If these Voices are to be among the next government initiatives to deal with Indigenous disadvantage then we would be wise to study their history — for the idea is not new. For that reason, Max Angus’s new book, Too Far Out, an “administrative history” of the Ngaanyatjarra community of Western Australia, couldn’t be more timely.

The Ngaanyatjarra community — 1542 kilometres northeast of Perth, 750 kilometres northeast of Kalgoorlie, 560 kilometres northeast of Laverton, 1050 kilometres southwest of Alice Springs and (by my estimate) 2200 kilometres from Canberra — is remote from any recognised administrative centre. Imagine a London borough governed by officials living and working in Budapest with oversight from officials in Bucharest.

As a “nation for a continent” (in the words of Australia’s first prime minister) “remote” is what Australia does: assuming responsibility for all corners of this land is our sovereign project. Since the early twentieth century, the Ngaanyatjarra have become interlocutors of  Australia’s three-level state; less and less are they “too far out.” They have been Australian citizens since 1948 (and British subjects before that). They have become literate in English, and were fully enfranchised in 1984. Many would call themselves Christian, and their homeland has been of intermittent economic significance. They have been statistically visible — on the wrong side of the gap — since the 1970s. How their homeland became a governable region is the story that Angus, a former professor of education, wants to tell.

Until 1873–74, when William Gosse, Ernest Giles and John Forrest began to map cross-continental routes, no European had entered the region. An imagined Laverton-to-Oodnadatta stock route would have passed through but it never came into existence; only in the early twentieth century did prospectors venture there and humanitarians begin considering how the denizens of this arid interior might be protected.

From South Australia’s Christians came a proposal, in 1914, to declare reserves — “sanctuaries” — on each side of the border with Western Australia. Would the Commonwealth join them in its adjacent southwest corner of the Northern Territory? After years of negotiation the three contiguous Central Australian Reserves were gazetted in 1920–21 and this “inviolable” region of interacting desert peoples came under three colonial authorities.

But officials in Perth, notionally responsible for the welfare of the Ngaanyatjarra, had no program and no knowledge. In the 1930s, from Mount Margaret Mission near Laverton, pastor Rod Schenk and schoolteacher Mary Bennett peered east and hoped that Perth would not license the Ngaanyatjarra homeland to graziers and gold-seekers. Motor cars were replacing camels but there were still no roads. The Ngaanyatjarra were reported to be “gentle and well mannered” and evidently “contented and well fed.”

The WA government refused tenure in the region to all but missionaries. After Schenk established a mission at the Warburton range, near the reserve’s western edge, in 1934, he persuaded the government to extend the reserve boundary further west to include a permanent Euro-Australian presence, the United Aborigines’ Mission under William and Iris Wade.

With the state stinting the money needed to feed the desert people attracted to the mission, Ngaanyatjarra people, encouraged by the Wades, began competing for the government bounty on dingo scalps with “doggers” already active in the Western Desert. The state government sought to regulate the mission’s scalp dealings, and in 1947 visiting police observed the Ngaanyatjarra hunters breeding dingos for scalp harvesting. (In the mid sixties, anthropologists began learning of a dingo dreaming track starting at a site known as Nanku.)

By then, Australian governments were imagining Indigenous Australians’ secular pathway to economically independent citizenship. Officials wondered if the mission was giving the Ngaanyatjarra enough to eat and whether it was right to house children in dormitories. Native affairs commissioner Stanley Middleton (1948­–62) was committed to “assimilation,” even for the most distant and “primitive” people, but the policy raised a question: could a Christian mission on an inviolable reserve be an instrument of its residents’ progress?

Warburton mission’s government subsidy increased, but it was calculated on the assumption that many who frequented the mission were living as hunter-gatherers and dingo farmers rather than reliant on the mission. But the government began considering a plan to close the Warburton mission and transfer residents 200 miles to Cosmo Newberry, a settlement acquired by the missionaries in 1953 to train children with state government support. Warburton mission found an advocate in Bill Grayden MP, however, who persuaded the Legislative Assembly to set up an inquiry into the welfare of “natives” in the Laverton–Warburton Ranges region. Having found the people at Warburton to be in a depleted condition, the committee recommended that the government subsidise a pastoral enterprise for the Ngaanyatjarra.

A dispute ensued: visitors in 1957 (including a young Rupert Murdoch) debated how well or how badly off were the Ngaanyatjarra, what remedies they were entitled to, who was responsible for delivering assistance and whether English should replace Ngaanyatjarra as the region’s lingua franca. The records assiduously consulted by Angus suggest that the Ngaanyatjarra had no independent voice in these debates.

Meanwhile, the “inviolable reserve” was being subjected to excisions. The Commonwealth’s weapons testing program required it to establish an observation post within the reserve — Giles Weather Station, with connecting roads — and the WA government opened a third of the reserve (7500 square miles) to International Nickel of Canada in 1956. The Ngaanyatjarra thus became a “problem”: in order to protect them, authorities now had to exclude them from places where Commonwealth and company employees — in small numbers — were residing. Middleton hoped that the Commonwealth would assume responsibility for developing all of the Central Reserves; South Australia, for its part, initiated a pastoral enterprise at Musgrave Park, later known as Amata, in 1961.

To begin with, the Ngaanyatjarra are in the background of Angus’s story, but he is able to move them steadily to the foreground. The more their homeland was encroached on, the more their remaking of their life became visible to colonial authority and thus to the historian.

Some 450 residents were counted at Warburton in 1962. They were increasingly dependent on the food the mission provided. The following year a patrol officer reported that the Ngaanyatjarra were using their homeland’s recently graded tracks — even purchasing their own truck from sales of copper ore found near the mission. At this point it becomes possible for Angus to name individual Ngaanyatjarra.

A man called Tommy Simms had discovered the copper, and by 1961 the mission was managing the earnings derived by a small number of men from mining the ore and sending it to British Metals in Perth. The government wanted to develop the enterprise on a commercial footing, but the mission sought to defend its own interests and assure a degree of Ngaanyatjarra control. Western Mining offered to partner with the men, the government approved, and Simms became the first Ngaanyatjarra with the means to purchase his own vehicle (a Toyota and a Bedford truck).

In 1966 the government licensed Western Mining to prospect within the reserve and form partnerships with Simms and other individuals. Between forty and sixty men were involved in mining by 1967; in keeping with Western Desert people’s now well-known respect for “autonomy” within a continuously negotiated “relatedness,” those with tenements preferred individual partnerships with Western Mining to a cooperative. Others participated as employees. Would copper ore pave the way to the future governments hoped for?

But the Ngaanyatjarra easily disengaged from copper mining: the land was unevenly mineralised, the work was tedious, hunting remained an attractive alternative, and the mission would still feed them. “Their deep attachment was to the Ngaanyatjarra people and lands,” writes Angus, “not to a mining corporation or to a Western lifestyle.”

By the time Western Mining decided it was no long profitable to work with Ngaanyatjarra, one in ten Warburton residents had become eligible for the social security payments that now made up two-thirds of the community’s income. In 1969 the payments, previously made collectively, began being paid to individual recipients. The change was conceived and defended as a step towards “citizenship,” but it wrecked the mission’s system of communal provision.

Prospects of further income from the mining of nickel (around Wingellina) and chrysoprase had to be weighed against a growing official concern for the protection of sacred sites whose locations were being revealed to researchers during the 1960s by Ngaanyatjarra. They wanted income from mining, but in ways that respected country.

By this time, a new federal Office of Aboriginal Affairs was looking at how employment could be brought to the region in ways that aligned with local interests. An inquiry proposed that a new, federally funded Central Reserves Trust representing Ngaanyatjarra and neighbouring peoples would gradually assume control of the three reserves, re-establish Warburton mission as a planned township, develop tourism and horticulture, and permit Aboriginal prospecting. Before that happened, the Commonwealth demanded that Ngaanyatjarra land excised for mining be returned to the reserve. Western Australia complied in February 1972, while also amending its own legislation to allow a minister to approve exploration within the reserve.

Where did Warburton mission fit into this plan? Around Australia, Christian missions were relinquishing administration to Aboriginal councils. The WA government considered that its agencies — including the new (1972) Aboriginal Affairs Planning Authority — were better suited to administering Commonwealth investment in the reserves. The missionaries agreed, with misgivings, to confine themselves to “spiritual and linguistic” work. Administering the food supply — the children’s dining room and the store — devolved to Ngaanyatjarra, who were unprepared for the role. They were equally unprepared when a new Warburton Community Inc. introduced unfamiliar modes of governance in mid 1973. It was “a difficult period for all concerned,” writes Angus, but the policy of self-determination was politically irreversible.

For these policies and plans to work as “development,” much depended on which of the proliferating authorities and visitors the Ngaanyatjarra — the intended workforce and clientele — felt comfortable with. Visiting tradesmen were unfamiliar with the Ngaanyatjarra’s opportunistic approach to employment — intermittent and punctuated by spells on unemployment benefits. The local labour markets that worked in some Australian regions seemed not to apply in Ngaanyatjarra country. Teenagers rejected the daily discipline of school attendance and some residents refused to cooperate with nurses employed by the Australian Inland Mission. Blasting for the construction of a hospital upset the custodians of the Marla so much that visiting workers demanded police protection.

By 1975 Warburton was becoming known as a hostile environment for non-Ngaanyatjarra. For reasons cultural and logistical, it was proving difficult to police Warburton from Laverton. One of the Commonwealth’s responses was to assist Ngaanyatjarra to decentralise. The four resulting “homeland” communities — Wingellina, Blackstone, Warakurna and Jameson, each with its own white community adviser — were all places where Ngaanyatjarra had interacted with “whitefellas”: all were on the road network that prospectors and weapons researchers had created since the 1950s.

People from Docker River (a welfare settlement established in the Northern Territory in 1968) and Amata (a South Australian settlement established in 1961) also moved to the four communities. The Central Reserves were being repopulated using resources deliberately or inadvertently provided by a variety of non-Aboriginal intrusions. Their viability was based largely on welfare payments, as Angus writes, for the federal Department of Aboriginal Affairs “had given up pretending that some large-scale economic enterprise, leading to regular paid work, was just around the corner.”

As public health practitioner David Scrimgeour tells it in his recent book, Remote as Ever, a cohort of whites with relevant skills was emerging from southern capital cities to work alongside these Western Desert people. They believed that self-determination could work as long as it was re-spatialised according to Aboriginal wishes and resourced according to their rights as citizens. For Indigenous nations living almost entirely on imported food, the “smoothly operating well-stocked store” was each new community’s foundational institution. Schools and clinics (each with itinerant staff) followed. Able to move among Ngaanyatjarra’s five communities, people occupied their homeland with fewer material constraints; but it was difficult to service “communities” so transient.

The 1967 referendum had created the potential for intergovernmental relationships to change in ways that could work to the advantage of Ngaanyatjarra. The Commonwealth sought to treat the entire Central Reserve as a single “tri-state” object of reformed administration. Decisions in Canberra meant that the Ngaanyatjarra began to look more to the local Department of Aboriginal Affairs office in Alice Springs and less to state officials in Perth. WA government agencies increasingly faced demands from community advisers who answered to Canberra.

Empowering the Commonwealth at the expense of the states caused tensions among non-Indigenous officials. A major Commonwealth innovation in 1977 was to lump unemployment benefits into a single payment to each community — the Community Development Employment Projects, or CDEP, schemes.

When their expectations were not met, Ngaanyatjarra were sometimes violent towards service providers, making policing (where, how many, what methods) a policy issue in the late 1970s. Christian evangelism (including a “Christian Crusade” in 1981) and new by-laws in Warburton reduced but didn’t stop alcohol abuse and petrol-sniffing. Angus argues convincingly that outbreaks of “lawlessness” preceded the 1970s transition to “self-determination.” But the question remained: could the institutions of self-determination reduce the frequency and severity of such “turbulence”?

A certain level of turmoil did not stop the Ngaanyatjarra and their neighbours to the east from collective action using the Commonwealth’s and South Australia’s land rights policies. The formation of the Pitjantjara Council, the continuing interest of mining companies in the reserve’s nickel, and the pro-mining stance of WA premier Charles Court stimulated the formation of the Ngaanyatjarra Council in March 1981. In well-publicised lobbying, the council demanded inalienable freehold title to the WA portion of the Central Reserve.

An inquiry initiated by a subsequent premier, Labor’s Brian Burke, recommended in 1984 a way to legislate land rights. With claimable land amounting to 47.2 per cent of Western Australia’s total area, the Liberal Party argued, as it would in 2023, against “a set of rights which will be attributable to one small group of our population,” and it had the numbers in the Legislative Council to defeat Labor’s bill.

Burke’s government was impressed by the mining industry’s public relations campaign and lobbied for the Hawke government to abandon its planned national land rights bill. Would the Ngaanyatjarra accept a ninety-nine-year lease and the prospect of a nickel mining town (with jobs for Ngaanyatjarra) instead? The Ngaanyatjarra suggested that the government use existing legislation to lease the reserve land and other desired portions to a new body — the Ngaanyatjarra Land Council — some land portions with ninety-nine-year, others with fifty-year leases. Mining companies would apply to the land council, not the mines minister, for permission to explore, with a right to take any refusal to independent arbitration. Visitors could apply to the land council for permission to enter land under lease.

This 1988 deal, which Angus describes as “a masterfully executed compromise,” has lasted through several changes of government.

Because roads are an essential part of the Ngaanyatjarra’s adaptation, it mattered that, not being rate-payers, they could not vote in shire elections. When the franchise was extended to all adult residents, voter turnout among Ngaanyatjarra was much higher (40 per cent in May 1987) than among all other voters in the Shire of Wiluna, which extended to the west. Recognising that the shire was now two regions distinguished by need, revenue base, economic activity and cultural outlook, the WA government split the Shire of Wiluna in half and established the Shire of Ngaanyatjarraku in the eastern portion in July 1993.

This belated municipal enfranchisement of the Ngaanyatjarra was by then paralleled in the Aboriginal and Torres Strait Islander Commission, or ATSIC. Replacing the Department of Aboriginal Affairs in 1989, ATSIC was made up of elected regional councils with responsibility for certain Commonwealth programs. At first, ATSIC comprised sixty elected regional councils; after amalgamations for the second round of elections in December 1993, there were only thirty-five. Ngaanyatjarra objected to being amalgamated with neighbours to their west (Martu) and south (Spinifex mob) and took legal action against the electoral process that chose the Western Desert Regional Council. Their objection — not wanting to be represented by strangers — remains a familiar theme of Indigenous Australian politics. Warren Mundine — campaigning against the 2023 referendum — cited the Ngaanyatjarra as an ally in his critique of the Voice co-design process proposed by Marcia Langton and Tom Calma.

“By the mid-1990s,” Angus concludes, “the Ngaanyatjarra Council could justifiably claim that the region had become self-managing within the state and Commonwealth legal frameworks.” He lists formally incorporated enterprises (transport, stores) the Ngaanyatjarra have developed through collective action.

In an afterword, he briefly takes the story to the present. He condemns the Howard government (1996–2007) and its successors for modifying, then abandoning, the single most important financial basis of “self-management,” the CDEP. An older set of expectations regained authority in government and to some extent among the wider public: the Ngaanyatjarra would develop (must develop) into job-seekers (with “work-like habits”) despite their region still having almost no labour market (other than that provided by the CDEP).

In his valuable ethnography of the social and linguistic practices that have evolved within Ngaanyatjarra transactions with governments, The Dystopia in the Desert, former Ngaanyatjarra employee Tadhgh Purtill argues that the community, its advisers and distant public servants have tacitly agreed never to confront the tensions between the different practical senses of a word that all feel obliged to use: “development.”

Ethnography yields an account of something on which all governance rests: embedded, routinised ways of describing Ngaanyatjarra circumstances. As Purtill observes, talk and text can be seen as enacting a kind of political truce. That is, they shield the fantasy of remote Aboriginal assimilation from a reality test it could not survive. Purtill’s point of view is elusive; he seems, at times, to be a whistle-blower unmasking a systemic rort of public funds. Yet in his account of mutual complicities the reader can see an adaptive structure, a buffer against the ongoing (and potentially lethal) chaos that is settler colonial authority in its liberal democratic form.

Well advised and adept, the Ngaanyatjarra litigated against the smashing of the CDEP in 2021. They won a $2 million payment and a government promise to negotiate a new framework of public financial support. Angus concludes his book wondering how that will work out in a political system that equates centralised decision-making with administrative rationality. There is a Ngaanyatjarra voice, but it is nothing without an attentive listener. •

Too Far Out: An Administrative History of the Ngaanyatjarra Homelands
By Max Angus | Hesperian Press | $66 | 295 pages

The post Voices off appeared first on Inside Story.

Attorney-general Mark Dreyfus’s representative in the Senate, Murray Watt, made that pledge to Senator Thorpe on 7 November last year. Lawyer Megan Davis, an adviser to the government on the vote, was equally emphatic: “A referendum to establish a Voice to Parliament will not impede an unceded, unextinguished sovereignty asserted by First Nations people.” As 2023 began, Dreyfus repeated his view that putting the Voice in the Constitution would have no impact on sovereignty. Labor senator Malarndirri McCarthy gave a similar assurance on the ABC’s Q&A in late January.

But the government seemed reluctant to define what Indigenous sovereign rights entailed. During the July debate on the constitutional alteration bill, government speakers avoided mentioning that the Uluru Statement envisaged the Voice as a step towards a treaty. (The Greens were keen to make that point.) While the government remains nominally committed to implementing the Uluru Statement’s demand for Voice, Treaty and Truth, the fact that a Voice would enable a treaty has more often been highlighted by the No than the Yes campaign.

First Nations activists have good reason to explore the possible meanings of Indigenous sovereignty, but not all of them agree. Some Indigenous Australians, for example, reject “sovereignty” and “treaty” as counterproductive “separatism.” Some who want a treaty reject the Voice as an impediment (Warren Mundine) or as a diversion (Michael Mansell), while others who will vote Yes see the Voice as the body that could legitimately negotiate a treaty with the Australian government. Such diversity has been one of the revelations of the referendum debate.

Three clusters of First Nations thinking have become evident. Some, as mentioned, reject “separatism,” a term broad enough to include the Voice and any treaty. Others, supporters of “Blak sovereignty,” warn that constitutional recognition would pre-empt sovereignty recognised in a treaty. A third group takes a gradualist position, envisaging sovereignty as a steadily accumulating regional practice of land and native title rights.

Against “Indigenous separatism”

The anti-separatist position is exemplified by two First Nations participants in the referendum debate: academic psychologist Anthony Dillon and senator Jacinta Nampijinpa Price. Writing in Sydney’s Daily Telegraph on 24 April 2019 under the heading “Close the Gap on Myths,” Dillon attacked a series of “myths”: that only Aboriginal people are expert on Aboriginal affairs, that only Aboriginal adults can raise an Aboriginal child, and that government is totally to blame for the problems facing Aboriginal people.

It is also a myth, Dillon wrote, that “we cannot move forward until this country acknowledges the atrocities of the past” and that Aboriginal people are victims of colonisation. And it is a myth that “Aboriginal people are an homogeneous group with all members equally disadvantaged,” given that many are thriving. “When we speak of closing the gap,” he wrote, “let’s focus on those who are most disadvantaged.”

Dillon believes these myths distract us from “the important issues facing Aboriginal people, like the need for employment, job readiness, good schools, ready access to modern services, and good housing.”

More recently, in 2022, in an essay titled “The Voice: Self-Determination or Separatism?” Dillon argued that “self-determination” policies mistakenly assume that Indigenous Australians are essentially different from other Australians and essentially similar to each other. Many individuals’ access to education and employment had, he said, been weakened as a result.

For Dillon, the leaders of the Yes campaign are those who successfully grasped education and employment opportunities despite self-determination policies. The Voice would, he argues, empower these successful Indigenous people to entrench a policy paradigm that is failing other Indigenous people. If anyone needs a voice, he says, it is the Indigenous Australians whose lives are much worse than the lives of Voice advocates. He has since confirmed that he will vote No.

As a National Party senator, Jacinta Price can seem like a typical rural conservative populist, repeatedly positioning herself as a critic of urban elites. She gives this stance a particular inflection: as the champion of abused women and children in First Nations communities who can’t gain the attention of the powerful (including leaders of Indigenous organisations). We should “amplify” the regions, she says, so we can hear the unheard.

Yet Price and the Nationals haven’t endorsed the Liberals’ proposal for a legislated regional Voice, so it isn’t clear how they would amplify the cries of the unheard — other than by persuading them to vote National. The constitutionally enshrined Voice, says Price, is likely to be a “bureaucracy” controlled by those whom she has called “the Qantas-sponsored leaders of the activist industry.” She blames Indigenous policy failure on these activist elites.

Price is ambivalent about whether we should characterise “the regions” in cultural terms. Social policy should assist people according to their needs rather than their distinct culture and historical experiences, she says. But she also sees the problems of Indigenous remote communities as cultural. When she recently denied that Aboriginal people are suffering intergenerational trauma as a result of colonisation, she suggested that their lives are instead blighted by “something much closer to home” — violent ways continuing from precolonial times.

Campaigning for a No vote, Price has highlighted her own family’s experiences. As a second-generation agent of what anthropologist Paul Burke calls the “Warlpiri diaspora,” she grew up in a household in Alice Springs rather than in the Warlpiri homelands. In this location and in her choice of a non-Indigenous husband she has followed her mother. Burke describes the “Warlpiri matriarchs” of this Australia-wide diaspora as “refashioning” Warlpiri tradition by adding non-kin to their stock of social capital. Price has presented her family as paradigmatic of a unified Australia threatened by Indigenous separatism.

Blak sovereignty as a rupture with the past

Having left the Greens earlier in the year and announcing herself as a leader of the Blak sovereignty movement, Lidia Thorpe moved the following amendment to the referendum bill during July’s parliamentary debate:

Nothing in this Act shall be taken to cede or disturb the Sovereignty of Aboriginal and Torres Strait Islander peoples. The Sovereignty of Aboriginal and Torres Strait Islander people means an unceded right held in collective possession by the members of Aboriginal and Torres Strait Islander nations which confers usage, access and custodianship to the lands, waters and natural resources of what is now known as Australia, and the right of Aboriginal and Torres Strait Islander peoples to exercise an unimpeded and collective self‑determinate governance over their political, economic and social affairs.

Two features of Thorpe’s thinking are worth highlighting. Although she has sometimes demanded that Australian law align with the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, she hasn’t acknowledged the UNDRIP’s approach to sovereignty.

According to Article 46 of the UNDRIP, Indigenous peoples’ self-determination should do nothing to “dismember or impair totally or in part, the territorial integrity or political unity of sovereign and independent States.” In other words, the UNDRIP would require that First Nations sovereignty coexist with and pragmatically accept Australian sovereignty, working within Australia’s federal and state constitutions and laws. Yet Thorpe’s formulation of Indigenous sovereignty includes these words: “Sovereignty has never been ceded, our sovereignty does not coexist with the sovereignty of the crown.”

In their repudiation of Australia’s legal framework, the Blak sovereigns distinguish themselves from advocates of Indigenous sovereignty who see potential in Australia’s existing Constitution. One of them, Michael Mansell — a No advocate — believes parliament should create a seventh state of Australia, its territory combining all Aboriginal lands (as long as the owners consented).

Other champions of Indigenous Australia’s many emerging polities also see potential in federalism. As University of Technology Sydney legal academic Alison Vivian and her co-authors wrote in 2017, “divided sovereignty, shared jurisdiction and a capacity to evolve in response to changing community values are fundamental attributes of federations.”

Thorpe’s rejection of Australia’s legal traditions includes a dismissal of apparently progressive laws such as native title, which she has labelled “an insult.” Of the parliament in which she now sits, she has said, “Not one piece of legislation that has ever come out of this place has been good for us. You know why? Because it’s deliberate. It’s deliberate. This place is here because they need to get rid of the Black problem.”

Such words imagine Blak sovereignty as necessitating a revolutionary rupture from an entirely bad past. As I understand the Blak sovereign position, the rupture would be brought about by truth-telling — a process of enlightenment — that would leave Australians with such a sense of collective shame that they would sign a treaty establishing First Nations sovereignty in whatever terms First Nations wanted.

This scenario conceives human history in a way that owes much to a religious imagination. By picturing a moment of settler colonial awakening, confession and collective self-perfection, Thorpe turns her back on the opportunities created by recent Australian law and policy. Hers is a historical imagination alienated from messy, incremental politics.

This anti-politics can’t concede that settler colonial history is punctuated by moments of crisis, negotiation, compromise and concessions in law and institutional design. In the Keating and Howard governments’ responses to two High Court judgements that recognised “native title” (Mabo in 1992, Wik in 1996) we have recent history that discourages  this abject pessimism.

The Blak sovereigns seem unwilling to conceive Indigenous agency as experimental, and they too easily dismiss open-ended settler colonial ideologies and practices such as “recognition.” For example, University of South Australia legal academic Irene Watson writes that “there are no remedies in the recognition game; it is like the game of snakes and ladders, which goes up and down, but leads to only one ending, our assimilation into the white Australian nation. Genocide: there is currently no other alternative on offer.”

In recent Australian historical scholarship, the idea of a settler colonial society taking genuinely progressive steps has been under suspicion among historians and political scientists who take the “settler colonial studies” approach. This view aligns with Indigenous doubts that Australia could ever overcome its original sin. To quote Watson writing about the Voice in 2017:

The current discussion in Australia about possible constitutional recognition of First Nations is out there for public consumption, in an electorate noted for its conservatism. What it means beyond the terra nullius narrative is yet unknown, but there is little to suggest that it means much more than the continuation of that same narrative: the terra nullius body dressed in the costume of “recognition.”

Sovereignty as a steadily accumulating practice

In contrast with a rupture with the past, Indigenous sovereignty could also evolve from the imperfect structures of reformed settler colonial government, including the Aboriginal Councils and Associations Act (1976) the Corporations (Aboriginal and Torres Strait Islander) Act (2006), the various state and territory land rights acts, and the Native Title Act (1993).

Consider the following contrast. The “Detailed Outline of the Blak Sovereigns’ Position on the Referendum” declares that “Land rights are central to our Sovereignty. Native Title is not land rights. Our struggle for real land rights is an assertion of our Sovereignty.” Others, though, see native title legislation as the context for nurturing First Nations’ capacities for sovereignty.

That way of thinking gained academic impetus more than twenty years ago when Marcia Langton and her colleagues at the University of Melbourne joined with the Aboriginal and Torres Strait Islander Commission in an Australian Research Council–funded project, “Agreements, Treaties and Negotiated Settlements in Settler States: Their Role and Relevance for Indigenous and Other Australians.”

In a 2002 paper, “The Nations of Australia” Langton celebrated agreements signed under the Native Title Act that acknowledged the “ancient identities” of nations such as the Wik, Thaayorre and the Alngith. Referring to Indigenous signatories as “Aboriginal nations,” she wrote: “Corporations acknowledge that pre-existing Aboriginal polities exist as a profound reality in our political and economic landscape. The Constitution does not.” She hoped that constitutional amendment would eventually acknowledge “the pre-existing Aboriginal polities, or Aboriginal nations.”

Twenty years later, proposals for amending the Australian Constitution have taken a different form — not the constitutional acknowledgment of First Nations as sovereigns but the inscription of an Indigenous Voice to advise federal parliament and the executive. But these two calls for constitutional recognition share a commitment to Indigenous regionalism — a commitment also sustained by the Aboriginal and Torres Strait Islander Commission in the years 1990 to 2004.

Langton’s Negotiated Settlements project argued that the practice of native title — especially after the Howard government’s 1998 amendments to the Native Title Act — was a stimulus to the reformation of Aboriginal polities:

In the minimal form of Aboriginal land-holding corporation, we find that governance and dominion, such as those rights of possession asserted among Aboriginal groups in disputes over territory, are achieved both within and between such groups. As a result, we find that there are transactions that may be construed as governance in a larger entity than the clan itself.

Langton was arguing that asserting customary law in matters of land title is one stimulus for the capacity and will to act regionally. The Negotiated Settlements project concluded that “the making of agreements [has] become the principal form of engagement between Indigenous nations and the modern nation-state.”

The project never lost sight of the fact that in these dealings Indigenous Australians have negotiated not only with governments but also with non-Indigenous corporations. Private enterprises have had a material interest in recognising Indigenous polities by contracting with them.

Indigenous polities have not always had the human and material resources they need to deal with corporations and government agencies. In a paper published in 2015, Langton described the Prescribed Bodies Corporate, the organisations that hold native title, as overburdened and under-resourced. She warned against assuming that PBCs’ roots in Aboriginal customary law meant they possess sufficient social capital to do all that is expected of them.

Langton also pointed to a danger of excessive localisation and thus of “balkanisation.” To work well as polities, old forms of social organisation would have to do new things, such as forge regional alliances. She applauded native title holders who were seeking “economies of scale” through “regional governance bodies” and saw hope in the regionalist visions of Native Title Representative Bodies.

Pointing to the “conflicting values at work: traditional values to stay local on the one hand, and the pressures of the organisational world on the other,” Langton exhorted “Aboriginal people themselves to change their mindset about the highly localised social world that they prefer, and make a decision to escalate their administrative organisational capacity to a much higher level than they are accustomed to.”

With this background, Langton was an excellent choice to lead the design of an Indigenous Voice to Parliament with Professor Tom Calma. When it was released in December 2021, their model emphasised the local/regional foundations of the Voice. The boundaries of the thirty-five Voices would be determined by discussions between governments and Indigenous organisations.

In each region, a Voice would either be designed from scratch or (more likely) built on existing Indigenous organisations and so “leverage existing approaches… with adaptation and evolution as needed.” This continuity would give the thirty-five Local and Regional Voices legitimacy in Indigenous eyes.

Calma and Langton declined to present a blueprint for the Voices, instead suggesting nine guiding design principles. The legitimacy of the National Voice, they said, would derive from “the strength, legitimacy and authority of Local & Regional Voices.” They recommended that the National Voice not come into operation “until the vast majority of Local & Regional Voices are fully established.” The Langton and Calma vision of regionalism is descended from the regionalism that ATSIC (which had thirty-six regions) practised and that the Negotiated Settlement project theorised as the emergent practice of land rights and native title.

The contest between the Yes and No campaigns has been an opportunity for the Australian public to learn about First Nations’ political diversity. What has become increasingly clear is that the Yes/No contest has been a misleading guide to that diversity.

For example, the Yes/No divide obscures the common ground between Jacinta Price and Noel Pearson. Both Pearson (in his 2022 Boyer Lectures) and Price have argued that social policy should pay attention to socioeconomic need and not assume that Indigenous problems are distinct in causation and solution. Both of them were also very critical of the Albanese government’s abolition of the cashless debit card in 2022.

Price wins the applause of some conservative Australians by urging a critical appraisal of Indigenous traditions, but she is not the only First Nations person to urge Indigenous Australians to allow space for critically assessing the claims of “custom.” Revision of custom is part of Langton’s project too.

The building of First Nations is a concern of people on both sides of the referendum debate. Warren Mundine is a No campaigner, but he also advocates that First Nations be recognised by treaties with Australian governments. As chief executive officer of NTSCORP Ltd, the native title service provider for Traditional Owners in New South Wales and the Australian Capital Territory, Mundine’s approach to sovereignty emerges from the practice of native title. He believes that the path to First Nations treaties will be more direct without a National Voice in the Constitution.

The strength of the Indigenous opposition to the Voice amendment has surprised and puzzled Australians who pay attention to Indigenous affairs. But the 2022 Reconciliation Barometer, conducted between 21 July and 28 August last year (before and after the prime minister’s announcement of the draft amendment) provided clues to minority Indigenous disquiet about Yes campaign themes. While 57 per cent of Indigenous respondents judged it “very important” to protect a “First Nations Body” by putting it in the Constitution and a further 30 per cent chose “fairly important,” a substantial minority of respondents weren’t committed to some of the key ideas on which the Yes campaign has drawn.

About a quarter of respondents didn’t consider themselves to be well informed about the history of Australia, about the histories of First Nations people and about Aboriginal and Torres Strait Islander cultures. The same proportion (but not necessarily the same respondents) disbelieve or feel “unsure” about the truth of some of the main themes issuing from the critical history of colonisation — the frontier wars and the stolen generations.

Asked how we should face up to the “wrongs of the past” (deeds not specified by the survey), about half the respondents chose “There should be forgiveness for the wrongs of the past and all Australians should now move on,” a higher proportion than those who chose “Must be rectified before all Australians can move on” (38 per cent).

On the causes of Indigenous Australians’ “disadvantage,” about a third of Indigenous respondents didn’t agree that “past race-based policies” were to blame, and they didn’t see disadvantage as “Australia’s colonial legacy.” Some flatly disagreed with this linking of cause and effect; others declined to express a view. When the survey listed nine kinds of “disadvantage,” the proportion denying that government policies had caused them ranged between 9 and 12 per cent.

In 2022, the Barometer didn’t ask respondents to agree or disagree with the statement “Aboriginal and Torres Strait Islander Australians are responsible for their own disadvantages today.” But in four previous Barometers (2014, 2016, 2018 and 2020) between a quarter and a third of Indigenous respondents agreed with that statement.

Some Indigenous support for voting No comes from those who prioritise a treaty as the guarantee of the sovereignty they believe constitutional recognition would deny. While the 2022 Reconciliation Barometer didn’t ask respondents to rank Treaty and Voice or to choose between them, it did show that Indigenous support for a treaty is on the same level (54 per cent very important, 32 per cent fairly important) as Indigenous support for a constitutionally entrenched “Indigenous Body.”

While the Reconciliation Barometer 2022 suggests that a very high proportion of Indigenous Australians support the Yes case, it also reveals Indigenous support for ideas about history, responsibility and treaty-making that resonate with the No campaign.

The Yes/No alignments of First Nations Australians may not be an accurate guide to their differing views about sovereignty, but the debate about how to vote has at least focused attention on larger questions that Indigenous representatives will probably need to debate if a Voice is established. I see four questions.

In what ways are First Nations people distinct from/the same as other Australians? This is a cross-cutting question, open to many contextual answers.

At what scale can Indigenous representation operate? Some would agree with Warren Mundine that there can be no effective representation of Indigenous interests above the level of a First Nation. Others argue that a national representative body is both possible and necessary.

What is the relationship between citizenship within a First Nation and Australian citizenship? This question arises when Indigenous Australians debate whether access to welfare should be contingent on the approval of local Indigenous authorities (as it has in the Cape York experiment).

The question arises also in debates about what role (if any) Indigenous community organisations should play in the authentication of the Indigenous identity of individuals.

As the Australian Indigenous project experiments with the political and legal devices that Australian history is making available, such questions will demand attention. In this sense, the recently revealed diversity of Indigenous opinion about the Voice is but a stage in the formation of First Nations’ political thought. •

The post A steady path to sovereignty? appeared first on Inside Story.

The No pamphlet: equivocations and divisions

The negativity of the No pamphlet is striking, but it also raises a broader and more important question: what if its arguments are so effective that the No case wins? Apart from acknowledging that “we all want to help Indigenous Australians in disadvantaged communities” the pamphlet has nothing to offer if the referendum is lost. Labor may legislate the Voice anyway, but would the Coalition — which dominated the drafting of the No case — support such a bill?

The No pamphlet quotes a December 2022 warning by former High Court judge Ian Callinan: “I would foresee a decade or more of constitutional and administrative law litigation arising out of a Voice…” But the quote omits significant words that immediately follow: “… whether constitutionally entrenched or not.” What Callinan really believes, in other words, is that even if the Voice were merely legislated, as the Liberal Party has proposed, its actions would be subject to litigation in Australia’s highest court. The No pamphlet’s view is that such litigation risks creating “delays and dysfunctional government.”

