April 21, 2023

Indigenous rights

It’s the voice, try and understand it

By Russell Marks
Anthony Albanese is seen walking towards a podium for a press conference at Parliament House. Three flags – the Australian, Aboriginal, and Torres Strait Islander flags – are seen in the background.

Prime Minister Anthony Albanese arrives to speak to the media at Parliament House in Canberra, March 23, 2023. Image © Lukas Coch / AAP Images

There are weaknesses in the voice proposal, but glossing over them may not help the “Yes” campaign

“I commit to the Uluru Statement from the Heart in full.” With those 11 words, among his first as prime minister-elect, Anthony Albanese defined his term as the nation’s leader. Regardless of nearly everything else his government would or wouldn’t do, history would judge it on the extent to which it succeeds or fails to implement the Uluru statement’s three main demands: Voice, Treaty, Truth.

There are risks in such an approach. Kevin Rudd’s administration sank on his inability to deliver on the “greatest moral challenge of our time”. Rudd blamed (and continues to blame) the Liberals and especially Bob Brown’s Greens. But it was climate change that filled his government’s sails. Only when it ran aground on the twin reefs of interest and idealism did Rudd’s leadership sink beneath clogged in-trays and a personality disorder.

But a Labor government that takes no risks is about as valuable as the instructions given to Arthur Phillip in 1787 to prevent the “unnecessary interruption” by his settlers in the First Nations’ “several occupations” after the First Fleet landed in New South Wales. That is to say: almost entirely worthless. All settlers have done during the 235 years since is to interrupt the occupations of the people who were here first, and it’s difficult to see the necessity of any of it, however much the settlers desired the land and its profitability.

Yet there are risks and there are risks. After more than two centuries of massacres, protest, petitions and mass imprisonment, Australians will – later this year, if the government can push its Constitution Alteration (Aboriginal and Torres Strait Islander Voice) bill through the Senate – be asked to enshrine in the Constitution an “Aboriginal and Torres Strait Islander Voice” that will have the authority to make representations to the government and the parliament “on matters relating to Aboriginal and Torres Strait Islander peoples”. In other words, First Nations peoples will be given the opportunity to petition settler Australia’s lawmakers.

If that doesn’t sound like much, it’s because it’s not. Indigenous people and communities have been petitioning settler authorities for much of Australia’s post-contact history, often to little effect. In 1846, Aboriginal survivors of the Tasmanian Wars on Flinders Island wrote to Queen Victoria, urging her intervention to prevent their oppressive former superintendent, Henry Jeanneret, from being reinstated following his dismissal two years earlier. They also wanted their land and their rights restored. (Their petition failed, though Jeanneret was soon sacked again.) Yorta Yorta people petitioned NSW’s governor and then the Queen during the 1880s for grants of land after they’d been moved onto the Maloga mission. Wurundjeri chief William Barak petitioned for equal rights (“we should be free like the White Population”) from the Coranderrk mission in 1886; instead, Victoria’s parliament legislated Alfred Deakin’s Aborigines Protection bill and removed rights. There were petitions from First Nations people urging governments against adopting the policies of child removal for which they would later apologise. King Burraga of the Thirroul tribe in 1933 demanded more than “white man’s charity”, and urged that Indigenous people’s prior ownership of the Australian continent be recognised. In 1937, when most states restricted the free movement of Indigenous people, William Cooper gathered 1814 signatures from Aboriginal people in all mainland states on his petition to King George V calling for a representative in the federal parliament.

None of this lobbying brought any immediate change, though perhaps it did contribute in the long run toward the moral development of settlers’ national culture. Indigenous lobbying did lead to the 1967 referendum, in which more than 90 per cent of voters authorised Canberra to take over the administration of Indigenous affairs from the development-addicted states, and authorised the national population census to count all Aboriginal people. It also led to land rights legislation, and to First Nations-controlled legal, health and other services. Dr Yunupingu, who died this month, was among those who in 1963 drafted the bark petitions in Yirrkala, which asserted native title, and which were tabled in Parliament House. But the Australian Aborigines’ League’s demands in the 1930s for parliamentary representation (modelled on New Zealand’s Maori seats) and the recognition by settler law of First Nations law are yet to be granted nearly a century later.

The voice, from the beginning, was a compromised idea. The Referendum Council didn’t call for a body with actual power, because it wanted its proposal to be acceptable to settler Australia. (The council would have been Malcolm Turnbull’s second achievement – after legislating equal marriage rights – in an otherwise dismal prime ministership, except that he rejected its 2017 recommendations on the misleading basis that they were several bridges too far.) The council undertook what is said to be the most extensive consultation ever made with First Nations people in cities, towns, regions and remote communities, culminating in a four-day constitutional convention of 250 First Nations delegates near Uluru in May 2017. It was this convention that agreed, by consensus, on the text of the Uluru Statement from the Heart. While the Uluru statement simply calls for a “First Nations Voice enshrined in the Constitution”, the Referendum Council’s more detailed recommendation was for a voice that, specifically, would monitor parliament’s use of its powers under sections 51(xxvi) and 122: its powers to make special laws with respect to “the people of any race”, and to make laws for the Northern Territory unconstrained by the Racial Discrimination Act. Those were the heads of power under which John Howard sent army tanks into Aboriginal communities in mid 2007 as part of the Northern Territory National Emergency Response, known as the intervention.

