The constitutional referendum which is to be put to the Australian people in about October or November 2023 really asks two questions. Paragraphs (i) and (ii) of the referendum question authorizes the establishment of an Indigenous Voice to Federal Parliament. However, paragraph (iii) of this referendum question effectively establishes a new constitutional head of power, which if approved, has the potential to massively increase the power of the Commonwealth Parliament.
Paragraph (iii) of the referendum question would give the Federal Parliament the ‘power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice’. Consequently, the potential exists for the Commonwealth Parliament to legislate in new areas where it currently cannot. There is the caveat in paragraph (iii) of the referendum question that laws made in accordance with representations submitted by The Voice be ‘subject to the Constitution’.
However, this caveat may not place limitations on potentially expanding the Federal Parliament’s current legislative scope if the High Court of Australia (HCA) was to determine that the representations made by the newly constituted body were valid.
Therefore, should this particular referendum proposal pass then the role of the HCA could transform from primarily being a court of judicial review to a gatekeeping role which ruled whether representations made by The Voice could enable new powers to be exercised by the Commonwealth Parliament that would otherwise be considered unconstitutional. Under this scenario socio-economic political power could shift from the people to the judiciary with the HCA being able to potentially bestow sweeping powers on Canberra, either as stand-alone activism by the HCA or in conjunction with the agenda of parties in the Parliament and The Voice itself.
As has been canvassed in a previous Social Action Australia (SAA) article, (‘No to a Constitutional Blank Cheque’) the potential for new regional councils to be created, based on traditional Aboriginal boundaries could be established to help facilitate a possible Regionalisation process which would ultimately undermine the role of Australian states. Other hypothetical scenarios include the Commonwealth taking over public hospitals from the states based upon representations made by The Voice which the HCA could find to be valid. The potential scope for this massive shift in power to the Commonwealth is extensive because paragraph (iii) of the current referendum proposal effectively establishes a new constitutional head of power.
SAA therefore advocates that paragraph (iii) of the current referendum proposal be dropped and that enabling legislation be tabled in Federal Parliament so that there will be greater clarity as to how The Voice will actually operate in relation to the paragraph (ii) of the referendum question. Representations could still be made by The Voice in accordance with paragraph (ii) which the Commonwealth Parliament can duly legislate on under its existing and sufficient constitutional powers. The inclusion of paragraph (iii) is therefore unnecessary in relation to actually serving the interests of indigenous Australians.
Why Window Covering is not Window Dressing
Victorian Senator Lidia Thorpe has advocated a ‘No’ vote on the basis that this proposed constitutional amendment does not go far enough! Assertions that this referendum proposal is mere ‘window dressing’ are incorrect. For this referendum proposal is not so much a matter of ‘window dressing’ but of ‘window covering’ due to the current focus on paragraph (ii) obscuring the potential for paragraph (iii) to create a new constitutional head of power.
One campaign group (Advance) which advocates a ‘No’ vote in October this year has also alleged that the proposed constitutional amendment does not go far enough! With a flawed ‘No’ campaign being conducted is there any hope that paragraph (iii) will be focused upon in order to realize the potential ramifications of the introduction of a new constitutional head of power?
There might still be a chance that the dangers in paragraph (iii) will be highlighted should the federal Opposition Leader Peter Dutton assume a more central role in campaigning for the ‘No’ case. At the very least the ‘No’ case campaign should move away from providing former prime minister, Tony Abbott, with a prominent anti-political correctness platform to advocate a ‘No’ vote. The campaigning role which Abbott is undertaking could drive many undecided voters toward voting ‘Yes’ due to their dislike of this former prime minister. Then again, Abbott might not regard it as too much of a disaster if a new constitutional head of power via paragraph (iii) is created.
At any rate, it may seem bizarre that a federal Opposition Leader be called upon to assume a greater campaigning role. However, Peter Dutton is presently distrusted by too many people outside of his home state of Queensland. This is due to the sense of unease which many Australians still feel about the way in which Malcolm Turnbull was deposed as prime minister in August 2018 by the Liberal Party and the role which Peter Dutton undertook to facilitate this outcome.