The pamphlet’s omission of the words “whether constitutionally entrenched or not” is significant because Callinan was questioning Liberal policy, not just Labor policy. The Coalition had committed to legislating for a Voice, allocating $31.8 million towards that goal in the March 2022 budget. And Peter Dutton has since goaded the Albanese government to take the legislative path, saying this is the only way voters will know whether the Voice is worth having.

The pamphlet evades the question of a legislated Voice by declaring “There are better ways forward” but failing to propose any such way. It mentions a “less risky Voice option” without saying what that might be. Indeed, it suggests we should be satisfied with Australia’s existing machinery for Indigenous representation:

There are currently hundreds of Aboriginal and Torres Strait Islander representative bodies at all levels of government. This year the Government has allocated $4.3 billion for the National Indigenous Australians Agency, which has 1400 staff. This Agency’s website and corporate plan says: “We… ensure Aboriginal and Torres Strait Islander peoples have a say in the decisions that affect them.” There is no suggestion that this Voice will replace any of these. It will operate as one bureaucracy among many.

We can deduce from the No pamphlet that the Coalition is reluctant to take a clear position on a legislated Voice. It is keeping open its option to oppose; it will sniff the wind after the referendum. Partisan tactics determine the No pamphlet’s equivocations.

One of the Coalition’s tactical needs is to preserve a semblance of unity on the issue of Indigenous representation. This is difficult because among the No camp there are those who, on principle, reject not only a constitutionally enshrined Voice but any Indigenous Voice at all. Some of them present themselves as strict liberals, affirming a principle of formal equality that would never countenance any institution or law that differentiated among Australians. “Enshrining in our Constitution a body for only one group of Australians,” says the No pamphlet, “means permanently dividing Australians.”

There are two things to say about this assertion. First, merely legislating such a body would also “divide” Australians (if not “permanently” then for as long as that body existed). So (again) is the No camp for or against a legislated Voice?

Second, what is meant by “dividing”? In law and policy, governments are always making distinctions. Distinctions of age and income determine who is entitled to an age pension and who is not. Distinctions of region are part of our tax administration via the remote area tax offset. The Native Title Act and our heritage protection laws make use of the distinction between Indigenous and non-Indigenous Australians.

Both sides of politics accept the necessity of such distinctions. So no principle is violated if a parliament legislates a representative institution for Indigenous people. To enshrine such an institution in the Constitution would simply give a greater degree of permanency to a distinction that law and the policies of both sides of politics have been making for years.

The pamphlet implies (and invites you to agree) that any government that treats some people differently from others violates the principle that all Australians are “equal before the law.” This is nonsense presented with solemnity. The principle “equal before the law” is not violated when governments “divide” Australians in ways that are relevant to governing them. The point of a Voice — whether or not it is the subject of a referendum — is to give Indigenous Australians a say in how they are differentiated.

So the No pamphlet not only fails to be clear on the question of a legislated Voice, it also engages in muddled word play with the terms “divide” and “equality.” The primary purpose of the No pamphlet is to evoke risk and advocate No as prudence. There is no telling what the Voice might do; it “opens the door for activists.” Best keep that door shut.

To a remarkable extent the No pamphlet evokes danger by quoting the aspirations of Yes advocates — Megan Davis, Gabrielle Appleby, Thomas Mayo (twice) and Teela Reid. What they want is what we should fear, it implies. The pamphlet also quotes Greg Craven’s warning that the Voice may comment on “everything from submarines to parking tickets.” In what may be read as a dig at voting “from the heart,” the pamphlet tells us that Craven has said he will set aside his critique (“fatally flawed”) and vote Yes.

But the No pamphlet is no less emotional, appealing not to our hearts but to our self-preserving flight reflexes: “If you don’t know, vote no.” The pamphlet encourages readers to feel that the world is unknowable and we are menaced by “activists” who could even cancel Australia Day. This characterisation of named Indigenous Australians as a threat is intended to counter the aura their Indigeneity has acquired.

Reverence and gratitude for Indigenous Australia have been prominent themes for Yes. In the parliamentary debate on the referendum bill, nearly all the Yes advocates urged recognition of the duration of Indigenous occupation (sixty to seventy thousand years) as the nation’s ancient lineage. The Yes pamphlet restates the view that a Yes vote respects this deep history.

In the 118 speeches on the referendum bill, MPs differed in their treatment of the Uluru Statement. Nearly every Coalition MP simply ignored it, as if there had never been a Referendum Council (2015–17), twelve regional dialogues, a national assembly at Uluru in May 2017, and the poetic, consensus Statement from the Heart.

To ignore the Referendum Council process is essential to the No case, for it was in these meetings and in their eloquent climax that Indigenous Australians told fellow Australians the form they want constitutional recognition to take. The No speakers and the No pamphlet — while professing support for constitutional recognition — turn away from the dignity of that utterance and the integrity of the process that produced it. The only “process” to which the speakers and the pamphlet refer is the one they say the government denied them: “a Constitutional Convention to properly consider options and details.” The government, it says, has been “rushed and heavy-handed.”

In only one sentence does the 2000-word No pamphlet concede that the Uluru Statement exists: “the Uluru Statement from the Heart says a Voice is a first step, before a treaty and truth telling.” More to fear! For, as the pamphlet explains, “a treaty is an agreement between governments.” Although the Uluru Statement was careful to say that Indigenous sovereignty “is a spiritual notion” and that it “co-exists with the sovereignty of the Crown,” the No pamphlet traduces the Uluru Statement as foreshadowing an Indigenous government.

The Yes pamphlet: usefulness above all, but where’s parliament?

Most Labor and Greens speeches during the May–June debate on the referendum bill celebrated the Uluru Statement, some explaining that it was the product of a long, unprecedented and decentralised process of deliberation. Many Yes MPs enriched their speeches with phrases and sentences they clearly admired as eloquent and poetic. Many characterised the Uluru Statement as gracious, generous and a gift.

While the Yes pamphlet continues with the argument that a Yes vote will pay “respect to 65,000 years of culture and tradition,” the tone seems to have shifted since the parliamentary debate ended on 16 June. The Yes pamphlet eschews the Uluru Statement’s rhetorical firepower; in fact it doesn’t quote the Statement at all, simply saying that “the idea [of the Voice] comes from Aboriginal and Torres Strait Islander people” and “Aboriginal and Torres Strait Islander people have given us a once-in-a-generation chance.”

The Yes pamphlet’s primary argument is that the Voice will be useful. It will improve life expectancy, infant mortality and health, education and employment. Why? Because listening to the clients of a policy improves the effectiveness of the policy. How do we know this? Because although “the current approach isn’t working,” here and there governments are already listening.

The pamphlet offers three examples of programs that work well because Indigenous people are involved in their implementation: community-controlled medical services, a school in Arnhem Land, and Indigenous Rangers working on country. At this point, a reader undecided about how to vote might ask: but if such programs are already possible, do we really need to change the Constitution? Why doesn’t the government just legislate for Indigenous involvement in the design and implementation of every program?

The closest the Yes pamphlet comes to addressing this question is to say that “putting the Voice in the Constitution gives it stability and independence, now and into the future,” enabling Indigenous Australians to give “frank advice” and to avoid “getting caught up in short-term politics.” “The current approach is broken and the Voice is our best chance to fix it. No one thinks the Voice will instantly solve everything — but we will finally have the right approach in place.” These words illustrate the difficulty of the “useful” argument: the causal chain between constitutional entrenchment and “outcomes” is long.

The Yes pamphlet responds to the No camp’s months of fear-mongering by quoting Robert French (a former chief justice) and Geoffrey Lindell (a University of Adelaide emeritus professor of law) saying that constitutionally entrenching the Voice brings a “low risk” of litigation “for a high return.” Strangely, the Yes pamphlet doesn’t make the point that parliament — subsequent to the referendum — will have every chance to further reduce that “risk.”

In the weeks immediately before the Albanese government introduced the bill, much more attention was given to the role parliament would play in designing the Voice. The No pamphlet elides this step, implying with its analogies (buying an unseen house or an undriven car, signing a blank cheque) that the victory of Yes in the referendum would immediately bring the Voice into being.

When the No pamphlet mentions parliament, it implies that it is a weak body, subordinate to the government and likely to be weakened further by a bossy High Court. “Once the High Court makes an interpretation, parliament can’t overrule it.” While this is not wrong, it understates parliament’s authority.

When the High Court said in 1992 that “native title” exists, the parliament couldn’t say “no it doesn’t,” but it did have discretion over how to legislate native title. The case law on the Native Title Act refers to the legislation as authoritative, applying the principle that parliament, the locus of popular sovereignty, is the supreme maker of Australian law. If the referendum endorses the Voice in principle, parliament will have much scope to mould it.

The Yes pamphlet could have made much more of parliament’s post-referendum role. It makes clear that the Voice can only advise parliament and executive, but it fails to mention that parliament will ultimately design the Voice and determine its budget. Was it not worth a paragraph to assure voters that parliament will design a Voice it can live with?

Even more surprising is that the Yes pamphlet doesn’t make a feature of the eight “design principles” Linda Burney began to promote at the Woodford Festival in December last year — her response to the demand for “detail.”

Whether through evasion, negativity or omission, neither pamphlet makes a particularly impressive contribution to the referendum campaign. •

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Ross found, first, that many of the 540 signatures to the treaty were added after the stated date of signing (6 February 1840), and even after the treaty’s proclamation (21 May 1840), by William Hobson, the British lieutenant-governor. And, second, she found that not one but two proclamations were made on that day, the second correcting the first by adding the South Island and Stewart Island to the North Island, though not because of the chiefs’ cession but because of the British “discovery” of these territories. Privately, Ross said that her research showed Britain to have been “both very well-meaning and very cynical.”

The treaty — especially approached in Ross’s painstaking manner — was seen as too esoteric for Northland Magazine’s general readership. Friends encouraged her to persist in examining the treaty documents and their context, but a new job with the New Zealand Historic Places Trust pulled her in other directions.

Māori were meanwhile asserting their collective rights in terms that confronted the official policy of assimilation. By the time Victoria University invited Ross to speak at a public forum in 1971, her views had more resonance. She argued that the Māori text of the treaty, not the English text, should be the focus of legal and political debate because most of the chiefs’ signatures applied to a Māori translation whose English original had been signed by relatively few chiefs at Waikato Heads on 6 February 1840.

Importantly, Ross was critical of the Māori translation, and particularly the question of whether it had adequately rendered the English term “sovereignty.” Where the missionary coinage kawanatanga had been used to refer to what Māori were being asked to cede to Queen Victoria, might the Māori concept mana have better conveyed the full significance of “sovereignty”?

The purpose of historian Bain Attwood’s latest book, “A Bloody Difficult Subject”: Ruth Ross, te Tiriti o Waitangi and the Making of History, is not only to celebrate the scholarship and character of Ross (widow, wife and mother in a milieu of male professional privilege), though he surely does that, making full use of her papers. Attwood’s larger points are that the significance of historical truths is highly dependent on the context of their reception, and that any “truth” that has public utility (as knowledge of the treaty surely has in New Zealand) may “assume the form of myth.”

Myth need not mean falsehood. Rather, Attwood means that the treaty has become a kind of blank screen on which “moral, political and legal norms” have been projected. Settler colonial nations need foundation stories, and the treaty is central to New Zealand’s. It can have a “mythic history” because stories about it “have a genuine link to a genuine past” and “at least a partial relationship to past reality and what is regarded as historically truthful.” But what the treaty does, as myth, is serve needs now.

Ross finally got her treaty research published, fourteen years after her first attempt, in the New Zealand Journal of History. According to Attwood, her overriding argument was that it is hard for us to know the intentions of those drawing up and signing the treaty. In her debunking words, the treaty was “hastily and inexpertly drawn up, ambiguous and contradictory in content, chaotic in its execution. To persist in postulating that this was a ‘sacred compact’ is sheer hypocrisy.”

Revealing the treaty to be unfit to serve as a “moral compact, let alone a legal contract” (Attwood’s words), Ross saw her truth as demystifying. But changes in Pākehā/Māori relations meant this was not an argument readers became aware of and valued.

In response to Māori self-assertion, the government established the Waitangi Tribunal in 1975, making the treaty a central “constitutional” document (in a nation without a written constitution). It was not the purpose of Ross’s research to establish how the treaty could work as a morally and politically central two-language text, but this was her research’s fate. Indeed, there is irony in her most iconoclastic assertion — “the Treaty of Waitangi says whatever we want it to say” — because, by the 1970s, Pākehā and Māori were wanting the treaty to say a lot.

In fact, the treaty’s protean character was not the undoing but the making of the treaty as a focus of national life. A non-debunking reading of Ross’s scholarship — a reading that found, in Attwood’s words, “that there were substantive differences between the Māori text and the English texts, that the Māori text constituted the treaty, and that any consideration of its meanings and implications should proceed on that basis” — proved unstoppable.

The jurisprudence of the new tribunal was soon shaped by Māori judge Eddie Durie, its chair from 1980 to 2004, who saw the Māori text as fundamental. The centrality of the treaty to New Zealanders’ conceptions of themselves as a socially just people has ensured the text remains in focus as the nation debates the terms of Māori–Pākehā coexistence and the mutual honouring of their sovereignties.

Attwood conveys the disconnect between Ross’s own understanding of her paper’s primary point and others’ later understandings. Her paper is open to being read for both its major argument (a treaty botched, a nation’s veneration of it misconceived) and for its minor argument (the Māori text as the treaty). In other words, as Attwood says, “Ross’s approach to an account of the treaty resembles the treaty itself” by being available to more than one purposeful reading. The minor argument has become canonical because the nation needs it.

In his book’s final two-thirds Attwood reviews the writings of treaty scholars including Paul McHugh, Claudia Orange, Judith Binney, James Belich, Michael Belgrave, John Pocock, Andrew Sharp, Keith Sorrenson, W.H. Oliver, Lyndsay Head, D.F. McKenzie and Mark Hickford. These (Pākehā) names will be well known to anyone reading New Zealand history. Their conversation has used or generated a number of terms — Whig history, common law history, juridical history, and Māori history — that Attwood has found useful in previous publications (for example, in his critique of the “juridical” alignment of Henry Reynolds’s scholarship with the High Court’s 1992 Mabo decision).

Attwood brought these terms (apart from Whig history) from New Zealand, and he now uses them to take the reader through the New Zealanders’ work, showing us the rich soil from which he grew as a historian. The debates in New Zealand are highly relevant for Australian historians who wish to respond to the Uluru Statement’s demand for truth-telling. By making this careful exposition, he has done the discipline of history everywhere a great service.

In his final chapter Attwood returns to a theme he canvassed in Telling the Truth about Aboriginal History (2005). There, he remarked that the democratisation of the production of knowledge — accelerated by “contemporary forms of technology” — “has made it difficult to agree on what historical truth comprises.” He then presented academic history as somewhat embattled by having been drawn into the public sphere to perform political and legal service.

Since then, Attwood has read Nietzsche’s On the Advantage and Disadvantage of History for Life (1874), with its typology of histories: monumental, antiquarian and critical. He endorses Nietzsche’s view that each has advantages for living and each needs the tempering presence of the other two. This seems to have had the effect of weakening his strictures on “juridical history,” though the category remains important to him.

Thus Attwood now distances himself from those who privilege the “critical.” In their practice of what he calls historicism, its NZ practitioners concede too little public value to what people have made the treaty mean according to the political dynamics and moral sensibilities of their times. “Many of the matters at stake in regard to the treaty concern justice and ethics and so are legal and philosophical in nature rather than historical.”

Here Attwood enters a global discussion that has featured two formidable contemporary Australian theorists of history, Ian Hunter (University of Queensland) and Anne Orford (University of Melbourne), debating how we should and should not historicise international law. (Their debate is the subject of a perceptive commentary by another Australian, Natasha Wheatley, in a 2021 issue of History and Theory.)

By the final pages of Attwood’s very fine book, the reader will be acutely aware that New Zealand has been a ground for exploring a question that Australians can’t avoid: how does historical scholarship serve a democratic reckoning with a settler colonial past? The idea that he seems to find most promising is John Pocock’s proposed “treaty between histories” (that is, mutual respect between Pākehā and Māori ways of doing history that cannot be blended). We have much to learn from what they have been talking about on the other side of the ditch. •

“A Bloody Difficult Subject”: Ruth Ross, te Tiriti o Waitangi and the Making of History
By Bain Attwood | Auckland University Press | $59.95 | 320 pages

The post Three “bloody difficult” subjects appeared first on Inside Story.

A few days after the report’s release, a Resolve poll showed a further decline in support for constitutional change. The finding served to highlight the notions of “risk,” “pragmatism” and “compromise” that are central to the committee’s report.

Pragmatism in particular — as strength or weakness — quickly became a theme of public debate. Encouraged by the minority report of the committee’s Liberal members, former Indigenous social justice commissioner Mick Gooda counselled the government’s Indigenous advisers to give up the hope of the Voice having the constitutional right to advise the executive. Responding on ABC Radio National, Noel Pearson spurned Gooda as a compromiser, leaving the public to infer that Anthony Albanese’s Indigenous advisers, having made compromises in the past, have now drawn their line in the sand.

The committee was examining the wording of section 129, which has four elements: introductory words recognising Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia; subsection 129(i), providing for the establishment of the Aboriginal and Torres Strait Islander Voice; subsection 129(ii), saying that the function of the Voice is to make representations to parliament and the executive; and subsection 129(iii), giving parliament power to legislate the Voice, including its composition, functions, powers and procedures.

Because Section 129 is intended as an act of “recognition,” it faces a decisive test: does it attract the assent of those to be recognised? On the basis of the evidence it received, the committee accepted that “the Voice, as established by the Bill, is the preferred method of recognition sought by Aboriginal and Torres Strait Islander peoples in the Constitution.”

The National Party member of the committee, Pat Conaghan (MHR for Cowper), didn’t agree that recognition should take this form. His dissenting report asserts that the bill “conflates two entirely separate issues”: whether to recognise Indigenous Australians in the Constitution at all; and whether a constitutionally enshrined advisory body should be the form recognition takes. He didn’t declare his hand on the first issue, but he is clearly in the No camp on the second.

But if recognition is a reciprocal process — with recogniser and recognised negotiating agreement about its terms — then voters have only one issue to decide: whether to demonstrate recognition by putting a Voice in the constitution. A majority of committee members were satisfied that “the words contained in the Bill do give effect to what Indigenous Australians have asked for, in processes such as the Uluru Statement from the Heart and the Final Report to the Australian Government on the Indigenous Voice Co-Design Process.”

Law professor Megan Davis, one of the key figures in development of the Uluru Statement, reinforced this point when she appeared before the committee on 14 April. Referring to a January 2023 Ipsos poll, she declared that “80 per cent of our mob support… constitutional recognition to empower their people.” (She could have added that only 10 per cent of Indigenous respondents to Ipsos said they opposed the constitutional amendment, with 10 per cent undecided.)

Davis also referred to Reconciliation Australia’s latest Reconciliation Barometer: “They’ve got the number at 88 per cent.” The Reconciliation Barometer 2022 asked Indigenous respondents to rate the importance of protecting the Indigenous Voice by putting it in the constitution: 57 per cent said this was “very important” and a further 30 per cent “fairly important.”

The question of what proportion of Aboriginal and Torres Strait Islander Australians really wants the Voice matters because Indigenous dissent is being highlighted by the No campaign. Dissident figures Nyunggai Warren Mundine and senator Jacinta Nampijinpa Price have emerged as the faces of the official No campaign’s advertising and media appearances; and at the other end of the political spectrum, senator Lidia Thorpe — who I understand has not yet finalised her position — urged ABC Radio National’s Patricia Karvelas to hear the “progressive no” case. According to Senator Thorpe, Indigenous people are being drowned out by a “loud” Yes campaign bankrolled by corporate Australia.

In raising doubt about what Indigenous Australians want, the No campaign received assistance from Liberal committee member Kerrynne Liddle, an Arrernte woman who represents South Australia in the Senate. She persistently questioned Indigenous witnesses about whether it was possible for a national representative process to cover the diversity of their opinion.

On 14 April she posed such a question about the regional assemblies that culminated in the Uluru Statement from the Heart. On 17 April she asked a Wiradjuri witness similar questions: “Who was your representative at that dialogue? Are you aware who that was? Did you have anybody from here [Orange] that was a representative at that dialogue?”

On the assumption that the government will legislate the model proposed by Tom Calma and Marcia Langton, Liddle expressed doubts about the new body’s capacity to represent Indigenous diversity. She asked witnesses from Queensland whether the Calma–Langton model gave enough seats to Queensland. She asked Western Australian witnesses whether the regional diversity of their state would be adequately represented.

In pursuing this line, Liddle was following her leader. Peter Dutton has said that a body that aspires to be representatively “national” will succeed only in becoming a “Canberra” Voice — though he may have surprised his own colleagues when he made this point. When the Liberal Party met to confirm it was in the No camp, according to the Nine papers’ David Crowe, its position had three facets: recognition of “First Peoples” in the Constitution; legislated local and regional Indigenous bodies; and a legislated national Voice. At his press conference after the meeting, Dutton rubbished the idea of a national body, legislated or otherwise.

Liddle also wondered what the amendment would really recognise. “Have you actually looked carefully at the words to see whether it really, truly even acknowledges us, as opposed to acknowledging a Voice, and do you have any thoughts on that?” she asked former Liberal Indigenous Australians minister Ken Wyatt on 28 April. Why no mention of “First Nations,” she wondered. (The phrase in the amendment is “First Peoples.”)

On the same day, Liddle challenged George Williams, a professor of constitutional law, with the observation: “An Aboriginal and Torres Strait Islander Voice is referred to three times in the wording of the three paragraphs — not Aboriginal Torres Strait Islander people, not a Voice separately, just an Aboriginal and Torres Strait Islander Voice.”

When Warren Mundine and his lead researcher Vicki Grieves Williams each appeared before the committee, they too stressed Indigenous diversity, arguing that the structures of the Voice (as imagined in the Calma–Langton report) are not authentic to First Nations culture. Grieves suggested that historians and anthropologists know this to be true but are holding back.

In her evidence on 14 April, Anne Twomey, another professor of constitutional law, defended the proposed amendment but scrupulously refused to speak with certainty about what Indigenous Australians want by way of recognition. “My only knowledge, to the extent that I have any, was of the views of the Referendum Working Group,” she said. “But other people may argue that the Referendum Working Group is not sufficiently representative of Aboriginal and Torres Strait Islander people, and I can’t speak to that…”

Yet Liddle and two Liberal colleagues, Keith Wolahan MP and senator Andrew Bragg, made no mention in their dissenting report of these doubts about how Indigenous Australians wishes have been represented and will be represented in the future. So why do I mention them at all?

Doubts about “what Indigenous people really want” — doubts that evoke Indigenous Australia as too diverse and localised to have an identifiable aggregated interest — are likely to remain prominent No campaign themes. Pitched to voters who would like to be recognisers — people of goodwill — they will create uncertainty about whether the government has found the form of recognition that pleases the largest possible proportion of Indigenous Australians.

Even if such doubts are in the minds of only a small minority of voters with weak attachment to the Yes side, the effect could be damaging to Yes. Pitched to those who are already poised to vote No, they provide a socially acceptable reason for voting No.

After the referendum — whether it is carried or not — will come further debate about what Indigenous Australians want and who speaks for them. This will be the inescapable context of parliament’s debate on a bill to set out the form, functions and powers of the Voice. The path to the Voice is land-mined with the very questions about representation that the Voice proposal is meant to resolve.

Risk in another key theme of the No forces. As Keith Wolahan (Liberal MHR for Menzies) remarked during the committee’s questioning, “Our task as a parliamentary committee is to assess and quantify risk.” He and others agreed that there were two kinds of risk to consider: the risk to our system of government of a weakening of executive power, and the risk to national unity if the referendum resulted in only a slender Yes majority or — worse — a majority No vote.

A strand of Australian political thought holds that the unelected judiciary should have as few opportunities as possible to use its power to challenge decisions by the executive. This view has been acclaimed as “conservative,” though how widely it is shared remains an open question. The Liberals’ dissenting report explained the danger of judicial overreach by pointing to what it sees as a great strength of our Constitution: it “confers very few rights” and “instead leaves it to the parliament to make laws providing for rights where necessary, with the flexibility to adjust to changing circumstances over time.”

Viewed from this perspective, the problem with the words in the proposed section 129 is that the High Court could interpret them “in a way that imposes duties on the executive.” What duties? A duty to consult, and a duty to consider.

Under a duty to consult it would be mandatory for the executive to give the Voice an opportunity to submit a representation before making decisions on matters relating to Aboriginal and Torres Strait Islander people. Under a duty to consider, it would be mandatory for the executive to consider representations from the Voice before making decisions on matters relating to Aboriginal and Torres Strait Islander people. According to these Liberals, executive duties that derive from the Voice’s “right” to be consulted and considered, would have “profoundly disruptive effects on the operation of government.”

Would a High Court ever deliver judgements that profoundly disrupted the operation of government? Those who are happy with the amendment as it stands think this very unlikely. “I don’t think the High Court is in that business,” says former High Court chief justice Robert French. “Do we really seriously think that the High Court is in a position that it would do that?” asks Anne Twomey. “And my answer is: no, I’m sorry, I don’t.” Former High Court justice Kenneth Hayne took a similar line.

Why are Liberals not reassured? Wolahan made it clear that he is troubled by what has happened to Australia’s system of government in the era of human rights. Like other liberal polities, Australia has tried to reconcile executive efficiency (the ability of ministers and their public servant delegates to make binding decisions within timeframes judged as reasonable) with our commitment (in statute and treaty) to human rights. In Australia the difficulty has been felt most acutely in decisions about who is entitled to be in Australia.

As Wolahan asked one legal expert on 1 May, “If we were to compare the migration area of law in the review that occurs in that area of law, we would see that there’s broad agreement that there is more red tape and delay [in] those decisions. Is there not a risk that that gets expanded to a broader array of executive government decision-making?”

In their dissenting report, Bragg, Liddle and Wolahan list recent senior court cases they believe to have trammelled the executive, remarking: “There are many other examples of decisions that have invalidated legislation or government decisions, especially in the field of migration.” Yes, many people have noticed that, but not all of us lament the trend.

The argument over the Voice has become the latest flashpoint in an ongoing struggle over how to build “human rights” into Australia’s system of government. When Mark Latham and John Howard agreed in 2004 to abolish the Aboriginal and Torres Strait Islander Commission, or ATSIC, they taught Indigenous Australians an unforgettable lesson in the frailty of legislated rights.

And the political risk? The committee considered the possibility the referendum might be lost. Most members and most witnesses dreaded that outcome. “A referendum failure would haunt our country for decades; it will haunt all of us,” the Liberals’ Julian Leeser said. “The question will be: did we make it as easy as possible for Australians to vote yes?”

In contemplating that possibility, the benchmark of the 1967 referendum, when 91 per cent voted Yes, seemed to weigh heavily. Sean Gordon, chair of Uphold and Recognise, laid out the Yes advocates’ dilemma. “The most important thing,” he told the committee, “has always been that we need to put forward a position that is worth winning from the perspective of Indigenous people, but it also needs to be winnable, given that we need 90 per cent of the population to support this.”

Why 90 per cent? Gordon recalled the 1967 referendum as a “nation-building” moment. He wants the 2023 referendum to be another: “a 51 per cent win isn’t going to create that nation-building effect.” Questioned by Senator Liddle, Ian Trust, chair of the Empowered Communities national leaders’ group, agreed that a 51 per cent victory would raise a “question… as to how much it is supported… 51 per cent is obviously not high enough.”

When Liddle repeated this enlarged notion of referendum success to Leeser, he first reminded her of the constitutional definition of a successful referendum. He then added that he wants the referendum to win “handsomely, because I think that is better for the reconciliation process and… for national unity…” Constitutional lawyer Father Frank Brennan remarked, “Let’s try and get the wording as right as we can so that we can really get the country to ‘yes,’ and not just get over the line but do it in a way which attracts mass support.”

The ambition to win “handsomely” to create “national unity” gives impetus to the changes to the proposed amendment suggested by these men — changes that would reduce the possibility of the High Court one day ruling that the executive has a duty to consult the Voice and a duty to consider what the Voice says. In the words of Senator Bragg, “If the legal risk is minimised, then the chances of a successful referendum are maximised.”

Bragg joined constitutional lawyer Greg Craven in proposing that when the bill is legislated subsection (iii) should include seven more words: “and the legal effect of its representations.” The practical legal effect of this amendment would be “to guarantee the parliament’s capacity to legislate the scope of the Voice’s representations and manage future legal effects.”

Bragg assumes that parliament can be relied on to design a Voice whose rights are legislated but not subject to judicial review. He assumes that Indigenous Australians (forgetting the fate of ATSIC) will accept recognition in this form. He claims to know a lot about what Indigenous Australians will accept as recognition and what will reassure a voting public worried by the possible disruption of the system of government.

Two changes discussed in the committee — each advocated as a means of making it easier for voters to say Yes — focus on the proposed subsection (ii). Brennan would like the Voice to be constitutionally restricted to addressing only one part of “the executive,” the “ministers of state.” Leeser would prefer that all of subsection (ii) be deleted. Uphold and Recognise points to yet another pathway to a win for Yes: they would like the referendum to amend section 75 of the constitution to enable parliament to prevent or restrict the Voice from pursuing judicial review proceedings in the High Court.

By rejecting all of these proposed changes, a majority of the parliamentary committee placed some of these risk minimisers in a delicate position. Leeser, Craven, Brennan, and Uphold and Recognise have all said they will vote Yes, even if the government goes ahead with the words they have sought to change. Each of them dreads the defeat of constitutional recognition more than the “legal risk” to executive efficiency.

So, will they continue to feed political risk by persisting in speaking and writing about the “legal risk” they see in the recognition on offer? What will they say when the No campaign quotes their arguments? Brennan believes that he has acted in consideration of a section of the voting public who “want to be sure that what is there is legally watertight.” If the government goes ahead with the words that he has found risky, will he urge voters to join him in taking the risk? •

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Contact with the real parliament came not long after. Yunupingu’s father was one of the signatories of the Bark Petitions sent to Canberra in August 1963 asking the government to hear the Yolngu before excising land for bauxite mining from the Arnhem Land Reserve. According to some — and this is entirely plausible — Yunupingu helped draft those bilingual documents.

Still an adolescent, he’d already had a taste of two experiences that would be lifelong. One was settler colonial intransigence. Although the Bark Petitions succeeded in their immediate objective — a parliamentary committee visited Yirrkala, heard Yolngu testimony and recommended compensation — they failed to stop the mining province being excised in 1968.

The other experience was translation, for which he had, by all accounts, a particular talent. Translation was Martin Luther’s sixteenth-century gift to Christendom: the imperative to render God’s word in every vernacular (rather than lock it up in Latin) was central to the Protestant rebellion again Rome and to the global “civilising” florescence of Christian faith.

At the mission’s invitation, Yunupingu spent two of his teenage years at Brisbane Bible College. Then, when he was just twenty years old, his people took the Commonwealth to court. Once again, Australia had to bend its ear towards the Yolngu. As anthropologist Nancy Williams writes, Yunupingu and another college trainee, Wulanybuma Wunungmurra, skilfully translated the Yolngu testimonies of customary law into English for the judge, Richard Blackburn. They were assisted by missionary linguist Joyce Ross. Each of the trio occasionally interjected with an alternative interpretation to what had just been heard.

For the first time in Australian legal history, a judge needed to hear an exposition of Aboriginal law and decide whether the laws of Australia were obliged to treat Aboriginal land tenure as binding for non-Aboriginal Australians. He had to answer the question: is Aboriginal customary ownership an enforceable proprietary right?

Blackburn’s judgement in 1971 came in two parts. Yolngu did have a continuing customary law that included concepts of land tenure. But Yolngu concepts of “ownership” didn’t amount to what counts as an enforceable proprietary right in Australian law.

For the second time, Yunupingu found himself on the losing side of a battle he had grown up with. But the twenty-three-year-old had contributed significantly to the judge’s grasp of Yolngu customs, and the case had given him, and the Yolngu clans, unprecedented credibility. In the two parts of Blackburn’s judgment it became possible to see a gap between morality and law. If Yolngu were still living by their own concept of what was right, were Australians not under a moral obligation to recognise them as owners of the reserve ?

The posing of this question in 1971 was an early rupture in Australian colonial consciousness, and it had been made possible by a coming together of enlightened Methodism, Yolngu territorial practice and the Australia’s common law. Without Yunupingu’s (and others’) skill in translation, this productive interaction would not have been possible.

What followed, within a few years, was a bipartisan commitment to land rights legislation. A sufficient number of Australians had seen in Blackburn’s ruling an implicit indictment of the laws they had been living by. That insight has continued to cascade through Australian law and politics: Mabo, Wik, the case for constitutional recognition.

The Garma Festival, which Yunupingu and his brother, Dr M. Yunupiŋu, established in 1999, has proved a lasting contribution to settler colonial Australia’s continuing self-examination. Self-examination doesn’t require shame and guilt, as long as it affords a respectful acknowledgement of difference — the difference, for example, between being a host and being a guest.

Being a guest, in this case on Gumatj clan land, can be rewarding. In 2018, journalist Julia Baird wrote that adopting the Garma protocols (as advised by the Yothu Yindi Foundation) had opened her up to a transformation of awareness, including an appreciation that “the offer of ‘Makarrata’ — a coming together after a struggle — was an act of remarkable generosity… they still invite us to walk with them, to understand better, which is an act of grace.” In January 2019, the Australian Financial Review named several female chief executives who had included Garma in their calendar of self-improvement. It has become a fixture on the calendar of Australia’s national politics.

Garma can also be hard. Leaders who choose the occasion to say forward-looking things about the colonial relationship can expect to be confronted. Just as the guests increasingly feel that they must be there, so the hosts take the opportunity to call them to better efforts. In 2014 Labor leader Bill Shorten hinted in a Garma speech that he favoured “anti-discrimination” language in the Constitution. The following year Yunupingu was reported as saying that the need for such an amendment was non-negotiable, while Marcia Langton got stuck into Tony Abbott’s resistance.

A year later, in 2016, Noel Pearson gave what one reporter described as a “rage-flecked” speech outlining his frustrations about constitutional recognition. At Garma 2017, prime minister Malcom Turnbull warned of the difficulty of constitutional recognition, while others lamented politicians’ lack of ambition. In 2018, Yunupingu, a member of the Referendum Council created by Abbott and Shorten in 2015, admonished Turnbull and Shorten for a lack of progress since the last festival. He had expected “detail and meaning and cleverness, not words and promises and nothingness,” according to one report.

In 2019, attending Garma was part of Anthony Albanese’s preparation for a tilt at the top job; he used the occasion to express support for the Uluru Statement from the Heart. It was a festival punctuated by fiery moments: Yunupingu expressed impatience at recognition’s slow progress and threatened to throw the Australian Constitution into the sea; Pearson, in another scathing address, accused the Institute of Public Affairs and conservative commentators of acting in bad faith.

Garma in 2022 — Yunupingu’s last, as we now know — was perfectly timed for Albanese to present his first draft of a constitutional amendment. Although he led a delegation of sympathetic MPs including federal Liberal MP Julian Leeser, it was also an occasion for Country Liberal Party senator Jacinta Nampijinpa Price to double down on her rejection of the Voice live on ABC television.

Will Yolngu in August 2023 find themselves hosting a debate, with Indigenous and non-Indigenous ranged on both sides of the debate? Almost certainly. This year’s Garma falls on the sixtieth anniversary of the Yirrkala Bark Petitions. Recognition has since become an unpredictable dynamic. What the Yolngu — under the auspices of Yunupingu’s Gumatj clan — have given Australia is an annual off-centre space of political performance where the visitors must work out how to acquit themselves honourably as guests. •

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What upset Craven was not the new words in the third sentence:

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.

