Eddie Synot is a Wamba Wamba First Nations lawyer and researcher with Griffith Law School, Griffith University and a centre associate with the Indigenous Law Centre, UNSW. He is also a member of the Uluru Dialogue.
Movements for change often face a chasm between the conviction of their followers and a future we never arrive at because we lack credible and achievable ways to get there.
Even when we respond to the worst parts of our society with the best of intentions, movements for change often mirror negative aspects of our politics that are disconnected from the reality of achieving change. Here, too, prevailing structures of power are not easily transformed, and organising for change is made that much harder by the very interests that serve and benefit from them.
The place of First Nations is no exception.
For 233 years the rights of First Nations peoples have been denied, and this denial has touched all aspects of First Nations’ lives. First Nations have not simply felt this denial as a lack of formal recognition, easily rectified by formalistic, symbolic gestures such as a new preamble in the Australian constitution. None of the decisions of the Commonwealth, states and territories, or broader institutions of Australian society, such as Closing the Gap or any other targeted reform, have occurred in a vacuum disconnected from this denial.
The length of this denial also means we are 233 years into a complicated relationship. We are dealing with a deeply embedded legal and political system that is not easily changed, so too Australian cultural norms.
First Nations have not ceded their sovereignty, but Australia’s legitimacy as a political, legal — but perhaps not moral — entity does not depend on whether it has a treaty with First Nations.
Even the United Nations Declaration of the Rights of Indigenous People (UNDRIP) does not change this. Article 46, often ignored by many that rely on UNDRIP to inform their claims against the Australian state, declares that nothing in UNDRIP “may be interpreted as implying… any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states”.
Whatever action we take, the Commonwealth will remain the paramount legal authority. Even future treaties will be susceptible to Parliament and could be torn up, leaving — in the absence of a constitutionally protected Voice — nothing. Some refuse to accept this. Their solutions should be understood in the context of their refusal to engage these challenges.
The Uluru Statement from the Heart was developed through a process that understood these challenges. Thirteen regional dialogues, run over three days each, engaged a representative cross-section of the Indigenous community through informed, deliberative dialogue. These were not simple consultations. These deliberations countenanced broad views from the Indigenous community, including dissent, and resulted in the First Nations National Constitutional Convention in 2017. There, an overwhelming majority of delegates endorsed the consensus position of the Uluru Statement and the sequenced reforms of Voice, Treaty and Truth.
These reforms provide a credible and achievable way forward. The Uluru Statement changes are grounded in the legitimate rights of First Nations. They are also informed by the reality of the Australian state. This means delegates at the regional dialogues and the national convention understood the difference between credible, achievable change as opposed to ideal, impossible constitutional amendments and reforms, each more impossible — legally and politically — to achieve than the last.
This is one reason why the Voice enshrined in the constitution was the first preference for change of regional and national delegates in the sequenced order of Voice, Treaty and Truth.
The order of Voice first followed by a Makarrata Commission for agreement-making and truth-telling was not forced on delegates. It cannot just be dismissed as the preference of leadership. Rather it was the result of informed, deliberative dialogue where delegates wanted their voices to be heard, and for that structural change to inform future processes of agreement-making (treaty) and truth-telling.
Misinformation about this process continues, however. Some deny First Nations’ rights, claiming the Voice is a “race-based” body based on inequality and division. These arguments would have us practise a terra nullius writ large and should be treated as belonging to the bygone age they do. Others refuse to recognise the claim of the Australian state, claiming also the Voice would be powerless, and treaty should come first. Neither position engages responsibly with the reality of our situation nor of achieving change. It is impossible First Nations accept they don’t exist, just as it is impossible to ignore the reality of the Australian state and the position of First Nations within it.
Yet political impossibilities have not stopped many exploring the chasm between personal preference, ideal and reality, while also making mountains out of molehills — such as the many claims about there not being enough detail on the Voice — while pushing their preference. Here expertise counts for little when the commentariat — and others — are all too ready to assume the position of the all-knowing polymath.
