The 1967 referendum bill was passed by Parliament because the international community were taking a dim view of Australia’s treatment of First Nations. First Nations were being excluded as people to count in the census, and those same international observers were cognisant of Queensland and Western Australia resisting pressure to close down the dreadful First Nation reserves.

S.127 of the Constitution was struck out entirely by the successful yes vote in 1967 so First Nations would from then on be counted in the census. Paragraph xxvi of s.51 was amended to remove the works “except for aboriginal….” so that the Cth could rely upon that racially divisive power (originally included in 1901 so that the White Australia policy could be passed) to take away the State’s powers over First Nations including, inter alia, keeping them on dreadful reserves and housed within unhygienic institutions like the institution at Cherbourg. 1967 did not acknowledge First Nations in the Constitution, and the power to make discriminatory special laws under paragraph xxvi of s51 was subsequently used by the Cth to make beneficial and detriment laws for First Nations based on their specific race.

S.25 of the Constitution was not changed and to this very day that constitutional provision permits the States to make laws based on race to exclude people from voting for the selection of members to the lower house. Race and division did not leave the Constitution in 1967 and it remains there to this day.

When paragraph xxvi of s. 51 of the Cth Constitution provides the principle of special power to Parliament to make benevolent and detrimental laws about First Nations, then as a matter of constitutional principle the proposed s.129(2) should be included to at least ensure First Nations ‘may’ make ‘representations’ about laws that affect them. That is the highest and best case- it only provides for #TheVoice ‘may’ make ‘representations’ about laws that affect First Nations. The Voice is of little moment in our Constitution as it does not provide a right to veto legislation or Executive decisions. It does provide a proper recognition of First Nations being the traditional custodians of the land. But once again there is no power of veto and Parliament controls #TheVoice under s.129(3).

Then if it is of little moment why should the Voice be included? Firstly, there needs to be constitutional recognition of First Nations as the traditional custodians of Australia. Secondly, regarding #TheVoice its insertion will then be a constitutional provision which provides for a democratically elected body of First Nations, controlled by Parliament but it ‘may’ make ‘representations’ to Parliament and the Executive about laws that affect First Nations. Given the fact the Constitution already has devisive discriminatory constitutional power principle within paragraph xxvi in s.51 (and for that matter, s.25) it is only fair First Nations be able to make representations about special laws enacted for them which affect them. The representations may be made to the Executive, which is sensible as the Executive is the administrative functions of government so this is a critical reason for allowing representations to be made because the Executive government is where policy is made.

The constitutional provision should stop the broken promises or the backsliding on promises being made to First Nations by any government of any political persuasion, like both sides (Labor and Liberal) have previously done. #TheVoice should also close the gap by proper representations being made about policy which affects First Nations. However, Parliament controls the Voice so you are safe in your homes, the system of government won’t collapse and as for the courts, well, so what. Why should we fear our courts? The challenge would only be one of judicial review, an administrative action our courts regularly decide and guess what? The world did not come crashing down when the first writ for judicial review was issued, nor has it crumbled with the subsequent writs being issued.

The no campaign people don’t want the Voice for a variety of spurious and unfounded reasons all based on fears of uncertainty or entrenchment. What they don’t tell you is the uncertainty claim would be dealt with in short shrift by the High Court. The fear of the entrenchment argument is woefully misconceived. The words of the proposed s.129 are spare and lacking in complexity.

Successive Liberal and Labor governments have failed First Nations since the 1967 referendum. Senator Hanson has not provided a sensible argument to explain why she says no, nor has Senator Price. Dutton is trying to use the dark arts of destruction to try to improve his public image and save his job; the only place Dutton may gain power is Antartica and even then he has an uphill battle to defeat a penguin. As for Mr Mundine, well let me just say he has a bit too much poison on his liver to be considered an impartial commentator.

So that is why we need s129 to be inserted, because the Constitution still permits divisive law making by race. Poor old Mr Dutton obviously forgot to read the Constitution before that fateful day he made that dreadful speech in the Parliament, but then again, when has he ever made a good speech?

#TheVoice means so much to First Nations. They cannot control legislative powers of Parliament or the administrative powers of the Executive, but they may make representations which Parliament may consider, just like the Executive may consider and those representations will enlighten our federal system of government and help close the gap. #VoteYesAustralia