A Voice of Division

“Give every man thine ear, but few thy voice.” This well-known piece of advice by a Shakespearean counsellor at Hamlet’s court has not been heeded by those who are pressing for an Aboriginal “voice to parliament”, a proposal for constitutional change that is said to be the best way of providing for the recognition and empowerment of indigenous people.

The counsellor’s advice suggests that when it comes to managing affairs one should listen to what is said in all corners of the state and speak carefully. Ill-chosen words may lead to friction. With a nod to the need for integrity, he adds a little later: “This above all, to thine own self be true.” That is, the speaker’s voice must not seem contrived or out of character. It has to reflect his or her values. It has to be clear and authentic.

This essay appears in the latest Quadrant.
Click here to become a subscriber

The Australian Constitution, in a clear and authentic form, enriched by democratic values, lays out a system of federal government, the relationship between the central institutions and the distribution of powers between them. Within this framework, the government of the day, elected by people in every corner of the Commonwealth, is required to attend to the immediate and long-term needs of the national community. In a parliamentary democracy of this kind, with a House of Representatives where governments are formed and an upper house of review known as the Senate, how will the current “voice to parliament” proposal be fitted in? Are those for change giving every man their ear, or are they listening only to the plea of a particular group? Are those for change speaking with a clear and authentic belief that the creation of a special voice is consistent with the democratic values implicit in the Constitution, or is what they say clouded by emotion and self-interested rhetoric?

The 2017 Uluru Statement by indigenous leaders about recognition declared that Aboriginal and Torres Strait Islander “tribes” were the first “sovereign” nations of the Australian continent and adjacent islands: a vast canvas dotted with laws and customs of the various tribes. The statement called for the establishment of “a First Nations Voice enshrined in the Constitution”. Soon afterwards the Referendum Council appointed by the Turnbull government proposed that the Constitution be amended to provide for a representative body that gives indigenous people a voice to the federal parliament and the right to be consulted on matters that affect them.

The details of this proposal have not yet been worked out. Various commentators have suggested that in the absence of a right to veto legislation the proposed Aboriginal advisory body, the so-called special “voice to parliament”, is a comfortable fit with the structure of responsible government, although it is clear from the context that this will not be a voice for all citizens but a voice for a certain section of the community defined by race.

A Joint Select Committee of the federal parliament presented a report in November 2018 which seemed to accept that the special voice proposal had merit. The committee concluded, however, that further work was required to refine the proposal before it could be usefully submitted to the Australian people as a possible amendment to the Constitution. The committee recommended that the government initiate a process of “co-design” with indigenous leaders as a means of achieving the voice “that best suits the needs and aspirations of indigenous peoples”. For ease of reference, I will speak of the “special voice” as a term for recommendations favouring the proposal provided initially by the Referendum Council and a year later by the Select Committee.

At a first glance, the special voice proposal seems quite contrary to the democratic credo underlying the system of parliamentary sovereignty mentioned earlier. The term “sovereignty” is generally understood to mean the source of authority within a nation-state for the legitimate exercise of power. Does the term “sovereignty” truly fit the circumstances outlined in the Uluru Statement, the description of a continent inhabited by a multiplicity of tribes, a vast mosaic supposedly governed by laws and customs equivalent to an overarching authority of the kind constituted by the federal parliament in Canberra? Or are the proponents of the special voice, in their search for empowerment, using words in an artificial way and, if so, to what end?

While pondering these questions one must keep in mind not only the contentious meaning of the term “sovereignty” but also the reality that the Australian Constitution is enriched by conventions dating back to Magna Carta. These include the rule of law: the idea that all citizens, high and low, are bound by the same provisions, to be applied impartially. The special status of the individual is underlined in the Australian context by the fact that constitutional change can only be accomplished by a referendum measuring the response of individual voters throughout the land. Will considerations of this kind be affected by using words in a new way or by amendments entrenching a proposal that seems to favour the wishes of a particular racial group?

It will be useful to look briefly at some history bearing upon these issues. I will do so by drawing upon the life and times of my late father, who had a lengthy involvement in Aboriginal affairs. What can be learnt from the work of policy-makers and administrators in his era?