This sentence makes it absolutely clear that parliament can design the Indigenous Voice as it wishes. It can specify not only its “composition, functions, powers and procedures” but also anything else about the Voice, including its dealings with Commonwealth public servants.

No — what worries Craven is that the Voice will have any entitlement to talk to public servants. In common with the draft constitutional amendment announced at Garma last July, the second of the three sentences issued last week by the prime minister mentions “Executive government,” which takes in ministers and the public service:

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.

Flanked by his Indigenous advisers, the prime minister thus rejected the advice of those who think it would be “constitutionally unsound” (Craven’s phrase) for an Indigenous Voice to speak to the executive. The “sound” option preferred by constitutional conservatives would have an Indigenous Voice making representations only to parliament.

Rather than being technical, the distinction between “sound” and “unsound” rests on one’s tolerance for risk. If the Voice is empowered to speak to the executive, there is a risk (acknowledged by attorney-general Mark Dreyfus on yesterday’s ABC Insiders) that interactions between Voice and executive will be subject to litigation in the High Court. The government accepts that risk.

Once the Voice is up and running, someone might conceivably bring an action in the High Court alleging that the executive failed to pay due attention to the Voice’s advice when it made a particular decision. The High Court might respond by setting out protocols obliging the executive to demonstrate that it really has taken account of the Voice’s advice. It could say, for example, that the executive is constitutionally obliged to publish reasons for not following the Voice’s published advice.

Some commentators see this as an appalling possibility, and it certainly provides a theme for those writing the official No case. They will present as an intolerable risk the possibility that a government will be obliged to demonstrate that it has really listened to the Voice’s advice. As Tony Abbott wrote recently, the possibility that such a Voice “would have to be listened to” is a reason to vote against the amendment. Craven has speculated that many voters are constitutional conservatives, fearful that future governments will be crippled by a new line of accountability.

Because the High Court declines to hear litigation about how parliament does its business, the conservatives believe a “constitutionally sound” option — a Voice speaking to Parliament only — would keep the High Court at bay.

It is a striking feature of Australia’s political culture that so many politicians and commentators see the High Court of Australia — one of the three branches of the Commonwealth — as a threat to the process of government. They condemn as “judicial activism” any judgements they disagree with. For these observers, the Mabo and Wik judgements left a wound that will never heal.

The critics who apprehend a future of hog-tied governments have characterised the prime minister’s announcement last Thursday as a victory for radical advisers over those who have counselled the more cautious option: an Indigenous Voice authorised to speak only to parliament. True, it was a victory for these ascendant “radicals,” but they still face a political task that will arrive only after the referendum: persuading the Indigenous public that the Voice is worth having.

It is all too easy to forget that this referendum is different, in one fundamental respect, from any other that has been presented to the Australian people. It proposes an act of recognition for a segment of Australian society that has emerged, in the last fifty years, as an Indigenous public. For an act of recognition to be effective, it must be expressed in terms agreeable to those who are to be recognised. To recognise someone in terms they find repugnant or trivial is to misrecognise them, making the relationship worse rather than better. What the Indigenous public thinks therefore matters.

The Indigenous public has already shown it can matter. Encouraged by the Referendum Council (a body established by Tony Abbott and Bill Shorten in 2015) and enacted as a series of assemblies, it produced the Uluru Statement from the Heart, a document of undoubted political consequence. (Craven thinks it “sublime.”) The Indigenous public will start to matter even more if the Yes vote triumphs at the referendum, for Indigenous Australians will then say yes or no to the details — so far undetermined — of the Voice’s design.

How will this Indigenous public speak if it is not yet “the Voice”? After the referendum — if it succeeds — the government will have voters’ mandate to formulate a Voice bill, but this mandate is not enough to give it a free hand. It has promised to consult Indigenous Australians about the detailed design of the Voice.

How will we know if those to be recognised in the Constitution wish to be recognised in a particular way? Consultation on the post-referendum bill must augment the work of parliament.

Last September, UNSW lawyers Gabrielle Appleby, Sean Brennan and Megan Davis recommended that the post-referendum consultation process itself be the subject of legislation to be passed (but not “commenced”) before the referendum. This legislation would provide for a Voice Design Council, guided by an Indigenous steering committee, to come into existence if the referendum is passed.

The council would do something similar to the work performed by the Referendum Council: it would conduct regional dialogues. First Nations delegates would deliberate on the Voice’s design, and the dialogues would culminate in a national convention to write drafting instructions for the bill. The Indigenous steering committee would then work with the Office of Parliamentary Counsel to draft the bill. A joint parliamentary committee would consider public submissions and then recommend to parliament that it pass the final bill.

Why go to all this trouble after the referendum? Isn’t the referendum the decisive moment? For the Indigenous leaders of the constitutional recognition campaign, the referendum is but one (vital) step in a recognition process. What they must then do is engage with the Indigenous public on the question of what is acceptable as a form of recognition. An ongoing intra-Indigenous political process is clearly already under way; this will continue after the referendum.

If the referendum attracts a Yes majority among all voters and among the six states, the Indigenous leaders who have been advising Albanese will have the wind in their sails. But we shouldn’t underestimate their task. It has become clear that Indigenous Australia abounds in sceptics poised (for a variety of reasons) to say the Voice is not an acceptable form of recognition. These leaders will need to be able to say to the sceptics that the Voice is worth legislating because its design, after the referendum, has been determined by Indigenous wishes.

By accepting the risk of what Craven calls a constitutionally unsound amendment — a Voice speaking not only to parliament but also to the executive — Albanese has given elbow room to those who, in this consultative process, will draft the Voice legislation. The advisory Voice minimally described in the constitutional amendment will have a purchase on government attention not only via parliament but also via the executive, and the High Court may be asked to prescribe the executive’s listening procedures.

By accepting the risk of Indigenous empowerment (via a justiciable right to be listened to), the government has reduced the risk that the Indigenous public will say, after the referendum, “The recognition you offer is not worth having.” A Voice that could advise only through parliament would attract no shortage of Indigenous scorn. The decision to continue to include the executive in the amending words gives Albanese’s Indigenous advisers a stronger platform from which to say to the Indigenous public, after the referendum, that this Voice has been worth the fight. •

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Conflating these two questions is easy, and not necessarily illogical. After all, if you think the Indigenous Voice to Parliament is a bad idea then your arguments against it apply to legislating for it as well as mentioning it in the Constitution. Still, the distinction between “We don’t want to alter the Constitution to provide for a Voice” and “We don’t want an Indigenous Voice to Parliament at all” is worth keeping in mind.

There is also a third question — one that the referendum pamphlet(s) will need to avoid. What is the best design for an Indigenous Voice? That isn’t a Yes/No question, and it isn’t the referendum question, but I see little to stop it from becoming, eventually, the question.

The editors of the new book Beyond Belief: Rethinking the Voice to Parliament, Peter Kurti and Nyunggai Warren Mundine, have allowed their contributors — most of whom oppose the Voice — to range over all three of those questions. The strength of this approach to “rethinking” lies in the fact that, even if voters say No to the constitutional amendment, a future government will probably legislate a Voice. If that happens, or if indeed the referendum passes, legislators’ thoughts will be stimulated by some passages in this book.

So we can welcome Warren Mundine’s thoughts on Voice design for their pertinence to a later debate — though he would prefer to have that debate now. His argument for voting No in the referendum seems to be that he can’t be sure that a Yes vote will lead to the kind of Voice he could accept. The extant Voice models — of which Marcia Langton and Tom Calma’s is the best known — strike him as “race-based” because they postulate pan-Aboriginal structures that would override the authority of traditional owners, whom he sees as the only legitimately Indigenous political units.

The book’s more immediate value is in those passages that are pertinent to the more pressing challenge: the referendum. Should we pass the proposed amendment or not? That is the proper topic of the Yes and No pamphlet that will arrive in our mailboxes sometime this year.

Imagine you are responsible for drafting the pamphlet’s No case. Could Beyond Belief help?

Some essays are on point, spelling out why their authors believe an Indigenous Voice in the Constitution could damage our system of government. Economist Henry Ergas expresses this view eruditely, citing political theorists in support of “the bedrock concept of political equality in the Western intellectual tradition,” and particularly “the principle that all citizens should have the same weight in the process of political decision-making.” He believes that a Voice would give a named “national minority” — that is, Indigenous Australians — “special access to the legislative process.”

What’s wrong with that? In Ergas’s view, to institutionalise group representation of that kind suppresses differences of opinion within the group and exaggerates the group’s loyalty to values and identities that (they think) define them. This scenario disturbs Ergas, but others would welcome it as confirming Indigenous peoplehood.

By perpetuating the idea that Indigenous Australians are essentially different from other Australians, Ergas argues, a constitutionally enshrined Voice would fuel demands for “a formal treaty which would make Australia into some type of bi-national state.” Thus, without saying so, he evokes the vision of “Blak Sovereignty.” The Blak Sovereigns — unpredictable, if Lidia Thorpe is their leader — are shaping up to vote No because they see constitutional recognition as threatening their sovereign right to negotiate a treaty. The writer of the No case should strive to give equal weight to Ergas’s and Thorpe’s conflicting reasons for voting No.

Like Ergas, Australian columnist Janet Albrechtsen opposes putting the Voice in the Constitution, but the crux of her argument is that it will change the relationship between the three branches of the state. A combination of High Court litigation over the scope of the Voice and parliament’s obligation to respond to Voice advice will effectively transfer its design from legislators to judges.

As a result, Albrechtsen predicts, the Voice is likely to be more powerful than parliament intends. Those commanding the Voice “will have leverage over the parliament that previously they, and we, never imagined possible.”

Again, we see an argument for No that darkly warns of a scenario many other Australians favour. “All of Australian political life will have to be conducted with one eye on the Voice,” says Albrechtsen. What’s not to like, many will respond. Albrechtsen despairs of such complacency, excoriating the political and corporate elites — blithe sentimentalists racked by colonial guilt — who ignore her risk assessment. The country’s leaders have lost their reason, she believes, and woke elites are bullying business figures and professionals.

Albrechtsen has long been scolding the Yes camp. But the writer of the No case, who would be wise to avoid ad hominem statements, won’t be able to use some of the ammo offered by this columnist.

Former prime minister Tony Abbott is frankly opposed to giving Indigenous Australians more say over the government. He agrees with Albanese that only a “brave” parliament and government would reject the Voice’s advice. If the voters amend the Constitution by adding the words proposed by Albanese, writes Abbott, “there would have to be a Voice; it would have to be listened to; and its powers and functions could be as wide as a parliament might make them.” Well, yes… that’s the idea.

When Abbott explains why he is worried by that scenario, he makes three points. First, Indigenous persons would have two votes, despite there already being a “surfeit of Indigenous consultation mechanisms.” Second, passing legislation would become more difficult. (Amanda Stoker also presents this as a reason for voting No in her essay.) Third, if a government were “brave” (and both Albanese and Abbott imply that governments seldom are), the spurned Indigenous leaders would complain to the High Court that the Constitution was being ignored, further delaying laws and decisions.

Abbott thinks that voters — as horrified as he by these possibilities — will reject the amendment. And this, he warns, will set back reconciliation. He acknowledges that a referendum defeat (and the blow to reconciliation) would be less likely were the Coalition parties to campaign for Yes. This points to one reason why the Liberals might endorse Yes: it isn’t hard to imagine a Liberal MP (Julian Leeser, Andrew Bragg) citing Abbott’s point about reconciliation when urging Dutton to commit to Yes or to allow Liberal MPs a free vote. They probably have already.

The arguments for No presented by Ergas, Albrechtsen and Abbott bear a strong resemblance to many people’s reasons for voting Yes. Competing visions of Australia’s past and future stand in this zone of overlap. A culture war is being fought here — unavoidable and, in my view, necessary.

Abbott is not the only contributor to consider the referendum’s risk to reconciliation; it is also on the mind of Chris Merritt, a former legal affairs editor at the Australian. He speculates that a successful referendum could have a number of unfortunate sequels. Those who voted No because they thought that they didn’t have enough information “could argue that the Voice has been secured by deception — poisoning community relations and bringing the new institution into disrepute.” Those who voted Yes could be unhappy if they find the legislated Voice to be much less powerful than their referendum mandate warranted.

Merritt also mentions the High Court — a body with a poor reputation among contributors to this book. Those who fear for the sovereignty of parliament, Merritt and others argue, will discover that enshrining the Voice in the Constitution has made the High Court — nor parliament — the Voice’s effective designer. The drafter of the No case should tread very carefully here — evoking, without endorsing, the view that the High Court has become a threat to good government.

Another question facing the drafter will be how much weight to give to the argument — made here by Merritt and by lawyer and Sky News pundit Caroline Di Russo — that we don’t yet have enough information to cast a referendum vote. For Merritt, voting No is “the only safe course” if we don’t know what the form and functions of the Voice will be. Di Russo has “yet to form a firm view.”

That cautionary argument for No could lose force if the government can persuade the public that its statements about design principles are meeting the demand for “information.” But it isn’t clear what information would convince Di Russo that “one race should have its own ‘voice’ under the Australian Constitution.”

Several other contributions to this book will be of little use to the drafter of the No case because they do their “rethinking” of the Voice in such a way as to leave readers guessing which way they will vote.

Educational psychologist Anthony Dillon, for example, says he is not definitely a No voter. He wants more information before making up his mind, but he dismisses as “alarmist” the fear that the Voice will “create two Australias.” His concern is that the Voice, by assuming that Indigenous Australians are essentially different from other Australians and essentially similar to each other, will give bad policy advice.

Indigenous Australians are divided, Dillon says. The leaders of the Yes campaign are those who somehow escaped the blight of collective self-determination, grasping education and employment for themselves. He worries that an Indigenous Voice will empower them to entrench a policy paradigm that is failing others. If anyone needs a voice, he says, it is the Indigenous Australians whose violent lives are so different from the Voice’s advocates — hence his openness. He awaits a design of the Voice that would represent those failed by self-determination.

Dillon shares some ground with Jacinta Nampijinpa Price, who argues in her foreword to Beyond Belief that the Voice would empower “a self-serving ‘industry’ that seeks to maintain its relevance.” She predicts that the people who make up this “industry” — “Aboriginal service providers, bureaucrats, academics, and politicians” — won’t be able to correct the failed policies of the past, and the Voice will thus fail to “close the gap.” Instead, the referendum risks constitutionally enshrining the idea that “Aboriginal people are perpetual victims forever in need of special measures.”

Unlike the No-leaning Dillon, Price is emphatically in the No camp. The two of them share the expectation that the Voice will offer bad advice and that governments will take it. Public policy analyst Bernard Samuelson agrees: the Voice will probably express the views of Indigenous Australians whose promotion of self-determination, including “the separatist ‘homeland’ movement,” has already done harm. Former Liberal National senator Amanda Stoker accepts that some “race-based” law, such as native title, is necessary but argues that we shouldn’t put the Voice in the Constitution because we don’t know whether it will improve “life outcomes.”

Scott Prasser’s essay — a Pol Sci 101 primer — assures readers that to vote No is socially acceptable, part of a proud Australian tradition of referendum negation. Witness, he says, Bert Evatt in 1951. What may distinguish this referendum, he fears, is the “opprobrium” attaching to No. That the No case may want for champions is underlined by his own essay’s exemplary reticence.

Like Dillon, Stoker criticises the referendum question for assuming that all Indigenous Australians think alike. Like Mundine, she insists that we keep in mind those Indigenous Australians who don’t want to be recognised in the Constitution — or, if they do, don’t want recognition in the form of the Voice. One argument that the No case could advance would be expressed as a question: how can we be sure that this amendment to the Constitution will be an act of constitutional recognition that Indigenous Australians accept? What the “recognised” think, after the vote on the principle, is decisive here.

Perhaps without realising it, Stoker has touched on a confirmatory political step acknowledged by Voice advocates. They want the referendum, if successful, to be followed by consultations with Indigenous Australians to confirm that the Voice — as outlined in a draft bill — is the form that constitutional recognition should take. The recommended assemblies will take place in 2024, seven years after those that culminated at Uluru. How do we know, the No case might ask, that the recognised will confirm the Voice — that is, the model that a government is then prepared to legislate — as the form that constitutional recognition should take?

At this point questions of Voice design will be central. The debate over constitutional recognition since 2012 has encouraged the expression of Indigenous diversity and promoted non-Indigenous interest in it. Dissenting Indigenous opinion will probably be conspicuous in the post-referendum consultations promised by the Albanese government. Equally likely is that such post-referendum assemblies will reiterate the Uluru Statement’s demand for a Voice, tweaking and endorsing the model offered by the government and looking ahead to truth-telling and work on a treaty. But we ain’t there yet. •

Beyond Belief: Rethinking the Voice to Parliament
Edited by Peter Kurti and Nyunggai Warren Mundine | Connor Court | $29.95 | 240 pages

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For Wild and other opponents of the Indigenous Voice, only one hope remains. Will the Liberals join the Nationals and campaign for a No vote? The widely held belief that referendums fail without the support of both major parties has given Peter Dutton’s Liberals an aura: when we know their position we will know the result.

The Nationals have already demonstrated how costly it can be to take a clear position on this referendum. Putting themselves in the No camp at the end of November, they immediately lost one of their MPs, Andrew Gee, to the crossbench. The National Farmers’ Federation, pondering the diversity of rural opinion, has since decided that it will endorse neither Yes nor No.

Will David Littleproud relish sharing a podium with Pauline Hanson at No rallies in the bush? He would certainly feel more comfortable with Dutton at his side.

Some see an implicit No stance in the letter Dutton sent to prime minister Anthony Albanese on 7 January, in which he asked fifteen questions about the design of the Voice. Until the government answers those questions, Dutton declared, the Liberals can’t say whether they will endorse Yes or join the Nationals and One Nation in the No camp.

While we puzzle over the parties’ alignments on the proposed constitutional amendment, we shouldn’t forget their common ground. Liberals, Nationals and Labor all agree that Australian governments need advice from an Indigenous Voice. The Coalition government committed $31.8 million in March last year to setting up such a body; it then lost office to a Labor Party that promised to defer creating an Indigenous Voice until after a referendum confirms that the electorate wants it embedded in the Constitution.

Since the change of government, both Jacinta Nampijinpa Price and Peter Dutton have declared that Labor should legislate now, rather than waiting for a referendum, if it believes in the Voice.

So what is the underlying, longer-term debate about the Voice really about? In essence, the major parties differ on two questions. First, what form should constitutional recognition of Indigenous Australians take? Both sides say they want the Constitution to recognise Indigenous Australians in some way, but the conservative parties insist that enshrining the Voice in the Constitution is a bad way to do it.

Then there’s the design of the Voice itself. Labor insists that this discussion be deferred until after the referendum, when parliament will consider a yet-to-be-written bill. Others want to start the design conversation now. Even those on the right who want to see the referendum carried — people like legal scholar Greg Craven, Liberal MPs Julian Leeser and Andrew Bragg, and journalist Chris Kenny — have either raised questions about the shape of the Voice or asked for the government to publish a draft bill.

These questions have exasperated many of the people committed to voting Yes in Labor’s referendum. Asking the government to detail the form and functions of the Voice is bad faith, they say; the Liberals are needling the Yes campaign without defining their own stance. They fear that to answer every question now will plunge supporters of Yes into dispute with each other, and that some Yes voters, not liking the answers, will defect to No.

Dutton undoubtedly profits by continuing to ask questions about Voice design. He can avoid alienating Liberals who want a constitutionally enshrined Voice while keeping at bay the Liberals who, for a variety of reasons, would like to join the Nationals in the No camp. But characterising his questioning as a political tactic is persuasive only up to a point. What it overlooks is the fact that a debate about Voice design is already under way — a debate that some wish to suppress for now, and others wish to join.

From the Liberals’ point of view, creating a debate about Voice design makes sense, no matter what position they take on the referendum. A legislated Voice is likely, whether or not the Yes case wins, because both Labor and the Coalition want one. The conservatives are seeking Labor’s commitment to a Voice of a certain kind — a Voice that resembles, in some respects, the body that they began to design in 2016 (by some accounts, as long ago as 2013).

Dazzled by the apparent belligerence of Dutton’s 7 January letter to Albanese, some commentators have not noticed the punches it pulled.

Many on the right — journalists Peta Credlin, Janet Albrechtsen, Andrew Bolt, Piers Akerman and Greg Sheridan, for instance, and former PMs Abbott and Howard — have been publicly counselling Dutton to oppose the Voice as a “race-based” assault on liberal equality. Yet Dutton’s questions made no appeal to a principle of formal equality and avoided the “race-based” tag.

Nor did he raise the threat to parliamentary sovereignty some believe would be posed by the High Court. Anti-Voice conservatives have asserted that Albanese’s constitutional amendment — no matter how cleverly worded — will encourage litigation. Litigants will demand and receive the High Court’s help in intensifying the government’s obligation to listen and respond to the Voice and to license it to choose whatever matter it wishes to speak on.

Instead of taking up these fears, Dutton’s letter and questions essentially linked the effectiveness or otherwise of the Voice to its representativeness.

His first three questions concerned who can vote for and serve on the Voice. Questions four, nine and ten were about election/appointment and ongoing accountability. Question eleven named a constituency that the Voice must be designed to represent: “those who still need to get a platform in Australian public life.”

Questions twelve and fifteen hinted at what the Voice should be concerned with (closing the gap and “the real issues that impact people’s lives daily on the ground in the community”); question thirteen invited the government to assure us that the Voice would not negotiate a treaty.

Dutton’s polemical phrasing stoked anxiety about several questions. But they are nonetheless matters of structure and purpose, and they embody an underlying idea: that the Voice will not help the most disadvantaged unless it is designed to amplify their influence on governments.

So it is significant that Dutton’s fourteenth question linked this ethically attractive idea to an actual design proposal: “Will the government commit to Local and Regional Voices, as recommended in the report on the co-design process led by Tom Calma and Marcia Langton?”

That is a confronting question for Labor, which has sought to say as little as possible about Calma and Langton’s report since it was released in December 2021. Albanese said immediately after his Garma speech that the report was central to his government’s thinking, but neither he nor Indigenous Australians minister Linda Burney has revealed which features of the model the government does and doesn’t like. Albanese’s recent radio interview with Ben Fordham revealed that he does not have some features of the Calma–Langton model at his fingertips.

The plan for Patrick Dodson, chair of the joint parliamentary committee on Aboriginal and Torres Strait Islander Affairs, to circulate a substantial outline of the Voice by Christmas 2022 seems to have been dropped, though it has been minimally fulfilled by Burney’s listing of several design principles: that the Voice will be advisory, will not deliver programs, will not have a veto over parliament, will be “accountable and transparent,” will be chosen by First Nations people, will be gender-balanced and will include young people.

Calma and Langton went much further than this. In particular, they presented the thirty-five Local and Regional Voices as the foundational tier of the Voice, and argued that this tier must thus be created first. Only when the “vast majority” of Local and Regional Voices are in place, they said, will it be possible for the National Voice to be added — perhaps two years after work on the Local and Regional Voices had begun. (Until then, they suggested, there would be an Interim National Voice.)

It made sense to defer the National Voice, they pointed out, because its members should be chosen by the Local and Regional Voices rather than by the votes of a national Indigenous electorate. In Calma and Langton’s conception, the National Voice gets its representative legitimacy from the Local and Regional tiers that precede it and on which it depends.

Calma and Langton say that the thirty-five Local and Regional Voices will not arise de novo but should build on and extend “existing local and regional decision-making arrangements.” As examples they mention the NSW Local Decision Making initiative and the national Empowered Communities scheme — the latter giving their plan a conservative lineage, for it was established by the Turnbull government in 2016.

Empowered Communities sought to cultivate “partnerships” between government and community in eight regions: Cape York, NSW Central Coast, Inner Sydney, Goulburn Murray, East Kimberley, West Kimberley, Ngaanyatjarra Pitjantjatjara Yankunytjatjara Lands, and Ngarrindjeri. The scheme analysed data, built “baselines” and identified “service delivery gaps” in order to produce “long-term Regional Development Agendas.”

In some of the Empowered Communities the Morrison government quarantined welfare payments through the Cashless Debit Card. When Labor abolished the CDC in September 2022, some critics argued that the government had failed to heed the wishes of many in those regions.

Within the Turnbull and Morrison governments, Empowered Communities were seen as promising exercises in forming what Calma and Langton would come to call Local and Regional Voices. But Liberal MP Tim Wilson doubted in August 2018 that anything would be gained from giving constitutional recognition to such bodies: they got their legitimacy, he asserted, from their representativeness.

By the time the Coalition’s Aboriginal Australians minister Ken Wyatt convened his co-design committees in early 2020, the Morrison government seemed to be anticipating that the regional structures of the Voice would resemble and build on the “partnership” forums of the Empowered Communities program. Empowered Communities were among the seeds from which Calma and Langton expected Local and Regional Voices to grow. But Wyatt’s terms of reference prevented them from advocating for their model of the Indigenous Voice to be constitutionally enshrined.

Only a few months before the Morrison government lost office, Calma and Langton were arguing that the Voice should be legislated so that voters would get to know it as a useful rather than threatening part of Indigenous politics before any constitutional referendum. Wyatt didn’t get his wish to legislate on the basis of their report, but Langton publicly welcomed the last Coalition budget’s allocation of money towards what Wyatt called “more detailed co-design of implementation requirements for each jurisdiction” so that Local and Regional Voices could be formed.

As Australia passed from Coalition to Labor rule, the conservative provenance of the Calma and Langton model made referring to it politically awkward. Calma and Langton have continued to promote it, but they have adjusted their advocacy to the new sequence: their report is to be read now but acted on only after the referendum.

Without dismissing it, some advocates of a Yes vote treat the Calma–Langton model with great reserve. The co-chair of the Uluru Dialogue, Megan Davis, subtly distanced herself by referring to it as “the Wyatt report.” “There are many useful aspects of the Wyatt report that will inform the way forward,” she wrote in July 2022.

Davis’s wariness about the “Wyatt report” would be evident to anyone who noticed how Calma and Langton had responded to her proposal to the co-design committee that the National Voice have the “powers and privileges of a parliamentary committee to compel people to appear as witnesses or produce documents.” Reporting to a conservative government, Calma and Langton had thought it prudent to label that an “inquisitorial” approach and to suggest that a “good-faith partnership” was a better option.

The feature of the Calma–Langton model that (probably) endeared it most to the Morrison government was the emphasis on the Local and Regional tier: the thirty-five Voices that would speak to state, territory and local governments about programs and development opportunities.

But in the eyes of some who want an Indigenous Voice to Parliament, the Calma–Langton model does not show how regions can be represented. In the Sydney Morning Herald in August 2022, lawyer Teela Reid wrote that “each First Nation ought to have input” and therefore that “First Nations people want a nation-based Voice.” She described as “artificial” the local, regional and state boundaries “endorsed in the government report into the Voice co-design process by Marcia Langton and Tom Calma.”

A month later, Davis and fellow lawyers Gabrielle Appleby and Sean Brennan released a paper, “Finalisation of the Voice Design,” in which they acknowledge the persistence of public demands for more information about the Voice. While referring respectfully to the Calma–Langton report, their paper warns us not to consider as “final” the model it produced. They have “process-related concerns” about the report.

Appleby, Brennan and Davis want to rule a line under all the design thinking done during the Coalition government and enunciate design principles reflecting the possibility of the Voice being a constitutionally based body. In particular, they depart from Calma and Langton’s emphasis on the Local and Regional tier.

“The Voice is primarily a Voice to Parliament,” they write, “informing the ultimate national law-making authority, but it must also be engaged with government in the development of policies and legislative proposals” (my emphasis). They also want the government and parliament to have “an obligation to engage with the Voice in certain defined areas” (my emphasis).

Appleby, Brennan and Davis observe that no report has ever outlined a body that — by virtue of the referendum — is to be a constitutional entity giving Indigenous Australians constitutional recognition. This unprecedented design task, they say, requires significantly augmenting the work of parliament by a process of Indigenous consultation. They outline their preferred process and argue it should be “set out in a bill that is passed by parliament and (in an uncommenced form) is an Act available to the public voting at the referendum” (my emphasis).

Under this legislation an appointed Voice Design Council, guided by an Indigenous Steering Committee, would conduct regional dialogues at which First Nations delegates would deliberate on the design of the First Nations Voice. These dialogues would culminate in a National Convention that would write drafting instructions for the bill. The Indigenous Steering Committee would then work with the Office of Parliamentary Counsel to draft the bill. A joint parliamentary committee would consider public submissions and then recommend to parliament that it pass the final bill.

The Albanese government has not commented on this proposal for a post-referendum design process, but it continues to promise “consultation” before it presents a bill to parliament. Without disputing that parliament will write the Voice legislation, Appleby, Brennan and Davis have spelled out who should be consulted and the form that “consultation” would take: “Sufficient assurance must be given to First Nations people that the design of the Voice… will not be imposed on them by the parliament without their input.” That assurance, they say, should take the form of an act of the parliament.

By proposing a post-referendum “consultation” process that resembles the dialogues orchestrated by the Referendum Council in 2016 and 2017, Appleby, Brennan and Davis are hoping that the process that produced the Uluru Statement from the Heart is widely respected. They are banking on the possibility that the 2016–17 sequence of regional dialogues and its crowning national assembly has become paradigmatic of the Indigenous public.

“Recognition” implies there is such a thing as an Indigenous public that can accept or decline the proposed terms of recognition. But the “Indigenous public” is no more than a rhetorical construct unless it finds credible institutional expression. Until there is a Voice, this is what the series of Indigenous assemblies can be. Indigenous assemblies are currently the only political technology that can credibly answer the question: in what terms do Indigenous Australians want to be recognised?

In laying out their preferred post-referendum process, Appleby and her colleagues give less emphasis to the law-making sovereignty of the parliament, though they don’t dispute it. Their bid to write Indigenous assemblies into the post-referendum design process asserts an Indigenous prerogative we are at risk of not making room for: the prerogative to say yes or no to the offered recognition.

For “recognition” to be effective, the recognised must determine its terms. Appleby, Brennan and Davis are reminding us that this amendment, unlike any constitutional amendment in Australia’s history, will work only if it empowers an Indigenous interlocutor to say whether the recognition afforded by Australian voters is a recognition worth having.

Australians’ evident willingness to recognise Indigenous Australians in some way has empowered those to be recognised. The current diversity of viewpoints among Indigenous figures (Price, Davis, Lidia Thorpe, Nyunggai Warren Mundine and others) may dismay some as a cacophony. But the fact that Indigenous Australians are now disputing with one another about what would be recognition’s optimal form is one manifestation of their empowerment as the soon-to-be-recognised.

Mundine has spent the past twelve years letting us know his reservations about constitutional recognition, and about the Voice in particular. But he has also said recently that if the Voice is established he will contribute to making it work in order to get government “off our backs.”

Lidia Thorpe wants a truth-telling process, a treaty that recognises sovereignty and then — only then — a Voice, but we can be sure that if a Voice is established first she will assess its usefulness to her sovereignty agenda. With her strong commitment to women and children, Jacinta Price is unlikely to neglect a Voice as a means of formulating social policy — including (possibly) a revival of something like the Cashless Debit Card.

When Labor faces Liberals’ demands for detail — as it is likely to do right up until the day of the referendum — it will have to summon the nerve to continue offering only broad answers. A minimalist approach to releasing “details” will allow for a post-referendum process of further Indigenous deliberation about what kind of Voice is wanted.

While Linda Burney has mostly shown the stomach for minimalism, she has sometimes sought to appease questioners by assuring them that the Voice will deal with education, health, housing, domestic violence, childcare, native title, land rights, cultural water allocations, and other policies that have a “direct effect” on Indigenous Australians — and not “things like taxation or defence.” I suspect that her Indigenous advisers — especially Davis — have warned her against sliding into such pre-emptive talk.

Meanwhile, invoking the voters’ right to know what they are voting on, Dutton and others will solicit all the pre-emption they can get. Their pressure was evident in Julian Leeser’s announcement on Saturday that his support for Yes is weakening in the absence of Labor’s answers to Dutton’s questions. The Coalition parties will store up every “detail” they extract so they can point to it after the referendum as a design feature already endorsed (or rejected) by the Australian public.

The politics of Voice design has already begun. Whether the Liberals decide on a Yes, No or “free vote” approach to the referendum, the one thing that matters to conservatives now is to concede as little as possible of the Voice design process to those who seek to be recognised. •

The post Peter Dutton’s questions appeared first on Inside Story.

Income management has been facilitated by two schemes: the Basics Card, introduced in 2008, and the Cashless Debit Card, or CDC, which was launched in 2017. Each card was designed to stop people on welfare from making purchases deemed harmful to them and/or their communities.

What makes income management an “Indigenous issue” is that most people who must use these cards identify as Aboriginal: as of 27 May this year, more than eight in ten of the 24,825 people on the Basics Card and half of the 17,322 on the CDC. The six regions in which the CDC was introduced between 2016 and 2020 — Ceduna, East Kimberley, the Goldfields region, Bundaberg and Hervey Bay, the Northern Territory and Cape York — all had large Indigenous populations.

A high proportion of welfare recipients using these cards haven’t chosen to have their expenditure managed. Someone else has decided for them: the Australian government or (in Cape York) a community-based panel working under the local Family Responsibilities Commission. These organisations have declared that certain welfare recipents can’t be trusted to spend their money wisely or deserve protection from others’ predation.

While some welfare recipients have found these constraints helpful, many would like to have had the option of agreeing to or refusing such help. Many feel stigmatised by “the Card,” or at least unreasonably inconvenienced by it.

In September this year Labor abolished the CDC, and many of its users are now being “transitioned” to the Basics Card. Critics of compulsion were encouraged by Labor’s decision: they hope the Albanese government will soon take the next step and make the Basics Card optional, giving the swelling ranks of its users the choice of whether to continue under its discipline. Some critics would prefer the government to go further and abandon income management programs altogether.

Labor has promised to consult widely before making further decisions about the Basics Card. The momentum is in the direction of an optional card because recent discussions have revealed wide agreement — among both its defenders and its critics — that it is a more “primitive” (Noel Pearson’s term) tool than the CDC.

Because the CDC used existing banking infrastructure, cardholders could shop at around a million outlets with EFTPOS facilities, and could also shop online and internationally. The Basics Card can be used only at a dramatically more limited number of stores individually approved by the Australian government.

To acknowledge the defects of the Basics Card is one thing; to make its use entirely optional is quite another. The idea that some authority should control the spending of irresponsible or vulnerable welfare recipients still has firm defenders. But if compulsory income management is to remain in the social policy toolkit, who should decide which welfare recipients will be controlled, and by what criteria will they be selected?

It is an orthodoxy of our times that only extensive Indigenous consultation will assure good Indigenous program outcomes. Among the Coalition’s objections to Labor’s decision to abolish the CDC was the accusation that the Albanese government didn’t sufficiently consult affected communities. If the Voice were up and running — both nationally and at the local/regional levels — it could advise the government about the principles that should govern Indigenous Australians’ (and others’) welfare entitlements. The thirty-five Local and Regional Voices might even be able to propose regional variations on the modes of welfare delivery, which are already emerging.

Despite criticising the Albanese government for failing to consult on the CDC, the Nationals’ Jacinta Nampijinpa Price, a senator from the Northern Territory, has pledged emphatically to oppose the Voice, and she has the National Party behind her. But her position is not as clear as it could be. After all, as partners of the Liberal Party, the Nationals supported allocating $31.8 million in the March 2022 budget to establishing Local and Regional Indigenous Voices, with a view to legislating them some time in the future.

