Referendum on an Indigenous Voice to Parliament – Bruce Kaye
- 12 April 2023
- Bruce Kaye
ULURU AND THE VOICE TO PARLIAMENT
The present journey to a referendum is just the most recent chapter in a very long history of relations between the Indigenous peoples of this land the English settlers of 1788 and their successors. The immediate catalyst of the present process is the Uluru Statement from the Heart made at a nationally representative gathering of Aboriginal and Torres Strait Islanders in 2017.[i]
It calls for a First Nations Voice to be enshrined in the constitution. The call was quickly dismissed by the then Commonwealth Government on serious misunderstanding of the Uluru Statement. but it was later taken up by others and the present Prime Minister committed to implement the Uluru Statement in full. A great deal of consultation and not a little argument has brought us to the present situation. There are two decisive elements at stake here.
- Why should the first nations on this land be treated in the constitution in a way that is not done for any other class of people?
- What is this voice and how will it operate and for what purpose?
Given the great significance of this proposal it is not surprising that different views have been taken as to what is intended and how will it work. Key questions concern the detailed operation of the proposed Voice and how does the sovereignty claimed by the Uluru Statement relate to the sovereignty expressed in the Federal constitution. We have to take these issues seriously and I will come back to them later. For the present I address the two fundamental questions raised by the proposed referendum.
- WHY SHOULD THE FIRST NATIONS ON THIS LAND BE TREATED IN THE CONSTITUTION AS NO OTHER CLASS OF PEOPLE IS ?
First and foremost, they are unique in that they were the first inhabitants of this land over an astonishing 60,000 years.
They almost certainly did not all come at the same time but over thousands of years. They first came when the continent was probably mostly desert and the mega fauna may still have been here. They were here before the first ice age about 43,000 years ago when the sea levels dropped and a land bridge appeared between Tasmania and the mainland. A similar land bridge appeared between the mainland and New Guinea.
Over this vast time, they came to grasp their relation to the land in a spiritual way, a spiritual notion of an ‘ancestral tie between the land, or ‘mother nature’. They 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. Song lines expressed the multifaceted character of this reality for them.
This was the basis of their belonging to the land and the land belonging to them. It is a spiritual notion – a sovereignty which they have never given up and co-exists with the legal sovereignty of the Crown.
What is being suggested here is that these indigenous peoples should join in the recognised groups encompassed by the constitution. As it presently exists the constitution is of a commonwealth of people and a federation of states. They were previously colonies but became states within the nation created by the constitution. This present proposal recognises the Indigenous peoples, and establishes a mechanism that will enable these peoples to offer advice to the Federal Parliament and government. It is nothing like creating a state with powers and rights under the constitution, or a separate centre of authority or power. It simply means that their democratically elected representatives can offer advice.
At the end of the nineteenth century when the Commonwealth Constitution was being formulated it was widely assumed that the Indigenous peoples would die out and indeed policies towards them moved in that direction. But they have not died out. Despite their treatment they have flourished. First there was a first indigenous member of the Commonwealth Parliament. Then followed Indigenous people in the professions and we have a significant number of indigenous academic and professors in our universities. We have a people amongst us whose ancestors were the first occupants of this land. They are in a unique position by history of origin and of resilient continuous survival. There is no other class of peoples like them. They are unique.
Secondly, Australian Aboriginals and Torres Straight Islanders have suffered immeasurably from the earliest times of British settlement despite being the original inhabitants of this land.
At the beginning of the settlement there were some times of engagement and friendship but Philip’s dream of some form of integrated society never occurred. There were too many different dynamics at play within the colonial settlers and insufficient law embedded in the community. Settlers who spread their grazing stock outside the nineteen counties limit of the colony became a law unto themselves as they banished and murdered the indigenous occupants.