But so as to not scare the horses, the Referendum Council explicitly did not recommend that the voice’s monitoring function – or indeed any specific function – be enshrined in the Constitution. The council’s proposal, which has made its way into Albanese’s draft text, would have the Constitution clear the throat, and then parliament – meaning, in practical terms, the government of the day – provide the oxygen in the form of accompanying or enabling legislation. Consistent with the council’s proposal, the draft text includes a new power to be given to the federal parliament to make laws with respect to the “composition, functions, powers and procedures” of the voice. If this text is adopted, then any future mean-spirited government would have the power to effectively silence the voice. Yet if the point of constitutional enshrinement is to protect the voice from the kind of summary dispersal that Howard and Amanda Vanstone perpetrated on the Aboriginal and Torres Strait Islander Commission in 2004, then one may well wonder why we’re having a referendum at all.

Nobody can claim with a straight face that Peter Dutton’s interventions on the voice referendum question have been made in good faith. As the Territory’s settler population whips itself into another frenzied moral panic over Indigenous crime, the former Queensland cop has seen an opportunity to re-run Howard’s 2007 politics – and is taking it. Howard’s old playbook distinguished what he called “practical reconciliation” – getting kids into school and their parents off the grog – from “symbolic reconciliation”, which at the time was represented by an apology to the Stolen Generations and political representation through ATSIC. Dutton, following Howard’s playbook, is positioning the voice and the rest of the Uluru statement as symbolism, popular in woke circles but irrelevant to the realities on the ground. It’s a line that is likely to resonate, and not just among the Sky After Dark crowd. It was Dutton’s preparedness to play this kind of base politics that finally prompted Ken Wyatt to quit the Liberal Party.

But Dutton is probably right when he says that Albanese’s voice will merely formalise a new Canberra bureaucracy, one that may have some moral force but will produce worthy and readily ignorable reports to be placed on the shelf alongside Closing the Gap and those of the Aboriginal and Torres Strait Islander Social Justice Commissioner. One could even go further, and predict that the bureaucratic voice will privilege professional middle-class Indigenous researchers and technocrats, and mean not much for people in remote communities and prisons. Or further still, and suggest that the voice is being enthusiastically welcomed by settler bureaucrats and technocrats – in parliament and the public service – because it will finally provide the one-stop shop governments have wanted to consult with for decades. Governments, ever frustrated by Indigenous community politics, have been trying to mould those communities into bureaucrat-friendly lobbies for a long time. In the technocratic mind, the voice might at last achieve this. The Greens, now catastrophically divided between their settler membership and their First Nations convenors, have asked why the voice is coming first, before treaty (or treaties) and a Makarrata truth commission. Advocates emphasise that the voice has not been split off from the Uluru statement’s other demands, but is merely the first step in a sequenced reform process, with treaty and truth to follow closely behind.

There are legitimate questions to be asked of the Albanese government’s draft text, and criticisms to be made, despite the involvement of the First Nations Referendum Working Group, which is co-chaired by Minister for Indigenous Australians Linda Burney and Senator Patrick Dodson. But much of the public debate in settler Australia is proceeding, predictably, along the existing and very deep cleavage in the national culture that was created by the new histories of the 1970s and 1980s, the histories that wrote First Nations’ experiences back into the whitewashed record. Those settlers who want to synthesise Indigenous and settler experiences will accept the voice as proposed by the Referendum Council and the government, even though it risks being undermined by future governments. Those who keep resisting this synthesis in favour of maintaining pride in the colonial story are busy creating all kinds of straw men out of a proposal that, by itself, probably won’t change much at all. The “Yes” campaign is banking on there being more settlers willing to accept the truth of Australia’s history (and present) than wanting to deny it. Meanwhile, the 2017 consensus among First Nations delegates who produced the Uluru statement has not translated to broader consensus support for the draft text we now have before us, though one could hardly expect that it would have.

And yet, there are shades, here, of the failed republican referendum 24 years ago. To maximise the “Yes” vote, republicans settled on a minimalist model that simply edited out the Queen and re-branded the governor-general as president. Relying on the overwhelming popularity of republicanism, the “Yes” campaign (another of Turnbull’s failures) focused on broad symbolism rather than the specifics of the proposed model. The referendum failed in all states. The voice has begun with strong support in published polls, but as Dutton’s Liberals and the Sky/Murdoch commentariat make devils out of the detail, an “any voice is good” campaign may not be enough to get it over the line. Indeed, now that there is opposition to the voice among Aboriginal people on the right (Jacinta Price, Warren Mundine) and the left (Lidia Thorpe and the Greens convenors) and apparent confusion in some remote communities, it’s difficult to be confident about a “Yes” victory. It is a truism that Australians don’t change the Constitution when there’s a significant campaign against doing so. The 1967 referendum had very broad support, in part because it proposed clear changes. This year, the “Yes” campaign has work to do to convince voters of what remains, in the public mind, a fuzzy concept. On the other hand, Dutton’s unpopularity and bad faith may end up being an asset to the “Yes” campaign.

Australia’s first referendum this century will be a referendum on First Nations’ self-determination that will nevertheless leave the lowest-hanging fruit – the racist sections 51(xxvi), 122 and 25 – on the constitutional tree. Advocates have a deliberate method, but if that method remains opaque to others then there’s a risk it becomes an “insiders” referendum, with Dutton positioning himself to represent the “outsiders”. To counter this, the “Yes” campaign will rely on settler Australia’s preparedness to endorse the principle of self-determination in the Referendum Council’s extensive consultations. If it fails, it won’t just damage Albanese’s government. It risks injuring the Uluru statement’s entire project, and pushing treaty back yet another generation. The stakes are high.

Russell Marks

Russell Marks is a criminal defence lawyer and an adjunct research fellow at La Trobe University, where he completed a PhD in Australian political history. His most recent book is Black Lives, White Law: Locked Up and Locked Out in Australia. He lives on Kaurna land.

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