Aborigines Want More Than a Voice in Parliament

The Council recommends: 1. That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament. One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.
—Final Report of the Referendum Council, June 2017

If all that the Referendum Council wanted was a representative body of indigenous people to act as a federal government adviser on social policy to improve Aboriginal health, education, welfare and other practical issues, there was no need for constitutional change to make it happen. The demand for an Aboriginal “voice” in the Australian Parliament, which the Council has now recommended to the Prime Minister and Leader of the Opposition, is nothing new. There have been Aboriginal advisory groups commissioned by the federal government more or less continuously for the past fifty years: the Council of Aboriginal Affairs 1967–1973; the National Aboriginal Conference 1977–1985; the Aboriginal and Torres Strait Islander Commission 1990–2005; and the National Congress of Australia’s First Peoples 2010–present.

Giving a body like this constitutional approval would make it a more permanent fixture within our political system and, the Referendum Council argues, would mean its voice could not be dismissed by government, as has happened sometimes in the past. “A constitutionally entrenched Voice appealed to Aboriginal and Torres Strait Islander communities because of the history of poor or non-existent consultation with communities by the Commonwealth,” the Council’s report says. “Consultation is either very superficial or it is more meaningful, but then wholly ignored.” The report says its new body could fix this: “The logic of a constitutionally enshrined Voice—rather than a legislative body alone—is that it provides reassurance and recognition that this new norm of participation and consultation would be different to the practices of the past.”

At the Garma Festival in Arnhem Land in early August, Malcolm Turnbull was non-committal about this proposal but Bill Shorten pledged that a future Labor government would endorse it.

Although it would be up to the parliament to decide what further definitions of the structure and role of “the voice” would be, the Council has some non-negotiable views of its own on what should be done. It expects that the body would be established in accordance with the wishes of Aboriginal people. Their continued support, the Council says, would be necessary for the success of the proposal. It also recorded the following conditions which it wanted adhered to:

Any Voice to Parliament should be designed so that it could support and promote a treaty-making process. Any body must have authority from, be representative of, and have legitimacy in Aboriginal and Torres Strait Islander communities across Australia. It must represent communities in remote, rural and urban areas, and not be comprised of handpicked leaders. The body must be structured in a way that respects culture. Any body must also be supported by a sufficient and guaranteed budget, with access to its own independent secretariat, experts and lawyers. It was also suggested that the body could represent Aboriginal and Torres Strait Islander Peoples internationally. A number of Dialogues said the body’s representation could be drawn from an Assembly of First Nations, which could be established through a series of treaties among nations.

In other words, the eventual goal of “the voice” would be to make treaties between the Commonwealth and what it calls the First Nations. The Council’s report notes that the demand for a treaty or treaties was a priority demand of the indigenous conventions leading up to the Uluru Statement of May 2017:

The pursuit of treaty and treaties was strongly supported across the Dialogues. Treaty was seen as a pathway to recognition of sovereignty and for achieving future meaningful reform for Aboriginal and Torres Strait Islander Peoples. Treaty would be the vehicle to achieve self-determination, autonomy and self-government.

So, rather than one “black state” as envisaged in 2001 by Geoff Clark of ATSIC, the latest proposal is for each individual clan or language group to be recognised as a First Nation and for the Commonwealth to make a treaty with each one, as if it was a separate state. As I record in The Break-up of Australia, this is a political outcome advocated by both Noel Pearson and Warren Mundine. They want statehood, self-government and an independent legal system for each self-identifying Aboriginal clan that gains native title. And they want the Australian taxpayer to fund it all.

In its recommendation to the Prime Minister and Opposition Leader, the Referendum Council spells out one specific function for “the voice”. It calls for legislation that “should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122”. Section 51 (xxvi) gives the Commonwealth the power to make laws for any race of people. Section 122 allows the Commonwealth to make laws for any territory surrendered by any state or otherwise acquired by the Commonwealth and allows the representation of that territory in either House of the Parliament. In short, if constitutional change along the lines recommended by the Referendum Council is successful, it looks forward to the government acquiring new Aboriginal states or territories and accepting them into the Commonwealth.

