The Voice challenges the power of outdated ideas of 'race'

The Voice will begin the three-part process of Voice – Treaty – Truth proposed by First Nations to rectify the injustice of colonial dispossession, ongoing since 1788, and begin to reform the colonial framework that defines Australia’s Constitution.

A successful Yes vote would also create an institution that will counter the power of discredited ideas about race crystallized in the Australian Constitution.

Conceived by indigenous peoples as an explicit step towards decolonization, it is an opportunity for greater unity between First Nations peoples and the settler-colonial population, without the forced assimilation and paternalism of previous attempts to reconcile the two populations. It is both a practical and pragmatic step, and one alive with possibilities for genuine and fundamental change.

The Constitutional problem

Australia’s Constitution reflects the era in which it was drafted and its authors, like its American equivalent, upon which much of it is based. It contains two major flaws.

Australia’s Constitution does not reflect the reality of the unceded sovereignty of First Nations. Unlike other settler-colonial states, there is no treaty or agreement between the First Nations and the Commonwealth of Australia. Recognition of Australia’s First Peoples is therefore long overdue.

Written by colonial elites in the 1890s at a zenith of ideas of racial division and hierarchy, the Constitution explicitly empowered the new Australian state to deal with ‘races’, in anticipation of the Commonwealth using that power to exclude Asians and Pacific Islanders from the new nation.

The 1967 Referendum on these powers, rightly celebrated today as a step towards improving the rights and lives of First Nations peoples, expanded the Federal Parliament’s right to make laws for people of the Aboriginal ‘race’, where previously they’d been the preserve of even more parochial and racist State governments. The simple removal of these powers alone would not solve the problem and power of race, but would remove the head of power under which much of the Commonwealth Government’s positive, though often flawed, programs for Indigenous people are funded.

The race powers remain, and can still be used against First Nations people. The High Court’s judgement in the Hindmarsh Bridge Act case (Kartinyeri v Commonwealth, 1998) found that the Commonwealth Parliament has the power to make laws to the detriment of First Nations people, as people of a certain ‘race’.

As explained by dissenting Justice in that case, Michael Kirby, that’s alarming considering the history of race-based laws, here and worldwide. The continuing power of unscientific and outdated ideas of race in the Australian Constitution need to be addressed. A permanent, Constitutionally-enshrined Voice will be a countervailing institution that can demand respect, recognition, and a Treaty and Truth-telling process to overcome the power of race as a framework for thinking about First Nations peoples. The Voice empowers First Nations people as co-sovereigns, instead of placing them under a system of racial categorization. This is an explicit, considered and deliberate response by First Nations people to the problems caused and perpetuated by colonial racial hierarchies.

Recognition – in the form that First Nations want it

The Voice is the form of constitutional recognition that First Nations people have asked for and overwhelmingly support. Constitutional recognition of Indigenous Australians is not a new idea. Conservative PM John Howard proposed a new pre-amble to the Constitution that mentioned Aboriginal and Torres Strait Islander people as a form of recognition in the unsuccessful 1999 Republic Referendums. The Recognise process begun by the Rudd Labor government in 2012 also began from the point of proffering some kind of statement of acknowledgement. It was through the consultation process for recognition that the Voice idea came from First Nations themselves, in contrast to methods of recognition proposed by the political elite. Its adoption as the first of a three-part agenda is the result of one the most representative consultation processes ever undertaken of Aboriginal and Torres Strait Islander people, culminating in the 2017 National Constitutional Convention which produced the Uluru Statement from the Heart.

First Nations community support

Having originated with First Nations themselves, an overwhelming majority of First Nations people support the Voice as the way to achieve Constitutional recognition. Polling shows support of First Nations people for the Voice is above 80% but non-Indigenous Australians are often confused by the media focus on high-profile Aboriginal and Torres Strait Islander opponents of the Voice

No consultation method is perfect, but all 250 delegates at the Uluru Convention supported a Voice. Only seven differed with the final Conference Statement, their view being that Treaties should come before a Voice.  The delegates at Uluru were made up of many hundreds of communities and organizations across the continent and its nearby islands, and reflected the demands of twelve consultations prior to the Uluru Convention. The consultative dialogues were designed by Aboriginal and Torres Strait Islander peoples themselves, and deliberately included proportions of traditional owners, Indigenous organisation representatives as well as politically active advocates, resulting in ‘the most proportionally significant consultation process of First Nations peoples Australia has ever seen’.

What exactly is the Voice?

