The Voice is conservative like the Trojan Horse was a gift

According to legend, the siege of Troy lasted ten years and ended when the Greeks retreated, leaving a large wooden horse as a gift with Greek warriors hidden inside. The Trojans brought the horse into the city. At nightfall, the warriors opened the city gates to the rest of the Greek army. Troy was destroyed. It's a cautionary tale about being tricked by a façade to let in an existential threat. 

The campaign for Indigenous constitutional recognition has gone on longer than the siege of Troy. The proposed constitutional Voice to Parliament is very different from the original idea of symbolic recognition. It’s been aggressively marketed as the “conservative” form of recognition by organisations like Uphold & Recognise, conservatives and moderates in academia, law and media and Aboriginal people like Noel Pearson and Marcia Langton who are popular amongst conservatives.

Pearson’s advocacy for education, work, personal responsibility and his willingness to call out the scourge of welfare dependency, delivered with often uplifting oratory, has drawn a loyal conservative following. It’s said Pearson’s 6000 word letter to John Howard persuaded him to call for constitutional recognition in 2007. 

So mesmerised is Pearson’s conservative following, they’ve seemingly never noticed that his signature programs are at odds with much of what conservatives stand for. Sure, they’re underpinned by sound fundamentals like practical action and personal responsibility. But in their design and implementation they’re big-government, big-spending programs supported by massive organisational bureaucracies; built on an apparatus favouring the collective over the individual, dependency over self-determination and perpetual government funding and largesse. 

Pearson’s signature Cape York Welfare Trials were funded with more than $150 million over eight years for a population of a few thousand people. They didn’t produce meaningful improvements in key indicators including education, convictions, violence and unemployment. Based on conservative principles, yes, but implemented through a costly, bureaucratic program that didn’t achieve results. 

Empowered Communities is another initiative spearheaded by Pearson’s Cape York Institute. Its idea of “empowerment” is decentralising control of government programs and services from departments to local Aboriginal groups. The 2015 Empowered Communities: Empowered Peoples Design Report outlines a hugely complex structure: multiple layers of Indigenous governance arrangements at regional levels overseen by overarching national bodies and a complex array of legislation, agreements and other paperwork including development agendas, development accords (to establish a binding commitment to achieving the goals of the development agendas) and annual delivery plans (to support the development accords). On and on it goes. 

That report alone cost millions, with funding committed by Tony Abbott before the 2013 election. Won over by favoured principles of personal responsibility and economic development, many conservatives like Abbott were drawn to the allure of Empowered Communities as the means of delivering them. 

I never supported Empowered Communities, believing it would create vast new bureaucracies, cost a lot of money, not make any difference for Indigenous communities and would be anything but empowering. Real empowerment is economic participation: having a job, running a business, owning a home. Not wrapping up one bureaucracy with another black one. Entrenched government dependence, whether administered centrally or by local Aboriginal organisations, isn’t empowerment and certainly isn’t conservative.

With the Albanese Government refusing to release details of its proposed Voice until after the Referendum, we only have the 2021 Indigenous Voice Co-design Process Final Report to the Australian Government to guess its structure. In a nod to Empowered Communities, that report contemplates Local and Regional Voices advising and “sharing in decision making” at every layer of bureaucracy and government; a natural stepping-stone to implement Empowered Communities. The result? Indigenous Australians subject to a separate system of governance, policy making and service delivery, wrapped up in a huge, constitutionally entrenched bureaucracy (and overseer). 

Chris Kenny is a conservative commentator and member of the Voice Co-Design Senior Advisory Group. He says the Voice is conservative because it provides constitutional recognition in a practical way rather than through “mere symbolism”. This idea stems from a 2015 Uphold & Recognise pamphlet arguing for the “conservative” position that symbolic recognition language shouldn’t be included in the constitution but in a separate declaration because it’s dangerous to put aspirational language in the constitution which is subject to High Court review and “no one can guarantee the future interpretation of the constitution”. Ironically, the same people dismiss any such concerns when raised about the Voice. 

Speaking on ABC Radio National in January, Pearson pushed the Voice-as-conservative-recognition line. He rejected the idea of legislating the Voice first because that would have to be done under the constitutional race power saying: “We don’t want that. It is the conservatives that say we shouldn’t have race in the constitution and I agree with them. The hook for the Voice needs to be a new provision.”

Very few laws rely on the race power. Pearson failed to mention the main one is the Native Title Act 1993 which he helped broker with the then Labor Government. That’s the reason removing the race power hasn’t been pursued in the campaign for constitutional change. In any event, there’s a big difference between a generic (if archaic) constitutional power to make laws about particular races and a constitutionally entrenched body for a particular race. And it’s bizarre to suggest it’s not ok to legislate this body under a generic race power but ok to amend the constitution to entrench it. 

In the same interview Pearson was asked if the Voice would advise on all legislation or only legislation specifically impacting Indigenous people. He replied that Indigenous people need to be able to comment on “everything that affects them”, naming taxation, health and education as examples. He said defining what the Voice can provide advice on is a “furphy” because “there’s hardly any subject matter that Indigenous people would not be affected by and would not want to provide their advice to parliament [on].”

He said this is nothing to worry about because the Voice’s advice doesn’t have to be heeded. But numerous jurists have advised privately and publicly, including former High Court judge Ian Callinan, that it’s not so simple. Arguably, the Voice will have a constitutionally mandated right to advance notice of all proposed parliamentary and government decisions relating to Indigenous people (being everything, as Pearson confirmed) and time and resources to scrutinise and advise before a decision can be taken. That’s parliaments and governments beholden to the Voice in everything they do.

Consultation rights are powerful. Courts can overturn decisions, not on the grounds of their merits or the decision maker’s right to make them, but because of the process followed and information considered (or not) in making them. Look at the recent successful Tiwi challenge to Santos’ Barossa gas project on the grounds of insufficient consultation. Even if the same decision can again be made with a different process and more information, the delay and cost of legal challenges can prove fatal to it. That’s the whole point.

The Voice’s Indigenous champions don’t have a track record delivering on conservative or even classical liberal principles and have abused those who’ve expressed concerns about the Voice as rednecks and worse. The Voice isn’t recognition based on conservative principles. Its conservative façade is a Trojan Horse which, if implemented, will radically upend Australia’s parliamentary and government systems.

This article was first published in The West Australian on 18 February 2023.