The Elites’ Ardent Advocacy of Inequality

On May 2, 2023, The Epoch Times published an opinion piece entitled Yes Is for Bringing Australia Together and Moving Forward and authored by Shireen Morris. It is an emotive, but groundless, exhortation to vote “Yes” in the upcoming Voice referendum.[1] Her piece deserves a reply, not because of the cogency of her arguments — there are virtually none — but because it is replete with gross misconceptions and wide, sweeping claims. For example, Ms Morris excoriates her opponents for claiming the proposed entrenchment of the Voice in the Constitution repudiates “a central tenet of liberalism—the idea that we should be treated equally.” For her, this claim presents “an ideological and unrealistic conception of liberal democracy.”  

The “central tenet of liberalism” that Morris so much decries is, presumably, the principle of political equality – the principle that burdens and benefits should never be distributed on the ground of a person’s race. This important principle of classical liberalism is based on the idea that everyone should be treated equally before the law, regardless of factors such as gender, ethnicity, religion, etc. In other words, in matters of law equality must be prioritised and discrimination minimised.

For Morris, however, reliance on the liberal principle of equality is “rich, given the history of unequal treatment suffered by Indigenous people.” Her emotive and passionate plea for the Voice condones a violation of the democratic ideal of ‘equal citizenship’ so as to atone for the alleged systemic violations of the principle of political equality in the past. But she fails to explain how it is possible to correct past discrimination by ultimately condoning the introduction of a divisive system that will permanently violate the equal treatment of all citizens in the future. Essentially, her illiberal view is a backward-looking consideration that fails to consider the long-term future of Australia’s representative democracy.

The elites are presently pushing the argument that the Voice will do no more than provide advice to government on matters affecting the Aboriginal community.[2] However, according to Senator Jacinta Nampijinpa Price, such proposal will effectively “divide Australia along racial lines, entrench indigenous separatism, and constitutionally enshrine the idea that Aboriginal people are perpetual victims forever in the need of special measures”.[3] And since this proposal presupposes an inherent difference between Aboriginal Australians and non-Aboriginal Australians, at a philosophical level the Voice proposal is inherently illiberal, divisive and inequitable. As Janet Albrechtsen correctly puts it, “it creates permanent race-based privilege and turns Australia into a constitutionally endorsed two-tier society”.[4]

Another of Morris’s argument, that Australia’s history is a history of “unequal treatment”, is a simplistic exaggeration. This is not to say there were no horrible injustices committed against the Aborigines during our colonial history. In the second half of the 19^th century, the belief in Social Darwinism made far too many Europeans think that British colonisation of places such as Australia was proof of the racial inferiority of the indigenous peoples.^[5]

Fortunately, however, the colonisation of Australia was not primarily a Social Darwinian experiment. It was rough at times and some evil was undoubtedly perpetrated on its frontiers. But when colonialists dared to accuse the Aborigines of being less than entirely human, treating them as disposable beings and subject to violence, the majority of white colonisers relied on the egalitarian principles of Christianity to affirm the sinfulness of such a behaviour and the essential dignity of their Aboriginal brethren.^[6]  According to Professor Sanford Lakoff, the founding chair of the Department of Political Science at the University of California San Diego and a distinguished scholar in political philosophy and public policy,

The Christian teaching with the greatest implications for democracy is the belief that because humanity is created in the image of God, all human beings are of equal worth in the sight of God. Along with the Greek Stoic belief in equality as a reflection of the universal capacity for reason, this belief in shaped an emerging democratic consciousness, as Alexis de Tocqueville noted when he observed in the introduction to his study of democracy in America that Christianity, which has declared all men equal in the sight of God, cannot hesitate to acknowledge all citizens equal before the law.[7]

The Evangelical movement was particularly influential in Australia’s colonial days and a supporter of ‘settlerism’, the process of moving to a new land with the intention of personal and social improvement and accompanied by the belief that one should reproduce in the new colonial world what was best in the culture and values of the old.^[8] Inspired by the formidable William Wilberforce, many of the settlers in Australia set themselves to protect the Australian Aborigines.^[9] According to Dr Bella d’Abrera, the Director of Foundations of Western Civilisation Program at the Institute of Public Affairs,

the British colonists brought with them Christianity, which had positioned the individual as the locus of meaning, sovereignty and significance. Equality of man, individual dignity and the abolition of slavery were all bequeathed to the world by Christianity and Christian thinkers.^[10]