This is obviously a program for a radical revision of the Australian federation—all of it in the interests of Aboriginal people, but with no thought about how it could possibly be in the interests of the rest of us.

At the moment this is a wish-list only, since there are some big political steps that need to be taken before it could become a reality, but this is nonetheless the direction in which Aboriginal politics is clearly headed.

The first political step in the process will be for the parliament to decide what powers this new body would have. Giving it constitutional status raises obvious problems from the outset. For a start, the new body would represent a major change to the structure of our parliamentary system. It would amount to a second house of review, after the Senate. Even if it was not given direct voting power but relied on moral persuasion only, this would still give it an extraordinary status. The Australian parliament would then comprise the House of Representatives, the Senate, and the Aboriginal House of Review.

Hence those who once imagined that Aboriginal recognition could make the nation complete so that all Australians can walk forward together, as Tony Abbott used to say, are kidding themselves. The Referendum Council’s proposal breaches the long-standing Australian principle that our parliamentary democracy is based on one person, one vote. Aborigines would get one more vote than anyone else to elect their own House in the parliament.

A new political institution that privileged one group of Australians over others, that conferred a political status on one ethnic identity group that was not available to anyone else, would breach one of the fundamental principles of Federation. This proposal alone, not to mention the political baggage of treaties and sovereignty in its train, would divide our nation permanently.

Its advocates also seriously underestimate the difficulties their structure would pose for the workability of parliamentary democracy. Nor have they thought out how the inevitable disputes that arise would play out in the national news media.

Once such a structure was in place, any government seeking to pass legislation relevant to Aborigines would need to gain the approval of all three bodies: the House of Representatives, the Senate and the Aboriginal House of Review. It is not hard to see that there are inherent difficulties in deciding where Aboriginal interests begin and end. The Referendum Council’s report recognises this is a likely problem but offers no solution:

It would not be realistic to provide advice on all matters “affecting” Aboriginal and Torres Strait Islander peoples because most laws of general application affect such peoples. On the other hand, it may be too narrow to limit the subject matters to laws with respect to Aboriginal and Torres Strait Islander peoples because some laws of general application have particular impact on or significance to such peoples.

In other words, any proposed Commonwealth policy that affects all Australians, say in health, education or welfare, will naturally affect Aboriginal people too. In these cases, the Aboriginal house of review would inevitably want its own voice to be heard. Like the Greens, its members would not be content to stick with their originally designated field of interest, but would want a voice in any policy area they decide is in the interests of their people.

But even if this problem could be overcome by some judicious definition of the house of review’s legislative scope, it still leaves room for plenty of moral and political pressure. The new house’s pronouncements could assist or frustrate governments on policy related to mining, pastoralism, agriculture and especially on environmental issues where radical Aboriginal and green activists have long formed mutually supportive alliances.

Even on Aboriginal-only issues closer to home, there would be plenty of ground for playing politics. The Referendum Council’s own report unwittingly predicts this. It says one of the functions of the Aboriginal house should be monitoring the Commonwealth’s use of its existing race power. “This means,” the report says, “that discriminatory legislation like the Northern Territory Emergency Response would be contested before it originates.” This is a leftist interpretation of the policy launched by the Howard government in 2007 to stem a spate of domestic violence against women and sexual abuse of children by adult men, including clan elders, in remote communities in the Northern Territory and the Kimberley. To talk about it simply as “discriminatory legislation” rather than an attempt to protect the women and children in remote communities indicates where the political sympathies of the report’s authors lie.

Hence it is not hard to see that the outcome of this political privilege for Aboriginal affairs would be a strengthening of radical Left politics. Given the assumptions now entrenched within the leadership of the Aboriginal political class, the proposed house of review would quickly become a critic of mainstream Australian politics. It would be a voice that criticised both Liberal and Labor governments from the Left, while continuing to press its own self-interest for increased funding to solve its own people’s never-ending social and welfare problems.

The Referendum Council denies this would happen because: “It is not suggested that the body should have any kind of veto power.” Anyone who believes this should consult the report of the Council’s sole dissenter, Amanda Vanstone. This former Minister for Indigenous Affairs in the Howard government makes it clear that an Aboriginal house of review would exercise a de facto power of veto: “Advice opposing a proposal before parliament,” Vanstone writes, “would in effect be perilously close to a veto.”

