So committed to the Constitutional ‘Voice’ Recognition movement are some commentators that they can happily concede that the recent High Court decision that effectively grants Aborigines a special, privileged status in Australia is bonkers; that the judges who did that seem to be activists, out of control activists; that Aboriginal activists have already seized on this decision to push for more; and that it is now considerably harder to argue that any constitutional changes, any at all, will be safe from further judicial activism still – and yet they want to push on all the same. ‘Tally-ho and onwards, the risks be damned,’ is the seeming attitude on display.
Take someone like Chris Kenny from the right side of politics, a man who on other issues of the day makes cogent, powerful arguments most of them highly persuasive. But on this one? Well, look at Kenny’s column in the most recent Weekend Australian. After making all the above points Kenny finishes thus:
Conservative critics have warned that indigenous recognition could be used to invent unwritten law… and the High Court now has animated that point.
He then says that opponents have it wrong in arguing the Voice amounts to a special right for Aborigines:
My advocacy has always stressed that this is erroneous and that a voice would merely give indigenous Australians a say they deserve on matters that affect them.
Wow! Sophistry writ large. First off, it wouldn’t give them ‘a say’ it would give them an extra say, two says, since Aborigines would still have a regular vote and a regular ‘say’ with the rest of us every election day. And no one else would get two ‘says’, not the disabled, immigrants, women or whatever other downtrodden group might suggest itself to you. This Voice stuff advocates for an extra say, just for one group, based solely on the luck (or otherwise) of the genes one happens to have been born with – call that ‘race-based’ or not as you please. So Kenny’s way of putting the reform proposal is pretty close to disingenuous.
Secondly, he says ‘deserve’. But this too is highly contested and contestable. Remember we are talking groups here not individuals. That means we are entering the realm of identity politics where all focus is concentrated on groups and group identity. A woman who was born to rich parents, went to a top private school and had every advantage in life can – through the prism of identity politics – be seen as, and worse see herself as, oppressed. She’s in the favoured group and so must somehow be compensated. Same for Aborigines under this, or any, constitutional recognition proposal. It’s wholly a group thing. So who, exactly, will get this extra ‘say’. Will it be someone with 1/16th Aboriginal blood? Someone with 1/32nd? Maybe it will be a self-identification test?
Or maybe the Constitution, in keeping with the lunatic postmodernist views of the majority of High Court justices in the recent case, will be deemed to delegate all such calls to some tribal elder somewhere? Be clear, Kenny’s talk of ‘desert’ is not on the level of the individual; it’s completely a group thing and so it’s fundamentally at odds with the liberal worldview.
Then Kenny moves to his penultimate paragraph where he concedes in blunt terms that the High Court’s recent decision has made the case put by conservative sceptics like me ‘much harder to refute’. Yes it most certainly has Chris. Spot on.
Everyone now knows what we have been saying for years that any changes, yours included, carry huge risks and that no one (including those like Kenny who are on the Minister Ken Wyatt’s ‘Senior Advisory Group on Co-Design for an Indigenous Voice’) has any clue what the judges will do with it. Kenny more or less now concedes that.
So does he suggest we might now want to back off and leave our Constitution well enough alone, it being in enough danger from activist judges as things are? No, no, no. Instead Kenny summons up the spirit of Alfred Lord Tennyson and his ‘Charge of the Light Brigade’ poem that immortalises a foolhardy cavalry charge into near certain death. Here are Kenny’s concluding words:
Still, the debate must continue. While the High Court has thrown up an unfortunate complicating factor, this also serves to demonstrate just how vital it is that we finally settle issues of race and the place of indigenous Australians in our Constitution.
What? So the more the conservative sceptics are proved right in their fears, the more Australia must nevertheless push on with the dangerous course of action? It’s as though no amount of blatant judicial activism could ever convince the Kennys of the world to think again.
This sort of thinking is perfectly summed up near the start of Tennyson’s aforementioned great poem:
‘Forward, the Light Brigade!’
Was there a man dismayed?
Not though the soldier knew
Someone had blundered.
Theirs not to make reply,
Theirs not to reason why,
Theirs but to do and die.
Into the Valley of Death
Rode the six hundred.
Look, John Maynard Keynes was wrong about a fair few things but the famous economist once made the well-known quip ‘that when the facts change I change my mind. What do you do?’ Well, for many proponents of Constitutional Voice Recognition what they do is push on, immune from such things as ‘facts’. Or maybe it’s got to do with industry capture and sunk costs? These handpicked members of the Minister’s ‘Senior Advisory Group’ have a lot invested in this and, let’s be honest, it’s never easy to walk away from sunk costs. Better to push on, with Tennyson’s words faintly ringing in the ear:
Boldly they rode and well,
Into the jaws of Death,
Into the mouth of hell,
Rode the six hundred.
Me? I prefer to face facts, widely predicted facts that have now been made plain to all and sundry. This constitutional recognition proposal is toxic. No Coalition that wants to survive the next election can, or should, go anywhere near it whatever Wyatt and his Advisory Group ‘say’.
That’s a conclusion dictated by what is known in the philosophy of science as ‘the facts’.
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