The Murdoch media has a reputation for being predominately right-wing. This is particularly the case with the Murdoch’s media’s flagship publication, The Australian newspaper. To be fair, The Australian also has liberal left writers who provide a degree of balance which has served to make this newspaper more interesting and thought-provoking.
Nevertheless, it was surprising that The Australian’s associate editor Chris Kenny had an article attacking the proposed indigenous Voice to parliament’s opponents which was entitled the “Hateful Eight: Don’t be fooled by the No campaign’s shallow scare tactics” (Page 20. The Weekend Australian, August 26-27, 2023). In this article, associate editor, Kenny rebutted eight campaign points which the ‘No’ campaign made.
Similarly, on the same page, Professor Greg Craven wrote an article entitled “Constitutional order in the High Court” (Pages 20-21, The Weekend Australian, August 26-27th, 2023). This article by Professor Craven sought to re-assure readers that the appointment by the Albanese Government of Justice Stephen Gageler as chief justice of the High Court of Australia (HCA) would ensure that a judicial moderate would preside over the nation’s highest court should the proposed constitutional amendment concerning the indigenous Voice to Parliament be successful.
However, the overriding point is, why should the Australian electorate empower the HCA with the capacity to decide whether or not the Commonwealth Parliament can legislate in new areas based on submissions made by The Voice? As has been pointed out in two preceding Social Action Australia (SAA) articles; “No to a Constitutional Blank Cheque” and “No to a new Head of Power” there is an acute danger that if The Voice referendum in October 2023 passes then the power of the Commonwealth Parliament will massively expand.
As has been argued in these two preceding SAA articles, paragraph (iii) of the referendum question is where the danger presently lies. Under this paragraph, the federal parliament will ‘have the power to make laws with respect to the Aboriginal and Torres Strait Islander Voice’. This could potentially mean that if the HCA so rules, that the federal parliament could legislate to recognise regional councils, which could fatally undermine the role of states, based upon a submission made by The Voice that such councils be established.
It is true that the HCA could still rule that such a submission made by The Voice to create new regional councils is ultra vires (i.e., beyond the power of The Voice). However, it appears possible that the HCA could still rule in favour of such a submission if a clever enough legal argument was made. The fundamental point is that if the constitutional referendum to establish The Voice passes it will create a situation where power could shift from the Australian people to The High Court.
Why the Devil is in the Detail
Disturbingly, this possible future shift in power from the Australian people to the High Court is a viable scenario given the Albanese Government’s refusal to enter into detailed discussion in the community concerning the rationale for establishing The Voice in accordance with the principles of statutory interpretation. Documentation, such as explanatory memoranda or drafts of enabling legislation to facilitate The Voice’s actual functioning and to explain its purpose have not yet been released by the federal government.
This reluctance on the Albanese Government’s part to be clear and transparent with the Australian people only serves to increase the suspicion that the constitutional passage of The Voice may facilitate various concealed agendas such as, for instance, the ultimate abolition of Australian states.
Why Transparency is Paramount
Noel Pearson, a leading advocate in the ‘Yes’ campaign, has called on supporters of The Voice to show respect to ‘No’ case proponents, which is a positive development. However, respect not only entails politeness and civility, but also transparency. Therefore, the federal government needs to outline the possible powers and role of The Voice prior to the referendum itself. This clarity needs to be provided by the federal government to prevent the potential for The Voice to establish a new and unexpected constitutional head of power so as to massively increase the power of the federal parliament.
There is still sufficient time between now and referendum day (October 14th, 2023) for the Albanese Government to release official documentation concerning the role and function of The Voice. This would assuage fears that The Voice could be a Trojan Horse by which a range of covert agendas, including Regionalization, could be introduced.
Furthermore, there is a current threat to freedom of expression due to the Australian Labor Party’s (ALP) moves to introduce new anti-defamation laws. Libel law is already sufficient in Australia to successfully sue to protect against racist slander. However, if libel laws are going to expanded and The Voice is approved so that a new constitutional head of power is established, then public criticism of the Voice’s future submissions to Parliament could be held to be libelous.
Given the potential danger that The Voice poses in terms of transforming Australia by transferring power from the people to the judiciary the question has to be asked as to why some usually conservative columnists in The Australian newspaper are supporting this proposed constitutional amendment?
A possible reason for this phenomenon is that elements of the non-left side of Australian politics support the objective of eventually abolishing Australian states. This contention is given credence by the federal Opposition Leader Peter Dutton’s policy position that -while supporting the current ‘No’ campaign – he wants, should he win government, to hold another referendum to establish indigenous ‘regional voices!’ It could be that ‘regional voices’ is code for Regionalization.
Doesn’t Peter Dutton realize that the best hope for the two coalition parties to survive and prosper into the future is to first win government at a state level? The financial ineptitude of the Victorian state ALP government will eventually become apparent so that there will be Liberal renewal in that state which could even propel the coalition to power federally.
