This page contains three papers from Michael Jensen, Michael Stead and Joel Harrison.

MICHAEL JENSEN on ‘The Voice’

As a Christian theologian and minister, I’ve seen my role not just to put a particular case but to help people, particularly Christians, to think through the Voice as much as possible from Christian principles. This is particularly hard for us to do in the contemporary media environment. And it has been made harder by the way in which the issue has become politicised, by both sides of politics. This is tragic. That it has become politicised, however, is not a reason for Christians to say nothing. Bad actors are using this debate for their own ends: this should not silence those of us who are considering the proposal on its merits. 

Christians, I think, should rise above this. Yes or No, we should lead the way in a better kind of debate.  

So how should we think Christianly about the Voice?

As Christians, we consider first what Scripture says, and second what is wise. We should ask: it Biblical, and is it reasonable? 

Now: it’s not a straightforward equation. The Voice is not a proposal for which there is a direct command to be found in Christian teaching. 

There are those issues for which can you draw pretty direct lines from Biblical teaching – I would say that was the case in the 1967 referendum. And there are those issues on which the Bible allows us complete freedom to consider what is wisest. 

But the Voice is somewhere in between those. There are lines to be drawn from the Bible to the Voice, but they are not direct.  

So what can we learn from Scripture? 

1. We learn how repentance, forgiveness and reconciliation work. Reconciliation is at the very heart of the Christian faith – the peace with God which we are given in Jesus Christ by his grace, which drives us to make peace with others. Christians learn that, if we wrong someone, we cannot either buy them off or demand that they forgive us on our terms. True apology and repentance involves the humility of asking those we have wronged how we might restore relationship with them.

We’ve been struggling as a nation with reconciliation for decades. The gap” that exists between First Nations people and the rest of the country is evidence of the shame and humiliation that many Indigenous people still experience. The ugly contempt for Aboriginal people I’ve heard recently compounds this. We’ve thrown money at the problem, which hasn’t worked. We’ve made apologies, but healing is still far from evident. If you worry that the Voice will divide the country, then consider how deeply we are already divided. The Liberal governments of the 2010s inaugurated the Uluru process as a way of asking the Indigenous community as a whole what the way forward might be. We’ve asked them; this is their gracious suggestion of a way forward, not to division but to unity, forgiveness and reconciliation. What is being asked for is honour where there has been in the past, and continues to be, so much shame. 

• We learn that equality of dignity and status can mean, even demand, different treatment. The remarkable story of Christian missionaries in Australia was founded on the firm conviction that Indigenous people are our kin – made like us in the image of God. This was not always the opinion of all settlers, not by a long shot. The genius of Christianity is that it is a trans-ethnic community in which equality of dignity and status is found not through a mono-culture but through treating one another differently according to need. We are actively to elevate those whose social status is lower, for example (James 2), in order to express our basic equality in Christ.

The Voice does propose to give a special place in the constitution to a particular people. I hesitate to call it ‘privileged’. But it is in keeping with a Christian social vision that we should express our fundamental equality as divine image bearers by treating others according to their differences – especially of advantage and disadvantage.

• We learn that love of neighbour involves cost and risk. Love of neighbour as ourselves is the primary principle of Christian social ethics. The model is the Good Samaritan, who did not simply love the other Samaritans in his local club, but went out of his way to help a stricken Jewish man, supposedly his ethnic enemy. Jesus told that story and said ‘Go and do likewise’. 

The Voice proposal is an opportunity to go and do likewise. It is not simply words: it risks something. It costs us something, more than just money. It’s asking for our embrace of our fellow citizens, in their full humanity. 

But is the Voice wise? I think it would be reasonable for someone to agree with all that I’ve said but to say at this juncture: yes, but I don’t see that it will work, practically. It will create a legal quagmire, or jam a spanner in the cogs of government. 

I am not going to address that here: others have tonight. But wisdom should be part of our consideration of this proposal. We should definitely consider what harms may come. Sentiment is not enough. Having said that, we should also consider the consequences of a No vote, too. 

