It has become something of a pastime of mine to take issue with various utterances on the subject of the Voice by Chris Kenny. This time my problem is not with something Kenny has said, but something he has failed to say. Kenny talks only about the Voice as a source of useful advice to government on overcoming problems such as we see in Alice Springs, and as a practical – as opposed to symbolic – way to recognize Aborigines in the Constitution.
Let me deal with that last point first. Kenny acknowledges that Aborigines want more than symbolic recognition. That’s true. They’ve said it often enough and loud enough. But Kenny’s is a specious argument. Since the Voice can simply be legislated under powers that already exist in the Constitution, and if, according to their logic it would have no teeth (a proposition which I reject), then ‘enshrining’ it would ipso facto be nothing more than symbolism.
Aboriginal activists would regard a purely advisory body as no more than symbolism. They want real power in their own right, not power exercised through our existing Parliamentary system.
If you’ll excuse the cliché, this is the elephant in the room. On the night he became Prime Minister, Anthony Albanese made this issue his very first commitment. But he did not commit to implementing a constitutionally enshrined Voice to Parliament. He committed to implementing the Uluru Statement from the Heart. That statement includes the following:
This 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, remain attached thereto, and must one day return thither to be united with our ancestors. 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…
With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood …
We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.
We call for the establishment of a First Nations Voice enshrined in the Constitution.
Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.
We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.
The Uluru Statement unequivocally calls for ‘truth-telling’ and a treaty. You can bet a treaty will involve the transfer of large sums of money in the form of ‘reparations’.
Recently, Green’s warlord, the noxious Senator Lidia Thorpe, said she would not support the Voice unless it could be guaranteed that it would not cede Aboriginal sovereignty.
Not to worry, Albanese got his hand-picked panel of constitutional experts (you know, the ones who assured us that, contrary to advice from former High Court Justices Ian Callinan and Kenneth Hayne, matters arising from the Voice would not be justiciable) to work.
Consequently, The Australian was able to report last Thursday that:
The Albanese government has published a summary of legal advice from constitutional experts who say there is no basis to claims from the far left that an Indigenous voice will cede sovereignty.
Firstly, it beggars belief that the government would even entertain the idea that any form of sovereignty still resides with the Aboriginal community, that they would indulge such fantasies on the part of extremists like Thorpe.
Certainly, ‘sovereignty’ was never ceded via a formal treaty, such as the Treaty of Waitangi in New Zealand. That would have been impossible as there was no overarching Aboriginal authority that could negotiate such a treaty. But, in practical terms, as Keith Windschuttle points out in his masterful The Break-Up of Australia, it was ceded on a region-by-region basis, right across the continent, as local Aboriginal tribes recognised the inevitability of white settlement and accommodated themselves to it – a process known as ‘coming in’. This phenomenon, based on self-interest (e.g., a regular supply of food obtained much more easily than foraging or hunting), was described by countless observers, such as Royal Marine Lieutenant Watkin Tench, dating right back to the First Fleet. The celebrated Bennelong was among the first to demonstrate this behaviour.
But, in my mind, the most explicit act of cession occurred in 1967, when the vast bulk of Aboriginal people enthusiastically lobbied for, and applauded, the amendment to our Constitution that allowed the Commonwealth Government to make laws in respect of Aboriginal people – laws to benefit, not restrict, them. This was an implicit acceptance of the sovereignty, over all Australians, of the Australian Commonwealth.
Activists claim that the Mabo decision, which invented a new form of land title, Native Title, implies that there must, therefore, also exist native sovereignty. They point to precedent in the US. Chief Justice Sir Anthony Mason, who presided over the Mabo case, disagreed with this. He said that the Mabo decision:
…was entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia.
He also said Mabo was:
…equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are “a domestic dependant nation” and entitled to self-government.
That was not a High Court judgement, merely Mason’s private opinion, so it sets no legal precedent. And it related only to Mabo. Given a differently based claim for Aboriginal sovereignty, how would the current High Court rule?