Vote ‘No’ to a Complex Referendum Proposal
Regardless of which party is in power, SAA could support an indigenous Voice to parliament if paragraph (iii) of the current referendum question was dropped and a draft of proposed enabling legislation or background documentation was released as to how The Voice is to be constituted and what its role will actually be. Unfortunately, due to the Albanese Government’s opaque approach toward detailing these aspects of public policy, the current referendum question is – contrary to the ‘Yes’ campaign’s slogan- is anything but ‘simple, practical and positive’.
Instead, the Australian people are being deceptively presented with a highly complex constitutional proposal which potentially creates a new head of constitutional power which could massively expand the Commonwealth Parliament’s power! It is true that for such a radical constitutional new order to be established that the green light would have to first be given by the High Court. But why should the Australian public surrender their socio-political power to the judiciary in the first place by voting ‘Yes’ to this complex proposed constitutional amendment?
LEARN MOREThe 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.
LEARN MOREAustralians have a tendency to protect their Constitution by voting down attempts to amend it in referendums held in accordance with Section 128 of that document. However, as argued in the following article, the attempt to amend The Constitution by inserting an indigenous Voice to Parliament might lead to a radical overhaul the Constitution. Therefore, it will be argued that the constitutional legal ramifications of approving The Voice as it is currently formulated should be analysed instead of focusing on the nature of Australian race relations.
For years Social Action Australia (SAA) has warned about the threat of Regionalisation being introduced so as to usurp the role of Australian states. This threat will become critical should the so-called Voice constitutional referendum pass in the latter part of 2023. Indeed, the recent release of the official wording of the referendum question confirms the suspicion that the proposed Indigenous Voice to Parliament has nothing to do with helping Australian Aboriginals but is a cynical constitutional ploy to massively expand the federal parliament’s constitutional power so that a new executive tier of government is created.
Indeed, the proposed Indigenous Voice effectively creates a new constitutional head of power which bypasses Section 51 of the Constitution which deals with the legislative powers of the Federal Parliament. Paragraph (ii) of the proposed constitutional amendment is fine in that it states that The Voice “may make representations to Parliament … on matters relating to Aboriginal and Torres Strait Islander peoples”.
However, paragraph (iii) of the referendum question says that “Parliament shall, subject to this Constitution, have the power to make laws with respect to the Aboriginal and Torres Strait Islander Voice, including its composition, functions powers and procedures”. This power under paragraph (iii) of the referendum proposal means that the federal Parliament could massively expand the legislature’s power to on issues it is currently prohibited from doing so, should an appropriate representation be made by The Voice.
For example, The Voice could make a representation to the federal Parliament that regional councils should be established based upon traditional Aboriginal land boundaries. The Commonwealth Parliament would therefore potentially have the power to endow these regional councils with powers and functions which fatally erode the role of the states based upon successive representations made by The Voice.
There would, of course, be legal challenges to the High Court of Australia (HCA) opposing the Commonwealth Parliament so massively expanding its power based upon The Voice’s representations to the federal legislature. However, such legal challenges are likely to fail because there are insufficient legal safeguards contained within paragraph (iii) of The Voice referendum proposal to prevent such an extraordinary expansion of legislative power. Consequently, a new tier of regional government could be created.
There is the caveat in paragraph (iii) of the proposed constitutional amendment that the power of The Voice is “subject to this Constitution”. This caveat will provide inadequate legal protection because federal law could still be passed by Commonwealth legislation to recognise local government if the HCA holds that this is based upon a valid representation made by The Voice to the federal Parliament.
Putting the Horse before the Cart: The Need for Constitutional Clarity
Indeed, the “composition, functions, powers and procedures” of the proposed Voice are insufficiently detailed in the referendum question. This creates the constitutional scope for the federal Parliament via any successive enabling legislation to massively expand the power of The Voice. Consequently, The Voice could become a vehicle to empower the federal Parliament to make laws in areas which it currently lacks the power to do so. As previously stated, the proposed Indigenous Voice to federal Parliament effectively creates a new constitutional head of power similar to Section 51 of The Constitution which limits the legislative power of the federal Parliament.
These limits allow the states to have their own areas of legislative power which creates the balance between federal and state governments in our current federal system. Removing these limits would centralise power even further with the federal government at the expense of the state governments. This separation of powers between the state and federal governments is meant to protect individual rights and the rule of law by preventing too power being placed in the hands of one government.
There may be attempts by the Albanese government to claim that there are legal limits which will check the power of The Voice. Currently, the federal government is citing statutory memoranda such as the Second Reading Speech to allay fears regarding the potential to confer massive legal powers with regard to The Voice. However, courts can only look to extrinsic materials such as the Second Reading Speeches only where there is some uncertainty or ambiguity in the wording of the relevant law. There is no such ambiguity in the wording of paragraph (iii) of the referendum question. Accordingly, a court will not be able to consider the contents of the Second Reading Speech.
The Albanese government is trying to raise issues of statutory interpretation at the time of the passage of the legislation to re-assure the public that The Voice will not become a means by which to prohibitively expand the power of the federal Parliament indicates a disingenuous approach not only with regard to the Aboriginal people of Australia but to all Australians. Prime Minister Albanese may shed tears to convey his supposed passion for The Voice but these tears are crocodile tears. For what the Prime Minister really wants is to massively enhance the constitutional power that The Voice will confer upon the Commonwealth Parliament.