Has the National Party in opposition repudiated a position on the Voice it supported in government? Has Price withdrawn her own taunting suggestion to the Albanese government in August 2022: “If this government is so hellbent on establishing this Voice then it needs to first demonstrate it can be successful, by legislating it rather than enshrining it”? One thing that is clear is that Price and the Nationals don’t want an Indigenous Voice to be enshrined in the Constitution.

Price’s recent pledge to lead the No campaign in the referendum was scornfully slapped down by one of the leading advocates of a Yes vote, Noel Pearson. On 29 November, he dismissed Senator Price as trapped in a “redneck celebrity vortex.” But this spectacular confrontation on the referendum issue obscured the extent to which Price and Pearson are in agreement on the question of whether Labor erred in abolishing the CDC. Both of them believe compulsory income management should continue for individuals whose unfettered use of welfare income poses a threat to their community.

Price and Pearson’s convergence in defence of compulsory income management — with the CDC as its tool — was on display in August at the Senate inquiry into the bill that abolished the CDC. Senator Price was asking questions; Pearson was among those answering.

What did they say?

As one of three representatives of the Cape York Institute appearing before the Senate committee on 16 August, Pearson described how income management commenced in 1999–2000 on Cape York. At first, recipients had volunteered for the scheme, some of them as a justification for telling importuning kin that they couldn’t oblige demands for cash because their spending was being controlled.

For these welfare recipients, compulsory income management was a way of resisting “demand sharing” — a practice honoured by Indigenous custom but fatal to the wellbeing of many. The legislation to abolish the CDC, said Pearson, “will wipe out twenty years of my work.”

According to Pearson and his colleagues, the most important achievement of the Cape York Family Responsibilities Commission, or FRC, had been identifying local authorities with the capacity to decide whose income should be managed. Local commissioners and local elders identify errant or defenceless members of participating communities and put them on the card. “Your own people will hold you to account,” explained Pearson, urging the government to “fund similar decision-making mechanisms” in other communities.

“Our work in Cape York will be severely kiboshed if we don’t have a card facility attached to the FRC,” Pearson claimed. The CDC was the better card for the FRC to work with because it offered greater flexibility to the small number of Cape York people (around one hundred at any one time) on whom budget discipline is imposed for three to twelve months. Labor’s legislation would force them back to the “primitive” Basics Card.

The entire Senate committee found the Cape York Institute presentation persuasive. The majority report (senators Marielle Smith, Janet Rice, Louise Pratt, Anne Urquhart and David Pocock) recommended the CDC be abolished, subject to the government working with the FRC to ensure that it could find a practical substitute. The Coalition senators (Slade Brockman, Jacinta Nampijinpa Price, Anne Ruston, Wendy Askew and Matt O’Sullivan) used their minority report to wholly endorse Pearson’s objection to terminating the CDC, pointing out that the thousands of people in the Northern Territory who had transferred from the Basics Card to the CDC would now have to return to a card they found less useful. They criticised the government for not revealing its plans for those on compulsory income management, and slammed it for inadequate consultation.

How the users of the CDC will be affected remains to be seen. If the FRC is frustrated by the transition to the Basics Card, we can be certain that the Cape York Institute won’t remain silent. Pearson is a formidable advocate. Whether the government will encourage bodies equivalent to the FRC to form in other regions is hard to predict. If ever the thirty-five Local and Regional Voices come into existence, I imagine some of them will examine this possibility.

Senator Price made it clear she is impressed by the Cape York approach to compulsory income management, referring to it several times at committee hearings subsequent to Pearson’s presentation. Addressing witnesses from Ceduna, she acknowledged that committee members were aware of the FRC model and “how this sort of program might actually benefit other communities,” especially those that are “tight-knit.” She asked another witness whether she thought the FRC “framework” demonstrated that “a form of income management that is tailored to a community can work.”

At another point Price asked a witness from Change the Record (a coalition that wants all forms of income management abolished) to consider the help that the FRC would give to a victim of domestic violence or to neglected children. She drew another witness’s attention to “a framework in Cape York where the community understands the circumstances of individuals within a family group” and intervenes “to ensure that those vulnerable people are taken care of.”

All of this means that Price must have been shocked on 29 November to hear Pearson excoriate her for the Nationals’ position on the Voice. “Ultimately it’s a tragic redneck celebrity vortex that she’s caught up in,” Pearson told ABC radio, “and it involves right-wing people, particularly… the Institute of Public Affairs and the Centre for Independent Studies. They’re the string pullers… and their strategy was to find a Blakfulla to punch down on other Blakfullas.”

“I am no stranger to attacks from angry men,” Price responded, adroitly transforming Pearson from protector of women and children to “angry man.”

Those words reflected Price’s seemingly deep ambivalence about the representative capacities of organisations that claim to speak for Indigenous Australians who suffer at the hands of family members. Implicit was the question: are organisations critical of compulsory income management (really) a vehicle for men’s interests?

This is the kind of gender-nuanced question the Country Liberal Party in the Northern Territory has long asked of the powerful statutory land councils. Price speaks from within that tradition of conservative political discourse that highlights the vulnerability of women and children to men.

“I know it’s easy for organisations to be heard and speak up,” Price said at another point in the committee’s proceedings. “Has it been difficult for some of the vulnerable people to be heard?” Time after time, she raised doubts about the “governance” of organisations that oppose compulsory income management. Responding to research criticising the practice, she contrasted organisational views with the outlook of “the individuals themselves.” Price was alive to the possibility that an organisation’s view could be more reflective of its leaders’ attitudes than of “those they serve.”

Price’s own experiences give her the confidence to make this sustained critique of existing instruments of Indigenous representation. Her political persona derives not only from being the child of a Warlpiri mother and white father, raised in Alice Springs, but also from being a woman and a mother herself, a member of a structurally vulnerable category that includes her relatives and friends.

“Do people in your organisation have lived experience in some of these places?” she asked one critic of compulsory income management — “particularly places like remote communities in the Northern Territory?”

She is also one of the few politically successful Central Aboriginal people for whom none of the large “Indigenous sector” organisations (including the Central Land Council, Tangentyere Council and Central Australian Aboriginal Congress) is a power base. Making a virtue of her tense and sceptical relationship with such bodies, she has thrived in elected office under the patronage of a Country Liberal Party that claims to speak for the Aboriginal people neglected by the Indigenous sector.

This way of relating to her home region differentiates Price from Pearson and helps to explain their opposing positions on the Voice. While Pearson’s voice has been facilitated nationally by the Murdoch press, his power base is in the regional Aboriginal organisations he has helped to build since the 1980s. It is there in Cape York that he has conducted social policy trials persuasive enough to win financial patronage and delegated responsibilities from federal and state governments.

Indeed, Pearson is Australia’s leading theorist and practitioner of Indigenous regionalism. He also conspicuously refuses to be party political. Implicit in his political trajectory has been the choice not to stand for elected office as the preselected candidate of a major party.

If the Indigenous Voice were established, and if it included a strong regional tier (as recommended by Tom Calma and Marcia Langton in their final report on the Indigenous Voice co-design process), Price would find herself marginal to any Central Australian or Northern Territory Indigenous Voice(s). This is because they would probably be fashioned from the very NT Aboriginal organisations against which Price defines herself as the tribune of the vulnerable and unrepresented.

Pearson, by contrast, could vaunt the Cape York structures with which he identifies as prototypes of regional Indigenous empowerment. He was making that case, very effectively, in his August pitch to the senators against Labor’s abolition of the Cashless Debit Card. •

The post Price and Pearson, uneasy allies? appeared first on Inside Story.

Since the election, Anthony Albanese and his government have pushed ahead with yet another option — a referendum first, without too much detail about how the Voice would be formed and operate, with legislation to follow. At the Garma Festival on 31 July the prime minister provided the words he would like voters in that referendum to add to the Australian Constitution.

There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.

The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.

The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

That approach seems popular. Sixty-four per cent of the 3168 Australians surveyed by the Resolve Political Monitor in August and September said “yes” when asked, “Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?”

The government, Albanese added, is open to further consultation on the exact words to be added to the Constitution. Over the next few months, a series of expert workshops will consider Albanese’s words and perhaps suggest changes. How the Constitution should refer to the Voice’s scope is likely to be one theme of discussion: arguably, all matters dealt with by Australian governments are “relating to Aboriginal and Torres Strait Islander peoples” but some people will want to circumscribe the Voice’s attention.

At the same time, the government is seeking counsel on how to run the referendum itself. In August, it appointed a working group of First Nations leaders, including Indigenous Australians minister Linda Burney and senator Pat Dodson, to advise on three matters: the timing of a referendum, the words of the proposed referendum question and the information about the Voice to be issued to the public before the vote.

To decide what to say about the Voice itself before the referendum is the most difficult issue facing the government. The Albanese government has said very little so far because it would like to distinguish two political tasks: the task of persuading voters to put an Indigenous Voice in the Constitution, and the task of persuading parliament to legislate the Voice in a certain form. But the distinction between the two has come under pressure: the government won’t be able to campaign for a Yes vote in the referendum without giving an outline sketch of the Voice. It will need to say something, soon, about the bill it would introduce after the referendum to legislate the Voice.

The government is correct in saying that parliament will have the final say in the Voice’s design, but parliament can’t deliberate without a bill to consider. Many want to know what would be in that bill. The prime minister’s plea at Garma that we endorse a change to the Constitution as an act of good manners has fallen flat.

Morrison’s road not taken

Before it was thrown out of office in May, the Morrison government had made two significant steps towards creating the Indigenous Voice. The first, in December 2021, was to release the final report of the Indigenous Voice co-design process chaired by Calma and Langton. The second was to allocate $31.8 million in this year’s budget “to progress the establishment of Local and Regional Voices,” in the words of the Coalition’s Indigenous Australians minister, Ken Wyatt. (Langton and Calma’s report received very little public attention, but I have provided an overview at Australian Policy and History.)

Langton welcomed the Morrison government’s financial commitment. Against those who want a referendum on the Voice as soon as possible, before the legislation is developed, she and Calma have argued for building the Voice first. Work would start on constructing the thirty-five Local and Regional Voices, which would then, after an estimated two years, choose the members of a National Voice to Parliament.

Only then, in this scenario, would a referendum be held — though Calma and Langton could not say this in their final report because Wyatt’s terms of reference forbade any mention of constitutional recognition. If the voting public saw the existing Voice as an effective and legitimate body, a future government committed to constitutional recognition would find it easier to persuade voters to put the Voice into Australia’s Constitution.

This legislate-first scenario had three political weaknesses. One was that Scott Morrison had followed his predecessor Malcolm Turnbull in saying that he would not submit the Voice to a referendum. Morrison was prepared to start building a Voice, but constitutional recognition of Indigenous Australians, he said, should take some other form. The second was pointed out by those agitating for constitutional entrenchment to precede legislation. A Voice that was merely legislated would lack the moral and political legitimacy that a referendum would provide, making it less effective, less attractive to potential Indigenous leaders and always vulnerable to legislative dissolution — the fate inflicted in 2004–05 on the Aboriginal and Torres Strait Islander Commission, or ATSIC, by a Coalition government with Labor’s support.

A third weakness was that a government and the voting public might say of the functioning Voice: is there any need to provide for it in the Constitution if it is already working well as a legislated body?

The election as mandate

Backing the referendum-first approach was one way for Labor to differentiate itself from the Coalition. But between the announcement of the election and polling day the major parties said little about the Voice or constitutional recognition. For voters concerned with Indigenous affairs the election did present a choice, however: Labor promised and the Coalition refused a referendum on the Voice. But both parties treated this difference as if it did not matter to voters.

The Voice advocates who assembled in April to make the Yarrabah Affirmation sought to make it matter. They framed Labor’s commitment to a referendum as voters’ opportunity to help stage national renewal. “History is calling,” they said.

Did the effort to promote a Voice referendum as a nation-defining opportunity make a difference to anyone’s vote in May? We can’t say, but it certainly gave Anthony Albanese the theme for his victory speech on election night. He chose to highlight Labor’s promise to hold a referendum in the next term of parliament, as if that had been what the election was all about. Labor’s triumph, he implied, was his mandate to conduct a referendum.

The change of government thus switched Australia onto a different pathway to the Voice. Instead of slowly constructing a legislated Voice, building from the local and regional upwards — without assurance that the Voice would ever be put to referendum — Australia will debate, between now and the end of 2024, whether to entrench the Voice in the Constitution. If the referendum is successful, the government will be obliged to legislate the Voice. If the voters reject the referendum, a government could still decide to legislate a Voice.

An almost-neglected model of the Voice

Having committed to holding a referendum first, the Labor government must now decide what to do with the model the Morrison government had budgeted for.

In the first week of August, after Garma, the prime minister acknowledged the existence of the Calma–Langton report and its relevance to Labor’s post-referendum drafting of a bill. But he would say nothing about what Labor likes and dislikes about the Calma–Langton model. Linda Burney was less circumspect. Evidently, she doesn’t agree with one of the report’s central recommendations: that the members of the National Voice be chosen by the Local and Regional Voices, meeting within their state or territory, rather than directly elected by Aboriginal and Torres Strait Islander voters.

A few days after being sworn in as minister Burney was reported as saying that the Voice “needs to be elected, that it should have gender parity and that young people and the voices of Torres Strait Islanders must be represented within the body.” Burney didn’t acknowledge that she was here contesting a major Voice design issue.

The history of ATSIC suggests that only a small proportion of Indigenous Australians would vote in a non-compulsory poll. Rather than allowing all Indigenous Australian voters to elect National Voice members, Calma and Langton’s “structurally linked” membership model would, they suggest, secure the legitimacy of the National Voice better than the direct election of its members by a small proportion of Indigenous voters.

Little commentary on the Calma–Langton model has been published since Burney’s remark. Megan Davis, writing in the Australian in July, made two criticisms of what she calls “the Wyatt model.” She reminded readers that Wyatt had not allowed Calma and Langton to say whether the Voice should be entrenched in the Constitution. I understand Davis as saying that now Labor is committed to a referendum on the Voice any model that was conceived under Wyatt’s brief is less relevant.

Davis also said that the Wyatt model was “a voice to government, not a voice to parliament.” Actually, Calma and Langton proposed that it be both. Putting that aside, why should the Voice not be “to government”? Davis didn’t say.

Any discussion of how Indigenous Australians might use a Voice to speak “to government” will need to include Pat Turner, chair of the Coalition of Peaks, an alliance of Indigenous organisations that believes it has created a way of talking to government agencies delivering Closing the Gap programs. As far back as November 2019, Turner was quoted as fearing that a “messy, incoherent ecosystem of Indigenous representative mechanisms” was forming. Perhaps that is also Davis’s concern?

Wyatt invited Turner to sit on Calma and Langton’s advisory group, and it is likely that she contributed to their recommendation that the Local and Regional Voices be formed in a way that respects and complements the processes of Indigenous representation already established in each region. Such existing Indigenous organisations are the base of Turner’s Coalition of Peaks.

After the election of Labor in May 2022, Turner renewed her vigilance about Voice design. In June and July she was reported to be urging the government to issue more “detail on how a national Voice would work.” Marcia Langton felt obliged to assure Turner that “nothing in our [final report] will affect the Coalition of Peaks or efforts to close the gap.” Langton was also reported to be critical of Turner for saying that she couldn’t support the Voice until she sees some “meat on the bones.”

Though some Voice advocates have been irritated by Turner’s calls for detail, she has reportedly said that she is seeking merely to counter “unhelpful speculation” about the Voice. Here we see a puzzle facing those campaigning for Yes. Whose demands for more detail are merely mischievous (bad faith campaigning for a No vote, in other words) and whose demands arise from their legitimate interest in what the Voice could be?

Turner was also concerned that focus on the Voice was drawing the public’s mind away from the Closing the Gap agenda. “The Voice is easier to talk about than Closing the Gap. We need to do both,” she is reported to have said.

Thorpe and Price as outliers

Flanking this patchily reported Indigenous discussion of the Calma–Langton model are the dissenting commentaries of two senators, Lidia Thorpe, a Victorian Green, and Jacinta Price, an NT Country Liberal member. Neither seems interested in questions of Voice design.

Since choosing Thorpe to replace Richard Di Natale in June 2020, the Greens have opposed the creation of the Voice before the Australian government negotiates a treaty based on truth-telling. The May 2022 election gave Thorpe a further six years, and the Greens have made her their deputy leader in the Senate. Her strength within the party raises the question: would the Greens vote against a Labor referendum bill?

After the election, Yes campaigner Thomas Mayor thanked Greens leader Adam Bandt for saying that the Greens would not try to stop a referendum being held. Mayor also pointed to survey evidence that “more than 70 per cent of Greens voters support a Voice referendum.” But Thorpe also speaks for the Greens, and in June, according to the Australian’s Troy Bramston, she said that Australians aren’t ready to vote on the Voice and it would be risky to proceed before a treaty was negotiated between the Commonwealth and Indigenous Australians.

Looking for common ground, Burney and the Greens have conceded that the Voice, the treaty and truth-telling could be pursued simultaneously. As a quid pro quo, Thorpe has asked the government to commit to implementing all the recommendations of the Royal Commission into Aboriginal Deaths in Custody (1991) and of the Bringing Them Home report (1997), and to legislating the UN Declaration of the Rights of Indigenous Peoples (2007) as Australia’s standard of Indigenous self-determination.

Labor would not have to find common ground with the Greens if the Liberal and National parties agreed to support a referendum bill and joined Labor to argue for Yes. A Yes campaign led by an Albanese–Dutton unity ticket would have a very good chance not only of winning but also of marginalising the Greens’ (or at least Thorpe’s) approach to Indigenous affairs.

When Dutton appointed Liberal moderate Julian Leeser as shadow Indigenous Australians minister he signalled that he is keeping the door to bipartisanship open. But Price pledged on 27 July, in her first speech to the Senate, to resist the opposition’s move to the political centre.

“This government has yet to demonstrate how this proposed Voice will deliver practical outcomes and unite, rather than drive a wedge further between, Indigenous and non-Indigenous Australia,” she said. Not all Indigenous Australians wanted the Voice, she went on, arguing that a Voice would, in effect, “disregard” Indigenous MPs such as herself. Narratives about Australia’s racism, she added, were being mobilised to promote a Voice that was itself predicated on racial division.

Hailing Price’s speech, some of the more right-wing Murdoch journalists regretted that Dutton had appointed the conciliatory Leeser.

More detail on the Voice?

If we take Thorpe and Price at their word, they are unlikely to be won over by more detail from the government about the Voice’s likely form, functions and powers. Neither of them has commented, as far as I know, on the Calma–Langton plan – for better or worse, the only published model of the Voice. For these two senators to grapple with issues of institutional design, they would need to climb down from the rhetorical plinth where each has become an icon of her constituency. We may yet see such engagement, but don’t hold your breath.

Political progress on the referendum is within Albanese’s reach if he discusses with the opposition the possible institutional meanings of the words “make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.” Perhaps that discussion is already taking place in private. Some have suggested a parliamentary inquiry as a forum for such an exchange. It could lead to a set of principles — agreed between government and opposition — to guide the drafting of a post-referendum bill.

That possibility was touted by Malcolm Turnbull when he announced in the Guardian on 15 August that he would vote Yes. Turnbull spent much of his article respectfully summarising the Calma–Langton model, with the disclaimer that it is unlikely to be “the definitive last word.” Acknowledging that parliament, not Albanese and his colleagues, would design the Voice, he asked the government for “some clear design parameters.”

Such a move would give rise to more public discussion — before the referendum — of the form, functions and powers of the Voice. But is the government willing to stimulate such discussion? Since Burney presented her view that the Voice should be elected, she and the rest of the Albanese government have gone quiet.

They have justified their reticence by referring to the defeat of the 1999 republic referendum. On that occasion, proponents of a republic were divided on the question of whether a head of state should be chosen by popular vote or a decision of parliament. When the 1999 referendum question offered parliament as the body to appoint a head of state, some republicans who favoured direct election sided with monarchists rather than campaign for a “politicians’ republic.”

Burney fears alienating some supporters of the Voice by being too specific about its form, functions and powers. “I don’t know having a detailed model [of the Voice] out there would lead to a clean question about what should be observed in the Constitution,” she has been reported as saying. At the Garma Festival Albanese said that “one of the things I am trying to avoid” is “people looking for all of the detail and saying well… if you disagree with one of the fifty but forty-nine are OK, vote no. We’re not doing that. We’re not doing that. We’re learning from history.”

A No campaign would have a range of messages — not only the argument of principle to which some Liberals hold (that an Aboriginal and Torres Strait Islander Voice privileges some Australians on the basis of their “race”) but also the cautionary argument that the Voice is an incalculable and unnecessary risk.

By showing that the Yes vote for the Voice is “soft,” Resolve’s poll pointed to an opening for the cautionary argument. It found that 64 per cent preferred “yes” to “no” when they were the only two answers allowed, but just 53 per cent said “yes” when “undecided” was an option, because one in five (19 per cent) respondents said that they were “undecided.”

A No campaign that targets those undecideds could refer to the Voice as a hazardous unknown. The risk in saying nothing about the model of the Voice is that voters who don’t feel sufficiently well-informed will be susceptible to that argument. •

The post The Voice: not enough “meat on the bone”? appeared first on Inside Story.

In those last, productive years William Cooper said some things that now seem weird. On 3 December 1939, he asked prime minister Robert Menzies for legislation “granting full rights to aborigines who have attained civilised status.” What did Cooper mean by “civilised”? He didn’t mean “white”: only eight months before writing to Menzies he had complained to interior minister John McEwen about Western Australia’s policy of “absorption of aborigines into the white population” — a policy “as unfavourably viewed by us as by the white organisations.” Yet he could say (to McEwen in February 1938) that for the purposes of the White Australia policy, “the Aboriginal is white.”

And when Cooper used the word “culture,” did he mean what we now mean? On 25 November 1938 he reassured McEwen that “the Aboriginal loses his culture with the greatest facility. He as quickly acquires the culture of the superior race he contacts.” This was consistent with what he had written to the Anti-Slavery and Aborigines Protection Society’s John Harris in March 1937: that “the primitive culture [is] destined ultimately to perish.” It followed from this prognosis that (as he wrote to McEwen in February 1938) “when the aboriginal people are fully cultured and are Australian in the full sense of the term you will be proud of us.”

Yet Cooper also insisted that there was something distinct and worthy about “thinking black” — a capacity attained by very few white Australians, he told Thomas Paterson, McEwen’s predecessor as interior minister, in February 1937. Cooper was proud of “thinking black” and sought to share its insights with Australian policymakers.

When we enter into Cooper’s world, as documented in the petition, the letters and the newspaper interviews of the 1930s, we must concede him a vocabulary that is very different from our own. The challenge for a biographer is to enable readers to empathise with the unfamiliar terms of Cooper’s demands for recognition and inclusion.

Historian Bain Attwood has written about Cooper before. In 2004, in collaboration with Andrew Markus under the title Thinking Black: William Cooper and the Australian Aborigines’ League, he compiled one hundred items written by or with Cooper, nearly all from the period 1933–41. This slim but rich book confronts us with the strangeness (from a 2022 perspective) of the terms in which Cooper appealed to the Australian political elite. Read alongside Michel Rose’s compilation For the Record: 160 years of Aboriginal Print Journalism (1996) and John Maynard’s Fight for Liberty and Freedom (2007), Thinking Black made it possible to construct a tradition of Australian Indigenous political thought and to tease out its thematic continuities and discontinuities.

Few have embarked on this project, however, because one of the effects of the politicisation of debates about Australia’s colonial past has been to make scholars cautious about historicising Indigenous Australians as intellectuals. It has been safer to idealise and essentialise articulate Aboriginality (“always was, always will be”) or simply leave the utterances of past Aboriginal people in the margins of narratives based on the much-quoted axiom that colonisation “is a structure not an event.” To assume that historical events do little more than enact the underlying structure of Australia’s colonisation diminishes our curiosity about contexts of Indigenous agency that were different from those of the more recent past. We have lacked ambition to understand how certain Aboriginal utterances, worded in unfamiliar ways, were pertinent to those who then spoke and heard them.

One lamentable effect of the current popularity of the axiom that colonisation is a structure not an event is that the past becomes too familiar when it would be better to allow it to be strange. Historical enquiry (enjoined as “truth-telling”) can easily become a search for ideological reassurance. It would be all too easy to keep Cooper behind the screen of our “presentism” — a revered ancestor of current Indigenous protest, but not to be too closely examined and rarely quoted.

By attempting a full biography — notwithstanding gaps in the record — Attwood shows us that the man who found his voice (and the attention of politicians and the press) on the eve of the second world war was formed ideologically by the end of the nineteenth century.

By the time Cooper was born, the Yorta Yorta had learned to adapt to colonisation by working for pastoralists; later they would become small landholders themselves. Cooper’s father (Edward or James) was a white worker; the sexual availability of women such as William’s mother was a boon to a hard life. William grew up in an Aboriginal kin group, but under the influence first of John O’Shanassy — land-owner and politician — and then of Daniel and Janet Matthews, who established Maloga Mission in 1874 on Yorta Yorta country. As Cooper became a working teenager, he sought wages outside the mission without losing sight of that secure place in which his wider kin group chose to live. Making Maloga his home from 1882, he helped petition for its extension in 1887. On that added land residents formed Cumeroogunga (“our home”).

Like most missionaries, Daniel and Janet Matthews documented their work extensively, enabling Attwood to narrate Cooper’s early adult world first through the lens of Maloga and then by describing Cumeroogunga’s dealings with the NSW government. In the 1880s Cooper’s sister married Maloga’s Mauritian teacher, Thomas Shadrach James, and we can see in Cooper’s writing during the 1930s the themes of James’s teachings to the Yorta Yorta in the 1880s: “to embrace the opportunities that Christianity and civilisation (as [James] saw it) had to offer but also to assert their rights as British subjects.” In 1881 and 1887 Maloga folk also demonstrated a form of political action — the petition — that Cooper was to take up again in 1933–37.

Cooper committed his life to the Christian God in 1884, as one of many converts in what historian Claire McLisky calls the Maloga Mission Revival. For the Yorta Yorta, Attwood writes, Christianity “was a powerful framework to make sense of their oppression, endure it and raise their voices against it.” God remained one of the two higher authorities against which Cooper — a lifetime Bible reader — would judge the flawed behaviour of Australian Britons; the other was the British Empire, with its promise of liberty and progress under the rule of law. In 1937 he assured John Harris that “the Aboriginal is more British often than the white.”

Attwood shows that people living at Maloga and Cumeroogunga had the chance to find out that the wider world was white-dominated. In 1886 the Fisk Jubilee Singers — evangelical Christian African-Americans and advocates for the rights of former slaves — visited Maloga. Their stories of the vicissitudes of Reconstruction in the United States must have resonated. Cooper’s awareness of non-white peoples was nurtured also by his visits to New Zealand (as a shearer) and by his reading. He was not only a trade unionist (as a member of the Shearers’ Union and Australian Workers Union) but also — we suppose — a reader of the labour movement press. He was to learn how, under British authority, “cannibals” in Fiji had advanced, Māori could elect four members of parliament, the government of Canada was paying attention to the “Eskimo” and, in the 1930s, “native affairs” exercised the imagination of white South Africans.

While white power over non-white people was a global phenomenon, the struggles against it — for Cooper, at Maloga and subsequently at Cumeroogunga — were local and particular. The narrative drive of Attwood’s biography is that the Yorta Yorta (with Cooper himself sometimes in view) were in constant negotiation with various forms of white authority, at times assisted by white champions — and not without victories. On this he gives much interesting detail.

Cooper retired to the inner-Melbourne suburbs of Footscray and Yarraville, where he lived on the aged pension. He recruited allies a generation younger than himself, including his nephew Shadrach Livingstone James (1890–1956), the “Christian communist” Helen Baillie (born c. 1893), Anna and Caleb Morgan (birth dates not given), Arthur Burdeu (born 1882) and Doug Nicholls (1906–1988). This milieu was Labor-affiliated and Christian. By February 1936, they had formed the Australian Aborigines’ League, or AAL. They believed that the civilisation that had colonised Australia had the potential and the obligation to treat Aboriginal people more fairly, and to do more to “uplift” them.

Attwood lists four connected ideas of the AAL that may or may not mesh with the outlooks of many who will read this book. First, that the rights they sought “were not so much an entitlement as something to be earned.” Second, that the demand for justice was more pressing for “civilised Aboriginals” (who were to be entrusted to guide the elevation of those still “myall”). Third, that differences of capacity were what mattered, as there were not any intrinsic differences of “race” or “colour.” Fourth, that Aboriginal people were of the same nature as white Australians. Such precepts may chafe some contemporary versions of identity politics.

Attwood’s account concludes by reminding us how high-handed, self-confident and paternalistic were the political elites of Australia in the 1930s. In the dismissive and deceitful treatment of the AAL’s petition to the King, in the self-congratulatory “foundation” celebrations of John Batman (1937) and Arthur Phillip (1938), and in the reluctance of the NSW government to discipline the bullying Cumeroogunga manager (1939) we see good reasons for Aboriginal people’s lasting anger. A self-satisfied Australia lacked the humility and perspicacity to test itself against the standards of British Christian civilisation on which Cooper and his colleagues were insisting. •

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Pearson can be witheringly self-critical, publicly regretting positions he once took. But his writing is also shaped by continuities. He continues to disdain identity politics and to highlight the limits of using white racism as an all-embracing explanation for First Nations’ suffering. He worries that we don’t pay enough attention to class differences. He argues that each person has several identities, each contextually relevant.

He also thinks that multiculturalism must not be allowed to degenerate into “plural monoculturalism” — as if Australian are defined solely by ethnicity — because “identity fundamentalism is the enemy of the commonwealth.” This injunction to pluralise oneself for the sake of forging multiple allegiances is embedded in his belief that people have the power to make themselves up.

Sometimes people do this gullibly, he thinks, by uncritically internalising others’ accounts of them. In Mission’s oldest item — a 1987 paper co-written with Hope Vale Aboriginal community’s Merv Gibson — he warned Indigenous Australians against chaining themselves to others’ accounts of their beliefs and behaviour. In particular, he and Gibson suggested that too many Aboriginal people have embraced anthropologists’ accounts of their resistance. “Alcoholism and social irresponsibility” have become “associated with Aboriginal identity.” Aboriginal people have come to think that “achievement and social responsibility are the preserve of white people.”

Pearson often comes back to this idea that his people have uncritically internalised others’ versions of them. He gives the example of First Nations people accepting distinctions such as “moderate or radical, conservative or activist.” He is wary of the seductions of the word “community.” Insofar as First Nations people who reside in “communities” adopt the “fantasies of communitarianism,” they fail to see how weak and ineffective their informal solidarity has become.

What worries Pearson perhaps the most is that many Aboriginal people have come to believe themselves to be environmentalists. Conceding much of the Indigenous land and sea estate to the national project of protecting Australia’s biological diversity (in the Indigenous Protected Areas), they have effectively endorsed a “green terra nullius” promoted by a nature-loving politics.

Pearson’s conviction that personhood and culture are emergent and negotiable is consistent with the narrative turn in the social sciences: the argument that what people think and do is bound up with the stories they believe about themselves. From this insight, it follows that histories and labels are formative rather than merely descriptive. Pearson studied history at the University of Sydney in the mid 1980s, when historians were pushing stories of British invasion and Aboriginal resistance to the centre of the national narrative.

Pearson has reservations about how “black armband history” (as Geoffrey Blainey would label it) encourages certain Black identities. Revisionist history offered Aboriginal people “the language of victim politics,” he writes. While it “positioned the rest of Australia as guilty perpetrators,” it disempowered Aboriginal people. Kevin Rudd’s 2008 apology to the stolen generations risked cementing “a detrimental psychology of victimhood.” Discussing the public response to the Bringing Them Home report, he observes that problems arise “when history as a discipline meets history as popular culture.”

Throughout Mission, we see Pearson continuing to digest his own experience of Hope Vale mission community as he seeks “a clear understanding of the good and bad in the past.” Against a “guilty perpetrators” story of the colonisation of Australia, Pearson has stressed Australian society’s demonstrated capacity for accommodating Indigenous Australia. It would be “dumb” Aboriginal politics, he argued in his 1993 Boyer lecture, not to make use of conceded rights or to ignore employment and educational opportunities. He doesn’t want the revised account of Australian history to encourage Indigenous identities of radical alterity, dedicated unrespectability and helplessness.

Negotiating native title in 1993 confirmed to Pearson that Australia is capable of accommodating a workable version of Indigenous rights. In speeches in 1994 and 1996, “cornerstone” was his metaphor for the High Court’s Mabo judgement. He credited the 1993 Native Title Act to the Keating government’s “inclusive leadership” — “an act of political decency” defying racist backlash. In articles not included in Mission he also criticised the limits set on First Nations property rights by native title determinations.

Having found a voice and national prominence under Labor, Pearson was forced to reposition himself during the four terms of Coalition government between 1996 and 2007. At first, his message was mixed. In 1997 he publicly retracted his warning that the Coalition was cultivating white resentment. When Howard began to persuade conservatives that Australia could accommodate native title as long as the legislation was substantially amended, Pearson reminded Liberals that their ideological principles included the rule of law and the defence of property against arbitrary seizure. He accused Howard of lying to justify “annihilating” amendments.

Howard’s legislation secured native title against conservative repeal. Pearson then redirected his attention from external threats to Indigenous rights towards threats — from within — to Indigenous capacities. Cape York society worried him. Typical of his historical approach, his analysis of First Nations’ malaise rested on his recasting of the nation’s history. In “Our Right to Take Responsibility” (2000) he periodised Australia’s colonial history in a way that better fitted communities like Hope Vale.

Pearson emphasised that Aboriginal people adapted after invasion, finding places in the new regional economies managed paternalistically by missionaries and pastoralists. During its time as a Lutheran mission, Hope Vale’s paternalism was not humiliating; rather, it created a new sense of community among those removed to it, and secured residents from the outside world’s humiliations.

This modus vivendi was subverted around 1970 when Aboriginal people became eligible for welfare. “After we became citizens with equal rights and equal pay, we lost our place in the real economy.” Possibly the most influential sentence Pearson will ever write, this encapsulated two important ideas. The first was that — contrary to progressive historical narrative — citizenship can have dire unintended consequences.

The second lay in the phrase “the real economy.” Pearson evoked it as a forfeited moral and psychological condition rather than a defined structure of institutions. What characterised a “real economy” was its moral structure: it rewarded those who took on the “responsibility” to support kin and it required “reciprocity,” with effort earning material support. The welfare regime on Cape York was not a “real economy,” Pearson claimed, and it was vital, “if we are to survive as a people,” to replace it with one. “The Hope Vale of today is socially and culturally weaker than the Hope Vale of my father’s day,” he lamented in 2014.

What measures would recover that old strength? With the take-up of the phrase “real economy” by policymakers, Pearson found himself aligned with a series of policy changes that set tougher conditions on the income support received individually or collectively by Indigenous Australians. In particular, Pearson’s distinction between “real” and “gammon” economies helped set the scene for extinguishing the Community Development Employment Projects scheme, or CDEP, from 2007.

The scheme had been necessary because remote Indigenous Australians are land-rich in regions that have long been capital-poor. By 1970 it was apparent that there would continue to be more Aboriginal people of working age in remote regions than there were jobs. By 1975, when the most remote Aboriginal people were declared eligible for unemployment benefits, the Australian government faced a crisis of labour excess.

The Fraser government’s solution was CDEP: from 1977 communities could apply to access individual unemployment benefits as a lump sum, topped up with a grant, and so become local employers, soaking up the excess of working-age Aboriginal people and — potentially — doing work that was meaningful to those employed and valued by the community.