She goes on to predict that the likely outcome of the Council’s proposal will be more political antagonism rather than less. “It would be important that such a body did not become another combatant in a frankly all too combative political arena.” That would be a terrible outcome for everyone, she says: “What was intended to be a unifying and progressive move forward could turn into a lightning rod for discontent.”

In 2012, the “expert panel” on indigenous constitutional recognition, chaired by Patrick Dodson and Mark Leibler, said it had received many submissions calling for recognition of Aboriginal sovereignty. However, the panel decided at the time that sovereignty was outside its frame of reference to “contribute to a more unified and reconciled nation” and “be capable of being supported by an overwhelming majority of Australians from across the political and social spectrum”. In 2017, however, the Referendum Council, chaired by Mark Leibler and Pat Anderson, has now jettisoned any earlier doubts about sovereignty and supports the government making treaties with Aboriginal people as if they constitute “First Nations”.

So, will a referendum with this as its goal succeed or fail? The Referendum Council’s own research—telephone and online surveys of 5300 people—claims there is strong support for giving Aborigines a constitutional “voice” in the parliament. No less than 68 per cent of all those surveyed endorsed this. Among Aboriginal people, the figure was 93 per cent. The issues of sovereignty and treaties with government were not among the five topics put to survey participants. However, in an analysis of the total of 1111 submissions received by the Council, the report said there was “strong support” for a treaty even though submission authors were not asked to comment on the topic.

In other words, unless a strong public voice emerges to challenge these ideas they are likely to attract Commonwealth government support and trigger a referendum, perhaps during what remains of the current term of the Turnbull government but certainly in the term of its successor. If the Commonwealth does go ahead with a referendum, it should at least address something that is not yet on the table: it should publicly fund and properly publicise a fully investigated, well-articulated case for voting No.

The proposal for a Declaration of Recognition

The Council recommends: 2. That an extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian Parliaments, ideally on the same day, to articulate a symbolic statement of recognition to unify Australians.                             —Final Report of the Referendum Council, June 2017

In March 2013, the Gillard government steered through parliament the Aboriginal and Torres Strait Islander Peoples Recognition Bill. It recognised the existence of the Aborigines on the Australian continent and islands before the Australian nation came into being; it recognised their continuing relationship with their traditional lands and waters; and it acknowledged and respected their continuing cultures, languages and heritage. If the members of the Aboriginal political class wanted nothing more than formal recognition by the Australian government, they got it in that Act of Parliament in 2013. Yet the fact they still pursue recognition in the Constitution, as if the parliament had never made this gesture, is clear evidence that something else is going on.

The Referendum Council’s report makes it clear exactly what this something else is. It embeds within its own report—not as an appendix but in the main body of the report—verbatim extracts from the Uluru Statement. Hence both the Uluru meeting and the Referendum Council endorse a series of statements that:

• declare the existence of Aboriginal sovereignty over Australia

• demand the recognition of traditional Aboriginal law

• call for treaties between the Australian government and First Nations.

These demands are based on a version of Australian history, spelt out at length in the Referendum Council’s report, that is a radical travesty of the truth, a combination of assumptions that arose in the Black Power movement of the 1960s and which found expression among the Aboriginal Tent Embassy activists of the 1970s. Here is a slightly shortened extract from the Referendum Council’s version of Aboriginal history, which the Council believes should form the basis of its Declaration of Recognition:

We have coexisted as First Nations on this land for at least 60,000 years. Our sovereignty pre-existed the Australian state and has survived it. We have never, ever ceded our sovereignty. The unfinished business of Australia’s nationhood includes recognising the ancient jurisdictions of First Nations law. The Law was violated by the coming of the British to Australia. This truth needs to be told.

Australia was not a settlement and it was not a discovery. It was an invasion. Invasion was met with resistance. This is the time of the Frontier Wars, when massacres, disease and poison decimated First Nations, even as they fought a guerrilla war of resistance. Everywhere across Australia, great warriors like Pemulwuy and Jandamarra led resistance against the British. First Nations refused to acquiesce to dispossession and fought for their sovereign rights and their land.