My own conviction is that a lot of the alarms being sounded are not based on the best or on the majority expert opinion; but I invite everyone to do their own due diligence on this. There are those like Fr Frank Brennan who don’t like the form that the proposal has been put in who, however, think the advantages outweigh the risks. Because the Voice will be subject to the Parliament, we should remember that we as the people have a way of keeping the process accountable. 

My view is that Christians may reasonably disagree on the Voice. I do not offer my position as the Christian view. There are Christian leaders who I deeply respect who disagree with me. 

My prayer is, however, that the Christian community will not simply see the Voice as a politicised culture war issue, but that we will lead our country in giving careful, prayerful and indeed generous consideration to the proposal for the Voice; and beyond the result, Yes or No, that we would lead the way in seeking a more just and indeed loving Australia – in the great legacy of the evangelical missionaries of the 19^th Century, who shaped Australia’s political and social culture in so many unacknowledged ways, in the name of the God and Father of our Lord Jesus Christ. 

MICHAEL STEAD on ‘Generous Consideration’

Tonight’s event was prompted by a motion of the Sydney Diocesan Synod last year. The full text of that motion is printed in the program booklet. I draw you attention to the last point  “[Synod] encourages church members to give generous consideration to the case to vote ‘Yes’”.

My aim is to answer 2 questions – What does “giving generous consideration” mean, and Why is the yes case something worthy of generous consideration. 

Firstly – what.  

Let me begin by saying what “Generous consideration” DOESN’T mean.  It doesn’t means that we only inform people about the yes case, or tell them to vote yes. Archbishop Kanishka has distributed papers to parishes that make out both the yes and no cases. Generous consideration doesn’t mean that we should fail to give consideration to the reasons why people might vote note. 

Your list might be different, but for me the four most substantial reasons for voting ‘no’ are as follows.

1. It is undemocratic, because it gives one group of Australians rights not given to the rest 
2. It is unworkable, because government will grind to a halt while consulting with the Voice 
3. It will be ineffective in addressing the deep and lasting problems of indigenous disadvantage
4. Voice is only a first step, and the real agenda is ‘treaty’, ‘truth-telling’ and reparation.

My summary of the ‘no’ case is that the voice is undemocratic, unworkable, ineffective or insidious. 

I’m not going to address these objections directly – other speakers will do a better job than me. 

Rather, I want to make the point that “generous consideration” is all about our stance – our starting point – in approaching these issues. If the burden of proof is lies with the yes case to prove that the voice is NOT undemocratic, NOT unworkable, NOT ineffective, NOT insidious, then it will probably fail. 

“Generous consideration” is flipping the burden of proof. That is, being prepared to vote yes, unless there are good reasons to vote no.  Giving something the benefit of the doubt; giving it a chance to succeed rather than insist on proof that it will. Generous consideration won’t necessarily lead to voting yes – each person should carefully weigh the arguments and come to their own conclusion and vote accordingly. But the decision should come after thoughtful consideration. Taking the line “if you don’t know, vote no” is not generous consideration. 

By now you are rightly asking the why question? Why should we flip the burden of proof? Why would the Synod recommend inverting the usual bias toward the status quo?

It is, as the synod motion reminds us, because the status quo is not great. We desire reconciliation, but we are not there yet. We desire “social, spiritual, and economic wellbeing” and communities that flourish, but we are not there yet.  Giving a generous consideration leads to a bias towards trying something rather than doing nothing. 

Generous consideration is the outworking of two “R”s – recognition and respect. Both sides of the debate are all for constitutional recognition and likewise everyone wants to show respect. I want to make the case that Recognition and respect are the key reasons to give generous consideration.

Recognising the Aboriginal peoples and Torres Strait Islander peoples as the indigenous peoples of Australia means recognising they have a special connection to ‘place’ that the rest of us don’t have. For me, this has a theological basis – Acts 17:26 – “From one man [God] made all the nations, that they should inhabit the whole earth; and he marked out their appointed times in history and the boundaries of their lands.” (NIV)  This was and is theirland, in a different way to Australia being my land. This principle is recognised internationally – indigenous peoples have rights to self-determination; a right to be consulted about matters impacting them. 

