Bennelong Papers

There’s More to the ‘Voice’ than Gleeson says

Last Thursday night the former Chief Justice of the High Court, Murray Gleeson, gave a speech on the proposal to give Aboriginal and Torres Strait Islander peoples a “Voice” in the Australian political system.  The speech was front-page news the following day and generated a number of op-ed pieces and editorials. It came in the midst of a public debate over constitutional recognition initiated by the Minister for Indigenous Australians, Ken Wyatt, who wants the issue settled in the current term of Parliament, and Prime Minister Scott Morrison, who has said his support would not extend to including a “First Nations Voice” in the Constitution.

Gleeson was the most legally-distinguished member of the 14-person Referendum Council appointed by Malcolm Turnbull to advise his government on prospects for a referendum to change the Constitution on this issue. His speech last week was a reprise of several of the Referendum Council’s proposals in June 2017. He argued that constitutional change was appropriate for indigenous recognition and claimed the representative body providing the Voice would not impinge on the supremacy of Parliament.

He also argued that the Voice would not offend against existing Australian values and laws about equality and race. Because the Constitution has allowed the Commonwealth to make laws specifically for Aboriginal people since the referendum of 1967, their special treatment was already well-embedded in political practice. “Since the Constitution now makes people the potential objects of special laws by reason of their Indigenous status,” Gleeson said, “the Referendum Council considered that an appropriate form of recognition of such people would be to provide them with a Voice to Parliament”. Given the context and timing of the speech, this is clearly an argument aimed at the position adopted by the Institute for Public Affairs, and its slogan “race has no place” in our Constitution. The judge has become a political advocate.

More significantly, Gleeson’s speech studiously avoided any discussion of the three most contentious issues in the Referendum Council’s report:

# the Voice would lead to treaty-making between the Australian government and various Aboriginal groups that now regard themselves as nations;

# the treaties it envisages would lead to indigenous autonomy and self-government, and

# the Voice would represent Aboriginal and Torres Strait Islander peoples internationally.

Although he spoke just after NAIDOC Week (July 8–15),  when the key slogan was “Voice. Treaty. Truth.”, which identified “the three key elements of the Uluru Statement from the Heart that represent the unified position of First Nations Australians”, neither Gleeson nor subsequent media commentary discussed Aboriginal treaties or the status of the First Nations the government is supposed to deal with. So let me show how committed Gleeson and the other authors of the Referendum Council report are to inserting these concepts into Australia’s political structure. The report puts forward several non-negotiable conditions:

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.

In other words, the real goal of the Voice was always more than simply allowing indigenous people representation to the Australian parliament — which they have had, anyway, almost continuously since 1967 through successive government advisory boards. The Referendum Council’s report emphasises that the demand for treaties was one of the priorities of the indigenous conventions leading up to the Uluru Statement:

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 the disastrous former representative body, ATSIC, the latest proposal is for each individual clan to be recognised as a First Nation and for the Australian government to make a treaty with each one, as if it was a separate state. The states of Victoria and Queensland are now both in the process of writing their own treaties with such local groups. In the absence of any support from the Commonwealth, the political force of agreements of this kind will remain up in the air. But if Bill Shorten had won the last election, the legal machinery would already be cranked up, ready to start.

As I record in The Break-up of Australia, this is a political outcome advocated not just by the far Left but by self-declared conservative activists such as Noel Pearson and Warren Mundine. They want self-government and an independent legal system for each self-identifying Aboriginal clan.

Although Gleeson is reluctant to mention it, in the Referendum Council’s report he and his colleagues even took seriously the demand from some Uluru delegations that the Voice’s goals of self-determination, autonomy and self-government should effectively give it international status:

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.

At this stage of the political process, the last proposal here is leftist wish-list material only. It nonetheless indicates clearly that, no matter how generous the terms and conditions of any agreement the Australian government makes now, it can never appease the insatiable demand by members of the Aboriginal political class for even more radical change in the future. No matter what the cost, what they call their “unfinished business” will never end.

