Retired Judge Pens Powerful Letter to the Prime Minister By Henry Litton CBE, GBM August 16, 2023 Blueprint for Recognition of First Nations Peoples 4 June 2023

To: The Prime Minister, Hon. Anthony Albanese Dear Prime Minister,

You, more than most, would be aware the times are out of joint. To a frightening degree, they resemble those of the mid-1930s. At that time a programme was launched by the ABC called “Is democracy doomed?” in which Sir Robert Menzies participated. His starting point was this: as a system of government, it was extremely young; in the full political sense it had been current for not more than a few generations. And it was fragile. To keep it in good health required eternal vigilance.

 A key aspect of democracy is that sovereignty resides in the people as a whole and not in some privileged individual or class.

So this is my broad question to you: Is this the time to put our democracy at risk by plunging into a radical social experiment the outcomes of which can only be dimly seen? Showing respect The Australian public is, with the help of the ABC, being urged by you to be respectful in the debate over the Voice. How respectful are you, Prime Minister, to those who have real concerns over your proposals? Have you respectfully listened to what they have to say? Respect to the nation There is another aspect of respect arising from your scheme for the Voice which is questionable: showing esteem for the public by being straight-forward in your dealings. You seek a radical alteration to the way this nation is governed and call it a “modest change”; you say the function of the Voice is “simply advisory” when it is not so; you facilitate empowerment and call it “recognition”; you seek to implant racial distinction in the Constitution and call it unifying the nation; you say the scheme “isn’t about politics” when it is precisely that, for there is nothing more “political” than the governance of this country. For the past ten months the public has been subjected to your appeal to sentiment, the wringing of hands for past wrongs, and the “vibe” of the thing. Cheap moralising. Your rhetoric is now wearing thin. Is it not time to get down to the hard facts of constitutional change?

The question at the referendum

The question to be put to voters at the referendum is deceptively simple, disguising its real import. If you had been open and straightforward, the question would have been more like this: “Do you support an alteration to the Constitution by establishing a new body in the Constitution to be called the Voice, composed exclusively of Aboriginal and Torres Strait Islander peoples, with power to make representations to the executive government of the Commonwealth and to Parliament on all matters affecting the nation including the Aboriginal and Torres Strait Islander peoples?” As things stand (assuming the Senate passes the Alteration Bill unamended), the question to be put to the voters at the referendum is a trap for the unwary. It has no direct or logical link to the three clauses to be inserted as Chapter IX of the Constitution. Can there really be a good outcome from such deception?

The actual proposal

When one reads carefully the three clauses in the Constitution Alteration Bill, it becomes clear that its whole object is the empowerment of a very small section of Australians who identify as Aboriginal and Torres Strait Islander (ATSI) peoples, not recognition. “Recognition” of First Nations people is to acknowledge a historical fact; one which nobody would deny. If that were the issue at the referendum most people would vote Yes. But that is not the true issue. The object of the alteration of the Constitution is to create a new constitutional body – Chapter IX of the Constitution – to rank equally with the executive, the legislature and the judiciary, composed exclusively of ATSI peoples. Have you made this clear to the public? Nowadays, few people read serious newspapers and learned journals; and if they are interested in a subject of public interest, they do no more than read the headlines. The many people with whom I’ve raised the subject of the Voice responded with a blank look. Some asked whether it was a TV show or a song contest. Few were aware of an impending referendum towards the end of the year. It is therefore unlikely that many people would read the proposed Chapter IX of the Constitution before casting their vote. You know this to be true, and rely on that to get a Yes response to your question at the referendum. Is this being respectful or truthful? The details Many months ago, you were asked by the leader of the opposition what was the function of the Voice. You never deigned to reply. You accused him of sewing doubt and confusion. You chose to adopt the tactics of the ill-famed Joh Bjelke-Petersen: there’s nothing to see here, leave the details to parliament later on; just vote Yes and we’ll all rejoice in a glorious future together as a nation. Really? Is this showing respect? It feels more like you are treating us, the people, as fools.

The entire package The Voice is just a first step.