Paul Hasluck was born in Fremantle in 1905. After winning a scholarship to Perth Modern School, he worked as a journalist on the West Australian newspaper and soon became interested in Aboriginal affairs. Towards the end of 1933 the state government decided to appoint H.D. Moseley, a local magistrate, as a Royal Commissioner to investigate the social and economic conditions of Aborigines in Western Australia. On the announcement of Moseley’s appointment Hasluck wrote a series of articles bearing upon the issues to be investigated which led eventually to the publication of his book Black Australians.

Hasluck showed that in early pronouncements the Aborigines were to have the full status and rights of British subjects, but with the spread of colonial settlement these ideals had been neglected. There had been no real policy of planning a future for the Aborigines in later years save for some attempt to protect them from some of the injurious phases of colonisation. The time was overdue to plan a future that was not based on an expectation that sooner or later they would die out. Planning could only proceed, he contended, when administrators had a deeper knowledge concerning the capability of indigenous peoples and of their living conditions.

Hasluck’s coverage of the Moseley Commission drew attention to a matter frequently overlooked by would-be reformers but central to any sensible discussion concerning Aboriginal affairs. In a state the size of Western Australia there was a wide variety of conditions, from fully tribal Aborigines in the remoter parts of the Kimberley, through cattle stations where tribal life was only slightly disturbed, and into the missions, small towns and settlements in all corners of the state where significant changes were taking place including exposure to European education. There were differences between those from a traditional background and those of mixed descent, some of whom were living in urban and white communities.

It was apparent to many observers by the late 1930s that there was a need in all cases, as a matter of law, for observance of the early ideal, namely, that the original inhabitants should be treated as British subjects with the rights and responsibilities of citizens. But it was apparent also that daily needs might vary from one region to another. Policies and protective measures should be shaped accordingly. And yet, as it still is today, administrators and many others were accustomed to using the term “Aboriginal” without differentiation, as if people of Aboriginal ancestry were an entirely cohesive group.

Proposals for reform were stalled by the outbreak of the Second World War. A chance encounter with a fellow journalist, John Curtin (who was about to succeed Menzies as Prime Minister) led to Hasluck joining the Department of External Affairs in Canberra. After the war, as a member of the Australian Mission to the United Nations, he worked closely with Dr Evatt, but felt obliged to resign when the Labor minister’s practice of favouring certain subordinates became intolerable. Not surprisingly, Hasluck was soon persuaded to join the newly-created Liberal Party. He was elected to the federal parliament in 1949.

Drawing upon his earlier experiences in the Kimberley and at the United Nations, Hasluck spoke powerfully about the need to improve the status and the treatment of Aboriginal people. In 1951 he was appointed Minister for Territories in the Menzies government. At that time the powers concerning Aboriginal peoples were principally vested in the state governments, with the federal government being responsible for the Northern Territory. There was, of course, some resemblance between policies and practices in each state, partly referable to the concept of “assimilation” that had been the subject of discussion before the war.

The new federal minister quickly convened a meeting in Canberra of state ministers and senior office-bearers with a view to agreeing the case for equality, bearing in mind, due to intermarriage and movement to urban areas, that assimilation was taking place in practice, save for remote communities. After the resolution of certain differences, the minister reported to parliament in 1961 that the policy of assimilation had been approved by the various Australian governments. It aimed at ensuring that all Aborigines and part-Aborigines would live as members of a single Australian community, enjoying the same rights and opportunities as other Australians, and accepting the same responsibilities.

This approach was widely accepted. At that time, with the arrival of many European migrants, the term “assimilation” was viewed as a benign description of what seemed to be the norm—a means of living harmoniously in accordance with an Australian, and essentially egalitarian, way of life. The push for integration was driven by a feeling that Australia needed cohesion, a single clear focus of loyalty that stood above sectional or racial preoccupations. Respect for one government under the rule of law, and a body of law applying equally to all citizens, seemed essential.

Some years later, the 1967 referendum provided for an expansion of Commonwealth powers over Aboriginal affairs. This change was approved by a large majority of the Australian people. This was probably due to a belief that more should be done to help Aborigines and to redress the wrongs they had suffered. But on any view of the matter, the constitutional change did not appear to imply that there should be two systems of law in Australia or two different classes of Australian. The vote accepted the sole sovereign authority of the institutions established by the Constitution but went some way towards removing any differentiation between citizens on the ground of race.

