties and truth telling.

The benign narrative of the recognition of Indigenous people in our constitution – was modified to be the recognition through the voice – not without a reason.

Without commenting on the merits of the agenda of the yes camp, I believe Australians must know the full picture.

They must know – a lot will follow the Voice, which may affect them.

The legal conundrum:

We have been told the Voice will be an advisory body and may make representations to the Parliament and the Executive Government...

But we have not been told what the obligations of the parliament and the government will be, upon receipt of the advice.

Simply to say the Parliament shall have power to make laws with respect to matters relating to the Voice, including its composition, functions, powers and procedures – is absolutely not the same thing.

That in the worst-case scenario can be seen as deliberately misleading.

It is quite foolhardy to think we will have no problems.

It is not inconceivable that, if the Yes camp is successful, the Voice would want to aggressively push on with its agenda, which includes Indigenous Australians calling for self-determination, self -governance, establishment of their traditional Indigenous justice systems and agreement-making about traditional ownerships of lands and waters moving to reparations and compensations.

A legitimate question is – will the Voice – a constitutional body as it would be then, not have the power to propose radical changes to the Native Titles Act 1993?

How will that not lead to constitutional and legal crises in Australia?

I would say if we do not have those crises, we will have two ‘Australias’ in one nation – one for the Indigenous people and one for the rest of us.

And that division will be permanent.

On a serious yet lighter note, our Prime Minister Anthony Albanese, runs the real risk of being called Australia’s Mikhail Gorbachev who, just to be woke, divided Australia for good.

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