The Voice Referendum - is it a Trojan Horse?

Voice, Treaty, Truth

Australians are currently exhorted to agree to an amendment to the Constitution on the 14th October on the reasonable assertions that, as any civilised person must agree, Blackfellas were already on this land before Whitefellas arrived in 1770; and that today, many descendants of those Blackfellas suffer in ways that lead to a lifespan around twenty years less than that of the descendants of the Whitefellas.

'Yes' to that, of course. But I say that is no more than a play to our best natures, a decoy.

Instead, as I will argue, this Amendment is a Trojan Horse. More accurately, it is a Trojan Horse with a big sign attached saying:

THIS REFERENDUM IS REALLY ABOUT GIVING POWER TO PARLIAMENT TO IMPOSE A TREATY.  DO NOT LET THIS HORSE IN!!

The proposed amendment gives huge power to Parliament and does nothing for Aboriginal and Torres Strait Islander Peoples.

My evidence? ... It's in plain sight. Consider The Uluru Statement from the Heart. That statement calls for three sequential reforms: Voice, Treaty and Truth. In other words, that Statement describes the Voice amendment as a step that will enable a Treaty to be agreed and imposed. The Prime Minister has even worn a T-shirt with the words 'Voice', 'Treaty', 'Truth'.

So, let's look at the proposed amendment to the constitution and see how it provides the framework for concluding a treaty. And we can focus on the consequences of such a treaty, rather than on the decoy.

Why should a treaty be a concern?

A treaty is an agreement that may involve the allocation of assets. In this case, assets include land, water, and air. Is it possible that assets you currently think of as your own may be allocated to others? A great risk is that ownership of all the things we may think of as belonging to us could be allocated to others as part of that treaty. And a treaty is binding.

How would the proposed amendment establish powers for a treaty?

The proposed amendment is presented in this explanatory memorandum, downloaded on 1st October 2023:

The Bill introduces a new section into the Constitution which would be located in a new Chapter IX, to be named ‘Recognition of Aboriginal and Torres Strait Islander Peoples’, at the end of the existing chapters of the Constitution. The section, to be titled ‘Aboriginal and Torres Strait Islander Voice’, would contain four key components. The purposes of these components are:

·       to recognise Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia;

·       to provide for the establishment of a new constitutional entity called the Aboriginal and Torres Strait Islander Voice;

·       to set out the core representation-making function of the Voice; and

·       to confer upon the Parliament legislative power to make laws with respect to matters relating to the Voice, including its composition, functions, powers and procedures.

Four ingredients for a treaty.

If we examine the proposed amendment above, we can see it provides four ingredients for a treaty: first, two parties with appropriate standing in international law; second, a constitutional entity related to each party; third, endowment of each constitutional entity with the function of representing its related party; and fourth, the power for each entity to agree a treaty on behalf of its related party.

1. How does this proposed new section establish the parties to a treaty?

A typical party to a treaty is a state that is recognised in international law. The first of the two parties would be Australia, which is already recognised. For the other party, we can see that the 'introductory words' are used to recognise those of us who are descended from Aboriginal and Torres Strait Islander Peoples as the First Peoples of Australia.

This is evidence of an attempt to establish the First Peoples of Australia as a party to a treaty.

2. What are the constitutional entities related to each party?

For Australia, the related entity is Parliament; and for the First Peoples of Australia, Subsection 129 (i) provides for the establishment of a body, of perhaps 24 people whom Parliament will have the constitutional power to appoint, named the Aboriginal and Torres Strait Islander Voice.

3. Do these bodies have the function of representing each party?

Parliament already has the function of representing Australia; and Subsection 129 (ii) sets out the representation-making function of the Voice for those Australians who are descended from the Aboriginal and Torres Strait Islander peoples.

It must be emphasised, though, that members of the Voice seem likely be appointed by Parliament, and therefore that Aboriginal and Torres Strait Islander Peoples would have no power to either elect or replace the members of the Voice. Thus, any representation by the Voice would be an imposed, top-down representation, of a sort not usually found in modern democracies.

There is a view presently held by some in Australia that, because we have a ‘representative democracy’, it naturally follows that sovereignty changes hands from the people to its representatives. Therefore, they seem to argue, a body such as the Voice could have the sovereign power to represent, or speak on behalf of, the Aboriginal and Torres Strait Islander Peoples. However, in my view, that shows a misunderstanding of representative democracy. Rather, sovereign power is always retained by the people in a representative democracy [1]. The purpose of delegating powers to elected members of Parliament is solely for the purpose of improving the efficiency of decision-making, not to transfer sovereignty to them. Indeed, important decisions must be referred to the people through a plebiscite or referendum.