In his biography—Paul Hasluck: A Life—the eminent historian Geoffrey Bolton noted that by the time the 1967 referendum was held Hasluck had left the Territories portfolio to become Minister of External Affairs. He went on, some years later, to serve as Governor-General. However, as to Aboriginal affairs, Bolton said that Hasluck’s achievements could be simply stated:

In 1933, when Paul Hasluck first began to take a serious interest in Aboriginal issues, every Australian state and territory excluded Aboriginal people from citizenship and placed them under restrictive and frequently degrading regulations. Thirty years later, when he ended his term as federal Minister for Territories, it was uniformly accepted that the first Australians had an inherent right to citizenship, and if some were still subject to restraints and limitations, official policy should work towards eliminating those arrangements as soon as possible. Race should not be the determinant of citizenship. As activist in the 1930s and as legislator in the 1950s and early 1960s, Hasluck was a leading agent for change. The referendum of 1967 that amended the Commonwealth Constitution to accommodate this change is remembered as a symbolic moment. It could not have taken place, and would not have secured such widespread assent, but for the clearing away of much of the old legislation and the attitudes of mind that supported it. Paul Hasluck played an important and honourable part.

In his memoir Shades of Darkness, written in retirement, Paul Hasluck ended his account of the earlier period and the shift to self-determination as follows:

One immediate change in method was the sudden transference of a number of fully-assimilated persons of part-Aboriginal descent into professional Aborigines who, with the entitlement of having one Aboriginal among four of their grandparents, became the confident authorities on “the way of their people”. More seriously, another outcome was the reawakening and at times the active promotion of racial divisions and antipathies. The new policy was avoiding the fact that a return to the past is never a solution to the problems of the future …

Fifty years ago we saw the relationship of white and coloured as a social problem … An earnest effort was made to change Australian neglect and indifference towards Aborigines, to improve their conditions and to raise their hopes for the future. We strove for the full recognition of their entitlements—legally as citizens, socially as fellow Australians.

Space forbids a full review of all the factors that led eventually to a widespread disparagement of assimilation, a process of integration characterised in some quarters as an overly paternalistic approach to indigenous affairs. The new credo of self-determination was presented as a fresh start but was arguably a comparable, albeit less transparent, form of governmental supervision, with funding often controlled by bureaucratic corporate bodies or imported community advisers. The latter, in some far places, when they flew in for a day, were known as “tippin’ elbow” men, because they spent most of the day looking at their watches before flying out again mid-afternoon. Moreover, at a time when many people of Aboriginal descent were by now living in towns and cities, it was not clear how the new credo applied to such people. One way or another, the scene was set for the divisive debate now known as identity politics.

The jury is still out as to whether self-determination has actually improved the welfare of people in remote communities. A former community manager, Tadhgh Purtill, in his recent book The Dystopia, describes in graphic detail the breakdown of social control in certain Aboriginal settlements following the introduction of self-determination in the 1970s and thereafter. He points out that the unresolved tension between inclusion within and separation from mainstream society continues to be a key factor. These two alternatives are at odds with each other, and therefore counter-productive, but they are both in play in contemporary times when it comes to what happens in remote communities. This tension between the two alternatives can lead to the apparently paramount importance within some organisations of ensuring the continued flow of governmental funding, as opposed to the conclusive solution of the social problems which were used to justify the funding in the first place.

New credo or not, the world is what it is. Like others, people in remote communities are subject to the temptations of the era from mobile phones to video games and glossy advertisements. The preservation of culture in the self-determination era requires people to learn and conform to cultural rules, but the era’s emphasis upon autonomy implies the moral primacy of communal or personal choices which can be used to defend misconduct of a non-cultural kind, such as drug-taking, alcohol abuse, or general disregard for the social mores that mainstream Australians regard as minimally acceptable regardless of cultural background.

It would be a bold person indeed who claims to have all the answers in this complex field. Progress has been made since the Second World War, but incrementally, in fits and starts. An unfortunate aspect of the ongoing debate is the way in which each generation of activists and commentators feels obliged to disparage the work of their predecessors. The fog of rhetoric spread by sanctimonious activists in contemporary times tends to obscure many previous achievements.