12 comments
  • Stephen Due

    A parallel Aboriginal Nation is already prefigured by the practice of flying both the Australian flag and the Aboriginal flag outside federal, state and local government buildings. This should be prohibited in my view. Activists for Aboriginal nationhood are being allowed to create a self-justifying myth. Another example of this insidious process is the ubiquity of the fake “Welcome to Country’ ceremonies at the start of public events. I’m sure there are some people of Aboriginal descent who really believe all the nonsense that is being shed abroad about their history, their culture and their rights. However it is time Australian governments insisted that policies and funding be directed towards the real problems in Aboriginal communities, which have nothing to do with an imaginary past and everything to do with current practices by the people who live in those same communities.

  • whitelaughter

    Stephen Due – of course, and we all know it: but how to get the brainless chattering classes to admit it?

  • NFriar

    I wish we knew Whitelaughter – what Stephen says is so true.
    I live it every day in my small community of 10,000.
    “This should be prohibited in my view. Activists for Aboriginal nationhood are being allowed to create a self-justifying myth. Another example of this insidious process is the ubiquity of the fake “Welcome to Country’ ceremonies at the start of public events. I’m sure there are some people of Aboriginal descent who really believe all the nonsense that is being shed abroad about their history, their culture and their rights. ‘
    Sadly it is the Aboriginal industry at the helm – who demanded all aborigine artifacts be returned, DNA be protected from non indigenous ( lose Native Title), claiming dot painting is culturally theirs, the wiping of aborigine history in eplorers and protectors diaries through to 98% of the Nationa Australian History Curriculm being indigenous – teaching kids myths as turth- stolen genration, massacres, genocide.
    Kids parroting welcome to countr at pre-schools…..replacing of National Anthem by AoC in schools……yes – the ‘first peoples’ have now created a parralel society – mainstream is 2nd class.
    ‘Interesting times.’

  • NFriar

    “explorers, National, truth,county (must always check for typos)

  • Henry Rainger

    I believe this absurd push for more power is being made now because Australians are waking up (albeit slowly) to the fact that over 70% of those who claim Aboriginality live in our towns and cities and live fully mainstream lives, which they clearly understand means these people of some distant Aboriginal ancestry have long ago fully assimilated into mainstream life and culture, therefore their fast diminishing Aboriginality claims will soon be totally extinct.
    I’m sure these people are aware that even though their numbers increase every year, their lighter and lighter skins are destroying the notion of them actually being Aboriginal, which is, historically, a description once reserved for the black people who first inhabited this land.
    Today there are still many fully black people living in our north, in NT, WA and QLD predominately, however none live traditional lives and all live lives as mainstream as they can manage, while still holding on to a thin veneer of their traditional culture, some of those bits which haven’t been made illegal due to their violence etc, however as a whole, their full black colour becomes a little more diluted every year, a phenomena which began in earnest at the start of the 1800’s. .
    So I am saying this push is on now while many Australians still believe that all and any who claim Aboriginality are in fact, Aboriginals, regardless that evermore become indistinguishable from mainstream Whites.
    I’m sure they realise that eventually the whiter ones will be disallowed from legally accessing Aboriginal only services etc etc and that eventually we will return to only fullblood Aboriginals being classed as Aboriginals, and by then there will be far fewer than today. Furthermore it is likely a needs based system will be in place for all Australians regardless of colour etc in the future, which will cut many of todays Aboriginals off from separate services and opportunities.
    Therefore they feel they must act now before it is too late, when Aussies once again, sensibly, call a spade a spade and when skin colour or ones ancestry has no bearing on ones entitlement.

  • Mike O’Ceirin

    In Australia there are very few who are in fact aboriginal. All of us are a mixture of many races but there are rent seekers who wish to claim privilege for a small part of their heritage. The problem is that this is being accepted as being valid. Suppose you have a aboriginal mother and a Caucasian father should you have privilege over your father? Why? In Australian everyone contributes to the wealth of the nation some more than others and it is shared. As it is at the moment it is tolerable even though very large amounts of money go to the aboriginal welfare without much result. To change the balance is definitely to introduce racial disharmony. I view it as being a group fundamentally Caucasian who wish to control the rest of us using a very small amount of aboriginal heritage. My experience of life has been that aboriginal heritage is used by rent seekers to gain control. A perfect example was the Hindmarsh Island event in South Australia.