On election night last year, you pledged to implement the Uluru Statement from the Heart to the full. For this to happen, the Voice would necessarily have to be a powerful body, for how else could it be the springboard to “treaty-making”, “truthtelling”, reparation, and “sovereignty” of ATSI peoples? There has barely been any mention of this, let alone an honest effort to make it clear to the public that is the sequel to a Yes vote. Clauses 2 & 3 In regard to clause 2 of the Bill — “making representations on matters relating to ATSI peoples” – it contains a deceptive ambiguity. It enables you to say that the function of the Voice is merely “advisory”. Many people would be taken in by that deception. But the truth is that any matters “relating to ATSI peoples” must necessarily “relate” to everyone else, and vice-versa. And, as Megan Davis says, the Voice “can’t be ignored or shut up”. Yet advocates of the Yes vote, and you yourself, have often slipped in the word “directly” when referring to the function of the Voice, even though that word is not there in clause 2; nor does it say that such representations would be confined to matters of concern to ATSI peoples and no one else. Were that the case it would, of course, have made it a “modest proposal”. This brings the dialogue to an Alice-in-Wonderland world where sometimes you see a restriction, sometimes you can’t. What do you say, Prime Minister, is the scope of clause 2? However, the matter is disguised, when your whole approach to the matter is understood, it becomes clear that the purpose of clause 2 is empowerment: to give the Voice the legal right to “make representations” on whole-of-government matters. That gives rise to a liability on government departments and agencies to respond, and to give reasons for not accepting the Voice’s “representations”. Failure to do so could lead to legal proceedings. Imagine the Yes campaign succeeding, and you are now in 2024, ultimately responsible for the 2024 budget. Its preparation requires input from numerous government departments. How are the department heads to act? Ignore the Voice? Assume the proposals are now on the desks of your various Ministers, are they in turn to ignore the Voice? What if the budget proposals concern education, welfare, environmental protection, traffic by road, rail, sea and air? Is it to be assumed that the Voice would have nothing to say on such matters? Yes, the Voice has no power of veto. But you have already said, it would be a bold government that did not heed the advice of the Voice. Are the civil servants to risk being taken to court when disagreement emerges, or are they more likely to take the easy way out? Does this not mean, in effect, that the Voice has a power of veto? Can you not see that this represents a real shift of power in the real world? Also, there is something self-contradictory between clauses 2 and 3. Clause 2, on its face, empowers the Voice to make representations on whole-of-government matters. And, being enshrined in the Constitution, is beyond the reach of parliament and the cyclical nature of the political process. But then you, Prime Minister, have also said that the Voice is not a new power-source, and that parliament has “primacy”. You invoke the provisions of Clause 3 which says that Parliament, subject to the Constitution, shall have power to make laws with respect to (among other things) “functions and powers” of the Voice. This was your justification for not going into “details” concerning the Voice because, you said, once the principle of “recognition” is accepted at the referendum, Parliament would sort out the details. Prime Minister, you can’t have it both ways. If the functions and powers of the Voice were up to parliament to decide then, with a change of government, parliament could pass laws to render the Voice virtually useless. That, plainly, is not your intention. So what does clause 3 mean where it says that parliament has (“subject to this Constitution”) “power to make laws” with respect to “functions and powers” of the Voice?

The bitter fruits of victory

Your triumph at the polls, Prime Minister, may bring you some moments of glory. But when you wake up after winning the referendum you will still be Prime Minister, bearing full responsibility for governing this country. You will then find the landscape radically changed and your time and energy channelled thereafter (whether you like it or not) into dealing with the whole agenda of the Uluru Statement from the Heart. What damage would that do to the nation as a whole? “ATSI people” You refer to the ATSI people as if they were an entire and homogenous group which had suffered what you call “the tumult of colonisation”. That is again thoroughly misleading. Do you accept Stan Grant’s statement that 64% of Aboriginal peoples today lead lives no different from the rest of the population and, broadly speaking, it is only in the remote regions that disadvantages are most keenly felt? In the 2021 census, only 22 percent of the ATSI peoples in the Northern Territory had attained education to year 12 or higher. Might that not be a cause of much of the problems afflicting them? Of course lack of education is tied up with issues like poor public health, substandard living conditions, substance abuse etc. But they nevertheless vary from group to group, community to community. No remedy fits all. On any view, solutions to such problems must be found at the grassroots level, not at the national level. As Prof. Sutton said: “We need to get to a point of really understanding Aboriginal Australia. The gap is between well and sick, free and incarcerated, violent and peaceful, employable and unemployable, not between Indigenous and all others. If people knew the real gaps between remote and very remote profiles and those of the now great Aboriginal middle class of urban Australia they would stop these false comparisons”. You yourself have recently shown how decisions “made after listening to the people on the ground” have yielded positive results. You highlighted how “Indigenous-led community health clinics” have extended life expectancy of people having to undergo dialysis or treatment for rheumatic heart disease. And there is the Indigenous Ranger Program which “tapped into a great well of wisdom, cutting feral animal numbers and boosting protection for our unique natural environment by employing local people to work on country”. You also referred to justice reinvestment programs that were “reducing incarceration rates”, and a “community-led Maranguka Project” that was delivering results. All this achievement without a Voice in Canberra making “representations”. So what then is the function of the Voice? And what might it cost the nation if established? Would it not need a huge bureaucracy in support? Composition of the Voice As regards the composition of the Voice, this is what you recently said: “A body that will be representative of ATSI communities, and chosen by ATSI people. A body made up of representatives from every state and every territory. Representatives from towns and remote communities and everywhere between”. That sounds like a body consisting of hundreds, if not thousands, of ATSI peoples. And when you say “made up of representatives” what precisely do you mean? Elections? Who would run the elections and ensure that they are fair and properly conducted? And if not elections, how would “representatives” be appointed? And who, precisely, are “ATSI peoples”? Of course, in a social setting, it would be petty to ask such question. But we are here dealing with a very serious matter that would have consequences for generations to come. Prior to 1788 there were thought to have been some 500 linguistic and cultural groups living scattered on this vast continent and it would be accurate to label them broadly as First Nations peoples. But we are talking about ATSI peoples of today, not about them as they were prior to 1788. In the course of 230 years, this continent has radically changed. We have become a multicultural society. All non-Aboriginal citizens by definition have foreign forebears. Many Aboriginal people also have foreign forebears. To enshrine a select group of Australians in the Constitution under that label, and give them powers and privileges denied to the rest, precision is essential. How will this be achieved? And how would disputes about “Aboriginality” be resolved, for this is clearly not a justiciable matter.