This brings me to the current era and to the matters I raised earlier concerning the proposed special voice to parliament, a proposal, if approved, that would give indigenous people a newly-created constitutional right to be consulted on matters that affect them, accompanied by the creation of an advisory body or special “voice” of some sort as a part of the parliamentary process.

In October 2017, in a joint statement with the Attorney-General and the Indigenous Affairs Minister, the Prime Minister at that time, Malcolm Turnbull, rejected the proposal for a special voice on the grounds that:

our democracy is built on the foundation of all Australian citizens having equal civic rights, all being able to vote for, stand for and serve in either of the two chambers of our national parliament. A constitutionally enshrined additional representative assembly for which only indigenous Australians could vote for or serve in is inconsistent with this fundamental principle.

Reliance upon this basic point of principle was entirely consistent with the democratic credo reflected in the Constitution and the changes effected by the 1967 referendum, changes that were in keeping with the existing parliamentary structure and the move towards general equality that had been gradually taking place throughout the country. Indeed, both then and in later years, the main thrust of debate was towards ensuring that the Constitution wasn’t disfigured by provisions mentioning race.

Unfortunately, however, as appears from an editorial in the Weekend Australian of October 28, 2017, “the manner in which the decision emerged—a newspaper leak followed by a statement from Turnbull—was inadequate. A definitive decision on such a sensitive matter warranted a parliamentary statement or a major announcement.” In dealing with the role of the special voice, the editorial said also that the issue presented to Turnbull’s Liberal National Party government by the Referendum Council was confused by talk of treaties. The reality was that “the indivisible nation of Australia could not make a treaty with itself”.

The feeling of confusion ran on. Various reports drew attention to the Prime Minister’s belief that the proposal for a special voice wasn’t capable of winning support at a referendum, and the so-called voice, whose members would be elected by indigenous groups, would inevitably be seen as a third chamber of parliament.

Turnbull’s point about public perceptions, of how a new body would be “seen”, raised an important issue that called for an answer by proponents of the special voice. Against a background of contentious debate as to who fell within the term “Aboriginal”, at a time when the term “sovereignty” was being reconfigured, the advisory body would almost certainly become a lightning rod for protracted debate about a vast array of current issues. It might turn out that nearly every matter of current concern on the national agenda would be seen as having an indigenous component of some kind. The paralysis of the parliamentary process induced by endless debate about a multiplicity of issues might not amount in law to a formal power of veto within the parliamentary process, but that could well be the effect of such a debate in practical terms: in many cases the approval of the advisory body would have to be obtained before a parliamentary bill could be enacted. Approval could well be difficult to achieve in contentious cases, with or without political horse-trading or financial sweeteners.

There is room for argument about this, of course, but an answer to Turnbull’s point—his concern that the special voice would be “seen” as a third chamber—was never provided. Proponents of the special voice shied away from saying how the special voice would operate in practice or what might happen if the special voice’s advice was the catalyst for a widespread political controversy. Instead, they tried another tack. They claimed that Turnbull had wilfully misrepresented the true position because, in the absence of a formal power to veto legislation, the indigenous voice could not truly be characterised as a third chamber of parliament. Turnbull was castigated also for supposedly basing his decision on the likelihood that the proposal would fail at a referendum. Inevitably, his critics felt obliged to mention his association with the failure of the referendum for a republic, as though this too might have prompted his refusal to proceed.

It was clear to many observers as the furore ran on that Turnbull’s comments about a third chamber were not directed to legal technicalities such as a formal power of veto. The crucial factor was how the special voice would be “seen”. He was making a general point about political realities and the appearance of the newly-proposed body within the parliamentary structure. Nonetheless, the proponents of the special voice used their specious claim to propagate the misleading myth that the sole reason for rejection of the special voice proposal was because the Prime Minister had falsely characterised the body as a third chamber of parliament. Since that time sympathetic journalists and academics have been more than willing to perpetuate the myth.

With the benefit of hindsight, it now seems that Malcolm Turnbull didn’t make a sufficient effort to rebut the myth and to keep the debate focused on the central and very persuasive reason for rejection he provided initially: that the proposal for a special voice to parliament based on race was contrary to the democratic credo of a constitution designed to secure the rule of law and provide equal civic rights for all. That on any view of the matter, and especially when thought is given to how the special voice would operate in the arena of daily politics, the special voice’s indigenous constituency, defined by race, would obtain a privileged position in the parliamentary process pursuant to an “enshrined” constitutional entitlement, a right of audience not held by individual citizens or by any other section of the community.

