David Allinson: Breheny’s Straw Man

Simon Breheny’s article in The Australian on Friday suggested that the Prime Minister’s media release rejecting an Indigenous consultative body in the constitution was “one of the most important documents published by this government because it affirms the values on which Australia was founded”.

Breheny’s article makes three errors that should be corrected: two of fact, and one of principle.

The first error of fact is that he claims, “the PM’s response is based on the fundamental equality of all Australians”. It is true all Australians are equal. But Breheny conflates this idea with the proposition that all Australian votes are equal. This is not true. In the Australian electoral system, a Tasmanian’s vote in the Senate worth 12 times as much as that of someone from New South Wales.

This is minor factual error leads to the second, more significant error of fact. Breheny makes the proposal for an Indigenous advisory body sound like one person’s vote will be weighted more heavily than others’. We should be clear about what this proposal is, because Mr Breheny commits a straw-man fallacy by not laying out his opponent’s case accurately.

The Voice to Parliament does not give an ‘extra’ right or vote to Indigenous people in the Parliamentary system. It doesn’t change the make-up of the Houses of Parliament at all. An Indigenous advisory body would give advice to Parliament on laws and policies that affect Indigenous communities. Sure, the people on it might be voted in. But so is the president of your local football club! The mere existence of the group does not subvert the foundations of Australian democracy. All Australians would retain the right to participate in voting in elected parliamentary representatives, as per normal.

The proposed reform would simply ensure that Indigenous people get a fair say, through non-binding advice, in laws and policies made specifically about them. 

It is a fact that Indigenous people have some necessary and special laws made for them. The race power in the Constitution allows Parliament to do that and it is only used to make special laws for Indigenous people, like the Native Title Act, among others.

We cannot simply get rid of this power, because then Parliament would be left powerless to repeal or amend all those laws, opening up extensive High Court uncertainty. As a constitutional conservative I believe Parliament’s powers must be retained and respected.

The best thing to do, given the Australian legal environment, is to make the current situation fair. The ‘Voice to Parliament’ is a modest proposal, in keeping with the Australian tradition for modest constitutional reform. It is also fundamentally in keeping with Australian constitutional culture which gives minorities – the citizens of Tasmania for example – a fair and proportionate voice in our system.

The Voice proposal has been developed by many eminent lawyers. It is legally safe. Recently, the law council of Australia together with the NSW bar association came out in support of it.

So, the first two errors Breheny makes conflate two propositions, that: ‘all Australians are equal’ and ‘all Australians have an equal vote’. His factual error regarding the second proposition allows him to make mischief with the first.

What is Breheny’s third error? He claims that Australia has an America-style, civil liberties tradition. This is not true. Unlike America, Australia does not have a civil-libertarian tradition. Nor does Australia have a rights-based constitution. Mr Breheny’s claim that the Australian Constitution is “built on a foundation of individual rights and responsibilities” is factually inaccurate. We have a largely British-style system. We have neither a bill of rights nor an equality guarantee.

Breheny’s characterisation of Indigenous recognition as ‘identity politics’ is also disingenuous. I reject identity politics as much as the next sensible person. But it is a legal fact that in Australia, Indigenous people do have a special status. Indigenous people are a legally distinct group of Australians, subject to some special rights – like native title. This is not a point of ideological contention; it is a legal fact, reflected in common law and legislation.

But it’s obvious Mr Breheny is not really interested in the law, or facts. He makes some fundamental errors. It is thus all the more egregious that he postures as an authority on the subject of the Constitution. Australia’s most esteemed Constitutional Law experts – namely Professors Anne Twomey, Cheryl Saunders, Greg Craven, Adrienne Stone, Rosalind Dixon, Gabrielle Appleby and Sean Brennan– have already proclaimed their support for the Uluru proposals.

Breheny’s ideology promotes ignorance of Australia’s laws and its history. For too long in this country, race-specific laws have been made for and not with Indigenous people. This is not fair. It needs to change.

The Uluru Statement shows us a sensible and constitutionally conservative way to bring about this change. It acknowledges our history. It doesn’t require a black arm-band. Nor does it require contemporary Australians to express personal guilt. To fairly recognise Indigenous peoples is to affirm Australia’s Indigenous heritage together with our British institutions and our multicultural accomplishment. These things are for us all to celebrate.

Recognition is not about giving Indigenous people an ‘extra vote’. It’s about changing the way decisions are made for the better. That would be done by imposing an obligation on Parliament to simply consult while decisions are being made that uniquely affect Aboriginal and Torres Strait Islander people. It will not give them a veto. It will not even let them delay the parliamentary process. It is modest and practical reform.

Recognition is an opportunity for change that is desirable and fair. As a proud Australian, I consider the ‘Voice to Parliament’ as a modest proposal, adapted to Australia’s unique legal environment.

Once the misinformation surrounding it abates, we will all see this for the historically unprecedented opportunity it is.

David Allinson is the CEO of Uphold & Recognise

Uphold & Recognise