Prime Minister, the “body” you seek to create would be a principal organ of government, enshrined in the Constitution, to rank equally with the executive, the legislature and the judiciary in a new Chapter IX of the Constitution. Have you thought through these practical matters? Or are you just going to brush them all aside as “smoke-screen” and “disinformation”, put up to obscure the purity of your proposition? Racialisation And then there is the most fundamental objection of all: the “racialisation” of the Constitution: something abhorrent to a liberal democracy where every citizen is equal irrespective of race or ethnic origin. “Racial categorisations dehumanise us all. It dehumanises us because we are each individuals, and we should be judged as individuals. We should be rewarded on our merits and assisted in our needs. Race should not matter”: Is this not, Prime Minister, a most powerful argument against the constitutional alteration as proposed? This was said by one of your most ardent supporters, Noel Pearson, in 2012, long before the Uluru Statement from the Heart came into being. More recently Australia’s Human Rights Commissioner, Laura Findlay, stated of the proposed Chapter IX in the Constitution: “It inserts race into the Australian Constitution in a way that undermines the foundational human rights principles of equality and non-discrimination.” Perhaps your predecessor Bob Hawke put it best: “In Australia there is no hierarchy of descent; there must be no privilege of origin”.

Support locally and overseas

You have enlisted sports clubs and business entities in support of a Yes vote. How genuine is their support? Might they simply be flying a flag for commercial reasons? Your high-volume moral blackmail is very intimidating: but can it reach all the way into the ballot-box? Furthermore, these are legal entities, with neither body to kick nor soul to damn. How supportive of the Voice are the individuals who will go into the ballot-box, purportedly represented by those entities? The CEO of one of those entities has claimed that people overseas are looking at Australia to see how disadvantaged aborigines are being treated by the rest of the population at the referendum. Really? What if the same people realized that the Yes vote is being canvassed by trickery and deception? Your Yes campaign You have recently launched a campaign to promote the Yes vote by the use of taxpayers’ money. Its full scope is yet to be seen. The likelihood is that you will continue in the same vein as before, with perhaps a different spin. But the greater your assertions, the less convincing they become. Increasingly, people are waking up to the trickery being practised on them and starting to realise that the nation’s founding document is being trifled with. Any proposed alteration to this vital document requires the provision of all relevant information and reasonable time for consideration. Instead you offer moral blackmail and appeals to emotion. Your campaign insults aborigines and non-aborigines alike. It insults aborigines because you designate them as permanent victims. It insults the rest by your duplicity. Whichever way the vote goes, your dishonourable and disrespectful tactics will divide our nation for generations. That will be your sad legacy. Blueprint for Recognition The preamble to the Constitution is a powerful instrument. It defines the essential characteristic of the nation and, perhaps subconsciously, informs every decision made in the public sphere. Ironically, it is Noel Pearson – one of the most passionate advocates for the Voice – who pointed the way to “recognition” which most people would support. In the cover story of The Weekend Australian magazine of 29-30 April he articulated the notion of a “layered Australian identity with three strands of an epic story”. These were, he said “our ancient heritage, our British inheritance and our multicultural triumph”. This is an echo of what Tony Abbott put forward some months ago: an amendment of the preamble to the Constitution to define the modern characteristic of the nation by adding the words: “indigenous heritage, British foundation and immigration character”. If the referendum were confined to such an alteration, you would have overwhelming support. Otherwise you will have a divided nation whichever way the result goes. Let me, in conclusion, quote the wise words of Henry Ergas: “It is worth remembering that Abraham Lincoln, in declaring that ‘A house divided against itself cannot stand’, warned that the nation’s utmost need was to understand ‘where we are and whither we are tending’. As we enter a period of high tension, Australians deserve better than another leap in the dark”.

Henry Litton, CBE, GBM