There were wars between settlers, the colonial governments and indigenous groups, but they were one sided affairs and there were numerous massacres. The extraordinary research on massacres in Australia conducted from the University of Newcastle, Colonial Frontier Massacres in Australia, 1788-1930 [ii] define a massacre as ‘the deliberate and unlawful killing of six or more undefended people in one operation.’ They report 11,257 people were killed at 421 sites. These are certainly not the full numbers which for reasons of discovery can never be fully counted. Of these thirteen were massacres of colonists by Aboriginals but most of these generated fierce reprisals. The massacres spread across Southern Australia from 1794 to 1864 thence to northern Australia when the number massacred in any given massacre increased from 23 to 32. The massacres followed the expansion of the settlement by colonists.
The horrendous massacre of twenty eight Aboriginal men women and children at Myall Creek in the New England District of New South Wales on 10 June 1838 is notable not only for its horrendous brutality, but also because for the first time a white man was charged with the murder of an indigenous person. In fact, seven white men were tried and executed by hanging for this crime. It was a turning point legally, but it was by no means the end of the slaughter. Astonishingly five massacres are recorded in the 1930s. That is only one generation ago – the decade in which my parents were married and in which I was born.
Even to this day First Nations people continue to suffer alienation and disadvantage. Why does it take decades for some solution to be found to deal with the disgrace of indigenous deaths in custody? Why it is possible to be satisfied with the manifest failure by our nation to close the gap in the Closing the Gap programmes? Why is it possible for publicly highlighted racism in the presentation of sporting activities such as AFL football and others to continue?
These things speak of institutional atrophy which needs some kind of circuit breaker. The Voice will not solve these problems but it will bring a wider and more informed voice to the converstion.
Indigenous Australians were excluded from the constitution when it was formulated. They were not counted in the population until 1957 when the constitution was changed. They were encouraged to join the armed forces to fight in Australia’s foreign wars but not entitled to ex-servicemen benefits, nor even some ordinary civil liberties. The disadvantages and plain racism to which Indigenous peoples have been subjected are too multifarious and extensive to be described here briefly. Suffice it to say that their sufferings have been extreme and the nation has ignominiously failed them, and it has also failed its own best spirits.
The Uluru statement plainly describes the reality of their situation.
Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.
These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.
THE ULURU STATEMENT
In 2016 and 2017 regional dialogues were held amongst indigenous peoples across the whole nation. These provided the basis for a First Nations Constitutional Convention at Uluru in May 2017. That convention issued the Uluru Statement from the Heart to the Australian people. It was a public invitation to a conversation and a walking together. ‘We ask Australians to accept our invitation to walk with us in a movement of the Australian people for a better future.’ This was essentially a people to people conversation within the framework of the Australian nation, a nation that comprehended all who live here.
In inviting that conversation with the Australian people the Uluru Statement identifies two things. It
- calls for the establishment of a First Nations Voice enshrined in the constitution
- seeks a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.
The coming referendum addresses the first of these with a proposal to change the constitution. The second is to follow and will be entirely in the hands of the Commonwealth parliament.
Prime Minister Albanese announced 0n 23 March the government’s approach to the coming referendum. The proposed amendment of the constitution will be:
Chapter IX – Recognition of Aboriginal and Torres Strait Islander Peoples
129 Aboriginal and Torres Strait Islander Voice
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
(1) There shall be a body to be called the Aboriginal and Torres Strait Islander Voice;
(2) The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
(3) The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.
The first two key issues at stake here are recognition of Aboriginal and Torres Strait Islander People and the establishment of the Voice. Currently there are eight chapters in the constitution. A completely new chapter will be added that deals with both those questions. A third clause makes it clear that the ‘composition, functions, power and procedures’ will be subject to laws made by the parliament. The constitutional change secures the recognition of our Indigenous Australians and the existence of a Voice permanently in the constitution, while at the same time maintaining the sovereignty of parliament over the processes.
