the Voice

With the Voice, We Risk Tearing Our Social Fabric Irreparably: Part 1 of 2

11 September 2023

7.5 MINS

by Paul Santamaria KC

This article is Part 1 of 2. Read Part 2 here.

On August 10, Paul Santamaria KC addressed a News Weekly Community Evening at the Veneto Club in Bundoora. He spoke from a more personal perspective than he has hitherto on the proposed Voice to Parliament, how he came to get interested in it and why he opposes it.

We have all been so inundated for the last 12 months or so, almost around the clock, with opinion pieces and editorials about the Voice to Parliament, that I think we’re all quite looking forward to the referendum being held and it being over one way or another just so that we get some respite.

I have heard tonight at our table that the Government is moving towards announcing the referendum to be held in second half of October. Which would mean it would be after the AFL Grand Final but before the Melbourne Cup, so that choice of day won’t antagonise too many people.

My own interest in the Voice came about as I was minding my own business at the beginning of this year, and the phone rang and a young woman introduced herself to me as Doctor Shireen Morris. Shireen Morris is a leading pro “Yes” vote spokesperson, with Noel Pearson.

I was a bit surprised to receive a call because Shireen explained that she thought that someone with my surname might be able to influence at least some numbers of people to join the “Yes” vote in the referendum for the Voice. Well, as I’ve not been able to persuade many judges, and I’ve never been able to persuade my own children of anything, it was surprising that she approached me to become an influencer.

But the conversation was interesting in that I had to pretend that I knew something about the Voice. We spoke for an hour or so, and I became interested in what she was saying. I said to her, look, you really need to send me some materials on the Voice so that I can get my head around it before I can make any decision about whether I can help you or not.

She sent the materials and, I have to say that on reading them, I became very concerned about whether the Voice was in the national interest. After reading and listening and canvassing ideas, I’ve come to the firmly held view that the last thing that Australia can afford is a solution described as the Voice.

I’ll explain why I’ve come to that view but, first, a couple of disclaimers. What does a white Melbourne lawyer of Italian and Irish descent, who has had only passing connection and acquaintanceship with Indigenous people in the northern part of Australia, have to say about solutions to Indigenous problems?

Crying Shame

Like most of you, I suspect, my encounters with our Indigenous cousins have been confined to trips to the northern part of Queensland and across the top of Australia, from Darwin down to the mid part of Western Australia.

But all of those trips involved great sadness. Because one witnesses just how vulnerable and disadvantaged so many of our Aboriginal fellow citizens are.

Sure, and there are some great things to observe in those Aboriginal communities that are healthy and regulated and have self-management and self-discipline. They are impressive communities.

Usually, they have had strong connections with the Church, which established missions, and these are a sequel to those missions.

But there are other parts of the Territory, around Tenant Creek, where it’s really a very, very sad thing to experience. And that experience infuses one with a great sense of moral obligation to try and do something about it. Because the problems with Indigenous communities are one of the matters of public policy that Australia has not been able to resolve; and where, despite the expenditure of not millions but billions of dollars every year, the kids who grow up in these rural and remote communities – who have all of the abilities of kids in the city – don’t have the same opportunities.

Regrettably, education is not something that comes naturally to many of the families up in these rural and remote communities. There’s no tradition of education or what we with our background in Western civilisation would describe as Western culture. All of that is, it would appear, anathema to a lot of communities.

And kids are unsafe, uneducated, illiterate, unable to count and unable to enjoy the benefits of all the things that Western civilisation brought to Australia at the end of the 18th century.

So, when the proponents of the Voice talk about the moral obligation we have as Australians to promote and adopt the Voice, I must say I have a different sense of moral obligation. It’s an obligation to get involved in helping in small ways, in particular communities, to improve the lives of these children now. The Voice will do nothing to change the situation in rural and remote communities.

Indigenous Australians in the cities tend to have all the same advantages as the rest of us and prosper. All the great advocates of the Voice, from Noel Pearson to Professor of Anthropology Marcia Langton, have all had the benefit of a solid education and are well able to look after themselves and make a mark on public affairs in Australia. I must say I’m not worried about them in the slightest.

Cementing Division

The Voice idea really came to the forefront of our attention with Prime Minister Anthony Albanese’s speech to the Garma Festival last year, which took place near Nhulunbuy in East Arnhem Land. And I think again in that speech he gave to the Garma Festival this year.

He has created a monumental rod for his own back in that, in his unqualified adoption of all aspects of the Uluru Statement from the Heart, he has really compromised the responsible decision-making of the Australian Government. Because he has made promises to the Aboriginal community which I suspect he is not going to be able to honour.

It is important to see what he had to say at the Garma Festival last year about the responsibilities of White Australia to our Aboriginal cousins. He made a solemn promise to implement the Uluru Statement in full; a “solemn promise” and “in full”.

Most of you will have become aware over the last couple of days, particularly because of the work of Peter Credlin, that the Uluru Statement from the Heart, said to be one page by the Prime Minister, is in fact 26 pages. The one-page Statement is an aspirational document which describes and summarises the hopes and expectations of the Aboriginal communities and calls for the establishment of a First Nations Voice enshrined in the Constitution.