This is especially so in this case, because the land and cultures of our indigenous peoples has been swamped by others. Their land was wrongly taken from them. Part of recognition is to Recognise the ongoing impact of displacement and dispossession. The effect of the events of the past are not confined to the past. There has been, and continues to be, intergenerational disadvantage.  I am not saying that you or I are accountable for this, but neither should we be indifferent to it. We should recognise Aboriginal Torres Strait Islander peoples as the indigenous peoples of Australia and all this entails. And when we do this, the natural response to make our starting point ‘generous consideration’. 

The second “R” is respect.  In particular, to respect their voice in asking for a voice. A constitutionally enshrined Voice to Parliament is supported by a large majority of Aboriginal people. It emerged out of a consultative process set up and run by the Turnbull/Morrison governments, involving 13 intensive and inclusive regional dialogues Australia-wide involving more than 1200 Indigenous leaders. 

It is a sad irony that, in a debate about the voice, the key question is whether we will listen to their voice: Put yourself in their shoes – They asked us what we need. We told them. But they like what we said and tell us “there is a better way” – a voice in legislation only and not the constitution, or different constitutional amendments, or a different way to address deep disadvantage…

Listening to someone’s voice does not means you MUST do what they ask, but it does mean you start from the position of respect and trust, not either paternalism or fear. That is generous consideration.

As we listen to the rest of the speakers tonight, I hope that we will, as the synod motion encouraged us “give generous consideration to the case to vote ‘Yes’”.

JOEL HARRISON ON ‘Why Yes’

Good evening and thank you to the organisers for the invitation to join you and join our diocese in generously considering the constitutional proposal of the Voice. I am a legal academic at Sydney Law School, where alongside a colleague of mine I am in charge of the teaching of constitutional law. I am also one of the parents in charge of the kids at All Saints, Hunter’s Hill.  I’ll let you decide what is the more difficult job.  This evening, I want to do three things. First, provide something of the immediate history behind the Voice proposal.  Second, elaborate upon what the Voice is – what the constitutional amendment will do.  Third, state why I think, understood rightly, the Voice is a potential gift to all of us. 

We are not considering ‘Albanese’s Voice’ or ‘the Canberra Voice’.  Rather, we are considering an invitation from Aboriginal and Torres Strait Islander peoples developed over years.  Most immediately, in 2015, the then Prime Minister Malcolm Turnbull and the leader of the Opposition, Bill Shorten, established the Referendum Council.  It held 12 regional dialogues with Indigenous groups and leaders across the nation, and convened a national convention at Uluru.  The outcome of this – the Uluru Statement from the Heart and the constitutional amendment proposal – clearly rejected a mere statement of recognition.  Recognition, the argument is, should take a concrete form if it is to be meaningful.  If we recognise Aboriginal and Torres Strait Islanders as first peoples, then that should matter to how we conduct our common life and reflect this constitutionally.  The Referendum Council and the Uluru Statement also shifted discussion away from previous proposals to change the Commonwealth’s legal powers.  Instead, Aboriginal and Torres Strait Islander peoples invited the country to consider something quite innovative: a body for First Nations – the Voice.  This Voice, it is hoped, would empower First Nations through constitutional status.   

What then is the structure of the proposal – are there constitutional landmines in wait?  The main point I wish to make here is that the Voice, by intention and design, is meant to operate largely in the political domain.  We are very fortunate in Australia that most of our discussion about questions of justice and how to live well together takes place within political institutions and civil society.  Our High Court serves us well and, if the Voice passed, it may be called upon to ensure that the Constitution is adhered to in certain ways, just as it is called upon in any other field.  For example, it is clear to me that the Voice must be a voice for Aboriginal and Torres Strait Islander peoples.  If the Parliament passed a law eliminating this character – say, ensuring that the Voice is housed with party political figures only – then that would, I think be unconstitutional.  That’s a good thing – that the High Court may at times ensure that the text and structure of the Constitution isn’t flouted by our representatives.  But I think generally that far too much angst has been generated over what the High Court might do.  The answer is probably very little.  The best characterisation of the Voice is that it is proposed as something to ground and extend a relationship of political dialogue between Aboriginal and Torres Strait Islander peoples and our governing institutions – the Parliament and the government.