Pearson didn’t explicitly denounce CDEP in 2000, but his description of the “passive welfare paradigm” implicitly included it. “The economy of the communities,” he wrote, “is artificially sustained by government funds.” For policymakers who had been debating whether to extend, cut back or abolish CDEP, this seemed to depict the scheme as a problem rather than a solution. As an “artifice” it could not be an institution of the “real economy,” so it must be a part of the “passive welfare paradigm.”

The long opening essay in Mission brings the news that Pearson has now repudiated that confident demarcation of public/artificial from private/real. Building on articles in the Australian in July 2020, he is calling for a “universal job guarantee” to “ensure all citizens wanting work have the opportunity, through public programs.” He admits that he used to dismiss “universal job guarantee” as a socialist demand: “We looked to the private sector to generate these jobs.” Now he sees complementary public sector employment as essential.

Pearson explains that he has observed the Morrison government’s subsidising of employers’ demand for labour during the pandemic, and he has also been reading Modern Monetary Theory. Practice and theory have combined to overturn his understanding of what a welfare-to-work program can do. If it is fiscally sound for governments to fund employment by going into debt, he reasons, then why don’t governments always create demand for labour wherever and whenever it is lacking?

This call could not be more timely, as the Australian government has recently abandoned a disastrous “welfare-to-work” experiment involving people living in remote regions. The Community Development Program, or CDP, was launched by the Abbott government on 1 July 2015; its termination (scheduled for 2023) was announced by the Coalition’s Indigenous Australians minister Ken Wyatt in May this year. A recent Australia Institute study shows how “CDP” effectively stood for Continuing Delinquency and Poverty: it tested working-age adults against a demanding standard of job-seeker motivation, failed them, and so plunged more households into poverty. Four out of five of CDP’s 40,000-odd clients are Indigenous.

Having recently modified CDP’s mutual obligation requirements, the Morrison government is calling for submissions on the design of a replacement scheme, to be launched in 2023. The Australia Institute’s Remote Access report outlines the principles to which a remote “welfare-to-work” scheme should adhere, and in a recent ANU seminar the authors judged Pearson’s ideas to be consistent, in most respects, with those principles. An Australian government taking advice from the Noel Pearson of 2021 would be heading in a progressive direction.

But “Our Right to Take Responsibility” had wider effects in the early 2000s than helping to put the skids under CDEP. Pearson invited champions of Indigenous rights to acknowledge that the evolved culture of some Indigenous Australians was disabling them. His essay offered progressive Australians release from a thought trap in which support for “self-determination” in principle had blocked unsentimental scrutiny of its practice.

Giving the Australian public permission to discuss “Indigenous dysfunction,” Pearson targeted what he saw as progressive shibboleths. His Ben Chifley Memorial Lecture (2000) warned that progressive thought — the work of “academics, bureaucrats and parliamentarians who became the intellectual trustees of the welfare state” — had fallen into “confusion.” Aboriginal Legal Aid, for example, was “part of the criminal justice industry… a sausage machine,” when “the real need is for the restoration of social order.”

Pearson urged us to cease explaining Aboriginal alcohol and drug abuse as the effect of “trauma, transgenerational grief, racism, dispossession, unemployment and poverty.” Questioning the Royal Commission into Aboriginal Deaths in Custody’s reference to these as “underlying issues,” he argued that while these factors made addiction more likely, it is better conceived as a problem in its own right. He called for addictions to be mitigated by working on five factors that enable them: supply, spare time, disposable income, peer pressure and “permissive social ideology.” “Enforced treatment” was necessary, he argued.

Denying that he had shifted to the right, Pearson decried Labor’s unwillingness to use the phrase “welfare dependency” and welcomed non-Labor’s pragmatic openness “to dialogue about our immediate problems.” By failing to discuss individual responsibility, he said, the left was part of the apparatus of oppression. Against progressives’ libertarianism he invoked Amartya Sen in order to demand that social policy provide individuals with the capacities — not only income but “health, education and community life” — to make choices. This would require “more external expenditure, not less.”

The Australian (lavishly praised by Pearson on its fiftieth birthday) began to publish his essays criticising what he saw as the delusions and bad faith of “progressive” opinion. He presented his ideal: bicultural “orbiting.” First Nations people can and should become adept in both the remote Aboriginal community and the wider Australian society. Where should remote Indigenous children go to secondary school? Pearson encouraged attendance at distant boarding schools (his own experience), while not dismissing the possibility that public investment could bring quality to high schools in regional centres. The progressive shibboleth of “culturally appropriate” schooling, he told Queensland premier Anna Bligh, had become “an alibi for anti-intellectualism.”

The longest reprinted piece in Mission is “Radical Hope” (2009), in which Pearson argued for a prescriptive preschool and primary curriculum (“direct instruction”) to offset the uneven quality of teachers prepared to work in remote regions. In 2011 he explained that he sought “Aboriginal Australians’ internalisation of the Enlightenment” while they continue using their mother tongue. The survival of their languages, he says, is “solace” for their grief over lost sovereignty.

By the time Pearson began highlighting the significance of language to peoplehood he was not only reporting on his Cape York Partnership’s academic experiments but also helping an expert panel (appointed by Julia Gillard in December 2010) to draft amendments to the Australian Constitution. The panel urged that constitutional recognition include recognising that “the Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.”

Although he later (2016) claimed to be “the principal advocate of this proposal,” Pearson was soon advising Australians to give up on the expert panel’s entire package of amendments — not only the constitutional recognition of languages but also more contentious proposals to make it constitutionally invalid to legislate against Indigenous interests or to discriminate against any “race.” Why did Pearson ditch the panel’s embattled package?

Pearson first publicly considered this change in “A Rightful Place” (2014), in which he explained why conservatives did not like the panel’s proposals to amend the Constitution to prohibit racial discrimination and to secure the advancement of Aboriginal and Torres Strait Islander peoples. For the previous two and a half years, constitutional conservatives had been warning that the amendments would encourage Indigenous Australians to litigate in the High Court against laws that were not in their favour. Empowering the High Court in relation to legislators was anathema to constitutional conservatives’ “strong aversion to activist judges.”

To conciliate these critics (who published frequently in the Australian) Pearson offered a two-pronged alternative. A new federal head of power to legislate on “Indigenous people” need not proscribe laws considered “negative” by First Nations. Instead, they would get “a fair say in laws and policies about us” through a new constitutionally enshrined body, the Indigenous Voice to Parliament. By making this manoeuvre Pearson was enacting a concept that he had first propounded in 2005: the “radical centre” that “challenges the vested political interests of both left and right.”

By May 2017 Pearson had persuaded a series of assemblies of Indigenous Australians — climaxing in the Uluru Statement from the Heart — that the Voice should be the only constitutional amendment put to referendum. Some Australians who had supported the expert panel’s “rights” agenda took months to adjust to this substantial recasting of the Indigenous mandate for constitutional recognition. Dismay at Pearson’s manoeuvre lingers, in some quarters, beneath the rallying for the Voice.

Essential to the Uluru Statement’s appeal is that it rhetorically aligns the “spiritual sovereignty” of First Nations with the patriotism of all Australians. Pearson believes that constitutional recognition of Indigenous Australians should express the nation’s unity. Twice in “A Rightful Place” he suggested that the test of a constitutional recognition proposal was whether it would attract a 90 per cent Yes vote.

It may be, as Pearson remarked, that “we cannot just seek the endorsement of friends and allies.” But was it wise to claim that “the cause of constitutional reform is lost” if less than “90 per cent of the nation” votes Yes? No public opinion poll has ever registered such high support for any recently discussed amendment. Could the “radical centre” be the lever of such a load?

We don’t know whether anyone in Malcolm Turnbull’s cabinet was guided by Pearson’s demanding definition of referendum success, but it is on record that one of Turnbull’s stated reasons in October 2017 for refusing to hold a referendum on the Voice was that it would not attract sufficient support.

The frailty of Pearson’s rapport with Australian conservatives was exposed by Turnbull’s decision. In December 2017 Pearson wrote that he had now ended his “long game” of formulating an agenda for the “radical centre” — “a long and dirty experiment that failed.” A capacity for self-reinvention may sometimes occasion anguished regret: “I take responsibility for my fuck-ups and misplaced faith.”

This understandable gesture of self-flagellation is unlikely to be Pearson’s last word on “the radical centre,” however, for he considers it “still the right place to hunt” because it is where “the bulk of the Australian people” stand. Now that Pearson has added “universal job guarantee” to his causes, will he find the ear of any of the prime ministers now in prospect? •

Mission: Essays, Speeches & Ideas
By Noel Pearson | Black Inc. | $49.99 | 608 pages

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Australia’s colonial history includes stories of conflict and stories of cooperation. In the words of the final report of the Referendum Council, the organisation that endorsed the Uluru Statement, “the true history of colonisation” includes not only “the genocides, the massacres, the wars and the ongoing injustices and discrimination” but also “stories of how First Nations Peoples have contributed to protecting and building this country.”

Because each locality will have its own array of stories, truth-telling should be a regional or local process, write Megan Davis, one of the influential drafters of the Uluru Statement, and Gabrielle Appleby. It should be “led by Aboriginal and Torres Strait Islander peoples working with non-Aboriginal people in that community.”

Which Indigenous actions should count as “protecting and building this country” will undoubtedly be debated. In an effort to promote more inclusive Anzac commemorations, for example, the federal government has highlighted the contribution of Aboriginal Australians to Australia’s war effort. But what of the trackers who helped Constable Bill McKinnon find Yokununna, the man he killed in the controversial circumstances recounted in Mark McKenna’s recent book, Return to Uluru?

Truth-telling has political significance, and sometimes it avows a political purpose. The Uluru Statement suggested a political context for truth-telling: “We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.” But ought truth-telling be “supervised”?

The verb has strong and weak senses. When Megan Davis agreed to contribute a comment for the cover of McKenna’s book and praised it as “an important part of Australia’s truth-telling canon” she was exercising a mild form of supervision. But some supporters of the Uluru Statement will expect more supervision than a book endorsement. South Africa’s Truth and Reconciliation Commission, or SATRC, has been mentioned as an appropriate model of supervised truth-telling, most recently by Peter Baume, the Fraser government’s Aboriginal affairs minister, in an interview with the Sydney Morning Herald.

In some respects, the SATRC functioned like a court, forensically attaching responsibility for human rights violations to named individuals. From its creation in 1996, it received testimony both in public and confidentially, and awarded reparations to testifying victims. Perpetrators of violence could testify in the hope of receiving amnesty from civil and criminal prosecution. Some 7111 applications were made for amnesty, of which only 849 were granted.

Some Indigenous Australians have mentioned the SATRC respectfully but cautiously. When a parliamentary committee chaired by the Liberals’ Julian Leeser and Labor’s Patrick Dodson received submissions on how to respond to the Uluru Statement, the few who mentioned the South African approach included Jackie Huggins, speaking for the National Congress of Australia’s First Peoples. She told the committee on 5 July 2018 that the SATRC — unlike Australia’s reconciliation process — had been “really strong in bringing evidence” and reminded them that Australia’s Stolen Generations inquiry (1995–97) had power of subpoena.

Responding to the committee’s questions, though, Huggins distanced herself from the congress’s submission: “We chose the model [of the SATRC] because it was the one that spoke to us at the time,” she said, adding that “we need to refine the model.” She didn’t provide any details of how it might be modified.

Other Indigenous people have been similarly cautious. In September 2018, Victoria’s treaty advancement commissioner, Jill Gallagher, said that she wished to “look at how it was done in South Africa” but made it clear that neither she nor anyone else involved in Victoria’s treaty process had committed to any particular model for a truth commission. It is too early to say whether Victoria’s Yoo-rrook Justice Commission (established May 2021) will adopt any of the SATRC’s processes.

When Leeser and Dodson’s committee sat on Palm Island in October 2018, James Cook University’s Lynore Geia mentioned the SATRC as an example worth considering. Declining to commit herself to this model, however, Geia said that truth-telling should be led by “a courageous prime minister to step out to get this going, with people behind him.”

As Patrick Dodson himself acknowledged at the committee’s Kununurra hearing, “Sometimes, when we get asked about truth-telling and the Makaratta kind of idea, people think of this notion of a South African–type truth and justice commission.” But that was not his preference, he revealed at a committee hearing in Sydney: “I think it’s more the question of getting an understanding across the nation rather than a commission that was to search for who did what and then bringing it to prosecution in some way.”

What did appeal to Dodson was the treaty process being pursued at that time in South Australia. He liked the fact that it avoided the South African approach — which he characterised as “Let’s root out the perpetrators of these evils and bring them to court.” The Leeser–Dodson committee’s final report recommended that the federal government support truth-telling in non-judicial settings such as those organised by “local organisations and communities, libraries, historical societies and Aboriginal and Torres Strait Islander associations.”

If truth-telling is to be so localised in its settings, open in its thematic demands and collective in its notion of colonists’ liability, then a Makarrata Commission won’t be anything like the SATRC. Yet one feature of the South African model was retained in the proposal presented by Appleby and Davis in November 2018. The point of a Makarrata Commission, they wrote, is to “inform a renegotiation of the political relationship between Aboriginal and Torres Strait Islanders and the rest of the nation.”

Like Dodson and Leeser, Appleby and Davis envisaged a process that was decentralised rather than national, and not forensically aimed at pinning down individual liabilities. Their regional/local process would be “led by Aboriginal and Torres Strait Islander peoples working with non-Aboriginal people in that community… in conjunction with local councils, local history societies, or other local community groups.” They also envisaged a national role for the Makarrata Commission, which would collate and archive the products of the local/regional truth-telling and — subject to permission — make them public.

Appleby and Davis reported that delegates to the Uluru convention wanted truth-telling to fuel “a process by which… reparations and future relationships can be negotiated.” That renegotiated political relationship would result in “Aboriginal and Torres Strait Islander participation in Australia’s constitutional structure, and the current governments recalibrating their relationship with Aboriginal and Torres Strait Islander peoples through a Makarrata.”

What collated and archived truths would contribute to such a political result? It is possible to imagine that both themes of Australia’s colonial history mentioned by the Referendum Council —  violent colonising and collaborative nation-building — could spur non-Indigenous Australians to make reparations. Whether Indigenous Australians had been violently coerced (as foes to be dispossessed) or merely exploited (as workers, collaborators in nation-building) the settlers could be motivated — by truth-telling — to make reparations and to negotiate new political relationships.

While Appleby and Davis didn’t say what they thought the themes of truth-telling should be, they suggested that the Australian public was not receptive. “There is a level of disaffection, disinterest and denial of Aboriginal and Torres Strait Islander history in Australia.” Implicit in this claim is that the truths Appleby and Davis have in mind — most challenging to national complacency, most productive of reparations and recalibrations — are damaging to many Australians’ pride in their nation: the “genocides, the massacres, the wars and the ongoing injustices and discrimination” rather than Indigenous Australians’ involvement in “protecting and building this country.”

That the theme of truthful Australian history should be violent dispossession and its coercive sequels has also been the assumption of Reconciliation Australia whenever it has tried to measure what it calls Australians’ “historical acceptance.” For its Reconciliation Barometers in 2014, 2016, 2018 and 2020, Reconciliation Australia used an online survey to measure agreement or disagreement with the following seven statements about Australia’s past:

Government policy enabled Aboriginal children to be removed from their families without permission until the 1970s.

Aboriginal and Torres Strait Islander people did not have full voting rights throughout Australia until the 1960s.

Aboriginal and Torres Strait Islander Australians were subject to mass killings, incarceration, forced removal from land and restricted movement throughout the 1800s.

Government policy in the 1900s dictated where Aboriginal and Torres Strait Islander Australians could live and be employed.

Australia was owned by Aboriginal and Torres Strait Islander communities at the time of colonisation in 1770.

At the time of colonisation there were at least 250 distinct Indigenous Nations, each with their own cultural identities and custodial connections to land.

Frontier wars occurred across the Australian continent as a result of Indigenous people defending their traditional lands from European invasion.

The Reconciliation Barometer polls a “general community” sample and an “Indigenous” sample, but anyone who assumes that these two samples differ greatly in their “acceptance” of the above statements will be confounded by the barometer’s published reports. Although a large proportion (30 to 45 per cent) of the general community didn’t agree with these statements, a large minority of the Indigenous sample didn’t either. In 2014, 2016 and 2018, the proportions of Indigenous respondents who either disagreed with these statements or answered “not sure” were in the range of 30 to 40 per cent. If these statements exemplify truth-telling then we can’t assume Indigenous Australians will give unified leadership in affirming historical truths to their fellow Australians.

The gap between the general community and Indigenous respondents was greatest in relation to the statement that “Australia was owned by Aboriginal and Torres Strait Islander communities at the time of colonisation in 1770.” In 2014 and 2016, nonetheless, about three in ten Indigenous respondents were unsure about or did not accept this statement. (The barometer didn’t test acceptance of this statement after 2016.)

Reconciliation Australia must have been dismayed by such findings. Expressing a fear that respondents in 2014, 2016 and 2018 had misunderstood the question, it changed the wording. Instead of asking “Do you accept or not accept the following as facts about Australia’s past?” the 2020 barometer asked respondents to choose one of three responses to six “historical truth” statements: “I believe this is true,” “I do not believe this is true” or “I am unsure about this.”

The effect was noticeable. Across five of the six statements the proportion of Indigenous respondents saying they did not believe the statements was much lower than the proportions who, in previous years, had said they did not “accept” them. For many respondents, it seems (and this might not be surprising), “accepting” a statement is not the same as “believing” it. Importantly, though, two things didn’t change when the question was reworded.

First, the proportion of Indigenous respondents saying that they were “unsure” whether to believe the statements remained within the same range (15 to 25 per cent across six statements tested). Second, between 2018 and 2020 there was no change in the proportion of the Indigenous sample who declined to agree that “Frontier wars occurred across the Australian continent as a result of Indigenous people defending their traditional lands from European invasion.” In other words, about three in ten Indigenous respondents either did not believe this to be true or were unsure of its truth.

How are we to make sense of this level of disbelief or uncertainty? I suspect that some people (Indigenous and non-Indigenous) didn’t affirm these statements because to affirm them has come to imply that one is taking a position within a morally and emotionally charged debate about blame, forgiveness and responsibility. The statements tested by the barometer are not merely factual: they are emotional and moral. To affirm a story is to arouse feeling and to engage in moral reasoning, and we may or may not feel good about where “I” and “we” stand in that story, and its implication of “me” and “us.”

Australia’s public culture is awash with stories that convey some idea of who “we” now are, what “we” have done, and what “we” can be. (Paul Keating’s Redfern speech in December 1992 artfully mobilised this pronoun.) As a long-term effect of the civic program calling for reconciliation, “we” has become a more complicated pronoun. Through the promotion of reconciliation, it has come to matter a great deal where each of us stands in an Australia evoked in terms of the Indigenous/non-Indigenous binary. Stories — about violence, resistance, cooperation — abound within our public culture. Each of us tells, hears or sees those stories as an Indigenous or non-Indigenous Australian.

The responses yielded by the Reconciliation Barometer encourage me to think of historical truths not merely as factual but also as implying identities and moral/political positions. I have in mind not only the statements used by the barometer to measure “historical acceptance,” each of which is a mini-narrative. In certain other questions we can also see the designers’ intuition that narratives — true or false — offer feelings, identities and intimations of moral agency to those who hear, read or tell them. The questions I examine here are about “forgiveness” and “responsibility.”

The data generated by posing these questions suggest that “history” fits diversely into Indigenous Australians’ moral reasoning about their own implication in Australia’s future. Let’s start with forgiveness.

In 2014, 2016, 2018 and 2020 the barometer asked:

In terms of the history of European settlement in Australia, which of the following statements do you most agree with? (a) The wrongs of the past can never be forgiven. (b) I don’t believe there have been any wrongs. (c) The wrongs of the past must be rectified before all Australians can move on. (d) There should be forgiveness for the wrongs of the past and all Australians should now move on.

This question addresses respondents not only as people who know the past but also as moral subjects using their historical knowledge as the basis for judging what the two parties to reconciliation can now ask of each other. Very few Indigenous respondents (2 per cent) chose (b), so nearly all believe that wrongs occurred. We don’t know what wrongs they had in mind when they responded to this question, but on the basis of knowing that the past includes “wrongs,” each respondent was given a choice of moral position.

Of the Indigenous sample, 13 to 16 per cent (across the four barometers) said the wrongs of the past can never be forgiven, 35 to 44 per cent said that the wrongs of the past “must be rectified before all Australians can move on,” and 39 to 50 per cent said “there should be forgiveness for the wrongs of the past and all Australians should now move on.” If the moral significance of the “wrongs of the past” to Indigenous Australians is as diverse as these data indicate, then it is less surprising that they don’t all affirm the truths presented by the barometer. If a large minority of respondents indicate uncertainty when asked about their “acceptance” of or belief in the seven tested truths, and if some (a smaller minority) simply declare their disbelief, this might be because the respondents are aware of how historical statements have been attached, in Australian discussions of reconciliation, to various positions on “forgiveness.”

A diversity of reasoning about the moral significance of the past is also evident in the data generated by the barometer’s questions about “responsibility.”

It is a familiar idea — promoted, in particular, by the Howard government — that Indigenous Australians are “disadvantaged.” The default framing of Indigenous people as “disadvantaged” has been criticised by some Indigenous Australians as a “deficit discourse” that prejudices our appreciation of Indigenous agency — the ability, duty and right of Indigenous Australians to take responsibility for themselves.

The barometer posed some questions that explore this ideological minefield. The questions that refer to “history” in relation to “responsibility” generated results — again — that illustrate the diversity of Indigenous reasoning about history’s moral meanings.

Respondents were asked to agree or disagree with two statements: “many Aboriginal and Torres Strait Islander Australians are disadvantaged today because of past racial policies” and “many Aboriginal and Torres Strait Islander Australians are disadvantaged today because of Australia’s colonial legacy.” The responses to this question among Indigenous respondents — like the responses on “forgiveness” — are relevant to those who advocate truth-telling as a vital part of a political transition.

A large minority of the Indigenous sample (26 to 32 per cent over four barometers) didn’t affirm that Indigenous disadvantage is caused by “past race-based policies,” and 33 to 40 per cent of the Indigenous sample didn’t affirm that Indigenous disadvantage is “Australia’s colonial legacy.” They either denied these propositions or were unsure.

If a high proportion of the Indigenous samples don’t attribute “Indigenous disadvantage” to the racist processes of colonisation, do they have an alternative explanation for “disadvantage,” or do they refuse the question’s premise that Indigenous Australians are disadvantaged? We don’t know because the barometer doesn’t ask respondents whether they see Indigenous Australians as “disadvantaged.”

To what cause did Indigenous respondents attribute “Indigenous disadvantage”? The barometer confronted this question by testing some historical propositions. Responding to the proposition “That past government policies are a cause of Indigenous Australians now lacking personal responsibility,” a large minority (20 to 29 per cent, across four barometers) said that they could not or would not express an opinion. Perhaps they were baffled when asked to link “past government policies” with Indigenous Australians’ “lack of personal responsibility.”

The barometer also asked respondents to agree or disagree that “Aboriginal and Torres Strait Islander Australians are responsible for their own disadvantages today.” Again a high proportion (25 to 32 per cent) chose “neither agree nor disagree.” Between a quarter and third agreed — but what were they thinking? Were they “blaming” Indigenous Australians for the persistence of their “disadvantage” and implicitly urging them to make a greater effort? Or were they asserting a claim to empowerment?

We can only guess at the reasoning of those Indigenous respondents (41 to 51 per cent) disagreeing that “Aboriginal and Torres Strait Islander Australians are responsible for their own disadvantages today.” Were they thinking about causes of disadvantage that are currently beyond Indigenous people’s control? Were they looking to others (particularly governments) to take enabling or rectifying action of some kind? The data remind us that the word “responsible” is the site of a contemporary political enigma — cleverly referenced by Noel Pearson’s phrase, “Our right to take responsibility.”

History’s emotional resonance and moral meaning are unclear, and they are not uniform across the Indigenous sample. Barometer data point to a disputed sense of colonial and Indigenous agency — an unresolved narrative of colonisation and reconciliation — that links past actions to the present and to the future. Were the Makarrata Commission to mobilise the truths that the Reconciliation Barometer has tested, they would be politically equivocal, not pointing Australians towards any particular “recalibration” of the Indigenous/non-Indigenous relationship.

Reviewing the barometer’s findings, I have confined my discussion to Indigenous respondents, for it is their leadership of truth-telling that will link “truth” to what Appleby and Davis envisage as a renegotiated political relationship. If Indigenous public intellectuals are to assume cognitive and moral leadership in truth-telling, then we need to appreciate the complexity of Indigenous views of the past.

From the Reconciliation Barometers 2014–2020 we can draw two conclusions. First, a minority (15 to 25 per cent of the Indigenous sample) are unsure whether they assent to a truth canon that refers only to “the genocides, the massacres, the wars and the ongoing injustices and discrimination.” Perhaps some Indigenous Australians would encourage “stories of how First Nations Peoples have contributed to protecting and building this country.” The barometer has never tested the frequency of “acceptance” or “belief in” stories about “protecting and building.”

If one purpose of truth-telling is to deal with emotional needs and to confirm established moral positions (rather than “search for who did what and then bringing it to prosecution in some way”) then a thematically diverse canon (as recommended by the Referendum Council) may be better than the narrower set of truths tested by Reconciliation Australia.

Second, we can’t predict what political settlement a Makarrata Commission would promote. The barometer’s data on “forgiveness” and “responsibility” suggest that, for Indigenous Australians, histories of the “wrongs of the past” don’t point towards any particular future configuration of responsibilities (Indigenous/non-Indigenous) for their recovery or to a single Indigenous view about the conditions of their “forgiveness.” •

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A Voice embedded in the Constitution would allow Canberra to devolve power to local communities, says Bragg, and enable federal parliament to hear Indigenous advice on legislation, on the use of the Aboriginal flag, and on the integration of Indigenous culture into parliamentary processes and official ceremonies. The Voice could also work with the Productivity Commission to collect and analyse data, and could be “folded into” the parliamentary committee system.

But Bragg warns promoters of the Voice not to prescribe the “tabling provisions” of the Voice. Specifying that parliament will be obliged to hear and respond formally to the Voice’s advice might scare off potential Yes voters in the referendum, he advises. Let the parliament legislate its obligations to the Voice before submitting it to a referendum. The legislation could be passed within the parliamentary term, followed by a referendum during the next parliamentary term (which Bragg assumes will commence in 2022).

The other two demands of the Uluru Statement — “agreement-making” and “truth-telling” — worry Bragg more. He wouldn’t support agreement-making if that meant a national treaty covering land use, because land laws are a state responsibility. And, because Indigenous Australians are within the Australian polity, Australia can’t “treat” with them as if they were an external authority. On “truth-telling,” he believes we shouldn’t lose sight of the good in Australian history. A Makarrata Commission could help Australians learn more about the bad as well as the good in Australian history — through local history forums, and by giving more attention to Indigenous perspectives in school history classes and public cultural institutions.

Bragg’s book is aimed at those who vote Liberal and those who, as Liberal and National MPs, help determine the policies of the current federal government. He wants conservatives to be more idealistic and courageous. Constitutional recognition would not be “divisive,” he says: the Uluru Statement expresses the Indigenous desire to be included in the nation. Nor should we worry that recognition would further entrench the idea that Indigenous Australians are a different “race.” As he points out, the Constitution’s “race” power is what enables native title and other beneficial laws: “Whether we like it or not, race is part of our system.” Constitutional recognition of the Voice, he argues, will also ensure that the Indigenous affairs budget is more wisely spent.

Some conservatives believe that the Voice would be a third chamber of parliament, damaging our system of government. Bragg assures them that the Voice would put parliament under no obligations. In fact, he believes that nothing in the Uluru Statement should frighten conservatives, and much should inspire them. The Liberal Party’s history shows that it “can carry the big, substantial changes” in Indigenous affairs. Indeed, “we are the only hope. The only chance to deliver” on the Uluru Statement.

To gee-up his colleagues, Bragg devotes much of Buraadja to reminding Liberals of what they can be proud of. In 1962, the Menzies government gave all adult Indigenous Australians the right to vote in federal elections. In 1967, by endorsing two changes to the Constitution that were widely understood to reverse the exclusion of Indigenous Australians, the Holt government boosted the massive Yes vote in the referendum. In 1971, the Liberals chose Neville Bonner, the first federal Indigenous MP, to replace Dame Annabelle Rankin when she retired from the Senate. In 1976, the Fraser government legislated most of the Whitlam government’s bill to recognise Northern Territory Aboriginal people’s customary land rights. In 1998, the Howard government amended the Keating government’s Native Title Act, effectively securing it from any further conservative assault. In 1999 and 2007, Howard promoted recognising Indigenous Australians in the Constitution.

In this series of actions, Liberals have enacted the liberal principle that the rights of Indigenous Australians — to vote, to be respectfully included, to maintain possession of their property — must be guaranteed by the rule of law. The Native Title Act is emblematic of the liberalism that Bragg admires — a liberalism that recognises how Indigenous Australians, damaged by our colonial history, are entitled to some distinct rights. He is thus opposed to a liberalism that insists on a uniformity of rights among Australians.

Although supporters of the Uluru Statement should feel heartened by the existence of liberals like Bragg, it’s important to remember that the Liberal Party is not the sole or even the best guardian of liberalism. If we are to keep open our appreciation of the possibilities it creates, we need to question Bragg’s tendentious history. A more adequate account would argue that Australian liberalism, at its best, is the product of two dynamics: the interplay between the judiciary and the legislature, and the adversarial contest between the Labor and non-Labor parties.

Bragg’s celebration of the Howard government’s 1998 commitment to the Native Title Act demonstrates the problems of his partisan approach. Though he acknowledges that the Keating government legislated the Native Title Act, he doesn’t mention how in 1992–93 the Hewson-led opposition refused to countenance any national native title legislation. It was content to let state governments and the courts determine where native title remained and what rights it contained. So little does Bragg think of Keating’s negotiation of the Native Title Act that he claims “Keating did not make significant achievements in the [Indigenous] policy space.”

Yes he did. To understand why conservatives eventually had to embrace a federal framework for native title, we need to recall another piece of Labor legislation for which Bragg — I assume — would have great respect: the Racial Discrimination Act of 1975. This was the act that made the High Court’s Mabo judgement impossible for legislators to ignore in 1992–93, for unless native title holders had been compensated for having their title extinguished by grants of title since October 1975 (when the act came into effect), such titles were racially discriminatory and arguably invalid once the High Court had recognised that native title continued in many parts of Australia.

The Keating government’s legislation saved the country from years of expensive, bitter litigation by those asserting their native title. Hewson was willing to countenance such litigation or leave it to the states to handle the “problem” of native title — or both. When Howard talked the Coalition parties into their qualified embrace of Keating’s law, in 1998, he was merely conceding Keating’s realistic appreciation, in 1993, that stability of property rights required a national framework for determining native title.

Bragg’s omission of the Racial Discrimination Act from his history of Australian liberalism might be excused by saying that it was Whitlam’s law. But this only underlines the fallacy of elevating the Liberal Party as the pre-eminent bearer of liberalism. To include that legislation in the story of native title sharpens the question: which side of politics and which branch of the Australian state has more effectively carried Australian liberalism’s respect for the right — fundamentally important in a settler colonial society — not to be discriminated against on racial grounds?

In a liberal polity the judiciary and the legislature both have parts to play in securing citizens against racial discrimination. The judiciary applies international or national codes of rights to litigated cases of discrimination; the legislature passes laws that make it an offence to discriminate on racial grounds (except when the different treatment is designed to have a positive effect).

Since 2012, the debate about how to recognise Indigenous Australians in the Constitution has made clear that Australians don’t agree about the relative importance of the judiciary and the legislature as vehicles of liberalism. “Constitutional conservatives” (a label proudly worn by Bragg and others) are wary of further empowering the judiciary to hold legislators to account: after all, the legislature is elected, and so it embodies popular sovereignty. “Rights advocates” (for want of a better label) are wary of Australian legislators’ demonstrated readiness to make laws that unfairly discriminate against minorities: the courts’ adherence to codes of fairness (in common law, in international protocols or in the Constitution) is a necessary check on legislatures’ majoritarian arrogance.

So a history of Australian liberalism shouldn’t champion one side of politics but highlight the two sides’ competitive dynamic, and it should consider the interactions among all three branches of the state: executive, judiciary and legislature. It should recognise that one of the issues that continues to animate Australian liberalism is how best to distribute, among the three branches of the state, responsibility for the definition and enforcement of rights.

The most important feature of Bragg’s liberalism is that he seeks to honour the distinct rights of Indigenous Australians in a way consistent with his constitutionally conservative wish not to empower the High Court to encumber legislators. Between 2012 and 2017, the constitutional conservatives gained political ascendancy over those who wished to write new rights into the Constitution, so Bragg is — in this sense — on the winning side. But he seems unable or unwilling to recognise the significance of that victory. Historians will one day see this debate as one of the more significant in Australian political history: the triumph of the constitutional conservatives will shape the way that Indigenous rights are mediated in our political system for the foreseeable future.

At several points in Buraadja it is clear that Bragg doesn’t wish to tell the story of constitutional conservatives’ ascendancy. He passes very quickly over episodes when the rights approach to Indigenous affairs was strongly asserted. Although Bragg admires the Liberal parliamentarian W.C. Wentworth, for example, he devotes only a sentence to his attempt, in 1966, to insert a ban on racial discrimination into the Constitution. Liberal prime minister Harold Holt and opposition leader Gough Whitlam combined to present the “constitutional conservative” argument against Wentworth’s idea, and the referendum that the major parties endorsed in 1967 placed no judicial restraint on legislative or executive actions towards Indigenous Australians.

The constitutional conservatives mobilised again in response to the 2012 report of the expert panel on Indigenous recognition. The panel recommended that the Constitution be changed in two ways that would have widened the path of High Court litigation by aggrieved Indigenous Australians. One change was to convert the “races” power — section 51(xxvi) — into a requirement that federal legislation about Indigenous Australians be beneficial; the other was to add a new section that would disallow racial discrimination (not only against Indigenous Australians).

The conservatives’ eloquent and sustained campaign — mainly in the pages of the Australian — argued that such amendments would encourage Indigenous Australians to litigate in the High Court, with the possibility that the court would overrule the legislature and/or inhibit the executive. The expert panel’s proposal would make the Constitution a bill of rights, they warned, empowering the court and diminishing parliament.

That debate took place mainly in the press, but in one singularly luminous moment, on 22 September 2014, it was joined in the House of Representatives, when Stephen Jones — the Labor member for (ironically) Whitlam — gave liberal reasons for supporting the panel’s proposals. Jones invoked a rights-based liberalism as a guide to government. To fail to use the Constitution to protect against racial discrimination would be “a denial of fundamental liberal values… which those on the conservative side of politics have long held dear.” He then listed the rights of individuals, noting that “the protection against discrimination on the basis of race” was among those not yet constitutionally protected, despite being “one of these rights that liberals have always championed.”

Jones’s second appeal to liberalism was that “no government and no parliament should have unlimited power to legislate in ways that interfere with the liberties of its citizens.” Such power must be subject to constitutional checks.

Jones’s third point concerned “the rights of the minority against the majority,” pointing out that “liberals and conservatives have always sought to guard against the tyranny of majoritarian rule.” Taking aim at the constitutional conservatives, Jones asserted that to protect those rights “by the popular vote and through the democratic process of representative government” was not sufficient. It was necessary to “constrain the federal parliament,” as the expert panel’s proposals aimed to do.