An Overview of an Anti-States Agenda
This attempt to insert The Voice into the Australian Constitution can be seen as part of an ultimate agenda to abolish Australian states on the part of elements within both of the major parties which goes back to the Howard government’s demise in November 2007. As was argued by SAA following the 2007 federal election elements within the coalition were complicit in ensuring that the Howard government was defeated so that the succeeding Labor Rudd government could commence the process of dismembering Australian states via the Regionalization process.
Indeed, there was an attempt by anti-state elements within the Liberal Party to entice the then federal Treasurer Peter Costello to depose John Howard as prime minister so that the Treasurer could be subsequently politically knocked off by leading the coalition into a pre-arranged electoral defeat. Fortunately for Peter Costello, he avoided this trap by allowing John Howard to lead the coalition to defeat in the November 2007 federal election.
Prime Minster Kevin Rudd did try to resist the anti-states agenda which he had been put in place to facilitate. Alas, Prime Minister Rudd was unable to stand up to the then Opposition Leader Tony Abbott to effectively undermine states as evidenced by the so-called Hospitals Agreement of May 2010 by which the Labor governed states handed responsibility for public hospitals over to the Commonwealth. Tony Abbott had previously deposed Malcolm Turnbull as federal Opposition Leader in late 2009 to help ensure that the Rudd government steered an anti-states course.
The pretext for the successful Abbott leadership challenge in late 2009 was ostensibly over the then Opposition Leader Malcolm Turnbull’s support for Emissions Trading Scheme (ETS) legislation. It should be pointed out at this juncture that for all the criticism that the Rudd government was subjected to over its failure to introduce an ETS that it was the Greens who used their balance of power in the Senate to vote down this mechanism in early 2010. Due to extensive media bias the Greens have never been held to account for this action.
The real agenda of the Greens’ national leadership has always been to dismember Australian states by supporting the introduction of Regionalization. This was apparent when the Greens supported the introduction of a Carbon Tax in early 2012. The passage of this legislation politically doomed Prime Minister Julia Gillard who had assumed power in June 2010 in order to help shake-off Tony Abbott’s political influence over the then Rudd Labor government.
Due to previous political collusion between the two major political parties, Prime Minister Gillard knew that unless she made a political pronouncement during the August 2010 federal election campaign that a government she led would never introduce a carbon tax (if the Labor Party won that election) that she would lose that election. Julia Gillard subsequently narrowly won the August 2010 federal election to form a minority government because of this inter-party collusion.
Tony Abbott was prepared to wait it out in opposition due to the landslide that he anticipated would come his way at the next federal election by invoking the mantra that the carbon tax was ‘a bad tax based on a lie’. It was the Greens in the Senate who voted for a Carbon Tax in early 2012 in the knowledge that this would mean that Tony Abbott would win the next federal election. The reason why the Greens covertly supported the election of an Abbott federal government was so that Regionalisation would be consequently introduced.
To keep the rent-seeking wolves at the door, a now politically doomed Prime Minister Gillard announced in January 2013 that there would be a federal election on September 14th that year. For good measure the then prime minister announced in early June 2013 that a referendum on local government recognition would also be held on September 14th that year with the federal election. This initiative to hold a constitutional referendum was at the behest of the then federal minister of Local Government, Anthony Albanese!
The hard left of the ALP and the Greens were prepared to destroy a centre-left Labor government so that a hard right coalition government could subsequently introduce Regionalization! Fortunately, Prime Minster Gillard made way for Kevin Rudd in June 2013 in a probably pre-arranged leadership challenge.
Although it is supposition, it is still a highly plausible scenario that Julia Gillard arranged with Kevin Rudd that he would hold the federal election seven days earlier so that the constitutional referendum question would not be held. Not only did this help Australian states avoid their day of reckoning but the Rudd return to power also helped the ALP to ‘save some of the furniture’ so that Labor did not lose to the coalition in an election landside defeat in September 2013.
The Abbott Government (2013 to 2015) was anti-states rights so that it drew up a white paper on ‘federation reform’ (sic). One of the first actions of Malcolm Turnbull on assuming office as prime minister in September 2015 after deposing Tony Abbott was to scrap this white paper so that Australian states were again safe for the time being.
Alas, the deposition of Malcolm Turnbull in August 2018 has had the repercussion of moving the Australian electorate toward the Left. Yes, Malcolm Turnbull’s successor Scott Morrison ‘miraculously’ won the May 2019 federal election but this was primarily due to the voters’ hostility toward the then federal Labor leader, Bill Shorten. The post-2019 whirlwind of public hostility toward Scott Morrison and his Treasurer Josh Frydenberg which was manifested in them losing the May 2022 federal election was primarily due to the opaque manner in which Malcolm Turnbull was deposed in 2018.