There was also too much public angst about the Australian Labor Party’s (ALP) Bill Shorten becoming prime minister so that Scott Morrison was able to snatch victory from the jaws of defeat to ‘miraculously’ win the May 2019 federal election for the Coalition. Nevertheless, the Morrison Government was unable to avoid its own day of reckoning due to the electorate’s hostility toward the Liberal Party for, among other things, previously deposing Malcolm Turnbull, so that the ALP won the May 2022 federal election.
Not only did the Coalition lose the 2022 federal election but the Liberals also lost six of their heartland seats to the so-called Teal independents who broadly come under the political category of the liberal-left. It therefore seems inexplicable that the Liberals would subsequently elect Peter Dutton as their federal leader when he comes from that party’s hard right. Dutton’s elevation as the Liberals’ federal leader therefore apparently guarantees that the Teals will hold onto their current parliamentary seats and possibly win more future representation at the next federal election.
Even if the ‘No’ vote prevails in this year’s referendum there is still a good chance that many traditional Liberal voters will vote ‘Yes’ thereby contributing to the process by which they will possibly transition to support the Teals or possibly the Greens and even the ALP. Paradoxically, the ‘No’ vote might prevail in ALP seats among socially conservative blue-collar voters.
However, as data from previous general elections indicates, most of these socially conservative blue-collar voters continue to support the ALP or at the very least do not vote for the Liberals. Consequently, the political balance which will result from holding this Voice referendum will still be more favourable to the Australian Left even if the constitutional amendment does not pass.
If the Liberal Party really wants to renew itself by reversing the current adverse electoral realignment which is currently underway, then this party should look no further than to the state of Victoria. Within the next two years Victoria’s abysmal underlying financial condition will become glaringly apparent due to the long period of ALP misgovernment in that state.
Should Regionalisation be subsequently introduced under the aegis of The Voice then the Labor Party (or hard-left industrial super unions) in Victoria may be able to take refuge in a new regional tier of government. The Liberals in Victoria by contrast may lack the resources to gain an ascendancy within a new regional tier of government. However, if the Liberals in Victoria were to highlight the dangers inherent in paragraph (iii) of the current referendum question they might be able to achieve political renewal by winning power in a state free from the threat of Regionalisation.
Why Peter Dutton should say ‘No’ to Advance Australia
However, Peter Dutton himself could still turn around the present unfavourable situation for his party by winning the trust of the Australian electorate. As a matter of political urgency Peter Dutton therefore also needs to utilize a more mainstream campaign advertising agency so that he can highlight the potentially grave dangers inherent in relation to paragraph (iii) of The Voice referendum question. The potential for this paragraph (iii) to potentially create a new constitutional head of power to massively expand Canberra’s power is a danger which Peter Dutton as federal Opposition Leader has a duty to highlight.
Although SAA is more philosophically inclined toward ALP governments -which was reflected by our support for the Gillard Government (2010 to 2013) - it is comparatively better that Australia have a hard-right (or preferably a centre – right, government) than to continue with the hard-left Albanese Government. Already the consequence of having a hard-left government is manifesting itself with Australia moving toward officially adopting an anti-Israel position which was not apparent when the ALP was in opposition.
There is consequently a need for Australian governments, whatever their political persuasion, to be honest with the Australian people. Accordingly, there needs to be greater transparency concerning the potential implications of approving The Voice in its current form. Peter Dutton therefore can demonstrate his future worthiness to serve as prime minister by focusing on the potential dangers which exist in relation to paragraph (iii) of The Voice referendum question.
It would therefore be ironic, given the reluctance of the Australian people to amend the Constitution (only eight out of forty-four referenda have passed since federation) due to their suspicion that governments have ulterior motives if the referendum on The Voice in its current form was to pass. For the Albanese Government arguably has an ulterior motive which is to create a new constitutional head of power so that power will massively shift from the people to Canberra via the judiciary.