So, yes. Despite the facts a) that members of the Voice may not be elected by Aboriginal and Torres Strait Islander Peoples, and b) that in a representative democracy, sovereignty cannot be transferred to another entity, such as the Voice, this amendment does indeed seem to establish the core representation-making function of the Voice.

4. And would these bodies have unfettered power to make laws and agree a treaty on our behalf?

Here we need to locate the source of power wielded by members of a parliament. There are two main sources of power: a bill of rights, and a constitution.

In my understanding, bills of rights are used in what can be called a monarchical governance system, in which some human power higher than that of the people grants rights to the people. An early form of such a document was the Charter of Liberties agreed in 1100. In those systems, if a right is not positively listed in the bill or charter, then it does not exist.

On the other hand, constitutions are used in what can perhaps be called a popular system, in which the people have natural authority to act with free will, subject to rules against causing harm to others, and they therefore retain perpetual individual sovereignty. This natural authority is given by God, not by other humans. We the people then assign particular powers to our representatives for a period of time and under certain conditions. We use a constitution to list only those powers that we assign, and we define conditions under which they must be exerted [2]. We can never lose our sovereign authority. For example, at present in Australia we limit the powers we ascribe to Parliament to those listed in Chapter I, Part V, Sections 51 to 60 of the constitution[3]^,[4].

In countries like Australia that have a constitution, the ever-present danger is to give unlimited power to Parliament, because then we the people will lose our rights and freedoms. Dangerously, the Voice amendment would do two things. First, it would extend without limit the presently-listed powers granted to Parliament to make laws on behalf of the people of Australia. Second, it would give power to the Voice to agree a treaty on behalf of descendants of the Aboriginal and Torres Strait Islander peoples, even without their agreement.

Under Subsection 129(iii), the proposed amendment would give Parliament the power to make laws with respect to matters relating to the Voice. This description of powers also includes those matters that relate indirectly to the Voice. As an often-quoted example, superannuation for all people in Australia, whether of Aboriginal or Torres Strait Islander descent or not, would be included in the range of matters related to the Voice. Further, since Aboriginal or Torres Strait Islander descendants already have an interest in the land, water, and air, we can see that Parliament's powers could become comprehensive if we accept the amendment.

So yes, the amendment would give both entities the power to agree a treaty on our behalf, and give Parliament unfettered power to make laws. And since the purpose of a constitution is to limit the powers of parliament, that would negate the purpose of a constitution.

In conclusion

Some argue that the Voice would have no power to force parliament to take any action. True, but I feel that is a distraction. Parliament would have complete power over the Voice if its members are selected, deselected, and paid for by Parliament. I suggest that the real purpose of the proposed amendment is to give complete power over all of us and all of our assets to a body called ‘Parliament’, which would then be unfettered by a constitution.

Since the constitution can only be altered by referendum, and we can only have a referendum if the parliament allows it, any problems that may arise would be difficult to reverse.

I hope that the referendum will be defeated. I think this attempt to enable the imposition of a treaty is yet another audacious attempt to control us [5]. But in addition, it seeks to define a subset of Australians by race and treat them separately. So, in voting NO to this referendum question, I will be voting NO to removing the limits to the power of parliament, NO to a treaty, and NO to racial separation.

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1 And there is a further misunderstanding, which is in the term 'democracy' itself. Some wrongly believe that the essence of democracy is the vote. But that is an oversimplification. Rather, the essence of democracy is free speech, discussion, and debate. The great strength of democracy is that we build solutions from the ground up through debate. Although the process may be untidy, it has a track record of building good solutions, especially when compared with solutions imposed top down in autocratic or totalitarian systems. The aim of democracy is to build solutions that the great majority agree with, and we can then test whether we agree, by voting. Needless to say, such a process can be subverted by propaganda or censorship.

2 Conditions include compliance with ethical rules, laws, and governance frameworks.

3 In this note, I don't plan to address the perverting effect that altering the definitions of words used in the constitution may have on the intent of the constitution. However, suffice to say that perverting effects arise when definitions are altered. Two cautionary examples: a) if parliament is granted powers to make laws related to marriage, but not to make laws relating to some other forms of relationship, there may be some doubt over the legality of laws enacted by parliament that relate to those other forms of relationship that were not defined as marriage at the time the constitution was established; b) if parliament is granted powers to make laws relating to quarantine, defined as the isolation of people who are infectious, there may be some doubt over the legality of laws enacted by parliament that relate to later definitions of quarantine, such as one that includes isolation of those who are not an infection risk.

4 Of course, we can imagine another form of charter that might combine a list of powers granted temporarily and under defined conditions to a parliament (as in a constitution), with a list, for clarification, of those powers that are not granted (as in a bill or rights).

5 Some examples of other present attempts that may put us under authoritarian control are the misinformation bill, the WHO pandemic treaty, and net zero.