On July 7, in an interview with Paige Taylor and Ellie Dudley of The Australian, the Minister for Indigenous Australians, Linda Burney, disclosed that the Albanese government’s plans for a referendum on an Aboriginal Voice to Parliament do not include giving the voters a model of how the proposal should work in practice. Burney said she feared that “a complicated referendum question will doom decades of work towards constitutional recognition”. So the government does not want to settle on the details of the proposed Voice’s structure before the referendum is held.
The reason behind this is not because the details have not been thought through. Since the proposal was launched by Julia Gillard in 2011, most of the identities of the Aboriginal political class, especially Noel Pearson, Marcia Langton, Megan Davis and Tom Calma, have participated in an incessant parade of ten lengthy and expensive inquiries that produced seven long and detailed reports.
They have already answered the questions that most voters should know before they go to the polls on this issue, such as: What would the Voice actually do? Who should be on it? How would they get there, by election or appointment? Would it be an advisory body or would it have executive or legislative powers? Former Liberal government minister and Spectator Australia columnist Neil Brown fired off a letter to the editor the day after Burney’s interview raising points that all concerned voters would want to know. “Surely,” Brown said, “we are entitled to know the answers to these questions before we vote. It would be so easy to have an explanatory memorandum setting out the main features of the Voice and sent to all electors.”
Both Marcia Langton and Megan Davis made public statements of their own, saying all the important details were now settled and should be put to the vote. Both want Burney to go to a referendum as soon as possible. However, Burney’s predecessor as Minister for Indigenous Australians, Ken Wyatt, also preferred a minimalist approach. He told Paige and Dudley that a plainly-worded question was the key: “It might be a set of words as simple as ‘the Commonwealth shall establish and maintain an Indigenous national body’”.
So, what is the difference on this issue between the two central politicians, both of Aboriginal ancestry, and the activists, bureaucrats and academics who advise and lobby them? It is not difficult to see that the politicians want to hide the content of the Voice because they doubt the referendum will succeed if the public knows too much about what lies behind it. On the other hand, the activists have been so immersed in this issue, for more than a decade now, they find it hard to imagine any opponents besides the bad and the mad could disagree with them. In short, the activists know what they want, but the politicians don’t want the voters, who have minds of their own, to know what is really at stake.
One thing the politicians really fear is the suggestion by Neil Brown to send out to voters an explanatory pamphlet setting out the main points of the Voice. This would give away the real objectives of the activists which is not, as they claim, to contribute to reconciliation or to “make the country whole”. In fact, an honest pamphlet of this kind with appropriate quotations from the Uluru Statemen would be a gift to those campaigners urging a No vote. It would allow the latter to make some obvious points about why the proposal of the Voice would be bad for all Australians and a disaster for Aboriginal people themselves.
So let me list here some of the main points such a pamphlet should have if it were to adopt the case made by today’s Aboriginal political class, using their own verbatim terminology and arguments. At the same time, I will try to fill out a plausible No case in response to each of their points.
Treaties “to achieve self-determination, autonomy and self-government”
In 2017, the Uluru Statement from the Heart defined the Voice as a proposal to change the Australian Constitution to give individual Aboriginal communities complete autonomy to advise the Australian government and parliament what they want. The government would not be compelled to accept these recommendations — the Parliament would retain its existing executive and legislative status — but the Referendum Council’s response to the Uluru Statement asserted there were some non-negotiable conditions if the Parliament was to properly respect the wishes of this new Constitutional authority. The Council said:
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. Its proponents don’t just want to keep their adopted title as “nations”, they want to become real nations. The Council’s report notes that the demand for treaties was a priority 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, the actual objective of the Voice is that each individual clan or language group should be recognised as a First Nation and for the Commonwealth to make a treaty with each one, as if it were a separate state. As I record in The Break-up of Australia (Quadrant Books, 2016), Aboriginal activists now 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.
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.
Let me remind readers of the version of Australian history they will all be required to accept. The Uluru Statement — or at least its original long version, not the one-page abbreviated and sanitised version published on that website today — made a series of assertions advocating the following:
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.
Now it is not hard to show that this declaration is 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, as the following points demonstrate.
“Aboriginal people are the First Nations”
The term “First Nations” derives from twentieth-century American politics and has been transported to Australia, where it does not fit. Aboriginal clans, hordes and tribes, which in most cases were no more than extended families, never attained any status resembling nationhood either before 1788 or any time after. There were no First Nations on this land for 60,000 years, as the Uluru Statement asserts. This was confirmed in 1836 in the seminal judgment of William Burton of the New South Wales Supreme Court and has been repeated several times since by Australian judges, including the High Court’s Harry Gibbs, who said 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.
