Background
The 2023 referendum “proposes an alteration to the Constitution to recognise First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice to make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples.” Alterations to the Constitution can only result from a referendum being carried. Since Federation, only 8 of the 44 proposals for constitutional change have been approved.
There is a groundswell of opinion and rhetoric building on both sides of the upcoming referendum. There are good and persuasive arguments on either side of the fence. Many people are seriously conflicted, teetering one way then another, on a, somewhat, rickety fence. It’s that fence that I want to talk about – Australia, democracy, and the Constitution. Their foundation is shaky – perched precariously upon stolen Aboriginal land. The modern nation we call Australia has been built upon the many sovereign First Nations that made up this vast continent – land continuously occupied by the same people for over forty thousand years – land never ceded.
So what is Australia?
In 1770, British naval officer, James Cook, claimed the eastern seaboard of the great southern continent for the British crown. The colonising of the, newly named, New South Wales, began in 1788. Soon other colonies were established and eventually the entire content was claimed for Britain. The self-governing British colonies gradually established democratic parliaments throughout the 19th century, culminating with a vote for the federation of the six colonies and the foundation of the Commonwealth of Australia on 1 January 1901. So began Australia, a federal parliamentary constitutional monarchy, comprising six states and ten territories. A process of increasing autonomy from Britain continued into the 20th century, highlighted by the Statute of Westminster Adoption Act 1942, and culminating in the Australia Act 1986.
Only one slight problem: First Nations people were already here.
The conflict wrought by invasion, variously known as the Black Wars, the Frontier Wars, and the Homeland Wars, was the rightful action of sovereign nations to defend their lands. More importantly, and with adverse affects to Aboriginal people to this day, this war has never been resolved. The First Nations were never recognised, their sovereignty never acknowledged, and no treaty was ever negotiated. The colonies, followed by the states and territories, made a concerted effort to dispel First Nations sovereignty. They would ‘rightly’ claim there were never any treaties, for there were never any existing nations. They were wrong. To perpetuate this falsehood, fanciful myths were fabricated to depict Aborigines as aimless wanderers, existing hand to mouth, without a notion of law or statehood. Nothing could be further from the truth.
Over two hundred and fifty nations lived across this continent in relative peace, in harmony with the environment, guided by a rich, complex, and sophisticated system of lore, that guided every aspect of their lives. They were generous, accommodating, and caring. When the pale strangers came on their floating islands with tall trees, they accommodated them according to their lore. When the visitors stayed they wondered who was taking care of their country. When the newcomers broke their lore, they were punished accordingly. When the invaders began to take their lands, they resisted, and defended their lands with their lives. When the colonisers kept coming they did all they could to survive.
The illegitimate birth of a nation was a fait de compli.
Perfunctory and arbitrary lines were drawn across the continent, three tiers of government set in place, and the stolen lands settled. A deafening silence ensued. First Nations people were all but erased from history, relegated to the stone age – a once noble, but dying race, inevitably doomed in the face of European superiority. Colonial newspapers that once championed the rights of settlers subject to the terror of the murderous ‘Natives’, turned their attention to the agriculture, industry, and growing population of a new nation. Silently, the genocide continued. Church run missions and government reserves, prohibition of language and lore, assimilation and reeducation, stolen children, incarceration, and servitude. Agency of any description was stripped away, their lives dictated by misguided and ineffectual government policies.
Governments have been enacting laws that affect the lives of Aboriginal people – whether they liked it or not – since colonisation began. The invading colonial governors were ordered to treat the ‘Natives’ as British subjects, with all the protections any subject should expect. That didn’t happen. The newly federated states and territories made laws that controlled every aspect of their lives – where they could work, whether they were paid, where they could live, where they could travel, and whether they could keep their children. The 1967 referendum adjusted Section 51 (xxvi) of the Constitution, which “gave the Commonwealth power to make laws with respect to ‘people of any race, other than the Aboriginal race in any state, for whom it was deemed necessary to make special laws.” The Commonwealth henceforth, enacted laws that continue to affect the lives of First Nations people.
Although the 1967 referendum carried the yes vote, it never really addressed the issue of why “the Aboriginal race” needed their own “special laws”. No matter what angle you try and take on this question, the elephant in the room, is that the Australian Constitution is racist. In fact, the Constitution currently contains no protections against racial discrimination and the Parliament is capable of suspending existing statutory protections. The protections under Racial Discrimination Act 1975 – the federal legislation designed to ensure equality of treatment of all people regardless of their race – have been removed on three occasions: each time for Aboriginal and Torres Strait Islander peoples. Go figure. The Constitution has enshrined racism of any race, but to date, the (Constitutional) racism has only been directed at First Nations people. “Special” indeed. So, why, oh why would First Nations people want a voice embedded in a blatantly racist Constitution? The answer to that echoes in the halls of Westminster.
Democracy
Ah… democracy… one man, one vote… oh, only if you were a landowner… and male… but that’s another story. Unfortunately, many people equate democracy with human rights – for example, the right to free speech, wrongly attributed to our Constitution. Many people also interpret the win at the 1967 referendum as the right for Aborigines to vote as citizens. Not true. As above, there was an adjustment regarding race – the other change was including Aboriginal people in the census. In fact, as early as the 1850s Aboriginal men had the same right to vote as other male British subjects aged over 21 in Victoria, New South Wales, and South Australia. In 1895 Aboriginal women could also vote in South Australia. However, there were multiple changes to voting rights, and it wasn’t until 1984 that Aboriginal and Torres Strait Islander people gained full equality with other electors under the Commonwealth Electoral Amendment Act 1983. Again, we must ask the question: why were First Nations people singled out to vote or not vote.