  • Bill Martin

    While I agree with pretty well everything the above comments say, I am also sadly disappointed by them. Where is the protest, the righteous anger, the furious disagreement with the vile, self justifying, insidious lies and half truths mounting by the day, all designed to destroy this magnificent country, the envy of much of the world and gift the wreckage to “indigenous” pretenders so that out of it they can engineer their own Zimbabwe? We need a far more active, far livelier response to the ever clearer threat we unmistakably face! Wake up, my fellow Australians, and speak up, loud and c!ear at every opportunity instead of meekly, helplessly shaking your head in disbelief!

  • Lewis P Buckingham

    Attending NAIDOC week last year in Moree was an eye opener. The gallery museum was due to open the night before the march down main street but an argument led to it not opening.
    The march,procession, which I joined, was notable by the absolute lack of anyone white or mixed blood.
    There was a local state politician, that was it.
    Listening to the recent National press Club speech it was clear that there will be no constitutional change proposed and put to us in three years, unless it has community support.
    So the aim to frame it is actually an aim not to do so if there is resistance.
    The problem quoted was that there was no intention to go down the ‘Republican’ failed pathway.
    My Moree Moment suggests this constitutional change is not going to be accepted.
    Just as an aside, the reason Obama failed to stop fracking in the US was because land holders have the right to minerals under the ground. He could only close this off in Government controlled land.
    The USA is now energy self sufficient and a net energy exporter. The prices are low. Business is booming.
    As I understand it, under Mabo, aborigines were displaced from their land in the recent past around and to the North of Moree and so have native title claims.
    When they claim land rights, they claim the rights to fish, water, fowl and what lies beneath the land, ie, minerals.
    For citizens in general, we have no such right, the Crown controls minerals, in some places water falling on land is not owned by the land owner.
    Personally I am wary about having a Constitution that mentions Race.
    To be consistent, the Builders, the prewar British settlers should also be recognised, as well as the post War immigration.
    Perhaps everyone needs a special voice.
    Its in place, its called Parliament.
    However the land claims of the Aboriginal people must be worked through, validated and paid for or granted where the crown has existing rights over the land.
    Opening up gas fields in Australia under Native Title would be a plus for the nation as a whole and enrich the Aboriginal land owners.
    To keep race out of our constitution and splitting us up into numerous ‘Nations’ it may be worth accepting their original right to minerals, such as the nardoo stone and allow them to unlock the wealth for their use, to open up our shared Nation.

  • brandee

    A big thanks to Keith W for this eye opener.
    The stone age indigenous people in Australia in 1788 have come a long way since then. How astute of the mixed race descendants to make modern application of hunter-gatherer culture with its most important notion being ‘demand Sharing’ or ‘humbugging’. This demand sharing is a blight on aboriginal communities and the demand for more ‘voice’ will be a blight on the nation.
    Already we have seen KRudd apologise, and we have marched for reconciliation, and given land rights, NIV TV, etc., and in response we are told we are no longer allowed to climb the Rock!
    We share and we share and we fund an aboriginal industry but the humbuggers want more without limit!
    Let’s demand DNA testing and from now on only privilege full blood to half caste!

  • Bwana Neusi

    Just look to Tasmania to see a “Con job on steroids”.
    There are no full bloods alive in Tassie and yet we have a thriving Aboriginal industry. And these part aboriginal descendants ironically probably have greater legitimate claim to Australia than do the Australian aboriginals who are almost certainly “Second Wave” migrants.
    Let us have DNA tests done to determine which aboriginals arrived when (ie. First wave or Second wave) and then apply the “Majority Ethnicity” test to all claimants.
    Claim to Aboriginality must be on the basis alone that it is the predominant ethnicity. Statistically a quarter ethnicity or greater would be the sole basis for any claim.

