Robert Griffith | 12 August 2023
Robert Griffith
12 August 2023

 

For those readers who are in Australia, we have been hearing a lot about the proposed referendum to be held later this year which seeks to alter our nation’s Constitution to recognise our indigenous brothers and sisters as ‘first peoples’ and establish a ‘Voice to Parliament’ to represent the issues facing Aboriginals and Torres Strait Islanders. It is really hard for Christians to separate the politics from the real issues and I have read many passionate pleas from my brothers and sisters in the Church both FOR and AGAINST this referendum.

One of the Church leaders who has tried to speak into this space is Michael Jensen from Sydney. I re-publish the article below for your prayerful consideration. This is neither an endorsement nor a criticism of Michael’s comments, I simply offer this for your information. I hope and pray you will read widely and do what research you can before you are called upon to vote in October.


 

The Voice: A Christian Consideration

by Michael Jensen

 

In a national referendum in the latter part of 2023, Australians will be asked to decide on a proposal to establish an ‘Aboriginal and Torres Strait Islander Voice’. It is the purpose of this article to give some guidance to Christians who are not themselves Aboriginal or Torres Strat Islander people, on thinking through how they might vote in an informed and, indeed, Christian way.

The question that will be on our ballot paper (subject to parliamentary approval) is:

A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.

Do you approve this proposed alteration?

The proposed alteration to the Constitution is the addition of this new chapter at the end:

Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples

129 Aboriginal and Torres Strait Islander Voice

In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

(i) There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;

(ii) The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;

(iii) The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.

It would be hard to overstate the seriousness of what is before the Australian people. Our Constitution is a remarkable document that has served us very well, with only very minor alterations, for more than a century. We should be conservative when it comes to constitutional matters.

This particular referendum concerns the serious matter of the welfare of our Aboriginal and Torres Strait Islander neighbours. It is a consideration of the shape of our living together as fellow citizens in the Commonwealth of Australia; a proposed step along the path to reconciliation. The proposal for the Voice asks us to reckon with the wound that was delivered to First Nations people over the course of the colonisation of the lands they inhabited for millennia.

The Voice, therefore, is a civic issue that we have a responsibility to attend to with the utmost diligence and care. Moreover, we Christians, and the churches of which we are a part, have a long history of interaction with Australia’s Indigenous peoples, for good and for ill. We have benefitted from their dispossession, building our churches and schools on their lands. But we have also insisted, often against the common view of society, that Aboriginal and Torres Strait Islander people are made in the image of God, and thus share in our common humanity. We now share the one Lord, one faith, one baptism, and one God and Father with many Aboriginal and Torres Strait Islander believers.

Our Lord Jesus calls us to ‘love your neighbour as yourself’—the second great commandment. The great exemplar of this command was the Good Samaritan—a man ethnically and religiously at odds with Jesus’ Jewish listeners. This commandment requires us to imagine what it is to be like another person—even and especially someone whose ethnic background is radically different from our own—and to treat them in the light of this act of moral imagination. First Nations people are our neighbours and we theirs.

What follows falls into five sections. In part 1, I will urge us to do our best to go beyond the limitations of our political and personal predilections, in order to be better able to assess the proposed Voice to Parliament. In part 2, I will call for a generous consideration of the issues, which I suggest should make us open to to the possibility of supporting the Voice. Then follows a case for the Voice. After that, I will outline the ‘No’ case. Lastly, I will explain why, on balance, I support a ‘Yes’ vote.

Getting Beyond Party Politics and Personal Bias 

There are many aspects of contemporary public discourse that make thinking about the Voice very difficult. Both political parties have not been helpful, in my judgement. Leading academic and Roman Catholic priest Father Frank Brennan has called the process ‘flawed’.