I believe that, this time, Albanese’s advisory group is correct. If a Voice is entrenched in the Constitution – put there on the basis that it forms part of the Uluru Statement which includes demands for treaty and some form of sovereignty – it would be very easy for an activist Court to conclude that, although Mason may have been right vis-a-vis Mabo, here we have a different basis for the claim.
The fact that the Voice, comprising elected and appointed members from a particular group, derives from a statement that demands recognition of some form of Aboriginal sovereignty, makes it, incontrovertibly, a political entity. Even a caveat that the Parliament is not obliged to accept its advice will not change that. The Constitution recognizes the Commonwealth and the States, of which there are currently six. It does not recognize any other political entity, such as the Territories or local councils, other than the fact that they may exist. It does not recognize the Loans Council. It does not recognize the Premiers Conference. It does not even recognize the Office of Prime Minister and Cabinet. ‘Enshrinement’ of the Voice within the Constitution will establish an eighth political entity. Or, to be more precise, a third constitutional entity, alongside the Commonwealth and the States.
Once in the Constitution, ultimate control of the Voice will be out of the hands of the government and become a playground for Aboriginal activists like Drs Marcia Langton and Megan Davis. It will be constitutional malware subject to God knows what unintended consequences.
And treaty and a form of Aboriginal sovereignty or self-government will not be unintended consequences. Clearly the Albanese government is contemplating such an outcome. But they are careful not to say so at the moment.
Is Chris Kenny not aware of this? Does he really believe the Voice will content itself with just giving advice to government on proposed legislation? Has he thought about what such an outcome might look like? He need look no further than Victoria which has established its own First Peoples Assembly. Their big agenda is not advice to government but what they call ‘Treaty’. Here is what its website says:
The Assembly has negotiated for the Government to give up some of its power by agreeing to establish an independent Treaty Authority that sits outside of the usual government bureaucracy. This independent ‘umpire’ will be grounded in our culture, lore and law, and will facilitate negotiations and help resolve any disputes that arise.
The journey to Treaty mustn’t be constrained by colonial concepts, and we need an independent ‘umpire’ that our people can have confidence in. That’s why the agreement we secured is to establish a Treaty Authority that is completely independent from government – it won’t report to a Minister and its funding will be insulated from the usual political cycles.
The Authority will be led by First Peoples and grounded in our culture, lore and law.
An independent panel – to be agreed to by the Assembly and the Government – will appoint the Members of the Treaty Authority following a public call for nominations. All Members will be First Peoples.
“This is about stepping outside of the colonial system. We’ve said to government, if you’re serious about Treaty, you’ll do it our way, and to their credit, that’s what they’re doing. This is decolonisation in action.” – Marcus Stewart, Assembly Co-Chair.
‘You’ll do it our way’. Does that sound like reconciliation to you?
Treaty must bridge the economic divide caused by dispossession and the Assembly has negotiated the establishment of a First Peoples controlled and managed Self-Determination Fund.
The Self-Determination Fund will do two key things. It will enable Traditional Owners to enter Treaty negotiations with the Government on a more level playing field. It will also empower our communities to build wealth and greater capacity for future generations.
“Yes, we want to enjoy, celebrate and share our culture, but treaty needs to be more than that. It also needs to deliver to our people the economic independence required to achieve self-determination.” – Marcus Stewart, Assembly Co-Chair
The Victorian government has already provided $65 million for this purpose. They are also demanding reserved seats in the Victorian Parliament.
Given the above, do you imagine for one moment that the activists behind the national Voice will be content with simply providing advice on laws that affect Aboriginals? That they will be any less demanding than their State counterparts? They have already told us that a treaty (and, no doubt, a self-determination fund) is the ultimate objective, and the Voice is one enabling mechanism. It seems we will have treaties between the Aboriginal community and the rest of us at both State and Federal level. Where will this end and how does it possibly unite us?
Would Chris Kenny be comfortable with something like the Victorian model at the Commonwealth level? He should at least address this objection. Kenny likes to argue that this Voice proposal will not divide us by race.
Pull the other one, Chris.