Reviving ATSIC so that Real Reconciliation can be Achieved
Unfortunately, if not counter-productively, the current focus on Australia’s indigenous peoples has not led to a corresponding improvement in their lives as too many of them still live in poverty and are subject to incarceration. Should The Voice ‘get up’ then the lot of Australia’s indigenous peoples will probably not improve because the federal government’s real agenda is actually to expand its constitutional powers in ways which have been outlined in this article.
This is because the primary aim of this constitutional amendment is really to greatly expand the powers of the federal Parliament so that this legislature can pass laws in areas previously denied to it in areas such as States’ rights. Peter Dutton as Opposition Leader will have to point out when conducting the ‘No’ case the constitutional dangers inherent in sub-section (iii) of the referendum question.
Hopefully, Peter Dutton will publicly commit to re-establishing the Aboriginal and Torres Strait Islander Commission (ATSIC, which was abolished by the Howard Government in 2005) or an equivalent statutory organisation. Let a future Dutton government re-establish ATSIC after undertaking extensive consultation with indigenous Australians. Such consultation for a revived ATSIC (or its equivalent) will be necessary if this initial statutory authority is to have the support and participation of Aboriginal Australians. (24)
After three years of operation of a revived ATSIC let there be another referendum to institutionalize this authority within the Constitution so that in accordance with sub-section (ii) of the current referendum proposal representations can be made to the federal Parliament by a revived ATSIC. This alternate approach stands a better chance of gaining bi-partisan support because the bona fide interests of Aboriginal Australians will be pursued instead of underhandedly trying to massively expand the federal Parliament’s constitutional power as contained in sub-paragraph (iii) of the current referendum proposal.
SAA supports the eventual introduction of an indigenous Voice to Parliament, but not in its current form for the reasons which have already been outlined in this article. Therefore, caution should be taken when advocates for the ‘No’ case raise questions of race relations because this obscures the potential for paragraph (iii) of the current referendum proposal to radically alter the Australian Constitution.
The paradox therefore exists for advocates of ‘No’ vote, such as former Prime Minister, Tony Abbott, not to be too distressed should the ‘Yes’ case prevail in this instance because the viability of Australian states could be fatally undermined. Therefore, let the focus of this referendum campaign be on the constitutional issues at stake rather than on race relations in Australia.
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The late King Sihanouk of Cambodia wrote that the way to make a fool of oneself was to predict the future. It is with this maxim in mind that Social Action Australia (SAA) cautions that there is still a possibility that a referendum could be called later this year to amend Section 96 of the Constitution so that local government is recognized. The time period for such a constitutional development is narrow due to the final arrangements being currently undertaken to finalize the wording concerning the indigenous Voice to Parliament referendum question which should be achieved by the end of May 2023.
It is due to this narrow timeframe that it is highly improbable that a referendum proposal to recognize local government in the Constitution will be authorized by new legislation. However, there are potential warning signs that a referendum proposal to recognize local government could still be slotted in to be held in conjunction with the Voice referendum question.
There are currently no warning signs that a referendum question on amending Section 96 will be put to referendum in 2023. However, in June 2013 legislation – The Constitution Alteration (Local Government) Bill 2013- was passed, at the initiative of the then Local Government Minister, Anthony Albanese, that a referendum be held on September 14th 2013. This narrow time frame was set so that opponents of local government constitutional recognition would have insufficient time to organize an effective ‘No’ case. It is with this precedent in mind that the following hypothetical analysis in this article is undertaken.
While it is highly improbable that this will occur, vigilance still needs to be exercised because the possible ramifications for Australian states could be dire if local government receives constitutional recognition. If local government in the Constitution was to be recognized, then a pathway to ultimately abolish Australian states could well be established along with the planting of the seeds for a massive split within the Liberal Party.
Therefore, the underpinning dynamics for these two possibilities to eventuate warrant speculative analysis. Concerning the eventual phasing out of Australian states, Section 96 of the Constitution would probably have to be amended. This constitutional section covers financial assistance to the states. The referendum proposal to amend Section 96 which was authorized in June 2013 during the last days of the Gillard Government might, had it been put to referendum and passed, have allowed the federal government to fund local authorities.
Fortunately, in an act of statesmanship, Kevin Rudd, on returning as prime minister in June 2013 called a federal election for September 7th, 2013. This was seven days earlier than what Julia Gillard had planned, because she intended that Australia would go to the polls on September 14th and that there would also be a referendum question amending Section 96 so that local government would be recognized in the Constitution. By holding the federal election seven days earlier so as to delay the referendum question being put to the Australian people, Prime Minster Rudd effectively ensured that this matter lapsed.
Why Referendum Questions can cause Party Splits
However, Prime Minister Anthony Albanese in the first half of 2023 could still authorize a referendum question to amend Section 96 to be held in conjunction with the Voice constitutional proposal. The hypothesis which SAA advances for this occurring is that there could be an interlinkage between two such referendum questions being simultaneously put to the vote, to help engineer a major split within the Liberal Party!!
For the Liberal Party to split would be an extraordinary development. However, should local government be recognized in the Constitution, then both the continuing Liberal Party and a socially progressive break-away party could establish bases of support in new federally funded local government bailiwicks which could develop in order to eventually usurp the role of Australian states.