The Turnbull and then the Morrison governments were very slow to promote respectful discussion of ‘The Uluru Statement From the Heart’. The Albanese government, for its part, has (in the eyes of many people) rushed the referendum proposal through. Both sides of politics have now sought to use the Voice for what seems like political gain. Peter Dutton’s Liberal Party has now officially declared its opposition to the Voice, which puts the outcome of the Referendum in doubt, since Australians have traditionally tended to endorse changes to the Constitution proposed with bipartisan support.

In addition, we’ve become sadly familiar with tactics of modern-day public debate. The haste with which the label ‘racist’ is used to slur and shame opposition to the Voice does nothing to serve careful thinking. Neither does the application of the word ‘woke’ to any advocacy for the Yes case. It is not necessarily racist to be concerned about the constitutional ramifications of the Voice. It is responsible to want to know what is being proposed before making a decision. Neither is support for the Voice necessarily nothing more than giving in to some ‘woke agenda’. This is not to say that there isn’t racism informing some opponents of the Voice, nor a progressive ideology some of its advocates. But when these words are being used as labels in this debate, it is often a signal that careful thought and respect are being cast aside. There are good reasons to say No, and there are good reasons to say Yes. We should recognise that there are thoughtful people on both sides of this issue.

More than eight million Australians have not voted in a referendum before, but most of us who will be voting on this proposal will have participated in elections before. We must resist the pressure to approach this as another expression of party politics. We should not vote No because we’ve always been a Liberal voter and the Liberal Party is against it. We should not vote Yes because we’ve always been an ALP voter and the ALP is for it. Rather, we should consider the proposal on its own merits

We should be aware of the temptation to reinforce our prejudices and predilections. Our thinking benefits from listening to reasonable and informed advocates from both side of the debate. It is worth asking: is my opinion being formed by reading one newspaper or by interacting with a single media outlet

Is my view being formed by conversations with people who are most like me in social context, age, education, and so on? Am I listening to people who actually have expertise in the relevant fields of constitutional law and Indigenous issues? Am I listening carefully to the views of Indigenous Australians? Of course, not all Indigenous people agree on the Voice, and for differing reasons. This is why it is important to not to simply listen to one or two Indigenous voices that happen to confirm our own views.

Giving Generous Consideration

In the main, it is reasonable to be constitutionally conservative. That is how constitutions work: it is meant to be difficult to change them, because they provide a fixed point of reference for a nation’s government and law. It is only in exceptional circumstances that a change ought to be considered. Christians have long recognised the need for the separation of powers and the rule of law in earthly politics. Government is given by God as a good gift for the maintenance of justice and the ordering of human society (Rom 13:1–71 Pet 2:13–17). But government is itself carried out by fallen human beings, prone to the same vices as those they govern. Constitutions provide for the stable, peaceful ordering of governments over time.

However, the case of Australia’s First Nations peoples may be just one of those exceptional circumstances. Being a legitimately exceptional case means, I suggest, that any Christian citizen ought to begin with a generous disposition towards the Voice proposal, even if he or she has serious questions. A very important consideration is that our constitution was drafted at a time when the prevailing thought was that Indigenous peoples would be extinct by the 1960s. This is why there is silence about recognition in the document.

Among others, in early 2023, the Anglican Archbishop of Sydney, Kanishka Raffel, put a Christian case for the Voice, as it was then envisioned in ‘The Uluru Statement from the Heart’. He writes:

For Australian Christians, reconciliation with First Nations people is a long project that remains in its early stages. It must involve recognition of wrongs done and a commitment to retrieving as much justice as can be retrieved. For Christians, this cannot be separated from Jesus … Knowing forgiveness from God, we experience the transformation and freedom to be reconciled to others. Forgiveness from Jesus liberates us to engage with humility, not from a position of power, but in a spirit of compassion, repentance and hope.

Deep wrongs have been done to Indigenous peoples, from which they still suffer and from which most other Australians benefit. The Bible says ‘you shall not steal’, and we (as a nation) have stolen. The Bible says ‘you shall not kill’, and we (as a nation) have killed. That is not in question: it is a matter of historical record. Lest we say ‘we’ have not done anything of the kind, it is good to remember that Scripture acknowledges the reality of intergenerational responsibility for sin (Exodus 34:6-7).