  • Andrew Richards

    Henry Ergas says “The fact of the matter is that the provision would entrench in the Constitution rights of representation that were made available to some Australians but not others solely on the basis of biological identity.”
    And Noel Pearson has said that “the voice, however constituted, must have the capacity to “have a say over laws and ­policies” created at the national level. “Ultimately, representation at the national level would be to enable all Aboriginal and Torres Strait Islander people to elect their representatives to represent their views to the voice,”
    So there is a sleeper issue re the recognition of Aborigines, and the constitutional amendments proposed to allow various tribes to have certain constitutional rights, namely .. . Who will be allowed to vote as an indigenous person? i.e. to claim this biological identity
    I was sent a comment (from a senior lawyer) that is most interesting.
    “Any Constitutional change must itself include a definition of the class of people it relates to. The only acceptable Constitutional definition is “a descendant of the original inhabitants”. In turn, this can only be proved by DNA. Very simple.”
    However, I think that the judges on the High Court etc may not agree, as they would bend over backwards to make it work without any stringent tests such as DNA.
    But… if the legislators tried another way.. e.g. anyone recognised by e.g. whatever body , Aboriginal lobby or tribe etc that currently gives you a stamp of approval for being the genuine article, then surely the voters would not be very happy at all (as they all know that there is currently a lot of rotting going on) , and we have seen the consequences of the secret ballot being secret.
    The mendicant states, i.e. Tasmania and South Australia will be interesting to watch. How will they vote? They might see it as a chance to get even more taxpayers funds from the other states, and they both have large Aboriginal populations.
    I find it amazing that there is no discussion that I can find of this very important issue in the media. When the expenditure of government benefits per head of population is currently about twice as much per head for Aborigines than for the rest of us there is an obvious advantage in claiming to be indigenous… yet you are not allowed to question this.. see the Bolt case.
    But this issue will blow up, sooner or later

  • JamesBowen

    The “voice” for Aboriginal Australians is clearly pointing towards both a “treaty” with Aboriginal Australians and division of Australia into separate Aboriginal and non-Aboriginal nations.

    It is an appalling reflection of the utter failure of legal scholarship at Federal and State levels that governments cannot appreciate a simple fact of international law. The Andrews Labor government in Victoria is already engaged in so-called “treaty” discussions with some Aboriginal people, and at the Federal level, the Morrison government has not ruled out a “treaty” with Aboriginal people. The simple fact is that neither Federal or State governments can enter into an internationally recognisable treaty with Australian Aborigines because international law only recognises treaties as being possible between sovereign nations. A country cannot enter an internationally recognisable treaty with an identifiable section of its own people; in this case Aboriginal Australians.

    The Treaty of Waitangi in 1840 between the British in their small Auckland enclave and the Maori chiefs who still exercised sovereign sway over most of New Zealand is often cited as an example for Australia to follow with Aboriginal people; but that treaty is irrelevant to the situation in present-day Australia. For Aboriginal Australians, the time for a treaty is long past.

    But some type of formal agreement (not a treaty) with Aboriginal Australians is still technically possible even if hedged with explosive political issues. What would such a formal agreement with identifiable Aboriginal people mean for Australia? Labor Prime Minister Bob Hawke left Barunga in 1988 after promising Aboriginal Australians a “treaty” that included recognition of Aboriginal ownership of Australia, creation of a separate Aboriginal nation within Australia, and massive financial compensation payable to all Aboriginal Australians.

    At Barunga, Aborigines called for a grant of sovereignty over a defined area of Australia to Aboriginal people. This defined area, perhaps the Northern Territory, would become a separate nation within Australia supported by Australian taxpayers. We are talking about a cost to Australian taxpayers of trillions of dollars. Nothing happened because Bob Hawke was almost certainly told when back in Canberra that a sovereign nation cannot enter into a valid treaty with an identifiable section of its own population and that creation of a separate Aboriginal nation within Australia’s existing boundaries would be political death for Labor. The Barunga promises, including a treaty, were quietly dropped by the Hawke government. 

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