The above scenario is hypothetical, but the possibility of this occurring still warrants analytical speculation because the consequences of these outcomes are potentially so detrimental to the Australian body politic. It should be remembered that two of the three splits which happened in the Australian Labor Party (ALP) would not have taken place had it not been for preceding referendums.
The very bitter October 1916 referendum question concerning conscription resulted in the ALP subsequently splitting along sectarian lines. Similarly, the seeds for the great Labor Party Split of March 1955 were sewn in 1951 when a constitutional referendum was held in September that year to ban the Communist Party of Australia (CPA).
Although the 1951 constitutional proposal narrowly went down the very holding of this referendum was still a political masterstroke by Prime Minister Menzies. This was because the predominantly Catholic anti-communist elements within the Labor Party became so alienated from the then federal ALP leader H.V. Evatt due to the vigor with which he had opposed the banning of the CPA. Without this hostility the Labor Party could not have subsequently split in March 1955.
Similarly, the Voice referendum proposal could split the contemporary Liberal Party. The success of the Teals in the April 2022 federal election and the ALP being able to win the Aston federal by-election from the Liberals a year later, illustrate that there is now a sufficient critical mass to establish a new socially progressive major political party. This is particularly the case because the contemporary Liberal Party seems to have lost the millennial vote. Progressive elements within the federal parliamentary Liberal Party could well split from their party following the Voice referendum because millions of Liberal inclined voters will support this proposed constitutional change.
The Prospect of a Liberal Party Split
It may seem a fanciful proposition that socially progressive Liberal Party parliamentarians would split from their party thereby endangering their career prospects. However, should Section 96 of the Constitution be amended then the scope would consequently exist in time for there to be new local government bailiwicks so that a new major political party could be underpinned. With the Liberal Party currently holding only three metropolitan seats in Melbourne, the capital of the south-eastern state of Victoria, there is now the scope for a new socially progressive political party to emerge.
That such a major split could eventuate within the Liberal Party is all the more amazing considering the political astuteness of the federal Opposition Leader, Peter Dutton. However, Dutton would probably know that unless there is a major socio-economic crisis, that he is unelectable (which the Aston by-election indicates) due to his deep unpopularity outside of his home state of Queensland in Australia’s north.
It is therefore a plausible scenario that a post-split Liberal Party would also remain viable should Section 96 be amended because new regional bailiwicks would be created which post-split Liberals could fall back upon. Therefore, by holding onto the Liberal Party name millions of rusted on Liberal voters would continue to vote for a new hard-right version of this party at a local government level. It could have been to ensure that a possibly post-split Liberal Party can still access the millions of its rusted on voters, that legislation was passed in the last federal Parliament banning political parties, other than the two major parties, from having either ‘Liberal’ or ‘Labor’ in their names.
The failure of former South Australian Senator Cory Bernandi’s Australian Conservatives (which was a Liberal Party breakaway which existed between February 2017 and June 2019) demonstrates that there is insufficient electoral support for a hard-right Liberal Party break away party which goes by a new name.
At any rate Pauline Hanson’s One Nation Party has the monopoly on the hard right of the Australian body politic so that it would be counterproductive for the Right of the Liberal Party to continue under a new name in a post-split context. Indeed, should Australia eventually transition to a new regionalized regime then the One Nation Party and the Greens Party would be able to further entrench themselves within a new greatly enhanced tier of local government.
Why Amending Section 96 could still Pass.
It must be emphasized that the above scenarios are hypothetical. Furthermore, there is the retort that these possible scenarios are highly improbable because they are dependent upon Section 96 of the Constitution being amended. It has been pointed out that the holding of referenda in Australia under Section 128 more often than not fail. This high failure rate is primarily due to their lack of bi-partisan support.
Nevertheless, should there be a move in the next few months to legislate for a referendum question (to be held in conjunction with the proposed Voice constitutional proposal) that Section 96 be amended, then that latter proposal could well pass. This is because such a proposal to amend Section 96 could be sold as a common sense ‘reform’ and could also have bi-partisan support by Peter Dutton, very possibly endorsing local government constitutional recognition.
Beside the hypothetical scenario that Peter Dutton could possibly publicly endorse amending Section 96 of the Constitution is the future potential for Malcolm Turnbull to be expelled from the Liberal Party following the Voice referendum being held. Should Malcolm Turnbull be forced out of the Liberal Party then that party could then experience the worst split in its history.
However, neither a post-referendum hard right Liberal Party led by Peter Dutton, or a Turnbull inspired progressive Liberal Party breakaway would be able to survive if Section 96 is not amended because neither political party will have regional bailiwicks to fall back onto. Hopefully, if there is to be a referendum question on amending Section 96, Malcolm Turnbull will thwart those who previously forced him out as prime minister by campaigning for a ‘No’ vote on that particular constitutional amendment.