The Crown had made promises when it colonised Australia. In 1768, Captain Cook was instructed to take possession “with the consent of the natives”. In 1787, Governor Phillip was instructed to treat the First Nations with “amity and kindness”. But there was a lack of good faith. The frontier continued to move outwards and the promises were broken in the refusal to negotiate and the violence of colonisation.

Eventually the Frontier Wars came to an end. As the violence subsided, governments employed new policies of control and discrimination. We were herded to missions and reserves on the fringes of white society. Our Stolen Generations were taken from their families.

But First Nations also re-gathered themselves. The Annual Day of Mourning was declared on 26 January 1938. It reflected on the pain and injustice of colonisation, and the necessity of continued resistance in defence of First Nations.

But as we mourn, we can also celebrate those who have gone before us. In a hostile Australia, with discrimination and persecution, out of their mourning they started a movement—the modern movement for rights, equality and self-determination. Through the activism of our leaders we have achieved some hard-won gains and recovered control over some of our lands. After the Mabo case, the Australian legal system can no longer hide behind the legal fiction of terra nullius. But there is Unfinished Business to resolve.

And the way to address these differences is through agreement-making. Through negotiated settlement, First Nations can build their cultural strength, reclaim control and make practical changes over the things that matter in their daily life. By making agreements at the highest level, the negotiation process with the Australian government allows First Nations to express our sovereignty—the sovereignty that we know comes from The Law.

The Constitution needed to recognise the traditional way of life for Aboriginal people … It would have to acknowledge the “Tjukurrpa”—“our own Constitution”, which is what connects Aboriginal people to their creation and gives them authority.

Despite the endorsement of the Referendum Council, it is not hard to show that a Declaration of Recognition based on this kind of narrative would be a caricature of Australian history. It falsely portrays people of Aboriginal and British descent as long-standing enemies and it misrepresents British, Australian and international law. Here are some of the more obvious objections to its assumptions:

Aboriginal people are the First Nations. Aboriginal clans, hordes and tribes, which in most cases were no more than large extended families, never attained nationhood either before 1788 or any time after. This was confirmed in 1836 in the seminal judgment of William Burton in the New South Wales Supreme Court and has been repeated several times since by Australian judges, including the High Court’s Harry Gibbs in 1979:

it is not possible to say … that the aboriginal people of Australia are organised as a “distinct political society separated from others”, or that they have been uniformly treated as a state … They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the law of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.

Aboriginal people never ceded their sovereignty. Before the colonisation of Australia Aboriginal people never had any sovereignty to surrender. “Sovereignty” is a term from international law, or what was called in the eighteenth century “the law of nations”. The two leading European authorities on international law at that time, Christian Wolff and Emmerich de Vattel, both argued that for a society to be a genuine nation it must have civil sovereignty over a territory and its people and, as a corollary, only nations could have genuine sovereignty. Aboriginal activists and their academic supporters such as Henry Reynolds have argued that, because the High Court’s Mabo judgment recognised that Aboriginal clans had their own laws that made them owners of their land, they therefore also had sovereignty over their territories. However, this wrongly assumes small tracts of land ownership entails national sovereignty. Burton’s 1836 judgment found the Aborigines did not have anything that amounted to what the British and other nations could regard as statehood or nationhood. He said they:

had not attained at the first settlement to such a position in point of numbers and civilisation, and to such a form of government and laws, as to be entitled to be recognised as so many sovereign states governed by laws of their own.

Aboriginal activists and their supporters are free, of course, to disagree with both international law and its interpretations by Australian judges, but in doing so they place their case outside the boundaries of debate in that field of jurisprudence. This means their views should not be taken seriously when it comes to the writing of a national Declaration of Recognition.

Australia was invaded, not settled, and the British colonisation was illegal. These claims are partly a matter of international law but also an issue within Australian frontier history. In eighteenth-century international law a “settled colony” was one which, at the time of its occupation by a European power, was either uninhabited or else inhabited by people whose political system and laws did not amount to those of a nation-state. In a colony of the latter kind, the laws that applied were not those of the local inhabitants but those of the new power. In early colonial New South Wales, the absence of any political structure among the Aborigines that the English explorers or members of the First Fleet could recognise as a nation or state meant they annexed it as a colony of settlement. This meant English law came into force, the British Crown became the sovereign of all the land it claimed and, in legal theory, the indigenous people automatically became subjects of the Crown, living under the protection of its laws. The legal judgment that eventually confirmed the settled colony principle was given in 1889 in Cooper v Stuart by the Privy Council. Yet the Referendum Council report wants us to go back and rewrite Australian legal history in order to accommodate today’s political demands.