It isn’t surprising that Bragg doesn’t mention Jones’s speech, since his aim is to highlight Liberals’ liberalism. But it is surprising that he doesn’t admit that what was at stake in the constitutional recognition debate was an issue endemic to liberal government: how to reconcile popular sovereignty with minority rights. He is wrong to say that “the focus for the decade between 2007 and 2017 was on formulating symbolic constitutional recognition.” No it wasn’t — the relationship between judiciary and legislature is a substantive issue. He also refers to  2007–17 as a “fruitless decade.” No — the “fruit” was what constitutional conservatives wished: putting certain “rights” in the Constitution ceased to be a political option.

In his page and a half on the debate about the expert panel’s advocacy of constitutional rights, Bragg refers to the panel’s (and subsequent joint select committees’) proposed replacement of the races power as “some tweaks to the races power in Section 51.” Tweaks? His word choice trivialises a deeply considered proposal and several years of debate about it. Not amending section 51(xxvi) means that parliament retains the power to legislate for and against Indigenous interests.

Bragg can afford to be cavalier about the constitutional conservatives’ victory over the expert panel because of the form that victory has taken: Indigenous endorsement. The constitutional conservatives began to prevail in 2014 when Noel Pearson reached out to them. With their counsel, he proposed that Australia abandon the expert panel’s “rights” proposals and seek a referendum mandate for a new Indigenous “right” to address parliament. Three years after Pearson first offered the constitutional conservatives this olive branch, a national assembly of Indigenous Australians endorsed it in May 2017: the Uluru Statement from the Heart.

As the Uluru Statement was — in this sense — a victory for the constitutional conservative side of the debate, Bragg’s warm endorsement is no surprise. Perhaps what has been more surprising — to Bragg and many others, including myself — is the Coalition’s ongoing reluctance to commit to holding the necessary referendum. Malcolm Turnbull’s dismissal of the Uluru Statement and Scott Morrison’s caution about constitutional recognition remind us that liberal conservatism can be a combination of indolence, complacency and a fearful lack of imagination.

The return of Barnaby Joyce to the deputy prime ministership is a reminder of a fact to which Bragg pays little attention as he champions the Liberal Party’s record: in almost every episode the Liberals were acting in coalition with the Country Party (more recently the National Party). Bragg’s regretful account of the Turnbull government’s rejection of the Uluru Statement in May and October 2017 can’t avoid making reference to Joyce. The Nationals leader, two days after the release of the Uluru Statement, described the Voice as “another chamber in politics” that the Australian people would not vote for. Bragg quotes Joyce as apologising later for his “fiction.” That many liberals and conservatives found Joyce’s “shallow response” persuasive is presumably a spur to Bragg’s writing, reminding liberals and conservatives to think more deeply about what they owe Australians. •

Buraadja: The Liberal Case for National Reconciliation
By Andrew Bragg | The Kapunda Press | $34.95 | 320 pages

The post A Liberal’s case for the Voice to Parliament appeared first on Inside Story.

At least, this seems to be Pascoe’s appeal. As he writes on the back cover of the second edition of Dark Emu, “If we look at the evidence presented to us by the explorers, and explain to our children that Aboriginal people did build houses, did build dams, did sow, irrigate and till the land, did alter the course of rivers, did sew their clothes, and did construct a system of pan-continental government and generated peace and prosperity, then it is likely we will admire and love our land all the more.”

The repeated, emphatic “did” hints at Pascoe’s belief that in allowing the reader to look at evidence of Aboriginal people’s constructive behaviour he is undoing a history of suppression or neglect that has stopped Australians from knowing that Aboriginal people practised agriculture. To position oneself as revealing obscured or suppressed truth is powerfully to befriend the reader; that appeal is intensified if the stated aim is to deepen the reader’s bond with “our land.”

Irresistible? In 2016 Dark Emu won both the Indigenous Writer’s Prize and Book of the Year in the NSW Premier’s Literary Awards; in two other competitions it made the short list. Young Dark Emu won the Australian Booksellers Association’s Children’s Book of the Year and the Children’s Book Council of Australia’s Eve Pownall Award for Information Books, and was shortlisted in four other competitions. A teaching resource book, Dark Emu in the Classroom, has also been published.

Now two academics, anthropologist Peter Sutton and archaeologist Keryn Walshe, have called Dark Emu into question. In their new book Farmers or Hunter-Gatherers? The Dark Emu Debate — of which Sutton wrote eleven chapters and Walshe two — they argue that Pascoe’s reading of the evidence has been determined by his firm belief that Aboriginal people gave birth to agriculture. They draw attention to many instances of Pascoe’s minimising or ignoring evidence that “the Old People” (as Sutton respectfully calls them) were hunters and gatherers, and emphasising evidence of what he sees as “agricultural” elements of their economy and society: grouped and durable dwellings, food storage, grain harvesting. Pascoe has graciously welcomed Sutton and Walshe’s critique.

In some respects, Pascoe and his two critics converge. To smash the orthodoxy (as he presents it) that Aboriginal people were nomadic, Pascoe describes them as “more or less sedentary” and as “sedentary or semi-sedentary.” Sutton embraces “semi-sedentary” (erroneously remarking that “semi-sedentary is not mentioned in Dark Emu”) and goes on to cite many instances of academic and popular works published since 1938 that characterise pre-colonial mobility in that way: people foraged within a range of intimately known country, sometimes stayed for long periods in one camp, and even built structures that they could leave and return to find intact.

What Sutton and Walshe question is whether this was an agricultural society. They chip away at so many parts of Pascoe’s thesis that it is, in my opinion, demolished. To give but one example, in his chapter “The Explorers’ Records” Sutton cites evidence that Pascoe could have mentioned but chose not to. He compares Pascoe’s quotations from the explorers’ records with his own, longer quotations — exposing Pascoe’s tendency to omit words that cast doubt on his view that explorers were reporting what they observed as agricultural practices.

The intellectual combat is not as straightforward as this in every chapter. Sometimes the reader must work harder and make choices. For example, Walshe, an archaeologist, devotes eleven pages to considering a small number of stone implements housed in Australian museums. They demand her consideration on the basis that, according to Pascoe, they are “crucial to our understanding of Aboriginal agricultural history.”

Inviting the reader to look “with an open mind” at these tools that he believes could have been hoes for tilling soil, Pascoe laments that they have been little studied. Walshe’s approach is not to say they have not been used as hoes but to ask why anyone should believe that they were. She begins by pointing out that these objects have been studied – as “picks” and “cylcons.” Documented Aboriginal testimony points to cylcons being used in ceremonies to maintain the land’s fecundity. Picks (studied since the 1940s) are likely to have been used when hafted — that is, as an axe-head — for breaking open timber. If such items are “crucial” evidence of agriculture, as Pascoe declares in Dark Emu, then Walshe has effectively questioned this particular “crux.”

For Pascoe and those devoted to his thesis, though, this might not be enough. His mind open to a new interpretation of the picks, Pascoe (teamed with historian Bill Gammage and Indigenous artist Jonathan Jones) hosted a museum exhibition, Bunha-bunhanga: Aboriginal Agriculture in the South-East, whose catalogue declares that the picks were “used to cultivate the murrnong [yam] fields” — speculation presented as fact.

Walshe’s eleven pages on cylcons and picks confront readers with a choice. Do we continue to warm to Pascoe’s speculation (ignoring the extant scientific literature as an artefact of benighted scholarship), or do we accept that we just don’t know how Aboriginal people used these objects? Can the available research show that they were never used as hoes, we might ask.

Pascoe, inviting us to believe in a might-have-been that no one can disprove, is answered by Sutton and Walshe, asking why anyone should believe a proposition that lacks supporting evidence. Walshe’s cool presentation of what is known about the use of these objects will leave some readers… well, cold. The idea that picks and cylcons were hoes solicits readers who feel that Aboriginal people would be more admirable if they could be shown to be not so very different from us. Many readers will want to make that commitment.

Pascoe and his two critics differ not only in their marshalling of evidence but also in their imagined readerships. Much of the Sutton and Walshe book assumes a reader who thinks that a proposition lacking supporting evidence is probably not true. Pascoe’s work is often an explicit appeal to readers willing to reconsider orthodoxy, positioning them as victims of colonists’ self-justifying “hunter-gatherer” myth, ready now to see that Aboriginal people were really agriculturalists. In his own words, Pascoe aims “to give rise to the possibility of an alternative view of pre-colonial Aboriginal society,” a flattering invitation to Australians’ self-renewal.

Sutton is aware that Pascoe’s readers have feelings, that they may be searching “for forgiveness, or reconciliation, or the undoing of the colonial crimes of their forebears,” and that this may dispose them to welcome Pascoe’s explicit invitation to a new way of seeing. One of Sutton’s responses is to argue that Pascoe’s self-proclaimed iconoclasm is spurious, as much in Dark Emu has been said before.

That Aboriginal people were “ecological agents” — changing the landforms and biota as they lived from them — has been accepted by researchers for many years. By setting fire to the country and by digging edible flora out of the ground (thus overturning soil) and planting the inedible portion back in the hole, hunter-gatherers had a “profound effect on the distribution of forest and grassland,” wrote Norman Tindale in 1959. Tindale even used the term “proto-agriculture” in a 1974 publication to refer to evidence that Aboriginal people sometimes stored food in excess of immediate requirements. (Sutton is critical of that term’s implied view that agriculture would have been a forward step from hunting and gathering.) A book called Resource Managers: North American and Australian Hunter-Gatherers came out in 1982 (with Sutton as co-author of one chapter).

Such examples (and Sutton gives more) tell us of academic, not popular, acceptance of the idea that Aboriginal people were canny and intentional manipulators of nature. Pascoe’s position as revealer of neglected or suppressed truth could still be justified by saying that he is the first to disseminate esoteric research on Aboriginal people’s ecological agency. Sutton challenges that as well, pointing to several popularising books and audiovisual projects since the 1970s that have celebrated the ecological agency of pre-colonial Aboriginal society. What Pascoe learned as a child in the 1950s, he says, is not what the Australian public has been learning in recent years.

But Sutton’s strongest disagreements with Pascoe are less about evidence than about what he sees as two major flaws in how he frames his argument in Dark Emu. First, Pascoe implicitly endorses an outmoded theory of human history known as “social evolution.” And second, he has not understood Aboriginal people’s comprehensively spiritual understanding of their world.

“Social evolution” was the gift of Scottish Enlightenment thinkers who argued that the manifest variety in human societies arose from the fact that some societies had progressed faster than others through a series of civilisational stages that all human societies could and would traverse. The orthodox British colonial view that Pascoe seeks to overturn was that Aboriginal society was a real-life example of humanity still functioning at the most primitive stage — living by hunting and gathering.

Had Pascoe published Dark Emu 120 years earlier his foil would have been another bestselling author, Benjamin Kidd. In 1894 Kidd achieved high sales and several translations by arguing in Social Evolution that it was natural for simple societies to die out when they came in contact with the more complex society that now occupied their country. Pascoe’s pertinent message would have been that Aboriginal society was more complex than merely “hunter-gatherer.” It was in “marked movement towards agricultural reliance”; it was “burgeoning agriculture” — an economy worthy of more respect.

“In denying the existence of the economy,” Pascoe writes in Dark Emu, “[the British] were denying the right of the people to their land, and fabricating the excuse that is at the heart of Australia’s claim to legitimacy today.” By emphasising how agricultural the Aboriginal people really were, Dark Emu seeks to reimagine Indigenous Australians as dispossessed sovereigns and to undermine non-Indigenous Australians’ assurance that, by colonising Aboriginal people, Britain was enacting humanity’s natural progression.

Sutton needs no convincing that Australia’s history is a story of colonial conquest and usurpation, but he objects strongly to Pascoe’s way of questioning Australia’s “legitimacy.” The “most fundamental flaw” of Dark Emu, he writes, is that it implicitly endorses the social evolutionists’ scale of human value: by seeking to redescribe the Old People as agriculturalists it has conceded too much to the idea that agriculture is a higher stage than “hunting and gathering.” Sutton urges us to admire the Old People for what they were rather than for what, in Pascoe’s view, they were becoming.

Sutton’s plea for the inherent worth of the hunter-gatherer way of life (and implicitly, for the right of the Old People and their descendants to assert their unceded sovereignty) is a product of “cultural relativism.” In the “human sciences,” cultural relativism began to replace “social evolution” in the second decade of the twentieth century. It has been axiomatic for the research community on whose works Sutton and Walshe rely, and it has been buttressed, since the 1940s, by emerging international law concepts such as the right of “peoples” to “self-determination.” Popular assent to Pascoe’s assumption that Aboriginal people were more admirable for being agricultural suggests that cultural relativism has not yet undermined social evolution in popular thinking about human history.

The second of Sutton’s fundamental objections to Pascoe is that in his materialist conception of “economy” he can’t conceive that the Old People’s persistence in hunting and gathering entailed their intellectual rejection of agriculture. Here we should note that in this book, as in his previous book, The Politics of Suffering, it is clear that Sutton’s field work on Cape York formed him ethically and intellectually.

In the 1970s Sutton lived on Cape York with groups collectively known as the Wik. There his teachers explained how vital to human existence it was to talk to “country” in quotidian action and in ceremony. Recounting that learning, Sutton then combines his own observations of Wik on country with reports made by other researchers to argue that what we call an “economy” has been, for the Old People, a spiritualised practice; they understand “country” as imbued with spirits consubstantial with the humans who live off it.

The getting of food enacts an ontology that we have learned to call “the Dreaming.” In what Sutton calls “spiritual propagation” and “spiritual gardening,” the fertility of the biota is understood to be inherent, maintained by living off and with it. Pascoe’s preoccupation with “material methods of species cultivation” briefly acknowledges this spiritual dimension but fails to understand its significance: it was a way of seeing nature to which agricultural improvement was irrelevant. To issue this corrective to Pascoe’s “modern Eurocentric attitude” is what Sutton believes he owes his teachers.

So, what is at stake? Melbourne University Press chose the title Farmers or Hunter-Gatherers? In Dark Emu Pascoe hints at discomfort with that stark binary: “Arguing over whether the Aboriginal economy was a hunter-gatherer system or one of burgeoning agriculture is not the central issue.” Rather unhelpfully, he explains: “The crucial point is that we have never discussed it as a nation.” The two sentences work against each other: why would the nation discuss “it” if “it” is not “the central issue”?

In my view, beyond the (undoubtedly important) issue of how to describe pre-colonial Aboriginal society is an issue of contemporary civics: how to respect “Indigenous knowledge” in a way that meets the Uluru Statement’s demand for “truth-telling.” To respect and include “Indigenous knowledge” we need some way to identify what it is. Pascoe’s invitation to revise and renew our view of Aboriginal civilisation and Sutton and Walshe’s challenge make clear that “Indigenous knowledge” takes many forms.

Pascoe is probably Australia’s most widely read and influential Aboriginal intellectual (with Stan Grant a possible rival) and he is likely to remain so because of schools’ take-up of Young Dark Emu. Yet his “Indigenous knowledge” is enriched, or burdened, with borrowings from the colonists’ intellectual traditions: from the Enlightenment the notion that some societies are “ahead” of others (see page 70 of Young Dark Emu), and from secular social science his materialist framing of “economy.” Sutton and Walshe are not Indigenous but they have spent years training to re-present “Indigenous knowledge” in terms that are scientifically credible because (unlike “the Dreaming”) their accounts are open to refutation. Truth-telling’s best hope is to keep in mind the distinction between teller and tale. •

Related: Tom Griffiths on reading Bruce Pascoe

The post The teller and the tale appeared first on Inside Story.

According to the 1901 Australian Constitution, s51(26) “the Parliament of Australia may make laws for the people of any race, other than the aboriginal people of any State, for whom it is deemed necessary to make special laws,” s127 “In reckoning the numbers of the people of the Commonwealth, or of a State, or other part of the Commonwealth, aboriginal natives shall not be counted.” On the 27th May 1967, 90.7% of Australian voters said yes to two questions in a referendum to change the Constitution: 1. Should the Commonwealth Government be allowed jurisdiction over aboriginal people, a right hitherto given to States? And 2. Should people of Aboriginal descent be counted in the national census? The petition to conduct the Referendum was officially launched in 1957 in the Sydney Town Hall by Pearl Gibbs and Jessie Street. The campaign took ten years and was itself the result of a long struggle by many people, black and white, to have basic human rights recognised for Indigenous people.

The inscription is inaccurate in three ways. First, it misquotes the Australian Constitution, which refers to “the aboriginal race of any State.” Second, it implies that Aboriginal people had not been under Commonwealth jurisdiction before the 1967 referendum, despite the fact that the 1902 Commonwealth Franchise Act determined whether an Aboriginal person was allowed to vote in federal elections. Third, it implies that section 127 of the Constitution had excluded Aboriginal people from the national census. In fact, Aboriginal people had been enumerated (incompletely) or estimated in every census since the Commonwealth began in 1901; what the repeal of section 127 enabled the Commonwealth to do was to take “Aboriginal” population data into account when apportioning federal electoral districts.

That an official memorial could mislead in these ways is symptomatic of the referendum’s mythical resonance. That’s not to say that “myth” is equivalent to “error”: we mythologise history because myths are good to think with. In arguing that the story of the 1967 referendum has become a potent national “myth,” I want to go beyond pointing out errors and examine how some of the myths of 1967 influence our discussion of constitutional recognition. I am more interested in myth-as-meaning than in myth-as-error.

Constitutions are necessarily esoteric, technical documents, but they are also — at times — objects of intense popular concern. Since the publication in January 2012 of the report of the expert panel on recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, Australia’s debate about constitutional recognition has been animated by an assumption that a constitution should capture a nation’s collective self-understanding, its “narrative” and its values. As June Oscar, chief executive of the Marninwarntikura Women’s Resource Centre, told a parliamentary inquiry in 2014, “For our assertions in the present to have lasting social impacts we have to be recognised and our past and present voices have to be woven into the overarching Australian narrative enshrined within the Constitution.” Two years earlier, prime minister Julia Gillard had referred to the Constitution as “our nation’s founding contract” (adding that “our people rightly guard it with care”), a “contract” among the peoples who comprise the nation.

In this way, the Constitution has significance beyond what it says, and such misunderstandings can be as meaningful to the voting public as understandings that are technically correct. Independently of constitutional reality, public references endow the 1967 referendum with implications for the conduct of government and citizens. As Labor MP Shayne Neumann remarked in 2014, the referendum “had an impact way beyond the wording that was changed.” The constitutional lawyer Anne Twomey has said something similar: “The constitutional amendments made in 1967 of themselves were not terribly significant. What was significant was the vote of the Australian people in terms of their recognition of Aboriginal people through that vote. Psychologically and historically the power of that vote was really significant.” For legal academic Rosalind Dixon, “the changes that were introduced in 1967 were practically largely insignificant” but “the symbolism of that referendum was overwhelmingly positive.”

The 1967 referendum changes had to mean something to those who voted. The campaign for a Yes vote had assiduously promoted such meanings as would make it attractive to delete certain words. For example, the official Yes pamphlet explained the deletion of words from section 51(26) as doing two things:

First it will remove words from our constitution that many people think are discriminatory against her Aboriginal people. Second, it will make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race wherever they may live, if the Parliament considers it necessary. [My emphasis]

According to the same pamphlet, removing section 127 was possible because of the increased administrative capacity of the Commonwealth to enumerate Aboriginal people, and desirable because “Our personal sense of justice, our commonsense, and our international reputation in a world in which racial issues are being highlighted every day, require that we get rid of this outmoded provision.”

As ways of making the two constitutional amendments meaningful and appealing, such arguments obviously worked. There was no official No pamphlet in 1967 because parliament had unanimously endorsed the bill to hold a referendum. Had there been a No case I would be able to quote alternative meanings: words designed to make the amendments unattractive to the voting public.

The Yes pamphlet illustrates an important point. In the course of popular engagement through referendums, constitutions must become meaningful — that is, they must gather implications and possibilities. They may become allegories of changes desired or feared. We will not understand the Australian Constitution if we confine our knowledge to what constitutional experts say about it; we must also attend to what Neumann referred to as “hearts and minds.” Such overbearing of fact by imagination is only what we should expect.

To be successful, a referendum to change the Constitution must be supported by a majority of all voters as well as a majority of voters in a majority of states. As long as the “four states” test is met, then a successful referendum requires an overall vote falling within the range of 50 per cent plus one to 100 per cent. Fifty per cent plus one of all voters is just as “successful” as 99 per cent, as long as supporters of the change are in the majority in four of the six states. But when they recall the 1967 referendum the protagonists of the constitutional recognition debate treat the size of the national majority vote as a measure of success.

With 90.7 per cent of the total vote, the Yes vote in 1967 was “the most successful referendum in Australian constitutional history,” according to George Brandis, speaking as attorney-general in 2013. What made it the “most successful,” according to Ken Wyatt in 2014, was that “Australia was strongly unified in making the change.” In many references to this “most successful” referendum, speakers have implied that a referendum would be a failure to the extent that its support fell short of 90 per cent. In February 2013, Greens senator Christine Milne supported deferring a referendum until after the next federal election because “we do not want to see it fail. We must build a consensus so that people get behind the next referendum as they got behind the 1967 referendum. We must make sure that the next referendum succeeds, and that is a challenge to everyone.” Speaking in the same parliamentary debate, Brandis hoped for a referendum “as successful as the 1967 referendum.”

Among those evoking the 1967 referendum as “the most successful” were Les Malezer (Aboriginal leader), Ken Wyatt (Liberal MP), Matt Thistlethwaite (Labor MP), Patrick Dodson (Labor senator) and Mohammad Al-Khafaji (then director of strategy and engagement, Federation of Ethnic Communities’ Councils of Australia). In 2015, Labor senator Nova Peris implied that the next referendum would be judged against the 1967 majority, as “a high-water mark in recognition of the first owners of the land.” “Our aim must be… to crown that success of half a century ago,” she added. In 2017, Labor’s Linda Burney saw “genius” in the campaign that produced the 1967 referendum’s high majority:

Whilst the questions that were put into the referendum did not, in many ways, seem ground-breaking, the campaigners were able to turn it into a decision for the Australian people about rights for first peoples and the unacceptable position that first peoples were in. That was the genius of the 1967 referendum.

Behind the assumption that a very high national vote was necessary for “success” was an appeal to “national unity.” Liberal MP Alan Tudge, like Christine Milne, used the word “consensus”:

We should seek a unanimous consensus but at least our aim should be something in the vicinity of what was achieved in 1967, when 90 per cent of the Australian public voted for change to the Constitution — a change that had such great moral significance.

Shortly after the expert panel released its report in 2012, opposition leader Tony Abbott urged: “What we have to try to do is recreate the fervour and the sense of unity that were captured in the 1967 constitutional change.” Gillard said that the referendum of 1967 “was a time of healing, uniting our nation in empathy and accord as never before.” She continued: “I want this constitutional amendment to be equally unifying, so I am determined that the referendum will be held only when the nation is ready. As the nation’s leaders and representatives, it is our job to do all we can to bring that unifying moment closer.”

For Liberal MP Kevin Andrews “the primary objective of a constitutional referendum to recognise Aboriginal and Torres Strait Islander people is to achieve a unifying moment for our nation, a moment similar to that of the 1967 referendum.” His party colleague Marise Payne hoped “to experience again the unity of 1967.” Bronwyn Bishop speculated that “a referendum recognising Aboriginal people as the first Australians could be a unifying and liberating moment for the nation, even surpassing the 1967 change or the national apology.” According to Labor’s Brian Mitchell, “the real import of the referendum in 1967 was… a universal acknowledgement that Aboriginal and Torres Strait Islander people were no longer ‘them,’ to be counted separately, but ‘us.’ We are one people.” A positive result, asserted Labor senator Claire Moore, “has to be across the whole nation. It cannot just be the majority of states.”

In other words, the phrase “most successful referendum” created meaning from a fact (that the Yes vote in 1967 was uniquely high): to be “successful,” the chosen form of constitutional recognition of Indigenous Australians must enable “national unity.”

Endorsing the May 2017 Uluru Statement from the Heart, Labor’s Anthony Albanese said, “We recognised the rights of Indigenous Australians to be citizens in the famous referendum in 1967, but we need to take the next step — it’s absolutely critical.” So, as well as being a “high-water mark,” a “landmark,” a “milestone” of national unity and a “turning point,” the 1967 referendum was also imagined as a “step” on what Tony Abbott in February 2013 called the nation’s “journey.”

George Brandis judged the 1967 referendum to be “the greatest single step ever taken towards the goal of achieving equal rights and status for Aboriginal and Torres Strait Islander Australians.” It is a popular expectation, according to Marise Payne, that a nation concerned with its Indigenous minority will take “steps” forward in its dealings with them. She reported that young Australians were looking back to the 1967 referendum and asking: “How is it possible that we are at this point and this next step has not been taken?” The independent MP Rob Oakeshott said in 2013 that “as hard and as challenging as constitutional recognition will be, it is from my perspective really just another important step. As 1967 was and as the ‘sorry’ speech was, this has the potential to be another step forward.”

In using the term “step,” it has been open to each speaker to name previous milestones. Some saw two. Abbott invited the acknowledgement “that there have already been two big milestones on our national journey to healing: the 1967 referendum and the national apology…” In February 2013, Nigel Scullion, later Indigenous affairs minister, saw agreement on what to ask at the next referendum as “the third step in our becoming a united nation. That is extremely important. It will follow from the 1967 referendum, which was so significant, and the apology, which had complete bipartisan support.”

On a later occasion, Abbott identified more moments when the nation had enacted its best self. The Yirrkala Bark petition (1963), he said:

was the beginning of this parliament’s consciousness that there were and are in this country Indigenous cultures and Indigenous peoples whose traditions should be respected. Since then we have seen the 1967 referendum, land rights legislation, native title legislation and the national apology. And who knows? If we are our best selves we may soon see Indigenous recognition in the Constitution.

Wyatt delineated even more steps on the nation’s “journey.” Recalling that prime minister John Howard had proposed in 1999 that Aboriginal and Torres Strait Islander people be recognised in the Constitution, Wyatt continued:

It followed the journey of the 1967 referendum, which counted Aboriginal and Torres Strait Islander people in the census. The next major event was the Paul Keating Redfern speech, in which he acknowledged the things of the past. Then we had Mabo and Wik. The next step in the journey was the apology from Kevin Rudd.

Would the next step also be the final step? Speaking in November 2013, Abbott thought that the next step, “within twelve months,” would be definitive. “Such an acknowledgement of Aboriginal people as the first Australians would complete our Constitution rather than change it.” When Abbott presented the next step as completion, he was echoing Gillard: “In 1967, the people of Australia sought restitution and repair, but their work was incomplete. Today a new generation dreams of finishing the job with the same idealism and the same means…”

Two Labor MPs presented the most elaborate version of this “step” account of the nation’s progress. Neumann called his steps “turning points,” starting with legislation “in the early sixties” that gave Aboriginal people the right to vote:

Then we had the 1967 referendum. The Commonwealth had the power to pass laws in relation to Aboriginal and Torres Strait Islander people. Then we had prime minister Keating’s Redfern speech, in which he acknowledged that we did the murders and brought the diseases. Remember that famous speech? Then we had the Mabo decision, native title, and the apology by Kevin Rudd. I think constitutional recognition can build on that; it is the next step.

Senator Malarndirri McCarthy listed the moments that, in her view, had led to the work she was doing as a member of a Joint Select Committee on Constitutional Recognition:

The 1967 referendum, the Northern Territory Land Rights Act, Vincent Lingiari, the Racial Discrimination Act, the Barunga Statement, the Redfern Statement, Mabo, the Native Title Act, the Bringing Them Home report, the stolen generations and the Sorry Day marches, Closing the Gap and now constitutional recognition and the Uluru Statement from the Heart.

But it was also possible that a nation’s “steps” weren’t forward. Some feared that a referendum on recognition, if not well judged, would be a “setback,” reversing past advances. “We have certainly had advances over the past century, haven’t we,” said Peter Arndt, executive officer of the Brisbane Archdiocese Catholic Justice and Peace Commission, “with the 1967 referendum, the movement for reconciliation, the Mabo decision and the subsequent legislation in the parliament around native title.” So a defeated referendum “would be not only an enormous hurdle for Aboriginal and Torres Strait Island people but a great setback for them in their hopes for achieving a place in the Australian community.” In similar vein, Wyatt reported in 2014 that “elders” had told Gillard’s expert panel in 2011:

that if the question is going to fail, do not put it, because we do not want failure in a referendum. They have a view that if we fail in this referendum then it will undo the importance of the 1967 referendum, it will undo the importance of all those other things that happened — the Keating Redfern speech, Mabo, Wik, the apology and reconciliation. They were saying that they would rather keep those as gains, and the way in which they walk with Australians now, as opposed to being set back. That is one of the messages that was very clear to us.

If memories of the 1967 referendum had expanded the meaning of “failure” to include a less than overwhelming “Yes” vote, then the referendum now being contemplated was imaginable as a risk, a misstep on the road to national unity.

What had happened in 1967 that made it a “step” in the right direction? One of the most frequent evocations of the 1967 referendum made use of the verb “count.” The Uluru Statement includes the words: “In 1967 we were counted, in 2017 we seek to be heard.” This is true if “counted” refers to one consequence of deleting section 127 from the Constitution: it removed a restriction on how Aboriginal population data could be used in making population-based administrative decisions, such as in the apportioning of federal electorates. But the phrase “in 1967 we were counted” is not true if it is taken to refer to the census itself, for the deletion of section 127 did not initiate the counting of Indigenous Australians in the census; their enumeration simply continued (though in the next census, in 1971, the “race” question no longer referred to fractions of descent, for reasons that had nothing to do with the repeal of section 127).

Thus the following statements about the 1967 referendum are factually incorrect:

[T]he section that stipulated that Indigenous Australians should not be counted in any census was removed… (Alan Tudge, Liberal)

[The referendum] gave the Commonwealth power to make laws for Aboriginal people resident in the states and to include all Aboriginal people in the national census. (Michael McCormack, National)

That referendum updated the Constitution to include Aboriginal people in the census. (Trish Crossin, Labor)

[The referendum] enabled Aboriginal people to be counted in the population, in the census of Australia. (Ken Wyatt)

To identify such statements as mere errors is to miss their mythical significance, which rests on the word “count.” To “count” is not only to “enumerate”; it is also to be treated as significant by an enumerator. In the Uluru Statement the word “count” is poetic: it nourishes the myth of 1967 that Indigenous Australians began to matter, to be worth counting. And once people matter, there are many ways they can then “count.” As Labor MP Sharon Claydon explained in 2017, the 1967 referendum was when:

our Aboriginal and Torres Strait Islander peoples of Australia were finally granted the right not simply to be counted in our census but also to be counted in our history books and in the narrative of our nation and to get a say in contesting the space of colonial history that Australia was, for a long time, steeped in.

In the myth of 1967, “the census” is more; it is a metonym for the settler colonial nation-state and its mentalities. The 1967 referendum is thus remembered as the moment when the unrecognised were recognised. To “count” Aboriginal and Torres Strait Islander people meant that Australia was enlarging its vision, including those previously not recognised. For Linda Burney, the 1967 referendum “felt like citizenship. If you were denied the right to be counted in the census, then it felt like you did not really count anyhow, and that is very much the way in which it was seen.” The remembered pleasure of being recognised is a strong theme in Indigenous memories of that event.

Some witnesses appearing before recent parliamentary committees have used an allegory of humanisation to convey the transition from non-recognition to recognition. “I go back to 1967 when we were still classed as flora and fauna,” Bobby Nicholls, co-convenor of the Shepparton Region Reconciliation Group, told one committee. “I was seven years old in 1967,” said John Baxter, a council member of Reconciliation Victoria. “With the change to the referendum, I was no longer part of the fauna and flora; I was considered to be a human being.” June Oscar told the committee that in 1967 “discriminatory clauses were removed from the Australian Constitution which defined Indigenous people as flora and fauna.”

In a speech to mark the fiftieth anniversary of the 1967 referendum, Malcolm Turnbull honoured this Aboriginal memory of 1967 by these words: “As Indigenous rights campaigner, the late Chicka Dixon, told his daughter Rhonda, who is here today: ‘The government counted everything. They counted the cattle, the cars, the TVs, but they didn’t count us. It’s like we were invisible.’” Turnbull’s shout-out to the Dixon family is probably better seen as a respectful gesture than as his lapsing into a factual “mistake” about section 127: he chose to deploy the allegorical equation of census enumeration with “recognition” of Aboriginal humanity. Turnbull honoured Dixon as one of those whom Harold Ludwick, on another occasion, described as “the movers and shakers that changed the past in 1967” — elders who “were not counted as part of the community before the 1967 referendum, but now they have a voice and they want to be heard.”

Since Julia Gillard appointed the expert panel in December 2010, Australians have been debating whether and how to recognise Aboriginal and Torres Strait Islander people in the Australian Constitution. The public has been invited by figures from across the political spectrum to imagine the Constitution as a statement of national ethos. In such imagining, the 1967 referendum has been an emblematic event, recalled by some as the moment when the dehumanised were recognised as human, for at last they (were) counted. The high Yes vote in the 1967 referendum has been made to signify that this act of recognition was performed by the entire nation, an affirmation of national unity. The next referendum is evoked as a “step” on a progressive journey — perhaps the final step in reconciliation — but only if it is again an act of national unity. Referendum “success” has thus been exorbitantly redefined as “consensus.”

The aspiration to replicate the “consensus” of 1967 has become a caution against accepting the Uluru Statement’s demand for a referendum to oblige the Commonwealth to create a Voice to Parliament. “There is still no clear consensus proposal at this stage which would suggest mainstream support in the Indigenous community or elsewhere,” was prime minister Scott Morrison’s justification on 18 March this year for his refusal to commit to a referendum on the Voice. That was “a fair enough call,” Noel Pearson commented a few days later. “An appropriate question needs to be settled by consensus and put to the quiet Australians to decide at a referendum.”

Words like those make the push for a Voice hostage to the myth of the 1967 referendum. In that way, the memory of 1967 as a moment of national unity that must be replicated burdens the debate about the Voice to Parliament, to the benefit of those arguing for something less. •

The post The 1967 referendum: inspiration or burden? appeared first on Inside Story.

Henry Reynolds’s Truth-telling argues that neither in its legal doctrines nor in its official public memory has Australia come to terms with the historical scholarship that narrates Australian history as violent invasion and land theft on a massive scale. Colonial sovereignty is Reynolds’s main topic in the first half of the book. Reviewing the words and actions of James Cook in 1770 and instructions given to Arthur Phillip in 1786, he depicts “an astonishing assertion of sovereignty that had almost no credibility in international law.” From 1788, “the gap between law and reality, law and colonial experience, grew progressively wider” as the colonists encountered what many admitted was an ordered Indigenous society. Reynolds piles up quote after quote demonstrating that Aboriginal society “captured the attention of curious settlers” — not least when Aboriginal people objected violently to the newcomers’ treating the land as their own.

Reynolds points to nineteenth-century moments in which the British government admitted that Indigenous Australians were proprietors — an accommodation to reality made by imperial policy in other parts of the British Empire. In Australia, however, the British failed to turn that recognition into policies that preserved any Indigenous property rights, and this failure recurred as the colonists assumed “responsible government” in the 1850s and then federated as an independent nation in 1901. “Land rights” didn’t gain political traction until the last third of the twentieth century, and in 1992 the common law (articulated by the High Court) recognised that all of Australia had once been Indigenous property and that some portions remained under “native title.”

As Reynolds has pointed out before, to acknowledge “property” is one thing, to admit Indigenous “sovereignty” is another. Australian law has never worked out what to say about Indigenous sovereignty: for the High Court, sovereignty is a question beyond “municipal” jurisdiction. Australian law has merely affirmed and reaffirmed that Indigenous Australians are subjects of the imposed sovereign. Their “protected” status should at least have shielded Indigenous Australians from harm, but as Reynolds abundantly illustrates, the colonial sovereign was often negligent, often mistaken in its practices of protection, and often fearfully homicidal.