The claim the Voice will have no power is especially disingenuous when made by those that claim there isn’t enough detail. How would they know?
The point about power is naïve also because nothing, not even a treaty, can have, share, or replace the power of the Australian Parliament. Claims otherwise refuse to engage or accept factual explanations of our legal and political system that cannot be changed in the same way other constitutional amendments are made. No reform is going to change this fundamental structure other than an absolute upheaval, which is neither desirable nor on the agenda.
The truth is the Voice will not be powerless. It has been developed with all this in mind. The Voice will be a powerful and permanent institution for First Nations to mobilise around, to be recognised and represented by, and to influence Parliament’s decision-making. It is through the Voice that changes to the Australian culture and power of decision-making will occur to enable better outcomes as well as meaningful agreement-making and truth-telling.
Could we really expect that from current structures? The Uluru delegates understood we can’t.
Despite claims here too about there not being enough detail, the Voice is a simple, principled reform that has been detailed. It’s also a disingenuous claim. Australians vote every federal election to confer authority on Parliament to act on our behalf, whether we realise and accept that or not, with little to no detail of Parliament’s intentions. Yet now, suddenly, we are to believe the Australian public is a nation of policy wonks who must know the intimate detail of every decision Parliament intends to make before we vote.
Our political system has never worked that way, nor could it. Reforms could never ever be allowed that would limit Parliament’s power in such a way.
The fact is, the Voice has been developed through the most extensive process of constitutional reform in Australian history. This process, conducted over decades, has canvassed all the issues many fixate on. The detailed work has been done where it is needed. The accessibility of that detail, whether it is about the constitutional amendment itself as opposed to the future legislative model of a Voice (which is not needed) is another matter entirely and one that will be addressed through the course of the referendum.
This is a reform about first principles: there will be a Voice (because there should be); it will provide advice to Parliament (because it should as a matter of right and best practice); Parliament will have power over its make-up and powers (because that is how our constitutional system works).
If we aren’t happy with the Voice, we can organise to change it. It is on us to make it work.
There are no easy answers, but the Voice is the mechanism for us to make real, lasting change. The Voice’s fundamental existence as a matter of principle between First Nations and the Australian state would always remain. The Voice would provide a permanent, authoritative institution to negotiate the relationship between Indigenous and non-Indigenous Australians.
Finally, after 233 years, we would be taking a substantive step forward. First Nations would be recognised and respected and decisions would no longer be made without them. Not even treaty can guarantee that.
Does the prospect of an Indigenous Voice to Parliament fill you with pride? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
Some of the targets in this piece are fair enough; some seem tendentious, and avoiding some questions that have arisen:
1) detail. Yes, the right wing stuff about ‘detail’ is wilfully misplaced. What disturbs is a lack of clarity. I honestly can’t understand, from the Langton-Calma report, whether delegates are to be chosen by communities, or elected ATSIC style, or some mix of the two. I have no clear picture whether there is unanimity on this among Voice advocates, or whether advocates are supporting different models. That does not seem detail. That seems part of the essential character of the proposal people are being asked to vote on.
2) Treaty then Voice, vs Voice then Treaty. The argument that Voice is necessary for treaty doesnt convince for a second. Internal treaties – such as the Good Friday Agreement – recognise autonomous powers or entities within a state. The GFA was made, de facto, with a group, the IRA, who disputed the state’s legitimacy, by way of violent opposition – and renounced that as part of the treaty. Any treaty here would recognise a white-black war arising from white invasion. Since it would be wholly symbolic – in that there’s no ongoing violent resistance to the state – its arguable that a simple treaty would have more chance of getting up in a referendum, than a complex, undetermined Voice. Separating principle from strategy in a rigid fashion seems unrealistic at this stage.
