It is the objective of every writer to avoid cliché, yet I have found there is a category of great individuals whose quotes may never be overused. They serve, in every instance, as a constant reminder of the best qualities in our humanity.

And so, in the immortal words of Dr Martin Luther King Jr, who famously stated in his speech on the steps of the Lincoln Memorial:

‘I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident: that all men are created equal.” … I have a dream that my four little children will one day live in a nation where they will not be judged by the colour of their skin but by the content of their character.’

While some say the dream of Dr King is dead – I am of a different mind.

Growing up in Western Sydney (myself the son of an Iranian migrant), I can say throughout my childhood schooling, into university, and now as a legal practitioner that I have always had a diverse community around me and embraced the equality of all people.

The dream of Dr King is alive in every community where culturally diverse people live peacefully, intermarry, and engage in the voluntary exchange of goods and services.

I have always supported the dream of Dr King. I have always supported the enfranchisement of Australian First Nations people, and have similarly supported policies that will remove from their lives the odious influence of a pervasive Australian government that has historically been the chief cause, rather than solution, to their community issues.

What I do not support is an Indigenous ‘Voice to Parliament’.

The jurisprudential reason is summarised in one principle: The Australian Constitution ought to have no regard to and make no mention of race, colour, religion, culture, or creed.

One of the greatest ills that has beset our system of government is that our framers in the 1890s – while not unanimously – consciously sought to both grant the federal government power with regards to racial matters, and simultaneously protect the powers of the states to make targeted laws for the Indigenous population.

Our Constitution in s 25 still provides power for state governments to make laws disenfranchising Australian voters based on race – and while arguably these laws would be inconsistent (under s 109) with the Racial Discrimination Act 1975 (Cth), it is by no means a provision which should ever have been entertained, let alone entrenched.

Rather than seeking to have a referendum to entrench a race-based ‘Voice’ to our legislature, we should be proposing to abolish race from our Constitution entirely.

Equality of citizens

In addition to s 25, our Constitution quite odiously provides an enumerated power in s 51(xxvi) to permit the Australian Parliament to make ‘special laws’ based on race.

In the 1967 referendum, which remains a high point in Australian Constitutional history, our nation voted overwhelmingly to recognise Indigenous people. 90.77 per cent of our citizens voted to entirely repeal s 127 of the constitution, which stated:

‘In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.’

The public further voted to amend the Race Power, the original language of which read that the Commonwealth had the power to make laws with regards to:

‘The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;’

By removing the limitation on the Commonwealth’s ability to regulate people of the ‘Aboriginal race’, the national government was invested with the power to make laws with regards to First Nation people.

While the removal of s 127 can be hailed a great achievement, the retention of s 51(26), even in its amended form, is nothing to cheer.

The section is a plenary power for the Commonwealth, which was originally added in 1898 on the rationale that s 51(26) was necessary to enable the Commonwealth to ‘regulate the affairs of the people of coloured or inferior races who are in the Commonwealth’.

That the Commonwealth may now wield this power with regards to Aboriginals, in addition to the broader community, is alarming – particularly in a nation constituted largely by immigrants.

A truly progressive referendum to unite our nation would be seeking to remove archaic references to ‘race’ from our Constitution – both s 25 and s 51(26). After all, living with the benefit of scientific enlightenment, we know that the only race is that of human beings and we are all its members. And, as I noted above, in a free society that prides itself on legal equality, even distinctions based on culture ought not be made by the government.

The legal problems of the ‘Voice’

Just as the Australian Republic Movement in promoting their new ‘Choice’ model overlooked its eerie resemblance to the processes of the Iranian ‘Guardian Council’ – so too have the ‘Voice’ campaigners overlooked the potentially serious issues of the proposal.

Prime Minister Albanese released the following amendment wording:

1. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
2. The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive government on matters relating to Aboriginal and Torres Strait Islander Peoples.
3. The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

Not inherently democratic

The most obvious issue is that this body is not inherently democratic. The proposal for the Voice does not include any constitutionally entrenched mechanism or minimum protection, that the body be in any way representative.

The Parliament is entirely empowered and may prescribe it be subject to regular elections and term limits; or alternatively, may prescribe that its membership be a lifetime appointment by the Prime Minister.

While I am sure proponents of the amendments are in favour of race-based enfranchisement, that the body be exclusively constituted and elected by Indigenous people (loosely collectivised) – they are well aware that adding such clauses now will make their intentions open during the referendum, and sour public opinion for its focus on race.

However, in the absence of such a clause, there is a strong likelihood – much like the ARM’s elitist ‘Islamic Guardian Council’ model of Presidential selection – that the Voice will be handpicked and not truly representative of the community. Moreover, the right of the Indigenous to elect a representative to the Voice will be subject to easy abridgement.