The indigenous peoples who occupied the Australian soil were comprised of “a collection of hundreds of tribes speaking different languages, devoid of collective political purpose or leadership, often at war with each other and without the structures to allow sovereign negotiations or dealings”.^[11] The attempt to identify certain aspects of the Aboriginal law resulted in the imposition of alien categories of thought on the tribal society.^[12] Despite the lack of recognition of their customary laws, the instructions from the British government to Governor Phillip provided for the legal protection of the Aborigines.^[13] Governor Phillip’s ‘Instructions’, dated April 25, 1787, contained the following provision applicable to the treatment of the Indigenous peoples:

You are to endeavour by every possible means to open an intercourse with the natives, and to conciliate their affections, enjoying all our subjects to live in amity and kindness with them. And if any of our subjects shall wantonly destroy, or give them any unnecessary interruption in the exercise of their several occupations, it is our will and pleasure that you do cause such offenders to be brought to punishment according to the degree of the offence.^[14]

This means Aborigines were legally recognised as ‘subjects of the Crown’, which entitled them to the protection of the law. As a result, white settlers were sometimes hanged for killing Aborigines. For example, Judge William Burton, who presided over the re-trial of white settlers responsible for the 1838 Myall Creek massacre of 28 Aborigines, sentenced seven of them to death by hanging.^[15]  

In her diatribe, however, Morris peddles the erroneous view that Indigenous Australians were “excluded from the Constitution of 1901 under a clause that said they should not be counted.” In reality, Aboriginal men acquired the right to vote in the 1850s under the constitutions of Victoria, New South Wales, and South Australia. They had the same right to vote as other male British subjects over the age of 21, and voting rights were extended to all Indigenous Australians in 1962. Presumably, she relies on Section 25 of the Australian Constitution to allege such “exclusion”, which is often provided as proof that the Constitution contemplates a denial of the franchise on racial grounds. This Section reads:

…if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

In a piece published in The Spectator Australia we have explained that this Section was included in the Constitution because, in the 1890s, Queensland and Western Australia still practised racial discrimination by not allowing people of exclusive Aboriginal ethnicity to vote in state elections.[16] The framers opposed this heinous practice and wanted to bring those states into line with all the others, where Aborigines already had the franchise. Accordingly, Section 25 is an anti-racist provision designed to penalise those Australian states, that still discriminated against Aborigines by reducing their representation in the newly created Commonwealth Parliament.

Morris also contends that any reliance on the core notion of political equality as being “rich, given the history of unequal treatment suffered by Indigenous people.” She then goes on to claim the Voice would “improve practical outcomes in Indigenous communities.” This is an assertion, nothing more. Many, including many indigenous Australians, strongly disagree. It says nothing about the impact of welfare policies but persists in asserting that the only effective way to address indigenous disadvantage is by addressing historic wrongs.^[17] According to public policy analyst Bernard Samuelson,

the political claim that historical forces dating from the arrival of the First Fleet remain responsible for the poverty and exclusion endured by under-privileged Indigenous people in contemporary Australia is simplistic. It also distorts the recent history of Indigenous affairs and overlooks the real causes of present-day Indigenous suffering.[18]

There are numerous laws, both at federal and state levels, directly dealing with the alleged enhancement of Aboriginal wellbeing, such as native title and heritage. Since the Second World War, governments around Australia have maintained and continue to nurture a burgeoning and expensive bureaucracies specifically focused on the welfare of the Aboriginal community. And yet, welfare dependence may have engendered the very conditions which have perpetuated poverty and dependence in the Aboriginal community.  Decades of federal, state and territory policies have failed to improve the lives of Australia’s most disadvantaged peoples. Currently, more than half (53%) of all the Indigenous Australians aged 16 and over are receiving some form of Centrelink income support payment, compared with 26% of non-Indigenous Australians of this age.[19] 