3) Powerlessness. The ‘power’ the author speaks of is informal, rhetorical, organisational power. Not legislative or executive powers. Clause iii of the Albanese proposal suggests powers, but that is obviously only what can be delegated by parliament, and thus always revoked or countermanded. The assessment that a Voice will focus rhetorical and political power is opinion only; maybe it will, but it may also create division and competition for preferment that would not otherwise exist
4) Expertise. Forget the claim of expertise. This has gone live. Opinion may be well-informed or ignorant, but the process of the nation deciding has begun. The Uluru etc dialogues may be the basis of a moral-political claim – first nations people decided on this, so vote for it – but that remains a political argument which can be argued against. The process is now political, and 97% of voters who aren’t first nations will be the vast majority of those who decide it. They will make their assessments based on what the Voice looks like to them not (a minority aside) how it was designed. The Voice is now, nearly, a white object. When the formal referendum process begins, it will be utterly so.
‘utterly’ might be an overstatement. ‘Substantially’.
97%
Upper case “F” and upper case “N” – First Nations.
Aborigine – noun, Aboriginal – adjective but that’s just whitey grammar & orthography.
My god, no wonder we never get anywhere with this!
All this may be legitimate at a formal level, but it doesn’t reflect the importance of the referendum as a symbolic act of nationhood. It would be part of a series including Rudd’s apology to the stolen generations. Albanese has framed it as an expression of gratitude. If something with that symbolism were to be realised, it would be a major positive step – perhaps even an Australian Thanksgiving might emerge from this (not just in Norfolk Island).
It’s clear that Thorpe is not interested in taking the other 97% of Australia along with her. The Greens are in danger of repeating their Senate grandstanding over the emissions legislation. Maybe the Queensland Greens can help the party evolve a whole-of-government vision. The alternative would be tragic.
The essential problem is that the present circumstance of sovereignty is held by Parliament in the Constitution in an unquestioned inference to ‘the Crown’. The British sovereign. We are all subjects of the Queen. Indigenous as well as non-indigenous. Contemporanously – at present – none of us, individually, hold any of that sovereignty. One may consider that from the event of the appearance of Indigenous peoples in Australia, in the order of 65,000 years ago, those persons collectively held the sovereignty of Australia. Peoples with no record or tradition of migration into Australia – but with indisputable genetic linkage to the primitive homo sapiens that lived in North Africa, demonstrated in the evidence of fertility in the linkage of Indigenous Australians with all variants of homo sapiens extant in the present human population, who therefore arose from the same human stock, reasonably in Africa, not in Australia.
On can therefore consider the wide community of Indigenous persons living in Australia when the First Fleet landed in Sydney Cove in 1788 collectively held ‘sovereignty’ over this country, whatever that word and concept then had meaning. But they did not know of their collective natural sovereignty. The contemporaneous interpretation in 1788 had meant that ‘natural sovereignty’ could be challenged and usurped by military conquest, a fate suffered by indigenous and native peoples all over the world. Indigenous peoples with military prowess resisted conquest to a greater degree than those with less. (New Zealand Maori, for example.) Australian Aborigines, with essentially no military prowess, nor concept of continental nationhood, suffered the greatest loss of natural sovereignty. More than two centuries later, what natural sovereignty rights remains to Indigenous Australians? The practical reality is – no more than the current ‘expatriate citizens’ of Australia are prepared to concede. There is no Indigenous ‘natural sovereignty’ extant in the Australian Constitution.
The question is complicated by the major degree of intermarriage between Indigenous and Expatriate Australians, over up to 10 generations. A substantial proportion of Australians are now of ‘mixed heritage’. What does natural sovereignty mean in this circumstance – particularly since the vast majority of Indigenous Australians are not ‘pure-blood’ – indeed the vast majority of Australians with one or more Indigenous antecedents have a ‘mostly expatriate’ genome. These constitute the ‘major majority’ of Aboriginal Australians. What entitlements of ‘natural sovereignty’ do these have? Can they reasonably claim? This question remains unresolved. In simple genetic terms, ‘Indigenous sovereignty’ is counterbalanced by ‘expatriate sovereignty’. For most persons now claiming ‘Aboriginality’, if expatriates owe them a quantum of something, their personal residual credit/debt balance is negative.