Now, the PM having made a solemn promise to implement the Uluru Statement in full, naturally enough, the Australian people are entitled to ask, well, what does that involve? And it’s when you read the whole of the [26-page] Uluru Statement that you see, in fact, that it is not simply to do with the voice but it’s also to do with something called the Makarrata Statement Conference on Treaty making. And it’s also to do with truth-telling.

These things are all mentioned in the single-page document, but when you peel back the layers of the Uluru Statement, what you will see is a very developed policy. It has various aims, one of which challenges the exclusive sovereignty of the Crown in Australia and poses a solution whereby there will be joint sovereignty with Aboriginal nations – I must say I have some difficulty with this concept of Aboriginal sovereignty – and self-determination which is said will exist side by side with the sovereignty hitherto of the Australian people and the Australian Parliament.

That will be, in my view, completely unworkable constitutionally, and the idea of having two effective systems of law and government within Australia on the Australian continent will be a recipe for disaster. And I think it’s no accident that, as more is known about the Voice and the Uluru Statement, there is a gradual but definite decline in numbers of those who are prepared to vote “Yes” in the forthcoming referendum.

When one reads other parts of the Uluru Statement, what is disappointing about it is that it clearly has a strong tenor of revenge and settling scores. And that comes about because of discussions in particular of “Makarrata”. Makarrata is a word for treaty or agreement-making and, the authors say, “it’s the culmination of our agenda”. Makarrata, they assert, “captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination”.

There is no need for two separate legal systems. I think everybody in this room respects and welcomes and is nourished by those things that we value in Indigenous ways. In so many ways in our community, we recognise the special gifts of Indigenous people.

Goodness me, when it comes to playing AFL and rugby, the proportion of Indigenous players is completely disproportionate to the numbers in the Australian community and [their playing] is a thing of beauty to watch.

Compromise and Reconcile

In music and in art and in a whole variety of activities, we relish the participation of our Aboriginal fellow countrymen. There is no need for there to be two separate systems at all. It’s perfectly possible, and I think that Australia in the last 240 years has actually taken some great strides towards the proper recognition of the beauty of Aboriginal and Torres Strait Island ways of life.

I think everyone is perfectly happy to acknowledge the dreadful things that happened in the years after the English settled the place.

In the 1800s there were some dreadful episodes for which there needs to be proper acknowledgement, but I think there has already been proper acknowledgement.

As a matter of public policy, I don’t think we should be separating rather than unifying. The tenor of the Voice is to separate and to create two races within Australia, which will be a recipe for disaster.

One of the reasons that the Prime Minister has steadfastly refused to make concessions on the Voice is that he made this solemn promise at Uluru, and he was told by the First Nations representatives that they didn’t want any constitutional reform to derogate from Aboriginal sovereignty and Torres Strait Islander sovereignty. They did not want to cede sovereignty or even acknowledge sovereignty.

I’ve spoken already about the issue of self-determination. Many people have asked in letters to the paper, why couldn’t the Prime Minister have given us the option of recognising the enrichment of Australia by Indigenous people by an amendment of the Preamble to the Constitution? If this is about recognition, then we can amend the Constitution in the preamble to recognise the Aboriginal heritage of Australia.

But what the delegates to Uluru said to the Prime Minister was that that would not do. They did not wish there to be any symbolic recognition that lacked teeth, what they described as a minimalist approach: recognition in the Preamble and changes to moderate the race power in Section 51 of the Constitution.

So, the Prime Minister has refused to make any concession by, for instance, dividing the Voice referendum into two parts: one of recognition, which, I must say I don’t think is a contentious issue in Australia anymore; and one of instituting the Voice.

Recognition might once have been contentious, but I don’t believe it has been in the last 25 or 30 years.


Paul Santamaria KC is a member of the Victorian and NSW Bars.

Originally published in News Weekly.

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One Comment

  1. Mac Finlayson 11 September 2023 at 4:50 pm - Reply

    I have recognised since I first saw the wording of the voice referendum that there is a conflict in my mind with the proposed question on the referendum paper. “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?” I do not have a problem with recognising the Aboriginal People in our constitution, which I believe they are already. My concern is that embedding this with the proposed Voice, within the constitution will create two competing nations both vying for their “rights”, and will create conflict instead of harmony. The lawyers and barristers will get rich while the Aboriginal community continues to wait for the court’s decisions and languish as they miss out on the resources that they so desperately need to grow strong and healthy communities.
    My problem is that the sneaky way the referendum is worded will catch people who appreciate our Aboriginal peoples and are happy to “recognise” them as a part of our overall Australian community, who then think that if they vote NO to the “Voice” will be voting against any recognition of the Aboriginal people in our constitution, which in turn may mean that their needs are ignored or forgotten. I believe this aberration needs to be addressed. I don’t want the voice, but I do want our Aboriginal friends to be given a better deal than we have given them in the past. The billions of dollars supposedly spent on Aboriginal welfare needs to be directed to where it is needed and not the already well off Aboriginal people or those who claim to be Aboriginal even though they have about 1/16th Aboriginal descent.

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