If the goal is to improve the enfranchisement of the Indigenous community – and not just create an opportunity for the elites – it seems odd that this proposal would not outline at least a minimum protection of democratic processes for its membership to be constituted.

And if there is no intention for it to be democratic – but rather that it be hand-picked – in what sense does this offer, particularly rural Indigenous communities, a ‘Voice’?

‘Representations’ loosely defined?

The making of representations, as the primary and entrenched constitutional function, is a farcical grant of pretended-authority. Such a meagre grant is already possible under the Race Power, as well as s 50, which permits the Houses to determine their processes and rules.

It would be entirely possible for the Houses currently to create an Indigenous advisory body or department, and have it provide recommendations that per the rules of the Houses must be given consideration before any voting.

Too transient, you say?

Well, that issue remains in the Voice – the proposal contains no provision for what procedure needs to be followed by the Parliament in receiving the recommendations. It is open-ended. Theoretically, they can be completely ignored – the ‘Voice’ of our Indigenous people could be ignored. Thereby rendering the exercise of adding it to the constitution, entirely meaningless.

To constitutional conservatives, the fact it can be easily censored isn’t a selling point, as it is needless meddling with entrenched structures. To progressives it should also be odious, as it offers only symbolic lip-service change at best.

Powers may be broadly prescribed

Unlike the Legislature which has its power prescribed, predominately in s 51; the Executive, whose powers are widely defined in s 61; and the Judiciary, whose powers are established by s 71 – and have been the subject of great consideration by our High Court over the past century – the Voice will have such power as the Parliament prescribes it.

This could be none at all – or it could be broad and administrative, involving itself in blocking or dictating, a whole range of private contracts and public matters.

Commentators usually mention the Parliament has the power to prescribe the powers of the Federal Courts of Australia, as the precedent for this open language being adopted in the proposal.

However, the Federal Courts are not what we define as ‘constitutional’ courts. The Parliament cannot legislatively prescribe or proscribe the Judicial Powers of the High Court – that is constitutionally determined.

I would further argue, various procedural and interpretation statutes are unenforceable on the HCA – such that they are only followed because the Court chooses to entertain them. It is in fact for the High Court to define its own procedures and apply such judicial interpretation as it sees fit.

It isn’t for the Parliament (a branch of government) to entirely prescribe the powers of another branch of government – that would defeat the purpose of distinguishing between statutory and constitutional bodies. A distinction lost in this proposal.

Also unlike Parliament, the Voice does not have subject matter powers defined. It will have such power – as much or as little – as the politicians like. An open-ended proposal if ever one had been concocted.

Even if you are a ‘progressive’, this should be criticised as it means the ‘Voice’ may be easily silenced and rendered constitutionally vestigial at some time in the future.

For constitutional conservatives, this is unacceptable because it is akin to offering a constitutional blank cheque to the government of the day to prescribe wide powers to a body which is

(a) not by definition representative, and if so, only to a closed category of citizens based odiously on racial grounds;

(b) not subject to the same constitutional limits on power and procedure as the Parliament, and

(c) it would be questionable as to whether their decisions would be subject to judicial review.

With minimal constitutionally enshrined limits on its power due to the vague terms, on what constitutional basis would this even be argued?

It’s entirely uncharted territory and doesn’t resemble any other branch of government.

This is not ‘the way forward’

Our goal must be to equally enfranchise all citizens, including the Indigenous. The historical racial harms caused by government, are not ameliorated by simply changing the racial profile of government.

The irreversible damage caused to our Indigenous people since settlement, is the product of too much government, and too much focus on race. The solution is less government, and refocusing on ensuring the constitutional equality of citizens and protection of our civil rights.

The racial ‘Voice’, as proposed by the Prime Minister, would be either an odious and empowered racial body of government or an empty echo chamber that provides a needlessly brand new battleground for racial politics in the 21st century.

I am fearful that this proposal will be zero-sum.

If successful, we will have embarked on a radical race-based reformation of our constitution – a backward step. If unsuccessful, it will be labelled by radical leftists, who dominate university faculties and white-collar professions, as a landmark sign of racism in modern Australia. More harrowing will be the lingering ill feelings of disenfranchisement some Indigenous people will be left with, when the proposal is defeated.

It is a proposal that, absent complete and unanimous support by all Australians (an impossible standard), will be a source of renewed racial tensions.

Constitutional amendments are vital. We need to remove race from our constitution entirely. We need rights protections. We need federation reform. We need a truly separated Executive.

What we do not need, is an experiment in new ‘positive discrimination’ entrenched in our constitution. When it comes to matters of government, we can and should strive to be colour-blind.

This article first appeared here on Cameron’s blog.