If Aboriginality resides in a personal claim of a qualified, but unquantified, genetic inheritance: a claim of loyalty and adherence to ‘culture’ and ‘country’; and acknowledgement of that by – and acceptance within – a recognised boriginal /mob’, then this is more akin to a religious affiliation. Certainly, in times past – and even now, in some countries – a religious affiliation provided (provides) an economic advantage.
“Blood quantum” discrimination, a residue of 19th/20th century racial determinism, was rightly abandoned in the 1970s and should stay that way.
Aboriginal peoples’ rights are no more rendered ‘unresolved’ by intermarriage with non-Indigenous Australians any more than my right to my great-grandmother’s ring (which was left to me in my grandmother’s will) is rendered ‘unresolved’ by the fact that genetically speaking, I am only 12.5% descended from my great-grandmother and am 87.5% genetically descended from people not related to my great-grandmother. If some burglar claimed that the fact that I am only 12.5% related to my great-grandmother meant that their theft of the ring was justified, they would be laughed at, then jailed. The same principle applies to Indigenous rights.
Aboriginal and Torres Strait Islander claims to original sovereignty and land ownership are a matter of rightful inheritance, not a genetic trait.
First, the voice. This will demonstrate white respect (or lack thereof should the referendum fail). From which all else will certainly follow.
To believe a treaty should be first, now that the Uluru statement from the heart has been put on the table, completely misreads the situation. If the referendum fails then no treaty will be forthcoming. No anything except more of the disfunction we are all so used to. So, if you want a treaty we have to have the voice first.
The 300 nations with 700+ languages managed to agree on the Uluru statement, It is short, it is direct and honest. It is a marvel of humanity. Of course there are members of those communities who, for their own good reasons, disagree with it. But the vast majority of their people who support it must take precedence. The few should just shut up. United we stand: divided we fall. Don’t be a modern version of the black police tracker. (And I’m sorry to offend people by saying that.) The Uluru statement is genius. Like the Rock it is immense and legendary. Fabulous.
“The Voice has been developed through the most extensive process of constitutional reform in Australian history….”
Which is great, and sounds impressive. And might actually impress academics and others who have a legal clue.
Unfortunately, since most people have no idea what the fucntion of the Constitution is, its relation to “the State” or any other such fundamental constructs, we/they are in a conceptual vacuum. It’s not “detail” we need, but education about how our system works, let alone how it is proposed to “reform” it.
So whatever “the Right” is on about, it’s the ordinary Australian who needs to understand the implications of what is being proposed. Let me tell you that we/they don’t.
The proponents of this change are missing the crucial point complaining of “disingenousness” or “naivety”. Most people just want to understand what the hell they are being asked to vote for or against – especially it’s “legal” implications.
How to accomplish that? Hire some experts to explain. The fact that we are clueless about “civics” in this country is an indictment in itself. So they’ll have to work hard and fast to fill that gap. And then move on to the reform proposal.
Failure of a referendum on this would be a catastrophe.
I am a white person of a certain age and when I encounter white folk who say ” I do not understand the voice” I say ” if you do not understand then vote YES.” Inside voice says “Why encumber generations to come with your inability to educate yourself or overcome your entrenched racism”
When you encounter white folk who say ” I do not understand the voice ” then you should vote yes. maybe you should direct them to the appropriate source of information for a process that the government has not yet outlined ( as is their responsibility ) so they can inform themselves and form their own opinions about a process and intended outcome to a change to the Australian constitution, instead of immediately assuming in your superior wisdom that their ignorance about a process for which they have had no information from the federal government immediately infers entrenched racism.
You’re a white person of a certain age ?????????
So where can this “appropriate source of information” that is comprehensible to the ordinary citizen be found?
Perhaps school “civics” has improved in the past couple of decades, but in my many years of education from primary to tertiary I have never (incredibly) encountered any formal rundown whatsoever of the basics of our politco/legal/consitutional system.