The evidence of deep intergenerational trauma and shame remain. It is well known that Indigenous people record higher rates of incarceration, lower life expectancy, higher infant mortality, higher rates of alcohol and other substance abuse, higher rates of domestic violence, and more besides. While not wanting to take away the reality of individual agency in considering the plight of Indigenous Australians, we as Christians do well to be aware of the profound, indeed shocking, impact that shame has, not just on individuals but on whole communities, and across generations. And as the first Christian church on Australian soil, the Anglican Diocese of Sydney has a particular role and responsibility to reckon with this past—and with the present it has bequeathed to us.

In giving consideration to the Voice proposal, then, we need to be as informed as we can about the Indigenous experience. It would be strange indeed to look at the proposal as simply an abstract constitutional matter. The question before us concerns the dignity of particular peoples and their claim for justice.

This brings us to ‘The Uluru Statement From the Heart’. The Statement called for a ‘First Nations Voice’ to Parliament. The Statement was the result of the work of the First Nations National Constitutional Convention, which met over four days from 23rd to 26th May, 2017. In turn, this was itself the result of a process set up with the agreement of both major parties to investigate the question of constitutional recognition for First Nations peoples. It was the result of an extensive consultation process with 1,400 delegates across twelve regional meetings, and was signed at the final Uluru meeting by 250 delegates. There were delegates who did not sign, but the Uluru Statement represents the significant consensus of Australia’s First Nations peoples.

They said, among other things: ‘We call for the establishment of a First Nations Voice enshrined in the Constitution.’ This call was dismissed by the Turnbull government as unachievable. However, upon his election in 2022, Prime Minister Anthony Albanese put the idea of the Voice on the national agenda.

In sum, the Voice proposal deserves generous and open consideration because it was the consensus response of the Indigenous peoples of Australia to the question of constitutional recognition. Polling has shown that Aboriginal and Torres Strait Islander support for the Voice is at 80%. Those ofus who are not of Aboriginal or Torres Strait Islander descent have a moral imperative to listen to our First Nations neighbours when they tell us what they think will begin to go some way to making amends with them and to providing healing for them and for their communities.

We know from the gospel of Jesus Christ what atonement, forgiveness and reconciliation look like.

As those who have sinned against God, we do not set the terms of his acceptance of our repentance. So it is between human beings: we ask those we have wronged how we might make amends and be at peace. We do not tell them what they must do! How can we? The generosity—we may well say the grace – of the Uluru Statement is that it gives non-Indigenous Australians a path to reconciliation with Indigenous Australians. They have said that they want to be at peace. They desire healing. If we are to heed the biblical command ‘as far as it depends on you, live at peace with everyone’, then we should at the very least be open, in principle, to this call.

The Case for the Voice

It might be helpful to break down consideration of the Voice proposal into a number of steps, as it is not a simple proposal:

  1. a) Should there be constitutional recognition of First Nations peoples in Australia?
  2. b) Should First Nations peoples be consulted by the government with regards to questions concerning them?
  3. c) Will the proposal for a Voice enable this process?
  4. d) Is this something that Indigenous people themselves are asking for?
  5. e) Does it need to be enshrined in the Constitution?
  6. f) Will the proposed amendment integrate smoothly into the existing chapters of the Constitution, affirming the primacy of parliament and the role of the High Court as an appropriate check and balance?

If I can answer Yes to these questions, then I have good reason to vote for the Voice.

Already, in section 2, we have seen that questions a), b), and d) are given an answer by ‘The Uluru Statement’:

  • Regarding a), constitutional recognition has widespread support across the political spectrum.
  • Regarding b), it is not a particularly radical suggestion that First Nations peoples ought to have a say in issues concerning them.
  • And certainly, regarding c), while there remaining dissenting Indigenous voices, ‘The Uluru Statement’ represents a strong consensus for the Voice.