For the first 150 years of their practice in Australia, historians and anthropologists agreed with the legal fraternity on the question of invasion or settlement. There was no warfare waged by Aborigines against the British arrivals and no sustained resistance to the British presence. The best and most comprehensive of these authors, Charles Rowley, was also the most sympathetic to the Aborigines’ plight. The title of his impressive work, The Destruction of Aboriginal Society (1970) might seem to be in the same mould as the originator of the warfare/resistance thesis, Henry Reynolds, but Rowley was quite insistent: “Aboriginal society lacked the type of organisation which makes possible a campaign of warfare.” The most common violence in any of the new colonial settlements was simple retribution, or “payback” by Aborigines against individual settlers or convicts who had stolen or destroyed their canoes or weapons, or abused their women. On some occasions, Aborigines used violence, or more commonly threats of violence, to purloin game taken from the bush by settlers and convicts or fish they took from the rivers and estuaries.

But Australian history never resembled the real warfare waged by other indigenous groups in the Pacific region, especially that of the Maoris in New Zealand. In the Maori Wars of the early 1860s, about 4000 Maori warriors battled 1800 British imperial troops and local volunteers. In one confrontation at Paterangi in January 1864, some 3000 Maori warriors from twenty tribes met in battle an imperial army of more than 2000 men supported by artillery and cavalry.

Nothing on this scale ever happened in Australia. According to Governor Arthur Phillip of New South Wales: “the natives … always retire at the sight of two or three people who are armed”. And according to Lieutenant-Governor George Arthur of Van Diemen’s Land, there was no “systematic warfare exhibited by any of them as need excite the least apprehension in the Government, for the blacks, however large their number, have never yet ventured to attack a party consisting of even three armed men”.

Although Australian academic history is dominated by supporters of the resistance thesis, the more convincing accounts of the early settlement of Sydney by Keith Vincent Smith, of Melbourne by Beverley Nance, and of Perth by Bob Reece, reveal the most common response by Aboriginal people to the British colonists was that of “coming in” or “accommodation”. Reece writes of the 1830s in Western Australia:

Far from retreating from white settlement, Aborigines were attracted to it, although their movements were still very much conditioned by [tribal] territorial boundaries and punishment for “trespassing”. Those groups closest to the main centre of settlement adjusted their traditional pattern of seasonal movement in response to the relatively easy availability of European food … Although the Aborigines knew they were being dispossessed, there does not seem to have been any continued resistance to this process. The Aborigines were ready to make pragmatic arrangements with the whites to compensate for the loss of their land and the livelihood which it represented, and this readiness was acknowledged by the white authorities. Aboriginal “attacks” on livestock and “thefts” of flour and other property on the edge of the settlement seem to have been a response to the whites’ refusal to share their resources rather than any “guerilla” effort to drive the whites away.

In other words, a Declaration of Recognition based on the Uluru Statement of the Heart would not contribute to reconciliation or a more unified nation. It would have the opposite effect.

How do its authors imagine such a document would be received by the non-indigenous people of Australia who now generously, and by and large without objection, fund Aboriginal communities to the tune of $30 billion a year (the most recently available total from the Productivity Commission’s 2014 Indigenous Expenditure Report)? This accounted for 6.1 per cent of total direct government expenditure in 2012-13, even though Aboriginal and Torres Strait Islander people make up only 3.0 per cent of the population. It means annual expenditure per person was $43,449 for Aboriginal people compared with $20,900 for other Australians.

Moreover, this discrepancy will in no way be addressed, let alone disappear, by giving Aboriginal people a voice in a de facto third chamber of the Parliament. This is a political proposal that would benefit no one except a small number who will get to strut their stuff on the national political stage. Indeed, it virtually guarantees the expenditure gap between black and white Australians will only keep on widening.