Concerning a possible vote on Section 96, caution would have to be taken to ensure that public funding for the ‘No’ case is not allocated to a bogus pro-state rights organisation so that they can subsequently run a dud campaign. Indeed, with the Liberals now being in opposition in every mainland state and with their ‘conservative’ factions generally in favor of local government constitutional recognition, who gets to run the ‘No’ campaign would be a very important consideration should a referendum on this matter be held in conjunction with the Voice proposal.
The question subsequently emerges as to which section of the Liberal Party stands to lose the most should a referendum question on local government constitutional recognition pass? The answer to this question is the Victorian branch of the Liberal Party. This is because if there is to be a future onset of regionalization the major immediate beneficiaries would be the Victorian ALP due to their gross incompetence at a state government level.
Victoria: A State of Abyss
That Victoria is a financial basket case is generally not well known due to the lack of media reporting and the still very healthy state of Australian banks so that they can still provide cheap credit to business (as opposed to home mortgages). However, there are already danger signs for the Victorian economy with major infrastructure projects now being cut or cancelled. Furthermore, because the state public service is too big, cutbacks to it are now being undertaken.
To try to raise sufficient revenue Vic Roads may be half privatized, which could result in massive cost increases in car registration. Already, there have been staggering increases in stevedoring costs following the privatization of the Port of Melbourne which constitute a massive de facto indirect tax.
The Andrews ALP Victorian Government is now going to the federal government to bail out the state because within the next twelve to eighteen months Victoria may not be able to pay its own way. Therefore, the Victorian ALP may very well welcome the onset of regionalization as a strategic means of shifting power to a local government level because the Labor Party corporate brand name might well become political mud in a way which was even worse that it was toward the end of the Cain and Kirner era in the early 1990s.
How the Victorian Liberals can still save Australian States
Therefore, should there be a referendum question to amend Section 96, the Victorian Liberals will hopefully be at the forefront of leading a bona fide ‘No’ case. This may be a forlorn hope because former Victorian Liberal premier, Jeff Kennett, has categorized states as nineteenth century institutions.
Even though Victoria has arguably become Australia’s most left-wing state, the Liberal led opposition is still viable despite their current divisions. This may seem a strange deduction to make given the relatively poor performance of the Liberals in the recent Victorian state election of November 2022. However, the current Victorian Opposition Leader John Pesutto won his state seat of Hawthorn back from the ALP in the November 2022 election. Similarly, Jess Wilson in the neighboring seat of Kew also won what had been a traditionally safe Liberal seat, despite a viable challenge from a Teal candidate.
These above cited electoral comebacks illustrate that the Liberals in Victoria and elsewhere around Australia can remain electorally competitive if they continue to operate in a state-wide context. This will mean that the Victorian Liberals and some of their federal parliamentary counterparts will have to oppose any moves in the coming months to possibly authorize a referendum proposal to amend Section 96 of the Constitution.
The scenarios which have been canvassed in this article concerning the holding of a referendum on Section 96 are still hypothetical. However, if the party of Menzies is to be safeguarded then caution over the coming months will need to be taken to ensure that only the Voice referendum proposal is put to the people in the second half of 2023.
If, however, there is to be a referendum to amend Section 96 in 2023 then let the moderate forces in both the Liberal Party and the ALP conduct a genuine ‘No’ campaign to oppose changing this section of the Constitution so that Australian states and the federal system in which they operate can be saved.
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The May 21st 2022 federal election was not surprising in that it resulted in an Australian Labor Party (ALP) victory. However, the ALP won just over thirty percent of the nationwide primary vote. Therefore, the role of Greens Party preferences was crucial in delivering the ALP victory, albeit with a narrow parliamentary majority.
However, despite this narrow parliamentary majority (seventy-seven seats to the ALP out of one hundred and fifty seats) the May 2022 federal election might go down in history as a transformational one due to its impact on the Liberal Party. Political historians may mark the 2022 federal election as a political earthquake in which the Liberal Party completed the process of being transformed into a hard right neo-liberal political party.
This transformational process was reflected and was partially facilitated by the Liberals losing six blue ribbon seats to the so-called ‘teal’ independents who were partly funded by the Climate 200 organisation headed by the businessman Simon Holmes a Court. The most dramatic and profound impact of the ‘teal’ successes was Monique Ryan’s electoral victory in the inner eastern Melbourne suburban seat of Kooyong against the then Treasurer, Josh Frydenberg.
Josh Frydenberg’s defeat to this ‘teal’ independent was almost as important as the overall election result. This was because Josh Frydenberg’s defeat virtually ensured that Peter Dutton, the Defence Minister in the Morrison government, subsequently became the Opposition Leader, thereby consolidating the transformation of the Liberal Party into a neo-liberal political party. The defeat of Josh Frydenberg also means that talented people such as him will be wary about putting themselves forward for future Liberal Party pre-selection, which is another significant outcome of his defeat.
Furthermore, the defeat of Josh Frydenberg also signified that no matter how much you effectively represent your local community or serve the nation you will not necessarily be re-elected. For Josh Frydenberg, along with Peter Costello, were Australia’s most effective federal Treasurers. It should not be forgotten that the Covid pandemic which hit Australia and the world in the first quarter of 2020 could have plunged Australia into its worst ever socio-economic crisis.