Unfortunately for minorities, in democracy, the majority rules. The Aboriginal population has sat at around 4% of the national population for some time now, and this is reflected in states and territories, with some variation in the NT, and certain council municipalities. So, even if every Aboriginal person eligible to vote, made exactly the same decision, in any election or referendum, there is little likelihood their vote would be effectual. Again, many people understand democracy as meaning everyone has the right to be heard. Well, yes, and no. Unless your cause can generate support from more than half the voting population, you’re not likely to be heard at all. There really are no ‘noisy minorities’ – just minorities. The point is, First Nations people have never held any significant power in Parliament. They have continually been at the mercy of the invaders. They have never been given their UN sanctioned right to self-determination.
The truth of the matter is not the accepting of western laws by First Nations people, but the dismissal of First Nations lore by the invaders. This disparity is at the root of racism here in Australia. It has been anathema to western sentiment that a ‘stone age’ people could possibly have formed a system of governance equal to Westminster. Yet, they did. A complex system that ensured everyone had what they needed, everyone had purpose and meaning, and everyone had responsibilities to each other and their environment; rules that governed kinship and marriage, diplomatic relations with neighbouring nations, and codes for international travel. The same contempt is still afforded any First Nations person who dares compare their lore to western law. The fact that indigenous lore supported life and land successfully for tens of thousands of years, and western law, in only five hundred years, has wrought damage to the entire planet, seems to escape the attention of many people.
Legitimate beginnings or not, the nation of Australia, its Constitution, governments and laws, are here to stay (for now). Equally, the fact that First Nations never ceded their lands remains a moot point. Nevertheless, the Constitution, systems of government, and laws, can all be amended, but any changes that will benefit to the lives of First Nations people is subject to the rule of the majority vote. This is why some First Nations support the enshrining of a First Nations Voice in the Constitution. The Uluru Statement From the Heart states, “In 1967 we were counted, in 2017 we seek to be heard.” If they can’t legislate for themselves, at least they can directly advise the people that can. However, there are also First Nations people that oppose the enshrined voice, saying that it will make no difference, will fail like every other indigenous advisory body, and impede the road to treaty.
So, how should we vote?
Well, let’s think. Yes or No. (Of course there is the option of not voting at all, however we’ll leave that to individual conscience, democratic duty and all that). A Yes vote carried would of course set the wheels in motion for an indigenous voice to be enshrined in the Constitution, though it won’t determine how this Voice will work – who will make up the Voice, how they will address Parliament, how often etc. A No vote carried would be the end of the matter – well not exactly. Both outcomes will affect First Nations people. A Yes result will of course please the voice supporters, Aboriginal and non-Aboriginal, but it will also inflame ideologies already voiced during the campaign. On one hand, there will be claims of racism, or even “reverse racism” because Aboriginal people have been singled out. On the other hand, some First Nations people, against the voice, will feel further disenfranchised. A No result will disappoint voice supporters, and vindicate the no supporters, but it will also leave the First Nations voice supporters blindsided. Regardless of the outcome, this referendum will be divisive.
Perhaps we believe we have no choice; that the only way forward for First Nations people is for the people of Australia to exercise their democratic power and amend the Constitution, a position no other advisory body has achieved. The strength of an advisory body being enshrined in the Constitution is that it can only be removed by referendum, making it relatively permanent . However, the ability of a constitutionally enshrined advisory body to influence law making is not likely to be any different than any of the the non-permanent bodies that have come and gone to date. Fundamentally, we all know that repeating the same action to achieve different results demonstrates stupidity. Well, here’s the rub: We have used the same basic legal mechanisms to manage the lives of Aboriginal people – enact laws on their behalf, enforce them with police or military, punish them when they don’t comply, commission reports and inquests – repeat – and expect a different (better) outcome each time.
Makarrata
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.
First Nations people have always had a voice, but more often than not, their voice has fallen on the deaf ears of the Australian populace. More nuanced though is the inadequacy of the English language and western philosophy to make sense of First Nations lore. Without the connection to, and caring for, country over millennia, it is difficult, even for the most altruistic listener to fully understand. When First Nations say they have always been here, they are not measuring against a western linear timeline, rather, they are describing their innate and unique belonging to this continent. So, before deciding how to vote, listen to First Nations people with an open heart and an open mind. Allow truth to rise to the surface of every conversation, every debate, and every encounter, before, and after, this referendum. Australia, can be for First Nations, and for other nations, but only if we work together, and that, my friends, is the only real choice.
Addit – September 2nd
Having written this post three months ago, I like many of you, have swung back and forth on the yes or the no. It’s been difficult, and my heart goes out to all the First Nations people who have, yet again, been the focus of undue racist slurs, absurd accusations, and blatant ignorance. As I heard one young Aboriginal man state last week – there’s racism, and then there’s Aboriginal racism. So, where are we at? I can appreciate the call from First Nations people for a ‘progressive no’. I don’t believe an enshrined voice is going to make any difference to what has already been in place. However claiming it is divisive, fails to recognise that our nation is already divided, rich and poor, male and female, black and white. I can’t see much good coming from a Yes vote, but I most definitely only see ill coming from a No vote. It’s like the old adage about democracy – its the worst form of government, except for all the other forms of government. My greatest hope is that all Australians have a good look at how this nation came to be, interrogate our systems of governance, and listen to the wisdom and knowledge of the longest living culture on this planet. Which only makes me think that we have put the cart before the horse. We shouldn’t be asking ourselves whether we should be listening to First Nations people, rather, we should be asking ourselves why they shouldn’t be leading us into the future.
Andy Vagg 