The Voice would be a representative and consultative body, able to advise the Commonwealth and its institutions on laws, policies and programs that affect First Nations peoples. As per the Uluru Statement, it would be followed by a Makarrata Commission to oversee Truth-telling and Treaty-making, Makarrata being the Yolngu word for the process of coming together after a struggle.

The exact design and makeup of the Voice would be a matter for Parliament once the referendum has passed, but a set of design principles have been published in a 272 page report by the National Indigenous Australians Agency, putting the lie to the No campaign canard that there is no detail on what the Voice would look like in practice.

A decades-long process for Indigenous Australians

The 2017 Convention was not the first time that Indigenous people came together to unite around a set of demands -  the 1988 Barunga Statement and the 1938 Day of Mourning petition are important milestones and sources of inspiration and pride. But Indigenous activists also recognize that they represent unfulfilled promises and victories not yet won.  The Uluru Statement was different, in that it called for a mechanism – the Referendum – that would enshrine it not on the walls of Parliamentary gallery, but in the very Constitution of the Commonwealth that determined so much of the daily lives and experiences of Indigenous peoples.

Challenging the racialized ‘othering’ of First Nations people

Voice – Treaty – Truth is the summation of the Uluru Statement’s demands. It is worth reading the Uluru Statement carefully to understand its import and what it aims to achieve.

At the core of the Voice – Treaty – Truth invitation is a challenge and a counterpoint to the traditionally dominant racialization, ‘othering’ and separation of First Nations people. Much discourse in Australia around Aboriginal and Torres Strait Islander issues, including identity and ‘race’, is informed by outdated, unscientific, racialist theories. This leads to fruitless fights over authenticity and ‘special rights’. It has led to countless failures of governance.

By recognizing the First Peoples of the continent, in line with principles expressed in the UN Declaration on the Rights of Indigenous Peoples, we are invited to move on from the dead-ends of racialized thinking, with its history of blood quantums, reservations, Protections Acts and the Stolen Generations.

The Voice will not have – as its conservative opponents claim – veto powers over the democratic apparatus (such as it is) of the Australian Commonwealth. The demand for Voice – Treaty - Truth recognizes the democratic rights of all Australians as co-citizens and indeed as co-sovereigns. It seeks to unite the polity while recognizing the Truth of colonial dispossession.

Should the Referendum succeed, Aboriginal and Torres Strait peoples will be guaranteed a Voice on the basis of equality with the settler-colonial population. Equals, not a separated, alienated group of people, but rather custodians recognized and heard as the descendants of the First Peoples of the land.

It will supplement the institutions of the Commonwealth via guaranteed representation in a distinct body that cannot be legislated away by a hostile government, as has happened with all previous Indigenous advisory bodies. It accords with basic democratic principles that governing institutions should be ‘of, by and for the people’ they purport to represent.

Indeed the driving force behind the movement for Voice – Treaty – Truth is a desire to pursue practical and pragmatic paths to end discrimination and racism, and for the empowerment - economic, social and political - of the first peoples of Australia. Only the truly insensate can deny the power of the Uluru Statement from the Heart: as compelling a manifesto as any published in the history of anti-colonial struggle. 

The lies and dissimulation of the ’No’ campaign

Conservative opponents of the Voice claim that such recognition would divide the nation on the basis of ‘race’, deliberately misrepresenting the Voice as ‘special treatment’ for one group above others in an attempt to divide on that very basis. Opposition leader Peter Dutton is the only currently serving member of Parliament not to attend the 2008 Apology to the Stolen Generations by then-Prime Minister Rudd.

Opposition Indigenous Affairs spokesperson Jacinta Yangapi Nampijinpa Price, Senator from the arch-conservative Country Liberal Party and a Walpiri woman the Northern Territory essentially denies there’s any problem with either representation or inequality of outcomes.

“I personally don’t support the idea of the Voice because I feel like we have enough parliamentary representation of Indigenous people but I also don’t like the idea that we’re a separate entity to the rest of Australia. I think we should be treated just like other Australians.”

The far-right One Nation party hold to essentially the same line, at least officially, while they and other elements of the No campaign dog-whistle to racists about the dangers of giving any power or voice to First Nations people.

Using hard-right tactics and tacticians imported from America the No campaign is cynically exploiting  both underlying racism and ignorance, as well as every bit of latent mistrust in government that it can find – especially in the lowest sewers of social media.

At the fundamental level, the No campaign’s argument is a restatement of the long-discredited fiction of Terra Nullius, that Australia was not ‘owned’ by anyone prior to colonization, and therefore that First Peoples have no right to recognition, and no right to define what the recognition should look like.