In reality, modern Australia’s worst Indigenous suffering and deprivation in the dysfunctional remote ‘homeland’ communities has been caused by the continuing implementation by Australian governments of the welfare policies which began in the 1970s.[20] To a great extent, any behaviour the government rewards generally tends to increase. Arguably, the prevalence of passive welfare dependence may be directly responsible for the scourge of drugs, pornography, child abuse, and the effects of ‘humbugging’, which means that “whatever one earns others have a right to”.[21]  The point is that programs to help welfare recipients tend to exacerbate these problems. By handing out welfare checks impersonally to all who qualify, without addressing the underlying behavioural problems, the government in essence ‘rewards’ dysfunctional patterns of behaviour that affects not only the recipients of such an assistance but their community at large. As Samuelson correctly points out:

The real issue in Indigenous affairs is not the alleged lack of national accountability for the historical causes of Indigenous disadvantage. Rather, it is that the worst outcomes experienced by Indigenous people are due to well-meaning, but misguided, policies intended to atone for historic wrongs. These policies, which have cost the nation tens of thousands of billions of dollars of public expenditure have resulted in violence, squalor and dysfunction. Continuation of the separatist experiments in the homelands condemns those 20 per cent of Indigenous people living in remote Australia to appalling social outcomes and exclusion from the benefits and opportunities of modern Australia.[22]

The Voice, in its practical operation, would entrench in the Constitution this socially harmful separatist approach to indigenous affairs. Any reluctance by parliament to listen to the Voice would be sure to generate accusations of a return to pre-Voice days.[23] Such demands would be backed up not only by the Voice as a constitutionally-enshrined political force but also by the moral intimidation of claims of racism.[24] Arguably, empowering a self-serving “industry” that seeks to maintain its relevance does not help the cause of the Indigenous community. By functioning as the mouthpiece of the Aboriginal industry, “the Voice would have a powerful and permanent position from which both to shape the political narrative around Indigenous affairs and to persuade parliament not to adopt policies deemed to be against Indigenous interests because the measures were considered unfair and discriminatory”.[25]

In addition, the entrenchment of the Voice in the Constitution will create difficulties where Aboriginal culture must be defined, with the possible acceptance as “cultural” of behaviour which otherwise would not be necessarily tolerated.[26] An example of this is found in the reckless practice of placing Aboriginal children in desperate need of care with “culturally appropriate” carers. This practice, says Anthony Dillon, an academic lecturer and Quadrant contributor who identifies as a “part-Aboriginal Australian”. Dillon strongly believes that

Some [Aboriginal] children have suffered, all in the name of “culture”. A colour-blind culture or way of life, characterised by love is a far more important consideration than a culture that is assumed to be Aboriginal simply because the adult potential carers themselves have some Aboriginal ancestry.[27]

Although the Voice, as assured by supporters, would only be consulted if proposed laws and policies affect Aboriginal people, such an assertion is ultimately fallacious because all laws are made (and should be made)  for all the people of Australia. Arguably, creating a separate group to have a “voice” in Parliament would engender distinctions that could poison entire inter-cultural relationships, driving Australians further apart than we have been for generations.[28] This could tempt some individuals to ‘play the race card’, thus aggravating differences between Aboriginal Australians and all the other Australians.[29] For example, what might co-parenting a child be like when one parent becomes more legitimate than the other in the eyes of the law simply because of his or her culture or skin-colour? Such discrimination may benefit a few but it will keep many people from reaching their full potential. 

The Voice looks remarkably like a third chamber of parliament that would entrench in the Constitution the separatist approach to indigenous affairs. Every single law that goes through parliament may affect Aboriginal people because they are part of the Australian community. Arguably, to divide people into ethnic lines sends a message that Australian Aborigienes they will never be fully integrated as active members of our society. After all, why not expect that in the future a person of Aboriginal heritage may actually become our Prime Minister? As Peter Kurti and Warren Mundine AO correctly remind us,

… the 2022 federal election saw 11 Indigenous people elected to the Commonwealth Parliament, representing a substantial and talented representation of the country’s Indigenous population. Doesn’t this represent the best possible Indigenous ‘voice’ to the Commonwealth Parliament? [30]

The Voice is, at heart, a transfer of power from parliament to a race-based, constitutionally entrenched body. Indeed, this ‘consultative body’ will be constitutionally empowered to make ‘representations’ not merely about proposal legislation but about any act or omission to the parliament, or the government, or any of its agencies.[31] Despite insisting that the Voice would be merely advisory, as the PM has admitted, it would have to be a very “brave” parliament and government that didn’t accept its advice.[32] As Janet Albrechtsen points out:

The Voice will create constant opportunities for a tiny minority of activists to hold parliament and executive government to ransom by using the immense leverage and opportunities for lawfare carefully woven into the [proposed] Amendment. It is not exaggeration to say it will cause the end of parliamentary democracy as we have known it.[33]

There is also the issue regarding the undemocratic representation of the Voice. For one thing, details about what this ‘consultative body’ would actually look like, and how it would function, are left unaddressed – perhaps intentionally so. Exactly how members of the Indigenous voice will be appointed is one of the details that has been left undefined. The fact that such a matter is important for all those who value democracy has been left largely ignored. Instead, the final report of the “Indigenous Voice Co-Design Process” candidly raises the prospect that some of its members will be directly chosen by the Indigenous community but nominated by the local and regional “voices.”

This appalling erosion of democratic principle weakens the case for incorporating this race-based entity in the Constitution. In a society where citizens have been sent to die for the chance to bring democracy to another country, turning a blind eye to the undemocratic state of native organisations is simply unacceptable. “Sadly, this is the enduring legacy of Aboriginal affairs in Australia,” says Dallas Scott, an Aboriginal blogger who is proud of his cultural heritage. He talks about certain self-appointed Aboriginal leaders who like to make decisions for other Aborigines and to speak for them. According to Scott, titles such as “Aboriginal elder”, “spokesperson” and “tribal leader” (or some other colourful variations) are usually given to individuals who are not elected by those they claim to represent but, overwhelmingly, are self-appointed to such a leadership role.[34]

Above all, the entrenchment of the Voice in the Constitution will not unite Australia but perpetuate divisiveness.[35] Perhaps this is precisely the ultimate goal of the ruling classes: to further divide Australians into lines of origin and ethnicity so as to make them fight for the attainment of more “rights” conceded by the State. Arguably, the ruling classes may have a vested interest in fomenting a socially divisive agenda that undermine the liberal principle of equality before the law; one which divides our people into countless lines of culture, origin and ethnicity. This is merely a revisitation of the “divide and conquer” strategy so successfully applied by the Romans in ancient times.

 Augusto Zimmermann is head of law at Sheridan Institute of Higher Education, in Perth, Western Australia. He is a former commissioner with the Law Reform Commission of Western Australia (2012-2017). He is also a former associate dean (research) at Murdoch University, School of Law. During his time at Murdoch, Zimmermann taught (and coordinated) the units constitutional law and legal theory, and was awarded the Vice Chancellor’s Award for Excellence in Research, in 2012. 

 Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland, and served as pro vice-chancellor and dean at Murdoch University. In 2003, Moens was awarded the Australian Centenary Medal by the prime minister for services to education. He has taught extensively across Australia, Asia, Europe, and the United States. He is the co-author of The Constitution of the Commonwealth of Australian Annotated (9th ed, LexisNexis, 2016).

Professor Zimmermann and Professor Moens are the authors of Foundations of the Australian Legal System: History, Theory and Practice (LexisNexis, 2023).

[1] Shireen Morris, ‘Yes Is for Bringing Australia Together and Moving Forward’, The Epoch Times, May 2, 2023, at https://www.theepochtimes.com/yes-is-for-bringing-australia-together-and-moving-forward_5235224.html.

[2] Anthony Dillon, ‘The Voice: Self-Determination or Separatism?’, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022) 15.

[3] Senator Jacinta Nampijinpa Price, ‘The Voice Sunds Too Good to be True”, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022) xi.

[4] Janet Albrechtsen, ‘The Voice: Beyond Belief?’, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022) 15.

[5] Richard Weikart, Hitler’s Ethics: The Nazi Pursuit of Evolutionary Progress (Palgrave Macmillan, 2009) 70.

[6] Meredith Lake, The Bible in Australia: A Cultural History (New South Publishing, 2018) 102.

 [7] Sanford Lakoff, Democracy: History, Theory and Practice (Routledge, 1997) 90.

[8] Douglas Hynd, ‘Evangelical Christians Weaved a Sturdy Thread in our History’, Australian Centre for Christianity and Culture, Charles Sturt University (Book Review, 4 June 2018) 4.