Because Reynolds doesn’t review what colonial policies have been effectively ameliorative, he risks not connecting with readers who believe that — notwithstanding Australia’s terrible past — good policy and law have become possible, without any change in “sovereignty.” He wants Australia to consider “some form of surviving, subsidiary, Indigenous sovereignty.”

Had he explored what could be practised as “sovereignty” in the early twenty-first century he might have evaluated the Indigenous Land Use Agreements signed under the Native Title Act, for some believe them to be regional “treaties.” Would Reynolds agree? His book focuses on harms and failures, and that is salutary; but he does not tell us what “protections” have been beneficial to Indigenous Australians. Few historians acknowledge that the twentieth-century recovery of the Indigenous population is a benefit of protective colonial authority, constituting the very peoples that now assert sovereignty. Perhaps “protection” (in the wider sense of ameliorative law and policy) has some achievements worth defending? Are Closing the Gap and the Indigenous Voice to Parliament causes worth fighting for?

Indigenous sovereignty is present in this book more as a defeated moral principle than as a feasible legal and political project. When Reynolds commends the Uluru Statement, it is for asserting Indigenous Australians’ “ancient sovereignty,” but how is that “ancient” thing now to “shine through as a fuller expression of Australia’s nationhood’? Answering that question would commit us to evaluating what we are now doing right in contemporary law and public policy, but Truth-telling is almost entirely concerned with the damage we’ve done.

“Truth-telling” is a civic mission to which any historian can sign up; it’s what we are paid to do. Because the truth of Australia’s past is infinite, selecting exemplary stories will be necessary, and so “truth-telling” enjoined by the Uluru Statement may start to form a “canon.” (“Canon” is Megan Davis’s word — no doubt carefully chosen — when she commends the story that Mark McKenna’s book tells.) What would Reynolds put in that canon? Which truths does he want Australians to learn to live with?

Reynolds makes two big points. He reminds us that colonial conquest affected Indigenous Australians region by region — that is to say “nation” by “nation.” At Federation, much of the territory deemed “Australia” still wasn’t under effective colonial occupation; much of the continent was under undiminished Aboriginal sovereignty and much was shared between pastoralists and Aboriginal people figuring out how to live with thinly scattered newcomers. He admits to being uncertain about the legal implications of this fact. The question “When was colonial sovereignty?” has no obvious answer. For those considering such governance problems as how to structure “the Voice,” Reynolds’s reminder that colonial occupation was a two-century sequence of steps has enormous implications, as it is one of the enduring sources of Indigenous Australia’s regional differentiation.

As well, Reynolds argues that the failure to recognise Indigenous sovereignties made violence inevitable as colonial occupation extended. Reminding us how violent that process was, he gives estimates from recent research by others — particularly about Queensland and its Native Mounted Police. What will be the effect on “the national story” of revealing that perhaps 40,000 Aboriginal people were slain by other Aboriginal people licensed and paid by the Crown? Reynolds wants to add the violent conquest of Australia to Australia’s military heritage as “our most important war.” I would add: “and the most morally complex war we have ever tried to commemorate.”

Indeed, the magnitude of Indigenous complicity makes new narrative demands for which the authors and supporters of the Uluru Statement may not yet be prepared. Neither Anzac orthodoxy nor revisionist history has so far imagined “patriotism” so tragically. “Truth-telling allows us to weave new stories and to make old ones richer while, at the same time, more complex,” Reynolds wisely advises.

Stories work by having characters, but how to characterise the Native Mounted Police? How would truth-tellers choose from the “over eight hundred troopers’ names” that historian Jonathan Richards has found in the records of the Native Mounted Police? And would we ever have enough biographical information to guess at the circumstances and motives of those chosen?

It is more likely that we will continue to point the weapon of truth at the august figures whom we credit with the triumph of the colonists. Reynolds gives Sir John Forrest, Sir John Downer and Sir Samuel Griffith as examples of men honoured for their nation-building whose memorials we must now reconsider. “What should Griffith University do?” he asks. The question is well targeted — not only because Griffith was attorney-general or premier in three administrations between 1874 and 1893, presiding over much frontier murder, but also because in 2019 a dispute about the teaching of Australian history (not mentioned by Reynolds) demonstrated to the leaders of that university how difficult it can be to reconcile academic autonomy with clamorous Indigenous opinion about what is “true.”

Mark McKenna’s approach to weaving new stories and making them complex focuses on individuals of exemplary colonial violence: a white man, Constable Bill McKinnon, and three Aboriginal trackers, Carbine, Barney and Paddy. In October 1934, southwest of Alice Springs, McKinnon shot and killed an Aboriginal man, Yokununna, who had escaped from custody with five accomplices, all suspected of murdering another Aboriginal man, Kai-Umen. At the inquest into Kai-Umen’s death, the trackers reported McKinnon’s brutal treatment of his prisoners, and at the trial of these prisoners, their counsel further questioned McKinnon. His answers worried the Commonwealth government and soon there was an inquiry.

The reasons McKinnon gave for killing Yokununna were self-defence and to prevent further escape. The inquiry concluded that the shooting of Yokununna “though legally justified, was not warranted.” McKinnon had told the inquiry that when he had fired his gun (into a cave where Yokununna was hiding) he had not taken aim and was not expecting to hit him. McKenna’s research has uncovered a note in McKinnon’s logbook in which he revealed his intention in firing.

Silhouette of a camel being ridden near Uluru by T.G.H. Strehlow and Charles Mountford during the inquiry into Bill McKinnon’s shooting of Yokununna. Charles Mountford/State Library of South Australia

A gifted storyteller, McKenna enriches this sequence of events with fascinating details of person and place, for what makes the story particularly interesting to him is that the cave in which McKinnon shot Yokununna is at Uluru. As a historian, McKenna has become interested in the symbolic significance of place — in this book, not only Uluru but even McKinnon’s daughter’s Brisbane garage, where he discovered McKinnon’s revealing logbook. The place to which he continues to return the reader is Uluru, as he explores the idea that what happens at Uluru continues to define Australians to themselves.

The Rock struck awe and a desire for mastery in the first Europeans to see it, and it has since become a destination for tourists who are similarly affected (albeit in greater comfort). The recent debate about whether it is respectful to climb Uluru has compelled us to ask whose perspective must decide that question. The country over which Uluru towers has been the object of a partly successful land claim in 1979 and, since 1985, the site of an experiment in “two-way” park co-management that now affords the visitor some of Uluru’s sacred stories. Uluru has been not only a lying policeman’s killing ground in 1934 but also a place of First Nations assembly in 2017, and we are now debating the “Uluru Statement.” Then there is the question of Yokununna’s remains: will they be returned from a museum to Uluru?

McKenna’s research and storytelling interweave these layers of meaning and lines of time in ways suggesting that this furrowed arkose monolith is our collective, troubled “heart” — the place where “immutable and inextinguishable” Indigenous “sovereignty” is made “visible… as it is at few other places on the continent.”

He adds to this epiphany the following warning (or is it an appeal?) to readers: “Australians have yet to grasp the fact that the core rationale for an Australian republic is not only the severance of our relationship with the Crown, but also the recognition of the Indigenous sovereignty that existed long before the Crown’s representatives arrived.” His misuse of “fact” (for surely this is only an opinion) is a reminder of what can happen when “truth-telling” becomes an eager act of political service. McKenna’s verbal stumble is a mere “blemish” (a handy John Howard word) on the face of his poetry of national sin and redemption, but we can see it as a caution to those taking up the Uluru Statement’s invitation to tell the truth. •

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Wyatt has issued an invitation to the public to comment on several issues of Voice design. His three “co-design committees” will digest these comments at the next (second) stage of the Voice’s “co-design” process, leading eventually to a blueprint for a new structure of Indigenous political representation: a National Voice underpinned by a number of Regional and Local Voices.

Marcia Langton and Tom Calma, co-chairs of Wyatt’s senior advisory group, are credited as principal authors of the interim report, and they deserve much praise for the thoughtful way they advance the design while identifying certain questions for further discussion. But the terms of reference of Wyatt’s three committees have explicitly excluded constitutional recognition from the discussion.

Whatever Voice design eventually results from Wyatt’s process, the government has made no commitment to holding a referendum to entrench the Voice in the Constitution. It hasn’t ruled out a referendum “should consensus on a question be found,” but consensus on the design of a Voice won’t necessarily determine the form of constitutional recognition that may eventually be put to the Australian people.

In short, one of the agenda-setting effects of the interim report — an effect immediately contested by supporters of the Uluru Statement from the Heart — is to sever the debate about the Voice from the debate about constitutional recognition. While we talk about the possible design of the Voice, talk about constitutional recognition is at risk of being suspended, or at least such talk will be rendered marginal to the attention of those who accept Wyatt’s invitation to discuss the Voice as legislated “Indigenous recognition.” How did this come about?

In 2010, the Gillard government took seriously the argument that Indigenous Australians were entitled to be recognised in the Constitution. Gillard appointed an expert panel, jointly chaired by Patrick Dodson (not yet a senator) and Mark Leibler, to propose changes to the Constitution — amounting to “recognition” — that could be put to a referendum. In January 2012, after extensive public consultation and having received Newspoll’s reports on public opinion, the panel recommended four changes to the Constitution that could be presented to the voters as a single package.

Two of the four items were about section 25 and section 51(xxvi). Both were to be deleted, as each affords Australian governments powers to legislate about Indigenous Australians as a race, and not necessarily to their benefit. Section 51(xxvi) would be replaced by words recognising Aboriginal and Torres Strait Islander peoples and empowering the Commonwealth to secure their “advancement.” A third item in the package would prohibit discriminating against any group defined by race, colour, or ethnic or national origin; discriminatory laws would be permitted only if they were in the interests of the specified “group” (overcoming their disadvantage, ameliorating effects of past discrimination, or protecting their heritage). The fourth item would recognise Aboriginal and Torres Strait Islander languages as “part of our national heritage.”

Deleting section 25 and recognising languages turned out to be uncontroversial. Throughout 2012–14, though, the other two proposals were criticised by “constitutional conservatives” — some of them Indigenous — on the ground that each would turn the Constitution into a charter of minority rights, and Indigenous rights in particular.

These critics invoked a democratic constitutional principle: popular sovereignty. They wished to avoid giving the (unelected) High Court of Australia further constitutional grounds for invalidating legislation by the (elected) Australian parliament. If the Constitution obliged the Commonwealth to legislate for the “advancement” of Indigenous Australians, a litigant could argue in the High Court that a law passed by parliament was invalid because it was detrimental to Indigenous interests. And a litigant could also mobilise the constitutional prohibition on racial discrimination, arguing that a law was discriminatory but not advantageous to the disadvantaged, or not ameliorative or not protective. Constitutional conservatives argued that since the parliament is the expression of popular sovereignty, constraints on its decisions should be minimised.

In this perspective, judges should be restrained from “activism.” To put into the Constitution such words as the expert panel proposed would increase the possibility that High Court judges would play, in effect, an improperly political role.

For such critics, recent history provided an example of how much the political and legal order could be upset by judges who invoked principles forgotten or ignored by the legislature: the judgements in the second Mabo case and the Wik case, which had forced parliament to pass a law recognising “native title.” In December 2011 Philip Ruddock, the minister when the Howard government abolished the Aboriginal and Torres Strait Islander Commission, pointed out that it would have been much more difficult to repeal the ATSIC Act in 2004 and to legislate for the Northern Territory Emergency Response in 2007 had the Constitution included the words that the expert panel was about to recommend. But that, of course, was the very reason some wanted a constitutional right to Indigenous “advancement.”

Conservative MPs were not alone in dreading any increase in the judiciary’s capacity to shape or prompt legislation, and nor were they the first to express such fears. In debating how the Constitution should be amended in 1967, Gough Whitlam (then opposition leader) had teamed up with prime minister Harold Holt to reject a proposal, very similar to the expert panel’s, that Liberal MP William Charles Wentworth had presented in March 1966. In a private member’s bill, Wentworth had proposed a referendum to make two changes to the Constitution: to replace section 51(xxvi) with words allowing the Commonwealth to make laws for the “advancement of the aboriginal natives of the Commonwealth of Australia”; and to add a new section 117A outlawing racial discrimination but allowing “laws for the special benefit of the aboriginal natives.” Agreeing with Holt that this was not a good idea, Whitlam pointed to the US Supreme Court (the Warren court, now famed for its liberalism) as an example of a bench troubling the executive’s smooth performance. Apprehension about rights-based litigation has many precedents in Australian politics.

When constitutional conservatives pointed to what they called the expert panel’s “overreach” in the years 2012–14, there was nothing overtly “anti-Indigenous” in their arguments. They were asserting a hallowed principle: let parliament, as the organ of popular sovereignty, govern. Another kind of constitutional conservative argument against the expert panel’s proposal was that a liberal-democratic constitution should not confer distinct rights on any named sub-population: for these critics, strict formal equality of rights was the ideal. These and other (perhaps less creditable) views were sufficiently influential in the Abbott government to prevent it from endorsing the expert panel’s four-item package. It came to be widely believed that if the panel’s proposed model of recognition were put to a referendum it would lose, as the conservatives would be able to mount a persuasive No campaign.

To break this political impasse, one member of the expert panel, Noel Pearson, began to argue in the second half of 2014 that the four-item package not be put to a referendum. Instead, we should vote on two recognitions: a declaration of recognition that would stand outside the Constitution (and not be subject to High Court intervention); and a new constitutional power to create an “Indigenous Voice to Parliament” that would comment on, but not overrule, the decisions of parliament.

From the second half of 2014 to the first half of 2017, Pearson gathered allies for his proposal, moderate conservative MPs such as Julian Leeser and constitutional experts such as Anne Twomey and Megan Davis among them. The “Declaration plus Voice” package gained ground among other influential Indigenous Australians as well, though it is clear that some regretted the cost of Pearson’s conciliation of the constitutional conservatives. Many saw, and continue to see, that there is much to be gained for Indigenous Australians by empowering the judiciary to judge whether laws conform to the panel’s proposed new constitutional rights.

But the Pearson package had the virtue of “triangulating” (in the coinage of Dick Morris, Bill Clinton’s strategist) — conceding to the conservatives that parliamentary sovereignty would not be impaired while offering something genuinely new and substantial to those who want more than “symbolic” constitutional recognition of Indigenous Australians.

Pearson’s reformulated package won the endorsement, first, of the national Indigenous constitutional assembly at Uluru in May 2017, and then of the Referendum Council (appointed jointly by the government and the opposition in 2015). After almost seven years of public consultations by the expert panel and by a series of parliamentary committees, the Turnbull government was faced with one option in June 2017 — a referendum on the Voice, or no referendum on recognition. In October 2017, it chose the latter, explaining that it would not campaign for a constitutional change that (Turnbull said) would be rejected by the voters.

It soon became clear that in much of the Australian parliament, and in “civil society” (including some major corporations), there remained an unmet hunger for constitutional recognition of some kind. What Pearson calls the “radical centre” was not going away; it had adherents in every party room. So, over the summer of 2017–18, the government made an agreement with the opposition to conduct yet another joint parliamentary inquiry, co-chaired by Patrick Dodson (now a Labor senator for Western Australia) and Julian Leeser, an open ally of Pearson and his “Voice.”

The Dodson–Leeser committee, appointed in March 2018, issued its final report in November. While its task was to review all of the proposals for Indigenous constitutional recognition proposed since 2012, it found that a great many submissions were about “the Voice to Parliament” — mostly in strong support, but diverse in their conception of its design and role. The Dodson–Leeser committee did not issue a Voice blueprint, calling instead for a process of “co-design.”

Submissions to Dodson–Leeser smashed any presumption that Voice advocates want only one Voice. Australia is a federation: should there not be a Voice speaking to each state and territory legislature? And Indigenous Australia has many “nations,” so is not each entitled to speak for itself?

Confronted by the Voice’s myriad possibilities, Ken Wyatt, sworn as the Indigenous Australians minister in June 2019, addressed the National Press Club on 10 July 2019. He committed to convening a co-design process “with my ministerial and parliamentary colleagues, relevant departments and Indigenous communities, organisations and leaders.” He said he was seeking “enhanced local and regional decision-making through expanding Empowered Communities and other regional governance models.” Could this apparatus be recognised in the Constitution? Wyatt said he would “develop and bring forward a consensus option for constitutional recognition to put to a referendum during the current parliamentary term and that means working through until we reach a point in which there is consensus across all the relevant groups that have a stake in this.”

At that time, it was reasonable to suppose that Wyatt was referring to a consensus about the design of the Voice(s). Since then, though, it has become clear that he distinguishes between designing a credible Voice and coming up with a form of constitutional recognition that the Morrison government would back in a referendum.

The Turnbull government, and subsequently the Morrison government, had already hinted that this distinction was central to its thinking. One of those hints was Wyatt’s reference to expanding Empowered Communities, a Turnbull government program initiated in 2016. Empowered Communities had begun to feature in government statements about the possibilities of Indigenous Voice in 2018.

According to its website, Empowered Communities “recognises the diversity of cultures and circumstances of Indigenous Australians” and “aims to increase Indigenous ownership and give Indigenous people a greater say in decisions that affect them” by seeking to cultivate “true” government–community “partnerships” in eight regions: Cape York, the NSW Central Coast, East Kimberley, Murray Bridge, Goulburn-Murray, Inner Sydney, North-East Arnhem Land, Ngaanyatjarra Pitjantjatjara Yankunytjatjara Lands, and West Kimberley.

In each region “robust governance structures” and “backbone organisations” have been “surfacing priorities” of “families, individuals and community,” thus enabling “our development and investment planning.” The relationship of these structures to the Commonwealth government and “corporates” is described as “partnership,” and other partnerships with state and territory governments are being sought. Empowered Communities analyse data, build “baselines” and “understand service delivery gaps” in order to produce “long-term Regional Development Agendas.”

When parliament established the Dodson–Leeser committee on 1 March 2018, Angus Taylor, one of Morrison’s ministers, said that he looked forward to seeing it report on how to bring about “stronger local voices and empowerment of local people.” He added: “Our work on Empowered Communities is a good example of our commitment to a place-based approach to empowerment.” People involved in Empowered Communities projects appeared before the Dodson–Leeser committee, extolling it as one way to give “voice.” In its submission to the committee, the Department of Prime Minister and Cabinet argued that the Empowered Communities meant that the government, without any change in the Constitution, was already well along the path of co-designing regional representative structures.

If this was so, it became plausible — from the government’s perspective — to question whether it was necessary to make any change to the Constitution in order to improve Indigenous Australians’ local and regional representation to government. The Dodson–Leeser committee’s interim report found in July 2018 that while submissions strongly supported local and regional structures, “it is hard to establish whether there is community and bipartisan support for a constitutional voice or voices.” The formation of some kind of Voice, from the ground up, was not contingent on writing a new authority into the Constitution, if executive action already had this matter in hand.

Liberal MP Tim Wilson went even further. Arguing against constitutional entrenchment of the Voice(s) the following month, and speaking from what he imagined to be the standpoint of Indigenous Australians, Wilson suggested that if the Voice(s) were authorised by constitutional amendment they would lack legitimacy. (He seemed to be appealing to the idea that, for many Indigenous Australians, the Constitution, as a problematic colonial artefact, lacks legitimacy.) A stronger form of legitimacy would derive from Voices being “truly representative” and carrying “the weight and voice and representation of Aboriginal and Torres Strait Islander people.”

In other words, the federal government was already anticipating that the Voice, when embodied in local and regional structures, would resemble and build on the “partnership platforms” of the Empowered Communities program.

Marcia Langton and Tom Calma envisage between twenty-five and thirty-five Local and Regional Voices. One task for Stage 2 of the co-design process is to decide on their number and boundaries; each region will then develop its Local and Regional Voice. When describing what these could look like, Langton and Calma draw inspiration from Empowered Communities. Their interim report emphasises that “communities across each region [should] decide how best to organise themselves,” building on extant organisations and political structures. This means that Local and Regional Voices will emerge more quickly in some regions than in others. “Some communities or regions with local and regional decision making arrangements already in place, such as ‘partnership tables,’ will be well placed to commence shared, cross-government work in line with the framework relatively quickly.” They give an example: “New South Wales Local Decision Making and Empowered Communities regions are already working in a way similar to that envisaged for Local and Regional Voices.”

As well as the Regional and Local Voices there will be a National Voice, consisting of members (either sixteen or eighteen) elected from each of the eight jurisdictions (six states, two territories) and from the Torres Strait. If the National Voice and the federal government agree, it may also have two appointed members. While the co-chairs (different genders), elected by National Voice members, will be full-time employees, the other members will be part-time. Members will serve terms of either three or four years (a Stage 2 decision) with a maximum of two consecutive terms. The National Voice will also have the power to establish and be advised by committees of experts, and it will establish “youth” and “disability” advisory groups.

In Stage 2 of the co-design process the government is seeking suggestions about how members of the National Voice should be selected. One option is by direct election by Aboriginal and Torres Strait Islander voters in each state/territory/Torres Strait. The other is to have members chosen by the Regional and Local Voices. The advantage of the second method is that it removes the possibility of the disputes that plagued ATSIC, at times, about who is an Aboriginal or Torres Strait Islander and eligible to vote.

When the Voice to Parliament was advocated, from 2014, it was imagined that parliament would be obliged to take notice of it: to refer issues to it for advice and to respond to any advice that the Voice sent back or offered unilaterally. In the interim report and accompanying “fact sheets” issued by Ken Wyatt in January 2021, the obligations of parliament are not yet clearly spelled out.

To grasp the significance of this aspect of the Voice it is necessary to recall the words of Patricia Turner, chief executive of the National Aboriginal Community Controlled Health Organisations, lead convenor of the “Coalition of Peaks” (representing the major Indigenous government and NGO-funded service-delivery organisations) and a member of Wyatt’s senior advisory group. When Turner addressed the National Press Club in September last year she warned Australians not to confuse “voice to government” with “voice to parliament.” It would not answer the call for a Voice to Parliament, she insisted, if Wyatt’s design process merely came up with a voice (or voices) speaking to governments.

Turner was not opposed to “voice to government” processes: the Coalition of Peaks’ recent negotiation of revised Closing the Gap targets was an example of “voice to government” — a productive and necessary relationship. But a Voice to Parliament would be something else, an additional mechanism of recognition and representation in which an assembly of Indigenous leaders would engage in public dialogue with parliament. In effect, Turner was saying: we already have a voice to government: look what it has just achieved. Let’s now design a Voice to Parliament.

Turner was worried that the specificity of the Voice to Parliament concept was being lost in Wyatt’s co-design process, discussions to which she was party. It is possible to trace, textually, a drift of attention from the “Voice to Parliament” to the “Voice to Parliament and Government” in some public statements about the Voice. In the Dodson–Leeser committee’s November 2018 final report, the phrase “Voice to Parliament” occurs frequently when the committee quotes submissions that had something to say about it. But the phrase is not to be found in the committee’s recommendation of a co-design process: “outline and discuss possible options for the local, regional, and national elements of The Voice, including the structure, membership, functions, and operation of The Voice, but with a principal focus on the local bodies and regional bodies and their design and implementation.”

Acting on this recommendation, Wyatt’s co-design committees certainly did focus on “the local bodies and regional bodies.” But the co-designers’ attention to the Voice’s relationship with “governments” (federal, state/territory and local) means that clarity about the relationship between a National Voice and the Parliament of Australia has been lost.

The interim report admits that “there has been significant discussion regarding whether the National Voice was a voice to the Parliament, Australian Government or to both.” The interim report explains that the co-designers were prompted to think about both parliament and governments as the interlocutors of the Voice by the Dodson–Leeser committee when it “proposed an Indigenous Voice not only to Parliament but also to the Australian Government, and not only to the Australian Government but also to state and territory governments.” The first half of this sentence, which I have italicised, is misleading: the Dodson–Leeser committee certainly discussed the possibility that the Voice should talk to both federal parliament and to all governments, but its recommendations about the Voice don’t use the interim report’s phrase “parliament and government.” To make this phrase explicit and to use it throughout the interim report was the senior advisory group’s decision.

Their interim report explains why a National Voice should be dealing with both parliament and the government:

The primary focus of the National Voice must be to provide advice to the Parliament. At the same time, it was recognised by the Senior Advisory Group that early engagement provides the best opportunity to reflect the needs and aspirations of Aboriginal and Torres Strait Islander peoples in the development of legislation. This partnership would in turn also require the National Voice to engage with the Australian Government, preferably at the early stages of policy development. In fact, it would be inconceivable if it did not engage with the Australian Government.

Accordingly, the interim report envisages that the National Voice will send and receive two kinds of communication: it will “generally issue public advice, with discretion for informal discussion where appropriate.”

This makes sense. Why would anyone want the National Voice to be excluded from discussion with government officials drafting bills? But when we bracket parliament and the government as the interlocutors of the National Voice we are at risk of conflating them and so obscuring two important distinctions.

The first distinction is between parliament formally dealing with matters raised by the National Voice and the government engaging the National Voice in a conversation. Both exchanges are likely to be productive, but they differ in the ways that they will be valuable to the political process. When parliament speaks, it is a public action, and it would be expected that not only the government but also the opposition would have something to say. When parliament apologised to the stolen generations in February 2008 both the leader of the government and the leader of the opposition spoke — each apologising in his own terms. Such actions by parliament are public and formal, and they create the possibility of debate in each chamber if a motion is moved about the issue in question. There is also the possibility (one would hope) that members of the National Voice would be invited to address either or both chambers of parliament.

Interactions between the National Voice and the government, by contrast, are not subject to any framework of obligations and conventions; they may be as informal and as private as a telephone conversation or email exchange between two officials.

A summary fact sheet, “Aboriginal and Torres Strait Islander National Voice,” issued with the interim report makes the important point that there will be “two-way interaction between the National Voice and the Parliament and Government” because “the National Voice may ask for advice and information.” But the summary is not as clear as it could be about the proposed guarantees of “transparency” in these communications.

“Transparency mechanisms are proposed to help demonstrate the National Voice has been appropriately consulted and engaged,” says the interim report. “Examples include tabling the National Voice’s formal advice in Parliament, having the National Voice’s advice considered by a parliamentary committee, and including a statement about the National Voice’s formal advice and consultation when a proposed law is introduced in the Parliament.” But what are we to make of these words in the summary fact sheet: “Advice must be tabled on issues that have been referred to the National Voice. Informal advice is not tabled”? “Tabled” by which side — parliament, the National Voice, or both? And who is to decide when advice is “informal,” and so not “tabled”?

The second important distinction effectively obscured by the recurrence of the phrase “parliament and government” is between the National Voice and all other Indigenous organisations. The interim report says that the Voices (National, Regional and Local) will not replace existing Indigenous organisations that are already channels of representation. In the words of the summary fact sheet, “The Parliament and Government is [sic] expected to continue engaging with stakeholders, and the National Voice will not be a gatekeeper.”

It is undeniable that the federal government should be free to talk to whichever Indigenous organisations it chooses; it will be up to the National Voice to persuade the government that what it has to say is worthy of focused attention. But what about parliament? Is it to be equally free (via its committees, for example) to engage with any Indigenous “stakeholder” whether or not it is the National Voice? What if the National Voice cannot persuade parliament that it has something that parliament must listen to? Will the National Voice not be diminished if parliament addresses Indigenous Australia over the heads (as it were) of the National Voice?

If the National Voice is to be a special body, it will be necessary to treat it as the legitimate gatekeeper — the pre-eminent representative of Indigenous Australia to parliament. The bracketing of “parliament and government” by Wyatt’s co-designers risks diminishing the National Voice by failing to specify contexts in which its status is rightly unique.

These two obfuscations — of the difference between parliament-talking and government-talking, and the difference between a National Voice and all other channels of Indigenous representation — have arisen partly because the case for an Indigenous Voice has increasingly become functional: arguments seek to justify a Voice on the grounds that it will lead to better policy rather than because it will constitute a form of recognition, give Indigenous Australians a distinct voice, or embody a “right.”

It is platitudinous to say that any government that wishes to be effective in governing Indigenous Australians (for example, closing the gaps more rapidly) must maximise the opportunity for Indigenous Australians themselves to shape the policy. I do not wish to contest this view. Indigenous participation in government is a means to an end: more effective government. I wish merely to point out that the more the case for a Voice emphasises the utility of the Voice to policy-making, the more that the couplet “parliament and government” is conflated to mean just “government.”

The value that the Indigenous Voice would add to Australia has increasingly been evoked in instrumental terms, as a means of communication with governments at all three levels. What is increasingly obscured is the value of understanding the National Voice, constitutionally entrenched, as a substantive and symbolic recognition of the distinctive position of Indigenous Australia as a respectful and respected interlocutor of the nation’s popularly sovereign body, the Parliament of Australia.

This noble idea has been further distanced by the minister’s insistence that the three co-design committees not make “recommendations as a Group through this co-design process on constitutional recognition, including determining the referendum question or when a referendum should be held.”

Since 2014, advocates of constitutional recognition have made incremental concessions to constitutional conservatives and to a series of unwilling conservative governments. The risk of such a conciliatory strategy is that we will end up with a legislated Indigenous Voice, adjunct to governments, that has little capacity to call parliament publicly to account. But this now seems to be the only way forward contemplated by the government. What it has in mind for constitutional recognition is anyone’s guess. •

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The documentary traces of visits in the sixteenth and seventeenth centuries are so sparse that Fullagar, a historian at Macquarie University, can only outline the visits (some voluntary, others forced) of a Brazilian king (in 1530–31), four Inuit (in 1576–77), and about a dozen indigenous aides to Walter Raleigh (between 1584 and 1618). She categorises the American native visitors of the seventeenth century as “cultural brokers” (assisting colonial entrepreneurs), “royal emissaries” (Pocahontas, the most famous), “performer” (or “wonder”) and “working plebeians” (little known seahands, soldiers and servants). She can tell us some of these people’s names (they are nearly all men), hosts and temporary abodes, but she has found no general model of English perception. Unlike Spain, with its systematic approach to plundering and enslavement, Britain engaged with the New World in the period 1500–1700 in a discontinuous, ad hoc way that neither required nor encouraged a coherent public framework of interpretation of a “savage visit.” France received many more New World visitors than Britain, Fullagar reports, because the French fur trade in North America occasioned more intimate and territorially extensive contact and because French intellectuals (such as Montaigne) were more interested in the relationship of the “savage” to “civilisation.”

As British commercial interest in the New World grew, however, so Britons began to articulate a framework in which the visit of a New World “savage” could be interesting enough to stimulate published commentary and visual representations. What particularly compelled a growing discourse about the “savage,” Fullagar argues, was Britain’s ongoing debate, during the eighteenth century, about its own formation into a commercial, urban, consumer society. To consider the savage was to enable a reflection on the vices and virtues of one’s own civilisation, she argues. As well, Britons debated the costs and benefits of mercantile imperial expansion with its associated political and military rivalry with France. The visiting savage helped bring that projection into focus, just as it was becoming clear that it paid to know your savages when vying with France and Spain for North America. A delegation of four Iroquois “kings” to London in 1710 attracted official interest and much popular attention. So did a Cherokee delegation in 1730, a Creek delegation in 1734 and another Cherokee delegation in 1762. Fullagar treats each visit in detail, with particular attention to engravings, paintings, press articles and popular appropriations.

The historiography of the eighteenth-century Atlantic has become very rich. As more and more historical actors have come into view, the contingencies of European imperial outreach have been more fully appreciated: the Atlantic was a zone of interacting sovereigns of different kinds. Fullagar makes good use of one of this literature’s themes: a British sensibility that was unsettled and conflicted due of the sheer size of the politico/military and economic projects that Britain was then undertaking, both at home and across the oceans. The greatest skill of the historian is to contextualise – to suggest how a global conjuncture may be read in the detail of a Joshua Reynolds painting. When the documentary material is available to her, Fullagar relishes the opportunity – at once descriptive, narrative and analytic – in alert, uncluttered prose.

Evoking British uncertainty (or diversity in certainties), she is able to show that while the category “savage” was constantly available, its eighteenth-century meanings could be complex and unstable. Contemporary visual and anecdotal representations of the four Iroquois kings admired them variously – as warrior allies of mercantile ambition, as loyal monarchists indifferent to crass Whiggery, as embodiments of spirituality and stasis, as visitors appalled (or awestruck) by British sophistication, as objects of shallow, unruly popular spectatorship. The Iroquois and other “savages” were the diverse mirrors of whatever the writer/painter or reader/viewer thought virtuous or wicked in his/her times. The savage could also be an object of fear – warriors to be sure, but on whose side? What was a respectful and prudent way for hosts to behave when such visitors came?

Eventually, Fullagar claims, the idea “savage” became useless as a way to think about native visitors from North America: these people were better understood as agents relevant to British projects such as Christian evangelism and political diplomacy. Fullagar refers to this as “the full historicisation of America”; it severed the region “from useful fantasy” in the British imagination, after 1763. That is, the “savage” visitor became less the antonymic projection of qualities Britons saw in their own “civilization” and more a real historical agent, of relevance to particular institutions and policies.

By the end of the eighteenth century, visitors from the Pacific had displaced the North Americans as the feted, fascinating and increasingly eroticised savage visitor. By then, social theory had been born in the form of “universal (or conjectural) history” that understood human diversity as the result of the different speeds at which all peoples were moving from savage to polite society. Enlightened thinkers (Scots and others) were eager to find empirical examples of the slowest/earliest peoples and the Pacific seemed to have them in abundance.

Arriving in London in 1774 as the guest of Sir Joseph Banks, Mai (or Omai) from Tahiti embodied Britain’s late eighteenth century “Oceanic idealization.” He was soon given an audience with King George III and Queen Charlotte and inoculated against smallpox. By that time, Jean Jacques Rousseau’s Discourse on the Origins and Foundations of Inequality Among Men (1755) had begun to influence British perceptions of the savage. Rousseau’s speculative history of humankind as the steady corruption of natural virtues reinforced the school of thought that criticised contemporary commercial, credit-dependent, urban and governed civilisation from the standpoint of England’s landed tradition. Many – both intellectuals and hacks – were thus well primed to see gracious, primitive Mai in terms of the virtues of “natural man.” The contrary point of view was exemplified by Samuel Johnson, who thought Rousseau “a rascal who ought to be hunted out of society” and ascribed Mai’s grace and good manners not to his Pacific origins but to his rapid habituation to his hosts’ standards.

Unfortunately for those who idealised Pacific peoples such as Mai, the Hawaiians murdered Captain James Cook in 1777. Perhaps “natural man” was a bit of a beast to be tamed after all. Fullagar argues that the heroisation of Cook – exacerbated by his martyrdom – strengthened British sentiment in favour of imperial expansion.

Other Pacific visitors arrived after Mai. One, Lebuu disembarking from Palau in 1784, became interesting by dying of smallpox while in England, an opportunity for “sentimental discourses about the self.” Another, Kualelo from Hawaii in 1789, illustrated the gloomy possibility that savages were ineducable. A third, the Tahitian Maititi, arrived in 1793 so sick from his smallpox vaccination that he lasted only a few months. After Mai, Fullagar says, the British public lost interest in savage visitors: they seemed minor details of a confidently expansionist Empire.

The Aboriginal Male in the Enlightenment World, by ANU’s Shino Konishi, now with the University of Western Australia, is about the visitations that such expansion propelled. More than twenty British, French and Spanish expeditions visited Australia between 1770 and 1803. They wrote about the Aboriginal people they met, and about the Aboriginal men in particular. One important difference between cross-cultural encounters in England and those in Australia was that whereas English conventions demanded that the savage body be dressed, in Australia the savage was likely to be naked. This occasioned a kind of “degree zero” of mutual observation. “The natural body,” writes Konishi, “when considered in its essential state, stripped of its cultural and material embellishments, and reduced to its needs and drives, was all that natives and newcomers held in common.”