The potential disruption to Australia’s service sector was massive due to the social isolation constraints wrought by the Covid pandemic crisis. The Morrison government’s response of introducing Job Keeper, which subsidised the payment of wages while employees were temporarily laid off was brilliant!
This policy response also showed that during a steep economic crisis, even centre-right governments become Keynesian. Therefore, instead of Australia being plunged into the throes of massive and debilitating unemployment, Australia recorded the highest employment rate since 1974! The Morrison government also knew when to turn off the financial assistance so that Australia could transition back to socio-economic normalcy.
The Morrison Government’s Inhospitable Political Climate
The question therefore emerges as to why the Morrison/Frydenberg government was voted out? One of the important reasons why this government was removed was its perceived ineffectiveness when it came to countering human induced climate change. However, under the Morrison government Australia had achieved a twenty percent reduction in emissions. Furthermore, for a nation which produces less than two percent of the world’s emissions it was ill-advised for the Morrison government to have committed to an unachievable net zero emissions target by 2050.
This policy commitment only served to legitimatise the misperception that Australia is in a ‘climate emergency’ and that even more has to be done to combat human induced climate change. This is in spite of the fact the world’s two leading emitters, Communist China and India are currently doing little of practical consequence to counter this phenomenon.
It was this perceived inaction on the part of the Morrison government regarding human induced climate change which saw the Greens Party win three more federal seats in the 2022 federal election in addition to the seat of Melbourne which their federal leader Adam Bandt holds. The six seats won by the so-called teals can also be attributed to the indoctrination which a predominately left-wing media has conducted concerning human induced climate change as part of the so-called culture wars. The impact of this massive media bias was such that even in the wealthiest geographical part of Melbourne, the federal seat of Higgins, fell to the ALP due to Greens preferences!!
That is not to say that there are not strategists within the federal coalition’s ranks who are politically savvy when it comes to effectively fighting the culture wars. For despite the success of the ‘teals’, the Greens and ALP in snaring blue-ribbon Liberal seats the coalition almost won the 2022 federal election! A political strategy was employed whereby there was dog-whistling by some Liberals (including Prime Minister Scott Morrison) to lower-income earning voters in outer suburban seats who are socially conservative. This political dog-whistling has been analysed and dubbed in previous Social Action Australia (SAA) articles as the Lasch political strategy.
Unleashing the Lasch Political Strategy
The late Professor Christopher Lasch (1932-1994) was an American political scientist who astutely appreciated that much of the lower middle class and the upper working class were socially conservative. As such, Lasch argued that right wing political parties could win over working-class voters at the expence of left-wing political parties. Professor Lasch’s assertion was most vividly apparent in the 1980s with regard to the phenomenon of the so-called Reagan Democrats where millions of working- class Americans voted for President Ronald Reagan.
Australia’s version of the Reagan Democrats was the so-called ‘Howard Battlers’. The application of a Lasch political strategy was most effectively demonstrated in 2001 with the so-called Tampa affair when in August that year the Howard government refused to allow a Norwegian ship carrying predominately Afghan refugees into Australian waters. This incident was a dog whistle to induce-middle class/upper working-class voters to transfer their support from the ALP to the coalition which they did in sufficient numbers to allow the latter to shamefully win the November 2001 federal election.
During the April/May 2022 federal election campaign the then Prime Minister, Scott Morrison tepidly attempted to apply a Lasch political strategy by publicly voicing support for the comments made by *Katherine Deves,[1] the Liberal candidate for the federal Sydney seat of Warringah concerning transgender children participating in sport.
Prime Minister Morrison’s endorsement of Deves’ comments was a dog whistle to lower socio-economic voters in the outer suburbs which nearly won enough of them over to the Liberal Party so that the coalition could have achieved another political miracle by winning the May 2022 federal election.
Scott Morrison was constrained in the application of a Lasch political strategy because of the threat that the ‘teals’ and the Greens Party posed in blue ribbon Liberal seats. Nevertheless, Prime Minister Morrison still applied this Lasch type of political manoeuvre, which had it succeeded, would have amounted to a virtuoso political triumph, perhaps with Josh Frydenberg losing his seat while the coalition was still returned to office, although this outcome would still have ensured Peter Dutton’s eventual elevation to the prime ministership as the confirmed immediate successor to Scott Morrison.
Will Peter Dutton Pursue a Lasch Strategy?
Even though Peter Dutton as Opposition Leader will talk the talk about the Liberal Party being a broad political church it is now expected that he will apply a Lasch political strategy therefore virtually abandoning any serious attempt to regain the blue-ribbon seats which were lost in the May 2022 election and to retain other remaining blue ribbon Liberal seats in future elections.
The application by Peter Dutton of a Lasch political strategy might well be aided by the Albanese government’s economic ineffectiveness. Nevertheless, the new federal government is already adroitly blaming the preceding federal coalition government for Australia’s economic problems which might be an indicator that the ALP is incapable of overcoming these contemporary challenges.