There is, in fact, already a widespread consensus that there should be constitutional recognition for First Nations people. Former Prime Minister John Howard, well-known for his conservative views, suggested constitutional recognition as early as 2007. Recognition in the Constitution would acknowledge, rightfully, the venerable history of Indigenous peoples in Australia prior to European settlement.

It is also helpful to recognise that as the Constitution currently stands, the parliament may make laws concerning Indigenous people without consultation. Section 51 (26) of the Constitution enables the parliament to make laws regarding: ‘the people of any race for whom it is deemed necessary to make special laws’. There is no clause requiring any need for consultation at all. At one level, this looks race-blind; however, it is unlikely that ‘any race’ means Europeans – it is likely that this was intended to mean various non-European immigrant groups.

But in more recent years, the application of this clause has been in regard to Indigenous peoples. This has not always been controversial, but it came under particular scrutiny during the so-called Northern Territory Intervention of 2007. The government of the day made emergency laws directly affecting Indigenous people in a way that did not impact people of other races.

The referendum simply asks the Australian people to enshrine in the Constitution a body called the Aboriginal and Torres Strait Islander Voice. This at once provides constitutional recognition and a consultative body on Indigenous affairs. It does not take away the power of the government of the day to make special laws under Section 51 (26), as it may usefully do.

The Voice is not a law-making body, nor does it distribute government funds. Its only power is that it will speak. It will have moral and political power, no doubt; but it has no legislative power at all. It offers advice.

Why does it need to be in the Constitution? At one level, it need not be. Indeed, there was a body, called the Aboriginal and Torres Strait Islander Commission that was established by parliament, and subsequently dissolved. However, nothing replaced it. Putting the Voice in the Constitution gives it permanence – without constraining the parliament as to what the shape of the Voice must be. Putting it in the Constitution reduces the constant change and political upheaval for indigenous peoples as their consultation body has been subjected to election commitments/policy changes. Consider a short history:

1977: The National Aboriginal Conference (NAC)
1980: The Aboriginal Development Commission (ADC)
1984: The Aboriginal and Torres Strait Islander Heritage Protection Act Advisory Committee
1989: The Aboriginal and Torres Strait Islander Commission (ATSIC)
1995: The Indigenous Land Corporation (ILC)
2004: The National Indigenous Council (NIC)
2008: National Congress of Australia’s First Peoples

This is not an exhaustive list, but each one of these was abolished, with its roles folded back into a department, or created into a new organisation. The Voice gives a commitment to Indigenous people that there will be a stable, recognised avenue for consultation with them. But more importantly: putting the Voice in the Constitution is an act of deep respect. It has the benefit of constitutional recognition, but it adds more: it says to our neighbours ‘Not only do we recognise you, but we will listen to you, especially when it comes to matters concerning you.’

Will it make any difference to the lives of First Nations people? Everyone agrees that there is a long way to go in terms of equality of opportunity and outcome for Indigenous Australians. There will need to be a lot of work connecting a federal body like the Voice with diverse local and regional communities and their concerns. What the Voice does do, however, is that it engages Indigenous people in issues concerning them. It certainly goes beyond mere constitutional recognition.

It is important to note that the Voice does not confer special rights on Indigenous people according to race. It is not so much about rights as about recognition. The establishment of the Voice will be a recognition of the simple fact of history: that Indigenous people were the first inhabitants of the lands now called Australia. This particular recognition is entirely appropriate in a liberal democracy. We already recognise, at multiple levels of government, that First Nations people have particular needs and requirements. It is common practice to ask for people to indicate their Indigenous heritage in education, government services, and in many other parts of Australian life.

Large private schools offer Indigenous scholarships, based on heritage and ethnicity. Religious people have long argued for religious freedom laws that recognise them not simply as individuals with particular beliefs but as a community with particular rights as a community sharing the same identity.The analogy is not exact, but it is relevant: the Voice does not enshrine a denial of the cherished race-blind principles of democracy. It is not race-based division to recognise 60,000 years of Indigenous culture prior to European settlement.