Emphasising the centrality of the body is the organisation of Konishi’s book, in which the explorers’ comments about men are organised under a series of headings: the skin, the hair, the face, sexuality, the propensity to fight and methods of fighting, the communicative sounds that they made (however poorly understood), their labour processes and tools, and their physical capabilities. Each heading gets a chapter, and each chapter begins with Konishi’s summary of the ideas about skin, hair, the face and so on with which “the Enlightenment” had equipped (or ill-equipped) these curious and thoughtful explorers and early colonists.

The influence of Rousseau looms large in her account, as in Fullagar’s. From 1770, his description of humanity’s earliest condition could be verified or refuted by observing those who we now call the First Australians. Many occasions of European curiosity, however, seem to have been no more recherché than such simple (and to me, compelling) questions as: In what respects are They like Us? Are all humans warlike, users of language, makers of music?

The detail of these observations, from the scores of interactions recounted by Konishi, is both fascinating to read – she quotes liberally – and impossible to condense into a neat compendium of acquired knowledge. Here are some piquant vignettes. Joseph Banks used his own spittle to rub clean a patch of Aboriginal skin, to ascertain its true colour. The British puzzled much over the scarification of skin. Hairstyles attracted European attention, but “Indigenous pomades and powders were often perceived as mere dirt,” and Baudin’s artists were instructed to standardise the rendering of hair so that variations in the object of greater interest, the skull, could be recorded. To grasp the significance of tooth extraction among the Eora required better understanding of language than the British first possessed, but at least they figured out that it was a ritual practice, just as they noticed that nasal piercing was a mark of distinction.

Were Aborigines musical? La Marseillaise, sung by Baudin’s men in 1803, had “the picanninnies jumping for joy”; but an earlier expedition’s violin performance had met first with indifference and then rejection (the listeners put their fingers in their ears). The explorers were often disappointed by Aborigines’ failure to “admire and covet” their “ostentatiously displayed… weapons, musical instruments, bottles, clothes and trifles…” Aborigines were impressed by mirrors, however, and the Europeans’ weapons and animal skins engaged them even more. Body parts figure prominently when the visitors compiled Aboriginal word lists, but the editor of the second edition of Péron’s journal thought his readers were better off not knowing how the men of Oyster Bay referred to their erections.

A recurring theme of Konishi’s study is that to observe Aboriginal men was to interact with them, usually without the mediation of language, which gave rise to many moments of mutual opacity, curiosity, apprehension, relief and amusement. When Konishi invites us to imagine ourselves in these interactions, we cannot help knowing their sequels: the intervening years of displacement, dispossession and violence. Posterior awareness endows with innocence these scenes of inarticulate reciprocal wonder and blunder.

Nonetheless, our knowledge of the catastrophe to come cannot be denied, and it shadows Konishi’s treatment of some European perceptions. Accounts of “Aboriginal warriors and warfare” were “the predominant focus of European depictions of the Aboriginal male body,” and she suggests that explorers’ depictions of “the aboriginal martial body and indigenous warfare… were biased by their failure to comprehend indigenous hostility as a form of organized resistance.” Observations made through the voyages of Cook, La Perouse, d’Entrecasteaux, Baudin and Flinders, do not, it seems to me, give us grounds for chiding these explorers for not discerning “organised resistance” or law-governed process in Aborigines’ occasionally violent behaviour. Indeed, as Konishi points out, D’Entrecasteaux 1793 and Péron in 1803 didn’t see any warrior contests among Aborigines of Van Diemen’s Land, and so they found a real life example of humans in Rousseau’s peaceful state of nature.

The observations occasioned by establishing a penal settlement, from 1788, at Port Jackson were a different matter. These British observers were occupiers, not visitors, and it should have occurred to them that this fact was increasingly evident to the Eora and was becoming the basis of their behaviour towards them. Konishi quotes Captain John Hunter’s dismay at Eora “treachery”; she writes that the First Fleet, unlike preceding “explorers,” found occasion to resort to terror and collective punishment. When the visitors and occupiers observed vengeful clashes among Aborigines, they saw confirmation of the “Hobbesian thesis” that humans were naturally in a state of war. Konishi suggests that they might have discerned such tit for tat as legal process, and they might also have construed Aboriginal attacks on British “as a martial response to the loss of their sovereignty.” That they did not is what she means by “biased.”

Konishi’s knowledge that these early relatively symmetrical encounters were soon to be succeeded by structural domination encourages her not only to report but also to assess the truth of what the explorers wrote. Were they, in their “bias,” laying the ideological ground – however unintentionally – for the grossly unequal relationship of coloniser to colonised? Noting the prevailing opinion that “Aboriginal men were lazy and exploitative of their women,” her critical response is to quote passages in which explorers described Aboriginal men’s activity. While this textual evidence undermines the stereotype, it doesn’t address the question of whether the Aboriginal male exploited the hardworking womenfolk.

We may have to accommodate, within our post-colonial sensibility, the thought that Aboriginal society really was unequal in ways described in the late eighteenth century. Could that gender inequality have been evident in Aboriginal sexuality itself? The chapter “Carnal Bodies” considers whether Aboriginal men enforced females’ sexual submission – whether they practised “courtship with a club,” as attested by Watkin Tench, David Collins and Francois Péron. To cast doubt, Konishi cites Tench’s description of a dance performed by Boorong and Nanbaree, glossing it as “a ritual of desire and love.” Tench interpreted as “courtship” other Eora dances that he recorded. Her conclusion is that male courtship included “a range of techniques, motives and expectations in courting women” – some brutish, by our standards, others not.

BENNELONG was the eighteenth century’s most prolifically described Aborigine, and he mercurially graces both Fullagar’s and Konishi’s books. Though initially Captain Arthur Phillip’s captive, he appears to have been as curious about Europeans as any European could be about him, and his resulting susceptibility continues to puzzle us. Is such openness best understood as pliancy? When clothes are “civilisation,” what do we make of a man who dons as easily as he divests? His mode of inquiry into eighteenth century Britain was immersive, experimental, equivocal, both linguistically penetrating and delighted by society’s surface. Few agents are more suited than Bennelong to a historiography that renders agency as “performativity” – and (without dulling the theoretical point) he seems to have been something of a show-off. (In 2014, Jack Charles – actor, reformed thief and elder – is his nearest avatar.) He challenges our essentialisms as much as he did those of the late eighteenth century. Adroit mobility across the civilised/savage boundary eludes characterisation – and discourages trust? When the British apprehended the possibility of starvation, Fullagar tells us, they fed Bennelong well lest he tumble to their predicament and report it widely.

Konishi tells the story of how Bennelong pleased Arthur Phillip by promising not to beat a young woman (Boorong) whom he had said he would beat and whom Arthur had sought to protect. Later, she quotes characterisations of him as “pliant” and “good-natured.” In her puzzling over this, the words “seemed” and “appeared” are prominent; then she refers to “his metaphorical submission to the British” and goes on to characterise him as a strategist, a man who “took advantage of his unique position in the colony.” This leaves us with the question of what he wanted, what he would use “advantage” to get. Food was one thing, but perhaps we can infer that, as keenly as any navigator or naturalist, he desired knowledge itself. To be confronted with strangers was to become possessed by a question about how different or similar human beings might be. Why else would Bennelong, in December 1792, board a ship to England?

Only one newspaper (the Dublin Chronicle) reported his twenty-one-month visit, and Fullagar concludes that, by 1793, Britons had lost interest in visiting savages (and were more excited about the kangaroos that arrived with Bennelong.) But a bill of Bennelong’s expenses, kept by his host Arthur Phillip, gives some clues to what Bennelong experienced. Having kept from Bennelong the knowledge that the British might starve to death at Port Jackson, Phillip could now, in his London itinerary, solicit Bennelong’s awe and improve his English. After a year (and the death of his companion Yemmerawanne), Bennelong wanted to go home; he had to wait months till a berth was available. Subsequent British press accounts of Bennelong – the Times in 1805, Sydney Gazette in 1813 – deployed the cliché appropriate to a time of colonial hostilities: immoveable Bennelong, a parable of savage indifference to civilisation’s generous opportunity.

Like Bernard Smith’s European Vision and the South Pacific, each of these books reminds us that the European Enlightenment rested partly on a global traffic of persons between widely separated spaces. The transactions between visitors and hosts rendered by Fullagar and Konishi are surely among the most appealing moments in the history of the Enlightenment. Taken in their own terms, they portend not conquest but the adventure of getting beyond puzzlement, the savoured prospect of knowing humans very like and very unlike oneself. Thus Fullagar and Konishi make London and Sydney Cove into scenes crucial to a global history of knowledge. The intellectual and geopolitical structures of late eighteenth century are vividly present in these stories of folk finding one another compellingly queer. •

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Diane Austin-Broos has been thinking about it too. In 2009 she published a superb ethno-history of one of the communities I visited in that formative journey. Arrernte Present, Arrernte Past: Invasion, Violence, and Imagination in Indigenous Central Australia is about Hermannsburg and how it shaped and was shaped by the culture of the Christianised Arrernte. Her new book, A Different Inequality, is equally committed to putting Aboriginal culture into history. But it does more than that: Austin-Broos essays a history of Australian intellectuals’ recent ideas about culture, equality and Indigenous entitlement.

Austin-Broos’s central point is that remote Aborigines are different from Australians as a whole in two ways that matter to public policy: their “culture” is not only their painting, their language and their cosmology, it is also their physical deprivation and insecurity, their filth, sickness and danger. Her insistently ambivalent depiction of remote Aboriginal communities resonates with the memory of my emotional confusion in May 1981, as I was introduced to a Hermannsburg family whose dignified friendliness was and was not belied by the sickening squalor of their unhoused bedding and cooking utensils and their scabby dogs.

What are we to do for people who grow up in such conditions? Austin-Broos’s primary proposal, given in her final chapter, is sound but hardly novel: children must be schooled to literacy and numeracy. She points to factors that have retarded remote Aboriginal primary education: the cost of delivering to decentralised communities, unstable schools, poorly trained teachers and parental diffidence. How to arouse Aboriginal parents’ interest in better education for their children? To that question she gives no clear answer. Rather, she evokes the Aboriginal values, economic practices and land ownership patterns that combine to militate against the ambition – common sense to most Australians – to advance self and family through investment in “human capital” and through determined and geographically mobile job-seeking. She admits to being unsure whether remote Aborigines really have the choice of trading off some of the security of their remote poverty on the chance of some of the health and prosperity of the mainstream. If there is a policy that would “reconcile current cultural attachments in communities with employment and capacity growth” then Austin-Broos aspires to be the author who spells it out. In her perplexity about how to solicit Indigenous engagement with what she considers to be improving activities, she is not alone.

While conspicuously unable to put her finger on the remedial actions that would sustain the primary education of remote Aboriginal Australians, Austin-Broos is confident that she knows the errors of other writers’ thinking. Most of her book is a description of what she calls a “failed debate” between two broad schools of thought. One she characterises as “opposing separate development,” the other as “defending the homelands.” Her account of that debate suffers from her eagerness to dichotomise a complex discussion.

Before she describes these two schools, she reviews the recent history of the discipline of anthropology (in which Austin-Broos is an outstanding academic practitioner). In writing about Aboriginal Australia, she argues, few anthropologists have grasped how much Aboriginal culture has been changed by colonisation. (She names some exceptions, without noticing that David Martin’s writing on Aurukun exemplifies the approach that she commends.) Instead of describing the regionally specific historical dynamics of these communities, most anthropologists have tended to “reify” Aboriginal culture, she says, rendering “culture” in terms of its continuities with pre-colonial values and practices.

That anthropology has evoked a classical model of Aboriginal culture is clear in Austin-Broos’s own ten-page epitome of the classical account; it is her book’s finest achievement. In elucidating the model she asserts its relevance but warns of its insufficiency; it no longer fully describes how Aboriginal people in remote regions live, for it neglects to say how much they suffer, now, in a morbid structure of massive socioeconomic inequality. A policy-relevant and honestly compassionate anthropology should go beyond this classical account in order to describe and explain persistent psycho-social and physical pathologies and material poverty. A realistic understanding of remote Aboriginal communities is not possible, she concludes, if all we see in the “homelands” is the survival of “Aboriginal culture” described in wholly positive terms. These communities are not “bounded wholes,” but “variable, changing, and ‘fractured’ by encapsulation in the state and by their marginal economies.”

How has this complex truth (cultural difference turned problematic, in a structure of inequality) eluded the two sides of the “failed debate”? I am not persuaded by Austin-Broos’s “balanced” (to use her own self-description during an event in Sydney in August) position on the politics of difference and the politics of equality. That is, I think she overstates the singularity of her own position and caricatures work with which she actually shares ground. Her account of the debate has two flaws that make it more self-serving than accurate: the two sides are poorly labelled, and her reading of others’ work is often unsympathetic and sloppily expressed.

That there is a responsibility to read and report colleagues’ work sympathetically is a point that Austin-Broos herself made in Sydney. During that discussion, I pointed out that her book’s index qualified the crucial concept “inequality” with the adjective “socioeconomic.” I asked her if the index was accurate. Or had the indexer not seen that a notion of “political inequality” was implicit in her argument, even if she had not used the phrase “political inequality”? Austin-Broos replied that Aborigines’ inequality was certainly political as well as socioeconomic: “If you know where and how to look, there is plenty about political inequality in this book.” I agree: her critical remarks on the NT Emergency Intervention imply that she sees Aborigines as suffering from political inequality.

Austin-Broos would have written a better book (and kept better standing with her dismayed colleagues) had she known “where and how to look” for the implicit arguments with which she shares ground in much of the research that she takes to task. For example, it is important to Austin-Broos that Aboriginal people be described as “in distress” and as “suffering” (the success of Peter Sutton’s The Politics of Suffering has promoted the latter word’s importance). When she cannot find these words in some commentaries on the Intervention, she writes that the authors (unnamed academics at the Australian National University’s Centre for Aboriginal Economic Policy Research, or CAEPR) “seemed disinclined to dwell on social suffering or distress as part of homelands life.” Within a few lines this condition of being “disinclined to dwell” has hardened: “the failure of those who defended the homelands was reluctance to acknowledge distress and the salience of poverty.” A few pages later: “some of those who defended the homelands were unwilling to acknowledge the distress in the remote communities and the salience of poverty.” The words that I have italicised insinuate, with escalating trenchancy, the unnamed authors’ moral callousness, implicitly celebrating Austin-Broos’s courage and sensitivity. Had she read these authors more generously she might have inferred compassion – notwithstanding the absence of the words “distress” and “suffering” – as real as her own. Knowing how and where to look when reading others’ writing is itself an ethical investment.

ANTHROPOLOGISTS figure mostly on one side of Austin-Broos’s map of the “failed debate” – as romantic, reifying advocates of policies that they hope will sustain Aboriginal homelands. Against them are those who “oppose separate development.” According to Austin-Broos, the latter see the misery and pathology of the homelands, but they see little else. For these critics, land rights, the various policies that have enabled decentralisation and the channelling of public funds through Aboriginal service-delivery organisations have all – unintentionally – prolonged Aborigines’ exclusion from Australian society and occasioned much suffering. In this “anti-separatist” school of thought Austin-Broos includes John Reeves, Helen Hughes, Colin Tatz, Boni Robertson, Peter Howson, Roger Sandall, Christopher Pearson, Peter Sutton, Noel Pearson, Marcia Langton, Gary Johns and Bob Gregory. Conceding that there are significant differences of opinion among these writers (on land rights, on the duties of the state, and on the nature and significance of Aborigines’ continuing cultural difference), Austin-Broos nonetheless sees them as – variously – “anti-separatist.”

This could be a defensible lumping together if we had an idea of what Austin-Broos means by “separatism.” The index doesn’t include “separatism,” and Austin-Broos never pauses to say what she means by that word. Neither “separatism” nor “anti-separatism” emerges from her account as a coherent policy perspective.

Austin-Broos uses the term “defending the homelands” to label the romantic, “unwilling to acknowledge distress” side of the debate. We can infer, from her binary approach, that the essence of “separatism” is to “defend” the homelands. What policy would that be? Here we encounter another problem of terminology. Austin-Broos uses “homelands” to refer not only to “small communities” (as small as ten to twenty people, living on their own country) but also to “remote communities” (such as the former missions and government settlements) that now amount – in some cases – to small towns of up to two thousand people. This distinction within “remote” has policy significance; as certain larger “remote communities” have been selected as sites where services will be concentrated, costly support for the many tiny communities is being discontinued. I presume that by “defending the homelands” Austin-Broos means a wish to continue or exceed past levels of support – housing, vehicles, CDEP (Community Development Employment Projects) funds – for the tiny outstations that radiate out from these larger remote hubs.

In her account of the “defence” of government support for this highly decentralised pattern of residence, Austin-Broos seeks to “distil a public position indicative of CAEPR.” Her distillation is too smooth by half, and again the problems are Austin-Broos’s fondness for crystalline dichotomies and her question-begging names for the policy positions that she would distinguish.

For example, she distinguishes a “community-based” from a “human capital” approach. The “community-based” approach flows from the analysis of remote Aboriginal communities’ cultural and physical distance from large, diverse labour markets. For about twenty years, researchers have argued that there is a good chance that the education of remote Aboriginal children will prepare them for jobs that do not exist, in these regions, in sufficient quantities to make a difference to the rate of unemployment. Austin-Broos does not dispute that analysis, but she implies that those making it have been indifferent to education. That is, she aligns her advocacy of primary education with her advocacy of a “human capital” approach, while associating CAEPR with “the community-based approach rather than a human capital one.” This is a false dichotomy, for both the “human capital” approach and the “community-based” approach aspire to a credible vision of remote Aboriginal education.

What is missing from Austin-Broos’s account of “the CAEPR view” is any sympathy for the difficulty that faces those who try to say what a “community-based” education should be. The problem does not arise from assuming – in a romantic way – that education will cost remote Aborigines their culture. Writers associated with CAEPR have been alive to the possibility of education for remote Aborigines, but they have been curious (as Austin-Broos is) about what kind of education could attract Aboriginal parents’ commitment. The pathway from education to employment will not work in some regions unless education and labour-market strategies consider the peculiarities of regional labour markets and the aspirations of parents. I don’t know any researcher in this field whose response to the difficulties of the remote education–employment transition (or human capital formation, to use Austin-Broos’s term) is to discount education for Aborigines.

Time and again, Austin-Broos reads arguments for region-specific education and economic development strategies as if they were arguments for “Aboriginal”-specific development strategies. There may well be some unsophisticated policy-thinking that falls into this trap – invoking a general and romantic model of “Aboriginal” rather than considering the potential and the limitations of each region. If this is what she means by “separatism,” then one can endorse her condemnation of it. However, the work that Austin-Broos has targeted is not “separatist” in either the spatial or the fiscal sense; it is more precisely characterised as “regionalist,” and it is better, more persuasive work than Austin-Broos concedes.

Austin-Broos’s book works best when she sticks closely to what individual writers have said over time. She can be a generous and respectful reader. But her “distillation” of “the CAEPR view” compromises her account of particular arguments that have come out of that organisation. She attributes to CAEPR “the view that major employment growth would be incompatible with the maintenance of cultural difference,” for example, and she writes that CAEPR seeks to interpret Aborigines’ socioeconomic inequality as if it were merely their way of expressing and perpetuating cultural difference.

CAEPR’s founding director, Jon Altman, is the main victim of this caricature, and A Different Inequality will do Australia a disservice to the extent that it encourages readers to dismiss his work as “romantic” and blind to “suffering.” Jon Altman has done more than any other researcher to develop a model of the remote Aboriginal economy that is empirically based and policy-realistic. He sees regional economies as made up of three sectors: production for the market, subsistence production, and public-sector subsidies, including welfare payments to individuals. The content and size of each of these three sectors vary by region and through time. Altman’s framework can be applied region by region to identify the natural, human and political resources upon which a realistic development strategy could be based. (His model is just as relevant to regions in which there are few Aborigines.)

The work of regional specification using Altman’s categories is just beginning – and, as Austin-Broos observes, the profiles of Central Australia and of Arnhem Land (where Altman mostly works) are likely to be different. A program of applied research based on Altman’s framework is at risk unless policy-makers and research funders read with scepticism Austin-Broos’s far-too-rough guide to the “politics of debate about remote Aboriginal Australia.” •

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Sarah Maddison exhorts white Australians to do some work on themselves so that they will be open to the healing dialogue that Indigenous Australians may choose to have with them. She does not presume that Indigenous Australians will consent to such a dialogue, and “it is the right of the hurt to not agree to be healed just because we say the time is right.” In any case, in a critical comment on Noel Pearson’s welfare reform proposals, she presents Indigenous Australians as limited in their ability to take responsibility because there is no Constitutional guarantee of their “inherent right to govern themselves.” Nonetheless, in case Indigenous Australians – hurt and weakened – seek dialogue, Maddison urges non-Indigenous Australians to prepare, psychologically and morally, for this arduous task.

Non-Indigenous Australians’ collective guilt comes from acknowledging that colonists treated the colonised according to a “genocidal morality.” Conceding that some Australians (“high identifiers”) believe only positive accounts of Australian history and thus do not experience (or only intermittently experience) collective guilt, Maddison writes that the truth of Australian history warrants that all non-Indigenous Australians should experience collective guilt. Doing so has disposed some to support reconciliation and the apology to the stolen generations. “[T]his guilt we feel is in fact an urge to make things right…”

As she explains at length, though, collective guilt is a tricky emotion, and one of her purposes is to coach her readers on how to experience collective guilt productively. Badly handled, persistent collective guilt will continue to deflect Australians from the path to “justice” – which Maddison sees as the “coexistence” of two peoples in one territory, “recognising each other as distinct and self-governing peoples” and as “the mutual recognition of sovereign peoples.”

Collective guilt – once non-Indigenous Australians have permitted the facts of history to arouse it – is something to “acknowledge,” to “face up to,” to “accept,” to “move beyond” and to work “through” – as a step towards “taking responsibility.” One is able to determine guilt (“our collective guilt is determined by what we do in the present”), but one is unable to terminate it (“it is always with us”). Maddison sees many inappropriate responses to collective guilt. To turn it “inwards” is to be “paralysed and helpless to address the contemporary manifestations of our history”; to turn it outwards may take the form of “anger” at Indigenous Australians’ “failure to grasp the opportunities that colonisation has brought.” Nor should we position Indigenous Australians as our victims. Dealing with guilt can be too focused on “me” or “us,” and there are “too many examples” of people seeking redemption by consuming “Indigenous culture and teaching.”

“Defensive nationalism” is an unhelpful perpetuation of collective guilt. One of its manifestations is the use of the Anzac legend as a positive story of the nation’s foundation, displacing the more truthful national story of “genocide.” “Individual adaptive work” starts with the study of history. Although she eschews the idea that Australians should “agree on one ‘correct’ version of the past,” she seems to admit no doubt that colonisation is a story of genocide – an account about which there are many reasonable doubts.

That is, while there have been church and government programs that correspond to four of the five points in the United Nations definition of genocide, many programs sought to reverse or avert the damage to which those four points refer. A totalising theory of Australian colonial history is obliged to face up both to the strength of humanitarian intentions and to the effectiveness of many of the actions that they have prompted, right up to the present day. In my own teaching and writing, the puzzle of Australia’s colonial history is the heterogeneity of intentions and actions, and part of the drama of our history lies in their fierce contention. But how could I express such doubts about the Genocide Thesis to the implied moral and epistemological authority from which Maddison writes? To any arbitrator of the difference between healing and denying responses to collective guilt, my “yes, but” response could be judged as my unwillingness to “interrogate my whiteness.”

Beyond White Guilt has a tendency to pull you back to the problems of working on the self. While Maddison praises “political engagement” as superior to “personal development,” she is reticent in recommending public policies. Indeed, she seems to suggest that “we are deluded if we think that government or government policy is the problem.” She views as “fake remedies” all the policies and programs to which the words “protection,” “assimilation” and “intervention” refer, and she has little to say about the policy of “self-determination” – perhaps her lack of censure amounts to qualified endorsement – a term that doesn’t appear in the book’s index. While the High Court’s doctrine of native title was promising, she writes, Australian politics and law failed that “litmus test” of Australians’ sense of responsibility. Maddison does not spell out her objections to native title legislation. She mentions a treaty as a good possibility, and she implies that it would perpetuate Indigenous sovereignty rather than extinguish sovereignty on just terms, as the Aboriginal Treaty Committee (1979–83) once envisaged. She sees the state and Commonwealth apologies to the stolen generations as a “first step.”

Constitutional amendment seems Maddison’s most favoured course. She supports a referendum to entrench Indigenous rights of self-government, but admits to doubts about the efficacy of Constitutional reform. In the goodwill expressed in the 1967 referendum she detects the electorate’s belief that by voting for equality of citizenship “non-Indigenous Australians could wipe their hands of the problem.” Before changing the Constitution again, the Australian public would have to do “the underlying adaptive work” that would make them supporters of “meaningful and sustainable” social change. Will the initiative of the Gillard government deliver “merely a statement in a new preamble” or “more meaningful change to the body of the constitution,” she wonders. What might the latter be, this reader asks. Maddison has not made her book an instrument of “community education” about the Constitution.

Maddison’s argument is more moral than political. She positions non-Indigenous Australians as responsible not only for whether they experience collective guilt but also – once collective guilt has been widely achieved through clear-eyed appraisal of the past – for how they respond to it. Her terrain is what she calls “public morality,” which powerfully influences the moral choices of individuals. Indeed, she is among the nation’s most demanding moralists, repeatedly warning her reader that the appropriate responses to guilt will leave non-Indigenous Australians feeling “unsettled” and will “profoundly threaten our sense of who we are and the values we cherish.” She acknowledges that “in each of us there is a psychological need to feel good about ourselves,” but she is suspicious of that need. Pursuit of just resolution “may in fact make us feel less comfortable about ourselves.” Her reassurance of the reader is unsteady. On the one hand, “feeling bad about themselves” is not what non-Indigenous Australians should seek: they could “maintain a positive view of their group while also interrogating their whiteness.” On the other hand, “we cannot feel good about ourselves until we understand why we feel so bad.” And dealing with collective guilt will be “challenging, slow, and ultimately unsettling” as we “surgically extract the coloniser still resident in us all.”

LIKE Maddison, Stephen Gray sees Australia’s colonial history as having inflicted immense suffering on Indigenous Australians. He cites the Australian parliament’s apologies (delivered by prime minister Kevin Rudd and opposition leader Brendan Nelson in February 2008) as confirming that fact; he also mentions and appears to endorse the verdict “genocide.” He differs from Maddison, however, in working a seam of uncertainty about what she calls “solidarity with the perpetrators of genocidal acts.” One of Maddison’s insights is that our sense of history is made up partly of our cultivated capacity to identify with past actors. On the whole, she is critical of our doing so. She warns that the “past perpetrators” of colonisation are “part of us”: to think otherwise is to “sidestep our collective guilt.” But the guilt of the “original perpetrators” differs from the guilt of “later generations,” in that the latter experience “political” rather than “personal” guilt, and they have the option to break with the genocidal morality that has characterised Australian nationhood, to overcome their nation’s “moral illegitimacy.” In this way, she urges non-Indigenous Australians to “break the bonds of solidarity with the perpetrators of genocidal acts.”

Gray is not sure that the bond of solidarity can or should be broken. He has studied a series of government officials and one minister (“the protectors”) who had charge of Indigenous people in the Northern Territory from late in the nineteenth century until the 1960s. What did they think they were doing, he wonders. One possible meaning of Maddison’s “solidarity” is to understand “the perpetrators” as they saw themselves and, finding them reasonable in their own terms, effectively to forgive them. So when Gray asks, “Do we forgive wherever we understand?” he is more alert than Maddison to the moral complexity of historical inquiry. Indeed, by making an object of his own moral puzzlement, Gray presents himself as a kind of Innocent Abroad (the Past being his Other Country), beguiling the judges of the John Iremonger Award with his amiable narcissism.

It is easier to take Gray as seriously as – in his better moments – he wants to be taken, if we note that the nineteenth-century intellectuals who founded the modern discipline of history also posed his uneasy question. In June 1895 Lord Acton (J.E.E. Dalberg-Acton, Regius Professor of Modern History at Cambridge University) devoted part of his inaugural lecture to declaring an ethics of historical curiosity. To understand the ideas informing past actions is not to forgive those who performed them, Acton insisted. The historian is obliged to “try others by the final maxim that governs your own lives, and to suffer no man and no cause to escape the undying penalty which history has the power to inflict on wrong.” While Acton licensed the historian to judge, he urged the historian also to explore thoroughly the reasoning of even the most obnoxious of past actors, so that “we have made out for our opponents a stronger and more impressive case than they present for themselves.” Combining such impersonal understanding with moral judgement, those who undertake an historical perspective can “look with remorse upon the past, and to the future with assured hope of better things.” Otherwise, “if we lower our standard in History, we cannot uphold it in Church or State.”

Gray’s practice follows Acton’s prescription in one respect (he judges the protectors) but not consistently in the other (his exposition of the protectors’ ideas and their practical effects is patchy). His treatment of W. Baldwin Spencer is an example. Spencer was briefly (in 1912) the Commonwealth’s Chief Protector of Aborigines in the Northern Territory. In his Preliminary Report on the Aboriginals of the Northern Territory (1913) he described the four different conditions of vulnerability under which Aborigines lived at that time – as far as he could tell from Darwin – and he recommended what he believed to be measures to protect them from harm. Gray does not refer to this report, citing other writings by Spencer.

Gray tells us some of what Spencer recommended: reserves for Aborigines, including an urban compound, regulation of their conditions of employment, regulation of their marriages, and authority to take charge of an Aboriginal person’s affairs if that seemed necessary. (Gray does not tell us what abuses Spencer sought to check by using this power: unassisted Aborigines incriminating themselves in court; jailing convicted Aborigines when it would be more humane to hold them in some other kind of restraint.) Spencer’s recommendations, Gray writes, were intended to “prevent the unbridled exploitation of blacks,” including the sexual exploitation of women.

In rural districts, where the state’s authority hardly extended in 1912, the police were all that was available to enforce these “protections.” In Spencer’s view, the missions were an inadequate substitute for state authority, and, writes Gray, he “turned a blind eye to the slave-like conditions on most of the pastoral leases,” ignoring evidence of maltreatment. Gray attributes Spencer’s neglectful approach to the rural districts to his zeal for economic development and to his belief that the “full-bloods” could not be civilised and were “inexorably” becoming extinct. Gray tells us that Spencer veered between deploring this scenario and feeling neutral about it.

Gray’s account seems to me to be short of historical imagination in two respects. First, in the Northern Territory, state capacity was then extremely limited. Gray says nothing of state capacity, but it was demonstrably on Spencer’s mind (see page 17 of his 1913 report) as he considered his recommendations. Second, Gray would have been better to examine Spencer’s reasoning and recommendations in the 1913 report. Spencer did not use the word “inexorable” to describe the decline of the “full-blood” population. On the contrary, he was explicit that there was an alternative to their extermination. Aborigines could be “preserved” and “bettered” if large reserves (a minimum of 7000 square miles out of the Territory’s 523,620 square miles) were set aside for those who had yet little contact with colonists. Spencer also saw reserves as refuges for half-castes. True, he recommended that half-caste children be removed form their Aboriginal mothers and placed on “stations” if they were found living in a “native camp,” where he judged them to be too accessible to exploitive colonists. He recommended that generally the government should allow half-caste children to grow up “on reserves along with the natives, train them in the same schools and encourage them to marry among themselves.” Capable half-castes and Aborigines should be granted land (150 acres), he suggested.

The other figures with whom Gray deals maintained and greatly extended Spencer’s idea of using large reserves in Aborigines’ ancestral country as refuges and places of education. Cecil Cook, Paul Hasluck and Harry Giese were each strong defenders of reserves as devices for controlling alien contact with the least harmed Aboriginal people. Each of them discovered the difficulties of intervening constructively in reserve life to train and employ. Knowing what is best for Indigenous Australians became public policy’s curse, and the timetable by which citizens’ liberty or “self-determination” should displace paternalist authority was disputable. It is still. By the early 1950s, assimilation’s crusader, Hasluck, was projecting that “protection” would eventually become a barrier to Aboriginal advancement, but he was in no doubt as to the need for reserves in the foreseeable future, and this postulate governed senior public servant Giese’s assimilation practice (1955–72). Reserves became Aboriginal land in 1977, when traditional owners were empowered to regulate access for visitors. The right to refuse entry to aliens has recently been fiercely defended by the Northern Territory land councils. Thus Spencer’s 1913 recommendation persisted as the traditional owners’ power to “permit” visitors to Aboriginal land.

THE more sympathetic view of protection that I am urging here arises from my consideration of Noel Pearson’s writing and action.

First, on families and children. To be sure, under the ideals of “protection,” both church and government exercised their responsibility for child welfare in a high-handed and hurtful way, warranting the February 2008 apology. Obligations to Indigenous children continue to be the state’s most difficult area of responsibility. The post-apology alternative is to demand more of Indigenous parents. Pearson presents this pressure on parents – that some critics find so eerily indebted to state and church paternalism – as a means to pre-empt and limit child removal. To intervene in families may thus avoid one kind of censure (children to be left with mother and, if they are lucky, father) only to incur another (parents to be subject to conditional welfare entitlement). The best moment in Gray’s book, in my view, is his report of his conversation with former Northern Territory patrol officer Colin Macleod. Having pondered, in the 1950s, whether and how to intervene in Aboriginal families, Macleod challenges Gray, fifty years later, to do his own reflection. Gray admits to feeling “dazed” by this conversation, and it seems to reinforce rather than to undermine his commendable desire to “humanise and understand the perpetrators” and thus – I would add – to understand the impersonal structures of a colonial state.

Second, on reserves and missions as instruments of control. Pearson (who wrote his honours thesis on the history of Queensland’s Hope Vale mission) has made a point of re-periodising Australia’s colonial history so that we appreciate how recent was the most destructive impact of colonisation. According to Pearson, the most severe damage has been done to Cape York people since 1967 – including during the policy era (from around 1973) known as “self-determination,” when welfare payments became so significant to Aboriginal subsistence. In arguing that view, Pearson draws attention to the neglected economic history of his people. After the colonial disruption of the hunter-gatherer economy, was there an alternative to being dependent on charity, Pearson asks. As it happens, there were two, he writes in Up from the Mission:

Aboriginal society survived where it was isolated from the white economy, on settlements where people could endeavour to provide for themselves with the assistance of missionaries and “protectors” by creating an institutional subsistence economy, or where they could find some more stable place at the lower end of the white economy.

Pearson does not idealise these two paths, but that he has anything good to say about the settlements and missions is enough to question the emphasis that our historiography has given to the illiberality of these institutions. As I understand Pearson, his view of “protection” policy includes the fact that, in important respects, it was protective. Neither Maddison nor Gray considers this view (even if only to refute it). That is a greater failing on Gray’s part, as Pearson’s observations about “protection” in Cape York are relevant to “protection” in the Territory.

As Inga Clendinnen argued in her Quarterly Essay, The History Question: Who Owns the Past?, some years ago, to study the past is, in part, an exercise and development of our moral faculties. For Australians the study of the past is not so much a cognitive necessity (for most of us can function in our jobs and other departments of life without knowing much history) as a virtuous pursuit. This view animates both Maddison and Gray, and I agree with them. But let us allow our history to be complicated. Being “dazed” is but the first step. The history offered in the 2008 parliamentary apologies did not exhaust the ways that we can see the past through Indigenous Australians’ eyes. Part of Pearson’s challenge is to come to terms with what Indigenous Australians say to us not only about their suffering but also about their survival, at the hands of colonising power. •

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