“We have never, ever ceded our 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.
Justice 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.
It is worth noting here that, although Justice Burton’s views would be dismissed by today’s activists as an expression of white privilege, or some similar racist insult, he was an evangelical Christian who took seriously the status of Aboriginal people as subjects of the British Crown. His personal letters reveal he was long concerned about relations between Aborigines and white settlers on the colonial frontier. He pushed for the NSW authorities to investigate publicised claims of ill treatment and violence to Aboriginal people, especially alleged massacres. A number of these turned out to be groundless exaggerations but one of the worst of them was true. In 1838 eleven convict and ex-convict stockmen were accused of the Myall Creek Massacre of 28 Aboriginal people near Moree in 1838. The stockmen were initially tried for the murder of one of the Aborigines but were acquitted by a jury. However, Burton moved for a second trial to be held on broader grounds. Under his jurisdiction the second jury found that seven of the eleven stockmen were guilty as charged. Burton sentenced all seven to death and they were hanged soon after.
“Sovereignty is a spiritual notion” derived from land ownership
The short version of the Uluru Statement still emphasizes this claim, but tries to cover up its implications by redefining the concept of sovereignty and tying its meaning to the one fact that is in the Aborigines favour, that they were the first to own the land on the Australian continent. The claim says in full:
Sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom … This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.
There are three things wrong with this statement. First, sovereignty has never been a spiritual notion. It is not a sacred tradition but a recent invention. It is a European term, unknown to Aboriginal culture before 1788, and not adopted by any of the 200 or so different languages that the hunter-gatherers used in the nineteenth century. It was adopted from European political and legal theory in the twentieth century by university-educated, urban Aboriginal activists.
Second, sovereignty is not just about ownership of the land, as the Uluru statement says. Aboriginal activists and their academic supporters have argued that, because the High Court’s Mabo judgment recognised Aboriginal clans had their own laws that made them owners of their land, they therefore also had sovereignty over those territories. However, this wrongly assumes that small tracts of land ownership entail sovereignty. No Australian who owns a farm in the country or a quarter acre block in the suburbs thereby becomes the “sovereign” of that piece of territory. Aboriginal people are legally no more privileged. In modern nations, sovereignty belongs only to national governments, not because they are landowners but because they have the necessary political authority and power.
Third, sovereignty is an absolute notion, it cannot “co-exist” between or among sovereign powers. One of them must prevail. There can only be one national government. If there are more than one, then there must be more than one nation on that territory. Neither of these would have genuine sovereignty until a civil war or other contest for sole political power resolved who actually ruled the realm. You can call shared power, where it exists, some kind of political arrangement, but it could not be sovereignty.
“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 in England. Yet the Referendum Council report wants us to go back and rewrite Australian legal history in order to accommodate today’s left-wing 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 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. Governor Arthur Phillip of New South Wales wrote to Lord Sydney in London in 1790 that new settlers to the west of Parramatta “will have nothing to apprehend from the natives, who avoid those parts we most frequent, and always retire at the sight of two or three people who are armed”. In 1828, Lieutenant-Governor George Arthur of Van Diemen’s Land told Sir George Murray of the Colonial Office 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 has been dominated by supporters of the resistance and guerilla warfare theses since the 1970s, 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.
The historical grievance expressed by the Uluru Statement of the Heart could never contribute to reconciliation or a more unified nation. It is a bid for power which, even if it wins Constitutional approval, is bound to dishearten its advocates in the long run. The little, autonomous ‘nations’ they want to establish are a political fantasy, as the failed history of the vast majority of secessionist movements in the modern era have proven time and again. They will have virtually no impact on the lives of the 80 per cent of people who identify as indigenous and who live in the suburbs of the capital cities and regional centres with much the same standard of living as their white neighbours. The remaining 20 per cent of Aborigines who inhabit the living hell of the remote communities are the only ones whose lives can possibly be affected. Yet the track record of the forty-year experiment of self-determination and self-government in the Homelands movement in remote Australia since the 1970s has already proved, and keeps on proving, that the longer it exists the worse things become.
The Voice will simply be another expensive broken promise that will make national identities of a handful of activists who will rise to power briefly within its ranks but who end up like their disappointing predecessors in the Aboriginal and Torres Strait Islander Commission. The only difference will be that, if they get the Constitutional recognition they demand, no government of the day will be able to do what the Howard government, with Labor Party support, did to ATSIC in 2005 and shut down their office. Instead, if the Yes vote wins, the Voice will be there forever, an expensive, permanent embarrassment for the nation and a permanent contagion on the Aboriginal body politic.
Keith Windschuttle is the editor of Quadrant and author of The Break-up of Australia, which can be ordered here