The exact terms of the referendum are to go to Parliament for final authorisation of the referendum, but the fundamental issues at stake here for all Australians are quite clear. These Indigenous and Torres Strait Island peoples have a unique place in the creating of the people we have become and the nation to which we belong – together. The nation should recognise and provide for that uniqueness and we should remedy the dreadful sufferings that have been forced on them over many years up to and including today.
SOVEREIGNTY AND SOVEREIGNTIES TOGETHER
The idea of sovereignty is central to the argument in the Uluru Statement. The first sentence declares that the ‘Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs.’ The statement then describes the meaning of this sovereignty.
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.
Christians should be able to understand this notion of sovereignty. Christians believe in a kingdom in which Jesus is sovereign. Moreover, Jesus said that his kingdom was not of this world. If it were of this world then, he said , his disciples would fight. But this supernal kingdom of Jesus provides the moral framework within which christians shape their lives in this world – in their daily lives. No Australian christian can properly place the nation of Australia, or any nation, above this heavenly kingdom in their affections and loyalty. Of course, in the early Roman Empire christians acceded to the Emperor Constantine’s pressing offer to be part of his earthly kingdom. This “christendom” turned out to be a beguiling and corrupting thing. The English version that came with Arthur Philip in 1788 was one of the longest running and most stringent bonds between the earthly material terms of life in the United Kingdom and the supernal life of Jesus’ kingdom. That christendom excursion into a dangerous compromise by institutional churches has mostly come to an end, and certainly so in Australia. Christians can never surrender the sovereignty of Jesus’ heavenly kingdom and yet because of the moral character of that kingdom they are inspired to live positively in the daily life of the nation in which they live in the here and now.
The notion of a sovereignty binding First Nations people did not arrive here 60,000 years ago with the first humans on the continent. But it did emerge in the formation of human society over a very long period of time. The emergence of the nation state in our modern western sense did not come to reality until modern times. The modern states of Germany and Italy were created in the nineteenth century, that of China in the twentieth, and the United States of America in the eighteenth century.
The English experience of sovereignty has been influential on our Australian experience. One aspect of that experience might be useful in our present circumstances. The sovereignty of the English monarch reached its modern zenith with Henry VIII and it nadir with George III. A long process of change meant that effective sovereign power passed from the king to the parliament. However, the English kept the crown as the symbol of the sovereignty of the nation. Its function was to assert the unity in the body politic. It did so in largely symbolic ways. The Commonwealth constitution of Australia operates in a somewhat similar way. The crown remains the sovereign, but parliament, as representative of the people, is the effective location of governing power. The constitution provides that all action under this constitution is to be executed through the Governor General who remains the representative of the King of Australia and is subject to the advice of the Prime minister, representing the will of the parliament. The precise form of sovereignty in a country with an absolutist monarchy is quite different from our modern democratic notion, even though we maintain imaginative symbols to represent the unity and integrity of the nation.
The point I want to underline is that the idea of sovereignty does not have only one simple meaning. In the present circumstances it is eminently discussable to talk about different kinds of sovereignty co-existing within a commonwealth like Australia. Perhaps christians who experience a spiritual sense of sovereignty could develop some better understanding of how sovereignties might work together.
It is impossible to overstate the significance of this referendum. It is not enough simply to change the constitution in the referendum, though that is absolutely critical. It is also necessary for us as Australians to accept the invitation of Uluru to a working conversation about the future of the nation and to be active in securing better fort eh disadvantaged in our community. That involves a commitment at every level of society that is both informed and as gracious as the Uluru Statement from the Heart.
3 April 2023
[ii] Ryan, Lyndall; Debenham, Jennifer; Pascoe, Bill; Smith, Robyn; Owen, Chris; Richards, Jonathan; Gilbert, Stephanie; Anders, Robert J; Usher, Kaine; Price, Daniel; Newley, Jack; Brown, Mark; Le, Le Hoang; Fairbairn, Hedy Colonial Frontier Massacres in Australia 1788-1930, Newcastle, University of Newcastle, http://hdl.handle.net/1959.13/1340762 (accessed 16/03/2022).