Malcolm Turnbull appeared to lack the courage and clarity of mind to stand fast and defend his basic point. In contemporary times, in an era of identity politics and corrosive political correctness, one doesn’t have to dig too deep to understand why this might be so. In these troubled times, when it comes to any matter involving race, politicians, and even citizens, have to be very cautious in what they say. If one has built a career on appearing to be up to date, in step with the times, nurturing and being nurtured by the trend setters, one has be very careful indeed, especially in the seat of Wentworth, it seems.

Virtue signalling, the need to show sympathy for indigenous causes, has become so pervasive that academics, leaders of professional bodies and even captains of industry are now scrambling to profess their affection for the special voice. BHP and Rio Tinto, it seems, will be dipping into shareholders’ funds to sweeten their suit, although many people, including some of their shareholders, may find the flirtation somewhat crass. Are they aiming for concessions on native title lands by waving through a radical change to the Constitution? Or are they simply going with the flow? Doing what has to be done to please politically correct observers?

In a preface to his allegorical novel Animal Farm, George Orwell summed up neatly:

At any given moment there is an orthodoxy, a body of ideas which it is assumed that all right-thinking people will accept without question. It is not exactly forbidden to say this, that, or the other, but it is “not done” to say it, just as in mid-Victorian times it was “not done” to mention trousers in the presence of a lady. Anyone who challenges the prevailing orthodoxy finds himself silenced with surprising effectiveness …

If the intellectual liberty which, without a doubt, has been one of the distinguishing marks of western civilisation means anything at all, it means that everyone shall have the right to say and to print what he believes to be the truth, provided only that it does not harm the rest of the community in some quite unmistakable way.

When Turnbull was overthrown by his party a year after his rejection of the special-voice proposal there was a good deal of speculation as to why he lost the leadership. A factor in his downfall may have been his lack of resolution in standing up for basic principles of the kind involved in the special-voice controversy. He may have been contrasted unfavourably to the much-admired inaugural leader of his party. In his “Forgotten People” speeches, Robert Menzies emphasised, as an article of faith, the importance of upholding for all citizens the rights and responsibilities of individuals, without succumbing to the demands of sectional interests.

The pressure to conform in regard to indigenous issues, to yield to any demand that could lead to accusations of racism if refused, is now pervasive in Australia. Outrage can be easily confected and accusations of racism are difficult to refute. It is apparent from the Uluru Statement itself, in which communities formerly seen as tribes are now described as First Nations, and are said to have been exercising a national sovereignty of sorts, that considerable skill has been exercised in crafting plausible narratives to underpin the matter in hand, in this case the creation of a special or privileged position in the parliamentary process. It brings to mind an aphorism coined by that famous parliamentarian Edmund Burke: “Between craft and credulity the voice of reason is stifled.”

If a prime minister can be stifled, shamed into silence by a prevailing orthodoxy, then it will be difficult indeed for an ordinary citizen to test the case for a special voice by asking some pertinent questions, about the adverse effect of the proposal on the structure of government, and about the way it would work in practice. If it is approved, the likelihood is that many members of the indigenous advisory body will feel obliged to conform to whatever is the current orthodoxy favoured by their leaders, from demands for treaties to claims for ownership or actual sovereignty over portions of the continent. They will, in any event, be focused upon outcomes that suit their indigenous constituency, because that is the purpose of the body. They will not feel obliged to give every Australian their ear before speaking with their special voice, or to look closely at what is best for the country as a whole. The Select Committee has said, quite plainly, that it wants a voice “that best suits the needs and aspirations of indigenous people”.

The obverse side of individual rights is individual responsibilities. This means, of course, that when an attempt is made to vest special entitlements in a particular group, the nature of the group’s responsibilities will be problematic, especially when the group is diverse, ranging in this case from people living in remote communities with limited resources to people of Aboriginal descent living in suburbs or working in universities. Perhaps this is why some prominent people in the field of indigenous policy in recent times have been inclined to favour policies based on identity rather than need. They haven’t lived in the stark conditions that many indigenous people contend with and they tend to believe that the politics of compassion can dispense with evidence.