The doctrine of Terra Nullius was retrospectively applied to justify European colonization, to defend the taking of the land without treaty, without compensation and without consent. It was effectively overturned by the Mabo and Wik judgements of the Australian High Court in the 1990s, establishing that in both Aboriginal and Commonwealth law, the land and seas were held under the sovereignty of First Nations since time immemorial. But it lives on in the conservative-reactionary mindset that seeks to deny the any sovereignty of First Nations, and therefore any right to choose how that sovereignty manifests.

Conspiracies and confusion over sovereignty

Despite the denial of ongoing sovereignty by conservatives, and the move to recognize sovereignty in the Australian Constitution via a Voice, the facts of shared sovereignty will not be changed by the Voice referendum, no matter the outcome. Indigenous sovereignty has existed ‘since time immemorial’ and will continue, likely long after the Commonwealth ceases to exist. But talk of sovereignty has excited some ‘sovereign citizens’ and dregs from the anti-vax movement into arguing that that dealing with the settler-colonial state at all will lead to loss of sovereignty for First Nations. These ideas are as hard to counter as other conspiracies, all the more so because of the legitimate distrust that many Indigenous people feel towards all governments.

More legitimately, but equally illogically, some in the Blak sovereignty movement have taken a ‘Treaty first’ position, which calls for a Treaty to be negotiated before a Voice is established. Indigenous advocates of the Voice have repeatedly rejected this reversal of the Ulruru convention’s demands. Voice advocates ask how can you negotiate an agreement without an authorized negotiating body, and agreed set of demands? The Voice could be that body at the national level, or part of one, and formulate the demands. The state-based treaty processes in Victoria and South Australia are being preceded by the election of a negotiating body – a State-based Voice, in effect. To campaign against the Voice, and to hold out for a Treaty, is, in the words of Thomas Mayo, “to wait for an uncertain amount of time, for an uncertain outcome”, all while Indigenous peoples remain beset by “the despair of powerlessness”.

Having extended a hand in the Uluru Statement from the Heart, and having gone through over a decade of consultations, reports and inquiries on constitutional recognition, a No vote would be an explicit rejection of the wishes of First Nations people - a recipe for permanent alienation and mistrust. However, the alternative is alive with possibility for First Nations peoples.

A victory for ‘Yes’

The successful 1967 Referendum, in which Australians voted overwhelmingly to allow the Commonwealth government to make laws regarding Aboriginal and Torres Strait Islanders, had a profound impact. That vote helped birth a powerful Blak rights movement that carries on the struggle to this day and reproduces and reinvigorates itself with each new generation.

A successful Yes vote this time around would go even further, and begin the process towards Treaty and Truth-telling necessary for genuine equality.

But successful changes to Australia’s Constitution are rare, and polling shows that this referendum result sits in the balance.

A campaign in the balance where the left can make a difference

First Nations communities have been campaigning since 2017 for Voice – Treaty - Truth. Inspirational advocate, have travelled the length and breadth of the land to bring the invitation to walk together to the wider population. The Australian left must take this chance to support them, and make the Yes vote the first priority of its activism and work.

The trade union movement is strongly supporting the Voice campaign. As the nation’s largest and most effective campaigning network, it will provide the Yes alliance with committed and experienced grassroots campaigners, and the resources to train new activists.

At their best, the socialist movements in Australia have a proud history of being the most steadfast and committed supporters of the anti-colonialist cause, as outlined by my comrades in the SEARCH Foundation in this call to arms to the left. The left must also do all it can to ensure that a successful referendum on the Voice is followed by meaningful Makarrata process of Treaty and Truth-telling, which will shift political, social and economic power on First Nations matters to First Nations peoples, as they continue their struggle against ongoing colonization and dispossession.

But for now, there is a vote to be won. Progressives, socialists and trade unionists need to do all they can to make sure it is as big a victory as possible. For the Voice Referendum to be passed, the Yes vote needs not only a majority of voters in the nation, but a majority in at least four of the six states of the Federation. Since Federation in 1901, only eight of forty-four referenda have succeeded. As the No campaign spreads misinformation and division, it is more important ever to amplify the work of First Nations advocates for the Yes campaign.


Author’s note: I live on unceded Gundungurra and Dharug land and pay my respects to those communities and their elders and leaders. I am the Executive Officer of the SEARCH Foundation, but the views expressed here are my own, howeverI have drawn heavily, directly and explicitly on the work of Indigenous activists, scholars, and elders. I strongly encourage everyone who reads this article to seek out the extensive, detailed writings of these First Nations activists, who have been on the front line of the struggle for change, starting with Thomas Mayo’s Voice to Parliament Handbook (co-authored by Kerry O’Brien).











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