The proposed amendment states that in recognition of Aboriginal and Torres Strait Islanders as the First Peoples of Australia, (i) there will be a Voice.  It then provides (ii) that this Voice may make representations to the Parliament and the Executive of the Commonwealth on matters relating to Aboriginal and Torres Strait Islanders.  And finally, the amendment (iii) leaves to Parliament the very considerable power to determine how this body will be composed, any powers it has, and how its functions are exercised.   Very clearly, the Voice is not part of the Parliament – it doesn’t exercise law-making power; it is not part of the government – it doesn’t administer laws and it does not administer services; and it is not part of the judiciary – it cannot decide on cases.  It is an advice-giving body.  By placing it in the Constitution, the Voice is likely to be a permanent Commonwealth institution.  Such constitutional stability means that the advice given by the Voice can be independent and frank (representations are not given under the looming threat of abolishment) and that this advice should be given serious weight by political actors, although it is not legally binding. That is the domain in which it will operate.  The Voice secures, as Anne Twomey writes, ‘ongoing recognition by hearing [the] voices [of Aboriginal and Torres Strait Islander peoples] (not those of lawyers and judges) before laws and policies are made, so they can influence them for the better’. 

This is what the Voice proposes: better law-making and better government action.  We know that the gaps on important indicators of disadvantage are not closing.  Affording the dignity of voice, the investment of political agency in decision-making, is a common feature of improving social outcomes.  But I think there’s more potential here than we realise.  For most of our post-colonisation history, we told ourselves the legal story that Australia was at law uninhabited – the land was terra nullius.  We excluded Aboriginal persons from Commonwealth voting until 1962.  But the reality is that for 65,000 years, communities have endured.  The Voice is not, I think, simply about ameliorating social disadvantage – although that is one hope.  It is also about recognising the enduring legal status of First Nations; to recognise the importance of First law, culture, and custom in this land; indeed, to recognise how it might even be a gift.  

In Christian thought, the point of forming a political community together is so that we may live well – that we flourish together.  To do this, again in Christian thought, we must pursue what is right.  And that means forming a community based on a mosaic of friendships, care for each other, and care for our common home.  Doing this is what Christian writers mean when they talk of participating in divine governance or God’s eternal order.

            We’ve largely lost this way of thinking – or we bury it.  We are more likely now to think that the political community exists to protect my rights, my property, my opportunity to get ahead, or merely to secure public order.

            Our Aboriginal brothers and sisters are seeking a deep say in how their communities and people are sustained and flourish.  And when we look at what this fundamentally means, we see distinct resonances.  For First Nations, law and political community means also right order – what Marcia Langton and Aaron Corn describe as ‘the correct way of living a good life, as passed down from ancestors over many generations’, to achieve peace with each other and our created surroundings.  As Langton and Corn elaborate, ‘[T]he purpose of life on “this side” … is not only to realise the nature of the “other side” while you are here, but also to bring life on “this side” into mirrored concert with it.’  

            This is a potential gift.  Right relationship with each other, with our created home, and with God.  That is what Christians have talked about when we talk about political community.  Our Aboriginal and Torres Strait Islander brothers and sisters seek flourishing communities – the recognition of existing authority to build truly, rightly formed political communities.  This is for themselves, as vibrant communities of law and custom that have survived and flourished for so long.  But it is also for everyone. The claim of authority here, the claim to recognise that these communities can have a direct and persuasive say in our common life, points towards a richer reality we Christians also quest after.  What political community can be, what it can be directed towards and aimed at.  That, to me, is an exciting opportunity.