Unlike the 1967 referendum, the plea for constitutional change in 2019 is being driven principally by sentiment and a related push for new forms of empowerment. The case for a special voice has not been fully tested by the voice of reason and is fraught with hazard. It is questionable whether constitutional changes should be used as a vehicle for social reform, especially in a field in which policies and practices are still evolving. The best way forward for Aboriginal citizens is an unresolved and vital contemporary issue, and even within indigenous communities the nature of Aboriginal identity remains in contention.

The work of the Moseley Commission in Western Australia close to a century ago confirmed that indigenous people have been subjected to severe indignities and disadvantages. Attempts have been made to ameliorate their plight but the complexities of the situation including the variety of their circumstances have meant that much remains to be done. The remedial mood has led to significant changes in governmental policies and practices, and to some extent also at the level of constitutional law, as evidenced by the decision of the High Court in Mabo. But a remedial mood, of itself, is not necessarily enough to justify a profound change to the structure of the parliamentary process established by the Constitution.

The Australian Constitution was cast in a form that was intended to serve the country as a whole and to endure. It was designed to resist the plasticity of transient ideas or prevailing orthodoxies. The referendum process, involving all voters in every corner of the Commonwealth, is there to ensure that proposals for change are defined exactly and, by seeking to improve the workings of government, that they will help to secure the sense of cohesion upon which a nation-state depends.

The Referendum Council and the Select Committee seek to persuade the public that with a peck of public relations and a dash of some further phrase-mongering the special-voice smorgasbord will be a feast fit for a referendum. But the composition of the advisory body, the scope of its indigenous constituency and the range of matters to be referred to it remain vague. The way in which it would operate in practice has not been properly worked out. And yet, prior to any process of co-design as recommended by the Select Committee, the Morrison government in its recent budget papers set aside $7.3 million to progress a First Nations Voice to Parliament as if the myriad of prickly issues reviewed by the Select Committee are all close to being resolved. A pattern of irresolute drift towards a referendum is further evidenced in the budget papers by a contingency reserve funding item of $160 million as “a provision for the Indigenous Recognition Referendum” in 2020-21.

The Labor Party seems to be of the same somewhat unclear state of mind. In the recent election campaign it committed itself to the holding of a referendum but without saying what exactly was to be decided. Its principal spokesman, Senator Dodson, who was co-chair of the Joint Select Committee, was fully aware, no doubt, that the committee received no fewer than eighteen different formulations of proposed amendments for possible submission to the public. None of these were endorsed by his committee, for his colleagues were adamant that no further step should be taken until a process of “co-design” had been completed.

In addition to its undemocratic nature, the so-called special voice will erode the federal structure established by the Constitution. For example, as to whether the special body’s advice should be submitted not only to parliament but also to anyone exercising governmental power, a leading academic observed (at para 140 of the Select Committee’s report) that if the federal government of the day was indifferent or hostile to the advice the special voice could then “leverage” its relationship with any state or territory government that seemed receptive to its views, or even with local government bodies, and “continue to advocate for indigenous interests”. On this scenario, the special voice will rally support for its advice wherever it can until the government gives way.

To throw a spanner like this into the workings of the federal system didn’t seem to bother the academic in question. A continuous crunching, grinding sound? No worries. Just another echo in the academic echo chamber, another drum roll in the postmodern pit of identity politics, as in the ABC show called The Drum where the outrage of the perceiver is generally treated as more important than the reality of the event perceived.

Like Native Title, Kevin Rudd’s Apology and the creation of ATSIC, the special voice won’t bring closure to the indigenous quest for empowerment. In Dylan Lino’s book Constitutional Recognition (2018), which provides an overview of indigenous strategies since 1967, the author—a contributor to the Uluru Statement—states quite plainly: “Indigenous constitutional recognition should be understood not as the achievement of a final postcolonial settlement but as an ongoing process of contesting and renegotiating Indigenous and settler peoples’ basic political leadership.” The co-chair of the Referendum Council, Mark Leibler, has said that the indigenous voice to parliament is not “a shield”. It is to be viewed as “a sword”.