For it is yet to be seen whether the new Treasurer Dr. Jim Chalmers and the new Finance Minister Senator Katy Gallagher have either the willingness or the technical capacity to pay down Australia’s massive one trillion-dollar public foreign debt which is a primary cause of the ever-spiralling cost of living crisis which now threatens Australia’s socio-economic status as a first world nation.
Should the Albanese government fall into the Keating trap of failing to address the public foreign debt while pursuing politically correct social policies (such as mandating emissions targets) then this government will pave the way for Peter Dutton to win power at the next federal election through the application of a Lasch political strategy. A Dutton led coalition government will be similar to the Howard government (1996 to 2007) in that it will cultivate the support of working Australians while applying neo-liberal policies (portrayed as traditional liberal policies) which will ultimately sell them out.
The above cited tragic scenario occurred in late 2005 when the Howard government passed the so-called Work Choices (No Choices) legislation. Even though the Howard government had helped facilitate the attainment of higher living standards by 2007, enough of the Howard Battlers turned on the coalition due to the No Choices industrial relations regime so that the ALP won the November 2007 federal election in which John Howard, the battlers so-called friend, deservedly lost his parliamentary seat.
The Need to Break with Australia’s Neo-Liberal Cycle
Due to Australia’s massive public foreign debt there needs to be a circuit breaker which ends the tragic cycle of going from politically correct neo-liberal ALP governments to anti-employee rights coalition governments which cultivate and then betray working Australians. Alas, it is highly improbable that such a circuit breaker will eventuate in the foreseeable future because of the current balance of political dynamics.
Because a politically correct Albanese Labor government will probably economically falter, this government might very well during the current parliamentary term call a referendum to recognise local government in the Constitution. This referendum proposal was legislated for by the Gillard government during its last week in office in 2013. Presently, there is no indication that such a referendum proposal will be put to the Australian people, but that does not mean that those who believe in states should not be vigilant.
If such a referendum proposal passes, then state governments will not be immediately abolished. However, the creation of new super regional councils which will be directly funded by Canberra could ensure a process by which state government functions are transferred to the Commonwealth and subsequently administered by these newly created regional councils so that the states will eventually be phased out.
Under this new regional regime, amalgamated industrial trade unions such as the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) will have control of many of the new regional bailiwicks due to their having the requisite capital and human resources because of their massive economies of scale to run for and gain election in these areas. There may be elements within corporate Australia which naively believe that they too can similarly control new super regional councils.
However, the recent successes of the ‘teal’ independents demonstrate that well-funded grass-roots campaigns can succeed. Indeed, there may be denial in Liberal Party and National Party ranks that the success of the ‘teals’ can only be achieved in wealthy inner suburban seats. This is not the case!
The Mc Gowan Model
Indeed, the model for the teal candidate’s successes was first formulated and developed by Cathy Mc Gowan who won the north-eastern Victorian regional federal seat of Indi in 2013 as an independent. The Mc Gowan model was one where with the recruitment of a dedicated cadre of campaigners, the utilization of the latest digital technology and old-fashioned footslogging, a campaign was conducted to successfully win over uncommitted voters as well as rusted on Liberal voters.
The Mc Gowan model could be replicated with regard to the election of new future regional councils thereby providing a ‘teal’ type of operation with the capacity to institutionalise by having access to patronage and resources. Should such a scenario come to pass then the ultimate viability of the Liberal and National parties will be fundamentally endangered. Therefore, the onset of regionalisation not only threatens the continued existence of Australian states but also of the two coalition parties.
The best way to avoid the above cited scenario is for the Dutton led federal coalition to oppose a future referendum proposal that local government be recognised in the Constitution. If the Liberal Party is to revive, then let this mainstay of Australian politics return to its Menzian roots by cultivating its branches as the depositories of human resource talent. Consequently, there needs to be an early pre-selection (at least eighteen months out from an election) of candidates so that these Liberal contenders can utilize and/or recruit new talent into the branches in order to conduct a campaign of at least similar intensity as that undertaken by the ‘teals’.
A return to the past Liberal Party tradition of respecting and harnessing human resource talent in its branches will also mean respecting branch autonomy so that socially liberal policy positions such as support for refuges can be espoused. The recent May 2022 federal election results and the success of the ‘teals’ also indicated that there is a sufficient critical mass for a new socially liberal political party similar to the now nearly extinct Australian Democrats. However, should the Liberals and Nationals fight to retain states then these two major political parties may well survive and prosper into the future by also being underpinned by strong branches within a federal Westminister parliamentary system.
The Nexus between Social Democracy and States Rights
For those readers who may think that SAA is becoming a pro-Liberal Party operation it should be restated that SAA is still orientated toward Labor governments. The Malinauskas ALP state government in South Australia is a government which SAA gives its qualified support to. However, unless the Liberal Party returns to its historical roots by wholeheartedly supporting party branch democracy and defending state rights then they may well be no Malinauskas government to support because states may be eventually phased out.
[1] Katherine Deves was specifically and directly chosen as the Liberal Party’s candidate for Warringah by the then Prime Minister Scott Morrison as a so-called ‘Captain’s pick’
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