Cori Bernardi, Apartheid and the Voice to Parliament

| May 20, 2023

A peculiar trend that has emerged in debates on the Voice to Parliament is the claim first made by Nation Party leader Pauline Hanson that the Voice to Parliament would ‘impose apartheid on the Australian people’ . Subsequently Sky TV host and former Senator Cori Bernardi, said that if the Voice became part of the Constitution “we’re effectively announcing an apartheid-type state.”

As someone who lived in South Africa during the apartheid era, I find such statements troubling because of the deep ignorance they reveal both about apartheid and about what the effect of the Voice would be.

Apartheid involved the involuntary classification of people on grounds of race in order to effect segregation in virtually every area of life, ranging from housing (with the entire country divided into racially-defined residential areas), to health, transport and education.  It denied civil rights – not only the right to vote but also citizenship – on racial grounds.

Discrimination was all pervasive.  It mandated separate access to public facilities, such as post offices, railway stations and parks.  Most invasive of all was legislation which prohibited people of different races from marrying.  The entire system was underpinned by oppressive security legislation which excluded review of government action by the courts.

How the Voice, requested by Indigenous people at the National Constitutional Convention at Uluru (an event which bears striking resemblance to the Congress of the People held in South Africa in 1955 where delegates adopted the Freedom Charter containing demands for an apartheid-free society) – could be described as establishing apartheid is therefore unfathomable.  Statements that it would do so not only misrepresent the Voice but also trivialise the suffering of the many thousands of people who fell victim to apartheid.

The Voice has nothing to do with racial categories. Race is a purely social concept with no basis in science. The idea that Indigenous peoples are entitled to a dedicated Voice to Parliament is not based on race but rather on their unique historical position of being the original inhabitants of Australia whose rights were removed by conquest.  The Voice takes account of this uniqueness and seeks to provide redress for those historical circumstances by establishing a mechanism whereby Indigenous peoples can express their views collectively.

Imagine if contemporary Australia was invaded by a foreign power which imposed its language and law on the country and became the dominant majority.  Assume also that ‘Australianness’ as an identity, with all that that means to us today, managed to survive the next 200 years.  Would anyone deny the justice of allowing the ‘Australians’ – as a distinct people –  a voice to express their concerns as a people with their own identity?

Objections by constitutional conservatives that the ability of the Voice to make representations to the executive would hinder government decision-making were ill founded.  They are based on confusion – perhaps deliberate – between communication of views to government when it is making policy and judicial review of government decisions under administrative law.

Lobbyists make representations to government all the time in order to influence policy.  That confers no legal right to challenge policy once the government has decided on it. All the Voice would do is provide for the making of collective representations by Indigenous Australians. It would not create a right to challenge policies once they are made.

This is very different from the right a person has under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to seek judicial review of a decision specifically relating to them – for example the granting of a licence ─ that the government has made under a statute. Since everyone already enjoys the right to judicial review, the Voice logically cannot be said to confer it upon people who do not yet have it, nor would the Voice expand the category of the circumstances in which decisions can be reviewed.

Finally, consider this:  Following the logic of Pauline Hanson and Cori Bernardi, one would have to conclude that Norway, Sweden and Finland, each of which has an advisory body elected by the indigenous Sámi people, have systems of government based on apartheid – it being worthwhile to note that these countries were at the forefront of the international campaign against that ideology.

Most bizarrely it would also mean saying that South Africa itself has an apartheid government, as its constitution contains a body called the National House of Traditional Leaders which advises the government on matters pertaining to traditional communities.

Whether one votes Yes or No in the referendum, one’s choice deserves respect, but let that choice at least be made in full understanding of what the Voice is – and is not.