[9] Ibid 35.

[10] Bella D’Abrera, ‘Let’s Honour our Western Heritage Without Shame’, The Australian (Sydney, 24 January 2018) <https://www.theaustralian.com.au/opinion/lets-honour-our-western-heritage-without-shame/news-story/cb476aa84d494a95271ed7563d6a0e32>.

[11] Paul Kelly, ‘We Need to Embrace Our Two Truths’, The Weekend Australian (Sydney, 27 January 2018) 18.

[12] Elizabeth Eggleston, Fear, Favour or Affection: Aborigines and Criminal Law in Victoria, South Australia and Western Australia (Australian National University Press, 1976) 278.

[13] Prue Vines, Law & Justice in Australia (Oxford University Press, 2005) 9.

[14] Frederick Watson (ed), Historical Records of Australia (Library Committee of the Commonwealth Parliament, 1914) series 1, vol 1, 13–14.

[15] Religious convictions were apparent in the judgment: ‘The crime had been witnessed in heaven and could not be concealed. You had not the fear of God before your eyes, but were moved and seduced by the instigations of the devil’. Lake (n 5) 95.

[16] Gabriël A Moens AM and Augusto Zimmermann, ‘Does the Uluru Statement from the Heart violate the Constitution?, The Spectator, 24 April 2023, at https://www.spectator.com.au/2023/04/does-the-uluru-statement-from-the-heart-violate-the-constitution/.

[17] Bernard Samuelson, ‘What Conservative Voice Supporters Get Wrong About Constitutional Recognition’, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022) 65.

[18] Bernard Samuelson, ‘What Conservative Voice Supporters Get Wrong About Constitutional Recognition’, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022) 63.

[19] https://www.aihw.gov.au/reports/australias-welfare/indigenous-income-and-finance See also: https://www.aihw.gov.au/getmedia/2f327206-c315-43a7-b666-4fe24fefc12f/aihw-australias-welfare-2017-chapter7-5.pdf

[20] Bernard Samuelson, ‘What Conservative Voice Supporters Get Wrong About Constitutional Recognition’, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022) 61.

[21] Gary Johns, ‘Introduction’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or rights, in the Australian Constitution (Connor Court Publishing, 2014) 15.

[22] Bernard Samuelson, ‘What Conservative Voice Supporters Get Wrong About Constitutional Recognition’, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022) 65.

[23] Bernard Samuelson, ‘What Conservative Voice Supporters Get Wrong About Constitutional Recognition’, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022) 68.

[24] Bernard Samuelson, ‘What Conservative Voice Supporters Get Wrong About Constitutional Recognition’, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022) 68.

[25] Bernard Samuelson, ‘What Conservative Voice Supporters Get Wrong About Constitutional Recognition’, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022) 68.

[26] Gary Johns, ‘Already Recognition Enough’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or Rights, in the Australian Constitution (Connor Court, 2014) 29.

[27] Anthony Dillon, ‘Recognising May Mean Never Closing the Gap’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or Rights, in the Australian Constitution (Connor Court, 2014) 55.

[28] Kerryn Pholi, ‘Upsetting the Intermarriage Applecart’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or Rights, in the Australian Constitution (Connor Court, 2014) 63.

[29] Gary Johns, ‘Introduction’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or Rights, in the Australian Constitution (Connor Court, 2014) xvi.

[30] Peter Kurti and Nyunggai Warren Mundine, ‘Introduction: On Reconsidering The Voice to Parliament’, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022)

[31] Janet Albrechtsen, ‘The Voice: Beyond Belief?’, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022) 32

[32] Tony Abbott, ‘The Voice: A Plea to Reconsider’, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022) 7

[33] Janet Albrechtsen, ‘The Voice: Beyond Belief?’, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022) 15.

[34] Dallas Scott, ‘Fighting a War Already Won’, in: Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or rights, in the Australian Constitution (Connor Court, 2014) 80.

[35] Bernard Samuelson, ‘What Conservative Voice Supporters Get Wrong About Constitutional Recognition’, in: Peter Kurti and Warren Mundine AO, Beyond Belief: Rethinking the Voice to Parliament (Connor Court Publishing, 2022) 68.