The proposal for the Voice is very simple because the detailed mechanism is up to the parliament to determine. There are some very good questions to ask about that mechanism. Will it be subject to party-groupings as the parliament is? Will the rights of minority nations be given space? We cannot know the answer to all these questions and we shouldn’t be invited to vote on them, since we would then be constraining the parliament to a particular model.

Different models may have to be tried. That being said, there are some design principles that have been outlined, which voters can read.

In the light of this, we could now consider steps c), e) and f) as answered positively. The Voice does enable consultation, there is a good case for it to be enshrined in the Constitution and it poses no clear threat to the established checks and balances.

Arguments Against the Voice

While some more radical Indigenous advocates (notably Senator Lidia Thorpe) argue against the Voice because it doesn’t do enough, I don’t think many people will find that persuasive. There is also a good deal of concern about the proposal for the Voice on the grounds that it goes too far. The Federal Liberal Party has declared itself to be in opposition to the proposal.

The strongest arguments against the Voice are: that it won’t do anything for regional people, but will instead create a class of Indigenous (urban) elite; that it enshrines a form of race discrimination in our Constitution; and that the wording as presented will lead to judicial chaos.

There are certainly those who would argue that Canberra-based solutions to Indigenous issues achieve very little. Senator Jacinta Price and others have expressed the view that a Voice is a distraction from the real and messy problems of Northern Territory peoples. The Voice could give 97% of Australians the impression that they have done what is required to address Indigenous disadvantage. It could also create an expensive level of bureaucracy that is prone to division and even corruption (as ATSIC was). Leader of the Opposition Peter Dutton has argued that the Voice is a ‘Canberra Voice’, and excludes or overlooks local and regional views.

Another concern is that the Voice introduces into our Constitution an enhanced advantage of access to one group of citizens on the basis of their cultural or ethnic identity. Even though this is done for positive reasons (to correct for disadvantage), rather than to oppress others, it seemingly gives a double to one group. That is, the Indigenous community can share in electing the parliament alongside their fellow Australians, but also have a say in electing the Voice.

The third argument is pitched against the current wording of the proposal. Prime Minister Anthony Albanese has put forward a form of wording which allows the Voice to advise not simply the parliament but ‘the Executive Government’. This has caused some concern, even amongst those who were in favour of the Voice in principle. The concern is that the expanded remit of the Voice will lead to governmental and judicial chaos – that ‘Executive Government’ could be taken to mean not just Ministers of the Crown but potentially – every public servant.

Not only is that a scope far beyond the original notion of a Voice to Parliament, but the argument of some constitutional experts such as Professor Greg Craven and Father Frank Brennan is that this will lead to a situation where the High Court will have to adjudicate matters in which the advice of the Voice is not accepted or not sought by the ‘Executive Government’. This potentially gives far more power to the judiciary than we have ordinarily accepted in Australia – possibly politicising that body, as well as swamping it with work.

Still another argument against the Voice deserves a brief mention. This is that the Voice is merely the beginning of a process which will include a treaty and then a claim for reparations. This, critics fear, would be a negative trajectory. I do not doubt that there are those advocates for the Voice who would see this as a desirable process.

Conclusion

These concerns should be taken seriously and not dismissed. As I have been at pains to say, a proposed change to the Constitution requires justified caution. Even if we accept that there is a moral imperative for reconciliation in our country, it does not follow that every proposal should be endorsed without question.


 

Michael Jensen is the Rector of St Mark’s Anglican Church, Darling Point, in Sydney. He previously taught theology and church history at Moore College for 10 years, and completed his doctorate at Oxford University, which was published as Martyrdom and Identity: The Self on Trial. He has published a number of other books, including Reformation Anglican Worship, and My God, My God – Is it possible to believe anymore? He podcasts with Megan Powell du Toit at With All Due Respect. He maintains his interest in literary fiction, Eastern European history and culture, and J.S. Bach. Michael is married to Catherine and they have four children.