Sabre-rattling of this kind by proponents of the special voice isn’t helpful. The verifiable reality is that the aspirations underlying the 1967 referendum, the moves to address disadvantage and secure an authentic sense of identity for indigenous citizens, can be achieved, and are being achieved, by familiar means—legislation and improved administrative practices—within the existing constitutional framework.

It emerges from the Select Committee’s report (para 62) that in contemporary times the biggest population centres for indigenous communities in Australia are not in remote regions but in Sydney, Melbourne and Brisbane. The interplay with contemporary life has meant that Aboriginal leaders are increasingly finding their way into positions of authority: in parliament, on the bench, in the professions and on university campuses. The process of mingling and power sharing is bound to continue, as will the important contribution to Australian culture of Aboriginal musicians, writers, painters and performers. It would be patronising and unworthy of any fair-minded person to think otherwise or to insist that special categories be created for Aboriginal artists.

History, including the unique indigenous history, must be respected, but it cannot be rewritten. The form of government established by the Constitution, and the laws made pursuant to it, have become a long-standing fact of life on this continent, and underlie the Australian achievement. They are a source of benefits for the entire community. Policies and related laws can be revised as circumstances may require but the Constitution, as appears from the Preamble, is based on the will of the people as a whole whom it was designed to unite and govern. It was cast in a form that allows for change but is resistant to proposals or entreaties from sectional interests. It assumes that parliamentary institutions will not act as a voice for any particular group but as a voice for all.

The issue to be resolved is not whether the indigenous constituency should simply be given what it wants, as set out in the Uluru Statement, and as a matter of goodwill. There is far more at stake. The central issue is whether a group within the community defined by race should be given a constitutionally enshrined entitlement to participate in the parliamentary process in a way not open to other citizens.

A special voice with an advisory role defined by race is contrary to the democratic spirit of the Constitution, which is based on all citizens having equal democratic rights. Further, and in any event, although the special voice will not technically be a third chamber of parliament (because it will lack a formal power of veto) it will be seen as such and its presence will probably impede or at least seriously complicate the parliamentary process. This is because, as a matter of political reality, its approval will probably have to be constantly negotiated. If its advice is consistently accepted in the course of negotiations this will suggest that it has a special power or influence of some sort and that benefits can be obtained on the ground of race which may not be available to the wider community. If its advice is consistently ignored this will, understandably, not be acceptable to the indigenous community and may lead to unwanted friction.

The special-voice proposal is divisive. As matters stand, it is far too vague to be put to a referendum as a proposed amendment to the Constitution. This is partly due to the legal complexities, and partly to broader concerns. The case for constitutional recognition is rooted in the unique history of the indigenous people and the privations they have endured in the wake of European settlement, but weight must also be given to the ideals reflected in the Australian Constitution and to the achievement facilitated by its institutions, bearing in mind that the realities of modern life and the identity of the parties to any new arrangement are not as they once were at the time of European settlement. These concerns have not yet been fully debated or the appropriate balance worked out.

A careful appreciation of the realities suggests that at a constitutional level the challenges of the future cannot be solved by a return to grievances of the past. It would be an act of folly for a government of any political persuasion to let the special-voice proposal drift towards an ill-fated vote, because its failure at a referendum would almost certainly be seized upon by activists as supposedly a sign of widespread racism. It would be used to foster turmoil and division. If the campaign for change does continue, parliamentarians and electors should heed the advice of the Shakespearean counsellor at Hamlet’s court. They should be true to their own selves by speaking up and defending familiar democratic values, because ill-advised changes to the Constitution will cause lasting damage.

A case for change must be presented in a clear and persuasive form. It should not be clouded by rewritten history, artificial language, current orthodoxies or confected outrage. It should be tested by rational debate in which the government gives an ear to every point of view. If Australia is to solve its differences peacefully it should stay true to what its Constitution represents: a stable framework of government within which reforms for all can be enacted, including reforms for the benefit of indigenous people. Thus, on this occasion, instead of standing by, people of goodwill should make their voices heard before it is too late.

Nicholas Hasluck is a former judge of the Supreme Court of Western Australia. His latest book of essays, Jigsaw: Patterns in Law and Literature, was published last year by Australian Scholarly Publishing.